                                        No. 02-410

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2002 MT 343N



IN THE MATTER OF A.R. and I.R.,

            Youths in Need of Care.



APPEAL FROM:       District Court of the Sixth Judicial District,
                   In and For the County of Park,
                   Honorable Ted L. Mizner, Judge Presiding


COUNSEL OF RECORD:

            For Appellant:

                   Suzanne C. Marshall, Marshall Law Firm, Bozeman, Montana

            For Respondents:

                   Honorable Mike McGrath, Attorney General; Jim Wheelis,
                   Assistant Attorney General, Helena, Montana

                   Tara DePuy, County Attorney; Brett D. Linneweber, Deputy
                   County Attorney; Livingston, Montana

                   Vuko J. Voyich, Anderson & Voyich, Livingston, Montana (Guardian
                   Ad Litem)

                   Brenda A. Gilbert, Swandal, Douglass, and Gilbert, Livingston,
                   Montana (Father)



                                                  Submitted on Briefs: October 31, 2002

                                                               Decided: December 27, 2002

Filed:

                   __________________________________________
                                     Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2      Julie, the natural mother of twin youths, A.R. and I.R., appeals from the May 14,

2002, Dispositional Order in which the District Court for the Sixth Judicial District granted

the State temporary legal custody of A.R. and I.R. for a period not to exceed 180 days. Julie

contends that the District Court failed to make specific findings of fact as to whether the

children were “abused” or “neglected” within the meaning of § 41-3-103, MCA. She also

contends that the District Court erred when it denied her motion to dismiss the youth in need

of care action due to the State’s failure to hold a hearing on the petition within ten days of

Judge Swandal’s recusing himself from the case. We affirm in part and remand for further

proceedings.

¶3     As a preliminary matter, the State contends that Julie has

only appealed from the May 14, 2002, Dispositional Order and thus

she cannot raise arguments about the earlier March 14 determination

that the twins were youths in need of care.                       Julie responds that

under      Rule     1(b)(1),        M.R.App.P.,        an     order      for     temporary

investigative authority and protective services is not a “final

judgment.” “Indeed, it is ordinarily the first order entered in an

abuse     and     neglect     proceeding       which     ultimately       may    encompass

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numerous orders and culminate in an order terminating parental

rights.”    In re B.P., 2000 MT 39, ¶ 19, 298 Mont. 287, ¶ 19, 995

P.2d 982, ¶ 19.     Thus, she contends that she was required to wait

until   a   final   adjudication     was   made    prior     to   any   appeal.

Furthermore, she contends that the May 14, 2002, Order incorporates

by reference the findings of the March 14, 2002, Order and thus an

appeal of the May order encompasses the March order.              We note that

the present matter involves an order of temporary legal custody and

is thus distinguishable from In re B.P., which involved an order of

temporary investigative authority.          Nonetheless, we agree with

Julie that since the March 14 order granting temporary legal

custody was incorporated into the final May 14, 2002, Dispositional

Order, its provisions are encompassed within the appeal from the

Dispositional Order.
¶4   The first issue raised by Julie is whether the court erred in

not dismissing the petition for failure to hold a hearing within

ten days of Judge Swandal recusing himself.

¶5   Section     41-3-432,    MCA,   provides     that,   with    regard   to   a

petition for immediate protective services, “[a] show cause hearing

must be conducted within 10 days, excluding weekends and holidays,

of the filing of an initial child abuse and neglect petition unless

otherwise stipulated by the parties pursuant to 41-3-434, or unless

an extension of time is granted by the court.”                In the present

matter, the petition for adjudication of I.R. and A.R. was filed on

December    7,   2001.       Thus,   pursuant     to   the   statutory     time

requirement, the show cause hearing had to be conducted by December



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21, 2001.    A hearing was set for December 21, 2001, at which time

Julie appeared with counsel.       However, shortly before the hearing

started, Honorable Nels Swandal recused himself from the case.

