                               No.    93-472
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1994



IN THE MATTER OF
F.H., J.K., and B.K.,
     Youths in Need of Care.

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APPEAL FROM:     ~istrict Court of the Thirteenth Judicial bistrict,
                 In and for the County of Yellowstone,
                 The Honorable Maurice R. Colberg, Jr., Judge
presiding.


COUNSEL OF RECORD:
             For Appellant:
                  Paul E. Toennis; Oliver, Graves    &    Toennis,
                  Billings, Montana

             For Respondent:

                  Hon. Joseph P Mazurek, Attorney General,
                               .
                  Helena, Montana
                  Curtis Bevolden, Attorney at Law, Billings
                  Montana (For Department of Family Services)
                  Damon Gannett; Gannett & ventrell, Billings
                  Montana (For Guardian At Litem)


                                      submitted on ~riefs: May 5, 1994
                                                 Decided:             J u l y 1 2 , 1994
Filed:
~usticeJohn Conway Harrison delivered the Opinion of the Court.


     S.T., the natural mother of B.K. and F.H., appeals an order of
the Thirteenth Judicial District Court, Carbon County, which
granted the Department of Family Services (DFS) temporary custody
of B.K. and F.H. until age eighteen.   We affirm.
     Two issues are presented:
     I Did the District Court err by failing to dismiss the youth
court action after DFS admitted that it failed to follow the
statutory procedure of    41-3-301, MCA (1991)--the 48-hour rule?
     I1     Did the District Court err by awarding DFS temporary
custody of B.K. and F.H. until age eighteen?
     S.T. is the natural mother of J.K., B.K. and F.H.     J.K. is
currently eighteen years of age, while B.K. is thirteen and F.H. is
five.
     DFS has had contact with S.T. and her children since August 3,
1989. From late 1989 through early 1991, DFS was granted temporary
custody of the children for four six-month intervals. During this
time, S.T.     signed four treatment plans, none of which were
completed.
        In February 1991, DFS requested an additional six months
temporary custody of the children.     Prior to any hearing on the
request, the parties entered a stipulation for family reunification
and S.T. signed another treatment plan.
     Based on S T '
               ..s    minimal compliance with that treatment plan,
and since S.T. signed a voluntary agreement to continue working
with DFS, on October 3, 1991, DFS requested dismissal of the
temporary custody order.      From December 1991, to January 1992,
various    concerns   surfaced   over    the   children's     stability,
educational, emotional and health needs.
       On January 28, 1992, DFS, pursuant to the emergency protection
statute--§ 41-3-301, MCA--removed B.K.    and F.H. from S.T.'s home.
J.K. refused placement and remained in the household.        on February
10, 1992, DFS filed a petition for the termination of S.T.'s
parental rights and permanent custody of the three children.           On
February 13, 1992, DFS amended the petition to terminate S.T.'s
parental rights and sought permanent custody of B.K.        and F.H.   DFS
also petitioned for temporary custody of J.K. until she reached age
eighteen. DFS and S.T. also executed another treatment plan which
S.T. did not complete during the eight months before trial.
       On March 20, 1992, S.T. moved the District Court to dismiss
the petition since DFS failed to file the termination and permanent
custody petition within 48 hours after using the emergency
placement statute--§ 41-3-301, MCA--to take the children. The court
denied this motion and the trial commenced on November 20, 1992.
The court issued its findings of fact and conclusions of law and
granted DFS temporary custody of B.K.    and F.H. until age eighteen.
B.K.   and F.H. were put in foster care and S.T.            was allowed
visitation, while J.K. remained in the physical custody of S.T.
subject to DFS supervision.
                                  I
       Did the District Court err by failing to dismiss the youth
court action after DFS admitted that it failed to follow the
statutory procedure of 5 41-3-301, MCA (1991)--the 48-hour rule?
     DFS conceded that the petition for termination and permanent
custody was not filed within 48 hours of the children's emergency
placement. On that basis, S.T. moved to dismiss the petition. The
District Court denied S T '
                       ..s    motion to dismiss and stated:
     a sanction of dismissal of a case involving kids to be
     protected is not appropriate    ...
                                      [ ;] there would have to
     be some other remedies for violating [the 48-hour rule]
     other than dismissal of a petition    ....
The court carefully balanced the technical statutory requirements
against the children's   best interest and ultimately decided to
protect the children.
     When, as here, a district court "engages in discretionary