Julie stipulated to continue the hearing to allow a substitute

judge to be called. Some three weeks later, on January 7, 2002,

Judge Mizner accepted appointment as judge and a new hearing was

set for February 1, 2002.     At the February 1 hearing, Julie moved

to dismiss the petition on the basis that this delay violated her

constitutional right to a due process hearing within a reasonable

time after the removal of the children from her home. The District

Court denied the motion and continued with the hearing.
¶6     The record shows that at the December 21, 2001, hearing, Judge

Swandal indicated that, since he was recusing himself, he would

call   in   Judge   Mizner.   He   inquired   whether   there   were   any

objections.    There were none.    Judge Mizner’s subsequent order of

January 14, 2002, states that, “The parties conferred and agreed to

February 1, 2002, as the earliest available date for a hearing on

the petition for temporary legal custody . . . .”           It was not

however until the commencement of the February 1, 2002, hearing

that Julie, through counsel, objected that the delayed hearing

denied her right to due process of law. The State contends that

Julie waived any objection she had to the delay when she stipulated

to the calling in of a new judge and did not advise the court that

she expected a hearing to be scheduled within a certain period of

time. Furthermore, the record shows that she agreed with Judge

Mizner’s choice of February 1, 2002, as the earliest available



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date.    “We will not put a district court in error for an action to

which the appealing party acquiesced or actively participated. . .

.    Acquiescence in error takes away the right of objecting to it.”

 State v. LaDue, 2001 MT 47, ¶ 23, 304 Mont. 288, ¶ 23, 20 P.3d

775, ¶ 23 (citation omitted).    Here, although Julie did object at

the commencement of the February 1 hearing, by then it was too late

for the court to address her objection with an earlier setting.   We

conclude that, in acquiescing to the resetting of the hearing as

she did, Julie waived any objection that she had with regard to the

statutory requirement that a show cause hearing be held within ten

days of the filing of the petition.
¶7      Julie next objects to the insufficiency of the District

Court’s findings of fact.

¶8      In its Petition, the State alleged that A.R. and I.R. were

youths in need of care because Julie had: (1)        psychologically

abused or neglected the children through regular spankings or

hitting, verbal and mental abuse; (2) failed to provide them with

adequate sustenance; (3) failed to provide for the care of one of

the youths when ill; (4) failed to provide adequate shelter for the

youths by having separate beds for them to sleep in apart from her;

and (5) failed to provide supervision of the youths.

¶9      Julie correctly points out that § 41-3-437(7), MCA, requires

that, “Before making an adjudication, the court shall make written

findings on issues including but not limited to the following: (i)

which allegations of the petition have been proved or admitted, if

any; . . .” She contends that the court failed to make any specific



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written findings as to which allegations of the State’s petition

were proved or admitted as required by the above statute. Rather,

the court merely concluded that the twins were youths in need of

care pursuant to §§ 41-3-102(27) and 41-3-102(18), MCA.

¶10   Julie also contends that the court failed to make a finding as

to whether the youths were “abused or neglected” as required by our

holding in In re the Custody of M.W., 2001 MT 78, 305 Mont. 80, 23

P.3d 206.   In M.W., we stated at ¶ 46:

           For the District Court to have the jurisdictional
      authority to award DPHHS custody of M.W. and C.S., the
      court needed to determine that they were youths in need
      of care. In re J.B. (1996), 278 Mont. 160, 164, 923 P.2d
      1096, 1099.   A youth in need of care is defined as a
      “youth who is abused or neglected.”       Section 41-3-
      102(22), MCA (1997). A finding of abuse or neglect is
      therefore a jurisdictional prerequisite for a court to
      order the transfer of custody, and determination that
      M.W. and C.S. were youths in need of care would need to
      have been based on evidence of abuse or neglect by [the
      mother].

¶11   The State concedes that the court’s March 14, 2002, order, did

not make specific findings required by § 41-3-437(7)(a), MCA, nor

did it make the jurisdictional finding that the youths were “abused

or neglected.”      However, the State submits that when the March 14

order is read in conjunction with the subsequent May 14, 2002,

order, the statutory requirements were met.           We agree with Julie

that the nonspecific findings of the District Court do not satisfy

the   requirement    that   there   be   written   findings   as   to   which

allegations of the petition have been proved or admitted, if any.

Nor does it make a jurisdictional finding that the youths were

abused or neglected.        Accordingly, we remand this matter to the



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District Court for entry of specific findings of fact as required

by § 41-3-437(7), MCA, and by our holding in M.W.



                                    /S/ W. WILLIAM LEAPHART




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We concur:


/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE




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