action which cannot be accurately characterized as a finding of
fact or conclusion of law[,]"    we review the district court's
decision to determine whether the court abused its discretion.
Matter of D.H. and F.H. (Mont. 1994)' 872 P.2d 803, 806, 51 St.Rep.
386, 388 (citation omitted).     While we consider DFS'    conduct
unconscionable--not filing a petition within 48 hours--the conduct
does not warrant dismissal of the petition and is not reversible
error.
     In matters involving abused and neglected children we have
consistently held that a district court may protect the children's
best interest despite procedural errors.      -
                                              See   Matter of S.P.
(1990), 241 Mont. 190, 196, 786 P.2d 642, 645-46 (held harmless
error when DFS failed to provide father five days notice of
hearing); Matter of R.A.D. (1988), 231 Mont. 143, 155, 753 P.2d
                                 4
862, 869 (held no reversible error when court failed to grant
fourth continuance to mother who was in a psychiatric hospital);
Matter of R.M.B.    (1984), 213 Mont. 29, 33-34, 689 P.2d 281, 283
(held harmless error when court admitted hearsay) ; Matter of C.L.A.
and J.A. (1984), 211 Mont. 393, 399-400, 685 P.2d 931, 935 (held
harmless error when court did not allow parents to cross-examine
state witness as to the best interest of the children); Matter of
M.E.M. (1984), 209 Mont. 192, 195-98, 679 P.2d 1241, 1243-45 (held
no error when there were alleged violations of the Indian Child
Welfare Act) ; and Matter of A.J.S. (1981), 193 Mont. 79, 86-87, 630
P.2d 217, 222 (held harmless error when the district court's final
order of termination was twenty months after DFS removed the child
from the home).
     In this case, even though the petition was not filed until
thirteen days after the emergency placement of the children, the
District Court did not abuse its discretion when it concluded that
the children's best interest precluded dismissing the petition.
Any error in not following the strict procedure of 5 41-3-301, MCA,
was harmless since the best interest of the children was the
primary concern and since S T '
                           ..s          due process rights were not
violated.   In fact, S.T. received notice of each hearing, was
present at each hearing and presented evidence through her court-
appointed attorney at each hearing. The final termination hearing
was held some eight months after the petition was filed and during
that time S.T. was afforded another opportunity to complete a
treatment plan.    We hold that S T '
                                 ..s    rights were not prejudiced by
the failure to file the petition within 48 hours and, thus, the
District Court correctly denied her motion to dismiss the petition.
We also sound a stern warning to DFS to strictly follow the
statutory procedure in future cases or we will, in no uncertain
terms, punish its conduct which may result in potential harm to
abused and neglected children--the very children that DFS is
supposed to protect.
                                 II
     Did the District Court err by awarding DFS temporary custody
of B.K.   and F.H. until age eighteen?
     DFS petitioned the District Court for termination of S T '
                                                           ..s
parental rights and permanent custody of B.K. and F.H.   S.T. argues
that the petition was factually insufficient to terminate her
parental rights, since the petition alleged that she did not comply
with a treatment plan. According to S.T. no treatment plan was in
effect when the petition was filed and, thus, the District Court
erred by not dismissing the petition for failure to state a cause
of action. However, we note that after the petition was filed DFS
and S.T. agreed to enter a treatment plan which S.T. had eight
months to complete. She failed to complete the plan by the time of
the final hearing.     We conclude that the District Court did not
abuse its discretion when it failed to dismiss the petition.    The
petition, on its face, stated a cause of action and facts were
developed to prove that S.T. did not comply with the treatment
plan.
     Moreover, the District Court did not terminate S.T.'s parental
rights.   Even though the court found that the evidence justified
termination of S.T.'s   parental rights, the court--concerned with
the children's best interest--granted DFS temporary custody until
B.K. and F.H. reached age eighteen.
     Once a district court determines that a child is a youth in
need of care--abused, neglected or dependent-it     may grant DFS
temporary custody of that child until age eighteen.      Matter of
A.H., T.H., and J.A.H.    (1989), 236 Mont. 323, 328-29, 769 P.2d
1245, 1249. Here, the District Court properly found that B.K. and
F.H. were youths in need of care pursuant to 5 41-3-102(11), MCA
(1991).   After a careful review of the record we hold that the
District Court did not abuse its discretion when it granted DFS
temporary custody of B.K. and F.H. until age eighteen.
     Affirmed.




We concur:


     chief justice




          Justices
Justice James   C.   Nelson specially concurs.

     I am satisfied that Justice Gray's dissent is more legally
correct than is our opinion.           I, nevertheless, concur in the
Court's opinion only because I cannot conclude, on balance, that
the right of the mother to parent should take precedence over the
rights of the children to be free from abuse and neglect, when the
deciding factor is a technical violation of the 48 hour filing
deadline and where the mother has, otherwise, had ample opportunity
for notice and hearing.        In joining our opinion, however, I do not
in anyway condone DFS' failure to comply with the statute; there is
simply no justification for a public agency which is charged with
the responsibility of protecting fundamental rights, to not comply
with both the letter and spirit of the laws that govern its
operations. As Justice Gray correctly points out, it is, perhaps,
the unfortunate, but understandable, reluctance of the judiciary to
stringently enforce the letter of the law when to do so might
adversely affect the welfare of a child, that encourages and
contributes to the sort of administrative laxity that brings this
case before the Court. If the 48 hour deadline is unworkable, then
the legislature should change it.             Unless and until it does,
however, the requirements of the law are clear, and DFS has the
obligation to comply.      Hopefully some future abused or neglecte?
child   will   not    suffer    from   DFS'   failure to   recognize the
seriousness of this situation, when his or her case becomes the
straw that breaks the camel         back.          A
Justice Karla M. Gray, dissenting.


     I must respectfully dissent from the Court's opinion on issue
1, regarding whether the District Court erred by failing to dismiss
the youth court action after DFS admitted it failed to follow the
48-hour time requirement contained in 5 41-3-301, MCA (1991).
Because it is my view that the District Court must be reversed on
that issue, I would not reach issue 2.
     Cases involving youths in need of care are among the most
difficult faced by this Court.    I have on a number of occasions
joined the Court in allowing DFS to depart from relatively clear
statutory requirements. On some of those occasions and not unlike
my brethren, I suspect, I have done so because of the overriding
and overwhelming importance of protectingthe best interests of the
children of Montana. In this case involving an emergency situation
for which a clear and unequivocal statutory time frame has been
imposed by the legislature and where we previously have warned DFS1
predecessor agency regarding its failure to comply with the law, I
cannot agree with the Court that it is sufficient to characterize
DFSp conduct as unconscionable and issue another warning.
     The statute at issue here needs no interpretation; it provides
that, absent circumstances not at issue here, I1[a] petition shall
be filed within 48 hours of emergency placement of a child   .... 11


Section 41-3-301(3), MCA (1991). Here, DFS admits that it did not
meet the statutory requirement.      On motion for dismissal by the
natural mother, S.T., it is my view that the District Court was
required to dismiss the action on the basis of DFS' failure to
comply with the clear statutory mandate.
      The Court quotes the District Court's         discomfort with
dismissal under the statute:
      [A] sanction of dismissal of a case involving kids to be
      protected is not appropriate  ...   [ ; I there would have
      to be some other remedies for violating the [48-hour
      rule] other than dismissal of a petition.
This is almost certainly the same kind of reaction most of the
judiciary, including myself and this Court, has had to the prospect
of dismissing a petition.      At the very least, we are as judges
extremely troubled at the idea that a child ultimately could be
harmed by our requiring DFS to comply with the law.      The problem
with this approach is that it results in judicial amendment of
legislative enactments; because of our fear, we conclude that
dismissal of a case ltinvolvingkids to be protected is not
appropriate."   Similarly, while we might wish--with the District
Court--that there were some other remedy for a violation of the 48-
hour rule by DFS, the legislature has provided no such remedy.
Whatever our fears, the fact remains that the legislature has
enacted a mandatory time frame within which DFS must file a
petition in an emergency protective services situation pursuant to
§   41-3-301, MCA (1991). It is our job to require adherence.
      Furthermore, we previously have condemned disregard of the
statutory 48-hour rule by DFS1 predecessor agency:
      [Tlhis Court strongly condemns the negligent disregard of
      [the predecessor statute] by the SRS and county attorney.
      By statute, a petition shall be filed within 48 hours
      following the emergency removal and placing of a youth in
      a protective facility. SRS failed to comply in this
     case. SRS was acting under the guise of the law when it
     removed the children.     SRS therefore has a duty to
     strictly adhere to the requirements of that same law.
     Removal of children from their parents is an area too
     sensitive to allow any abuse or noncompliance of the law.
In re Gore (1977), 174 Mont. 321, 329, 570 P.2d 1110, 1115
(emphasis in original). This clear statement of the duty to comply
with the statute apparently had no impact whatever in how state
agencies regard the law and this Court.      Yet, in the case now




-
before us, the Court not only does not require adherence by
dismissing DFS1 petition, it ignores its own clear warning in-
     that the statute would be applied as written in the future.
I simply cannot fathom this Court allowing itself, the district
courts and the families of Montana to be held hostage by DFS in
such a manner.
     Moreover, the Court incorrectly applies an abuse of discretion
standard to the District Court's action in determining whether to
dismiss the petition for failure to comply with the 48-hour rule.
While it is true that that standard applies to "discretionary
actionsgt
        and was properly applied to the question of abandonment in
Matter of D.H. and F.H., on which the Court relies, it is my view
that no discretion was involved here because the statute is clear
and unequivocal in requiring that a petition be filed within 48
hours. If the statute provided for the kind of Itcarefulbalancing"
between the statutory time requirement and the best interests of
the children the Court seems to suggest would be appropriate, I
would agree to the application of the abuse of discretion standard.
The statute, however, does not so provide.
     Nor is the "remedytr result here inappropriate or difficult
                        or
to conceptualize. The DFS petition should be dismissed for failure
to comply with 5 41-3-301(3), MCA (1991), and the children returned
to their home.   If and when DFS is prepared to pursue the matter
within legal strictures imposed by the legislature to protect the
very fundamental and critically important rights of both the mother
and the children, it should do so.
     The courts of Montana have labored diligently to prevent
potential harm to children by countenancing errors by DFS not
permitted by applicable statutes.    We have done so, as the Court
observes, in matters rlinvolvingabused and neglected children.Iv
But the operating premise seems to be based on an ex ante
conclusion that the children are, indeed, abused and neglected. In
other words, we allow DFS to far overstep its bounds presuming from
the outset that DFS' determinations about the children are correct.
In addition, none of the many cases cited by the Court for allowing
such "procedural errors" involves this most intrusive act by DFS of
removing children from their parents and their home in advance of
any court proceedings whatsoever; those cases involve procedural
occurrences well after the initiation of court proceedings to
oversee DFS1 actions.
     It is my view that this is the place where we must draw the
line.   We must recognize that parents have rights, too: that the
children's "best interests" do not automatically coincide with DFS'
view of those interests: that permitting DFS to act under an
           statute designed to protect the rights of all concerned
lfemergencyl'
simply does not square with allowing it to simultaneously disregard
the time requirements of that statute.      As all of us are held
accountable by the law for our actions, so must we hold DFS
accountable to legal requirements imposed on    its actions by the
legislature.    To do otherwise is to place an agency of government
both above and beyond the law.   Notwithstanding the importance of
DFSv   mission, I cannot agree with such a result.
