text:
    STATE of Montana, Plaintiff and Appellee, v. Corey D. JENSEN, Defendant and Appellant.
    DA 17-0469
    Supreme Court of Montana.
    Submitted on Briefs: February 13, 2019 Decided: March 19, 2019
    For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana, Steven C. Haddon, Jefferson County Attorney, Andrew W. Paul, Deputy County Attorney, Boulder, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 A Jefferson County jury found Corey D. Jensen guilty of two counts of criminal endangerment, one count of driving under the influence of alcohol, and one count of open container violation. Jensen was charged after he drove a dangerous section of I-15 at speeds up to 150 miles per hour. Jensen appeals the criminal endangerment convictions, arguing that the District Court erred in denying his proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On September 21, 2015, shortly after 1:00 p.m., Montana Highway Patrol ("MHP") Trooper Michael Zufelt was traveling northbound on I-15 when he witnessed a lime green Dodge Challenger, whose driver was later identified as Jensen, traveling southbound between mile markers 176 and 177 at a high rate of speed. Zufelt clocked Jensen traveling 125 miles per hour in a 75-miles-per-hour zone. Zufelt crossed the median and turned around to initiate a traffic stop. Zufelt did not turn on his lights and sirens for approximately a mile to a mile and a half. He testified that "at that kind of speeds" he did not want to alarm other drivers traveling on the road by turning on his emergency lights, so he waited until he got around those vehicles. When Zufelt turned his lights and sirens on, Jensen was traveling in the passing lane approximately a quarter to half a mile in front of Zufelt. Zufelt reached a maximum speed of 150 miles per hour and was unable to catch up to Jensen. At approximately mile marker 162, just south of Boulder, Zufelt chose to terminate the pursuit due to safety reasons and requested his dispatch to contact Butte troopers to let them know that the vehicle was possibly headed in their direction. By the time Zufelt discontinued his pursuit, Jensen had passed 17 different vehicles at a high rate of speed.

¶3 Jesse Hauer was driving one of the southbound vehicles that Jensen passed. Hauer testified that when the car passed him he heard a "scream to the left" of him, and the friend he was talking with over the Bluetooth system asked what the noise was. Because he did not feel safe, Hauer hung up his phone call and called his office to have them contact 911 and report that someone was going up around the corners of the pass at a high rate of speed and to see if they could get the vehicle slowed down or stopped. Hauer testified that he was worried that a car traveling that fast could collide with another vehicle and cause "serious injury at the very least." Hauer testified further that there is a "dip in the pass" on the passing lane that he personally slows down through because "it wants to throw you to the right-hand side of the lane as you're going the speed limit," and he could only "imagine what that felt [like] going at a high rate of speed."

¶4 Dispatch notified MHP troopers in Butte that the vehicle was possibly headed in their direction. Several troopers left Butte traveling northbound to locate the vehicle. Trooper Joseph E. Wyant located Jensen and clocked him driving 111 miles per hour. Trooper Wyant immediately turned on his emergency lights and sirens and "entered the median traveling directly at [Jensen]" to get him to slow down or stop. Jensen did not stop and continued southbound. Trooper Wyant accelerated his patrol vehicle to a top speed of 130 miles per hour, but he was unable to catch up to the vehicle.

¶5 MHP Sergeant Dave Oliverson also responded to the dispatch. Sergeant Oliverson, who has special training in investigating crash scenes, testified that "typically, in [his] experience, crashes that involve high rates of speed do result in either serious injury or even possibly death." He parked south of Trooper Wyant on a bridge at the crest of a hill to prepare for "spiking" the vehicle's tires. Sergeant Oliverson deployed the stop sticks in the median so that he could pull them across both lanes. Sergeant Oliverson saw Jensen brake rapidly when he crested the hill near the area where Sergeant Oliverson waited on the shoulder. Jensen ran over the stop sticks at approximately 10 to 15 miles per hour, deflating two of his tires, at which point he stopped his car. Sergeant Oliverson ordered Jensen out of the vehicle. Jensen asked Sergeant Oliverson why he punctured his tires. Sergeant Oliverson responded, "because [you were] running from the police." Trooper Zufelt caught up to the scene after Jensen was removed from the vehicle. He asked Jensen why he would not pull over for the emergency lights and sirens, and Jensen responded that "he liked driving fast, and he was a good driver." After troopers found an open container that Jensen admitted contained Pepsi and Jim Beam whiskey, the stop ripened into a DUI investigation.

¶6 The State charged Jensen with DUI, third offense, in violation of § 61-8-401, MCA ; ten counts of felony criminal endangerment, in violation of § 45-5-207, MCA ; misdemeanor possession of an open container, in violation of § 61-8-460, MCA ; misdemeanor fleeing/eluding a peace officer, in violation of § 61-8-316, MCA ; and misdemeanor reckless driving, in violation of § 61-8-301, MCA. The reckless driving charge later was removed in an amended information. Prior to trial, the State reduced the previously charged ten counts of criminal endangerment to two, one for Hauer and one for the other cars Jensen passed.

¶7 Jensen proposed jury instructions on the lesser included offense of negligent endangerment.

The District Court reserved ruling on the issue until the close of the evidence. Jensen renewed his request at that time. The court declined to give Jensen's proposed instruction, concluding that the evidence did not support a finding that Jensen did not act knowingly. Following a two-day trial, the jury convicted Jensen of DUI (third offense), two counts of criminal endangerment, and the open container violation. The jury found Jensen not guilty of fleeing/eluding a peace officer.

STANDARD OF REVIEW

¶8 We review a district court's refusal to give an instruction on a lesser included offense for an abuse of discretion. State v. Russell , 2016 MT 268, ¶ 12, 385 Mont. 208, 383 P.3d 198. A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Russell , ¶ 12. We review claims of instructional error in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. Russell , ¶ 12.

DISCUSSION

¶9 A person commits the offense of criminal endangerment when he "knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another." Section 45-5-207(1), MCA. A person commits negligent endangerment when he "negligently engages in conduct that creates a substantial risk of death or serious bodily injury to another." Section 45-5-208(1), MCA. Negligent endangerment is a lesser included offense of criminal endangerment because the only difference between the two offenses is the mental state with which the accused acts. State v. Shegrud , 2014 MT 63, ¶ 12, 374 Mont. 192, 320 P.3d 455. A person acts knowingly for the purposes of criminal endangerment when the person is aware "of the high probability that the conduct in which he is engag[ed] ... will cause a substantial risk of death or serious bodily injury to another." State v. Lambert , 280 Mont. 231, 237, 929 P.2d 846, 850 (1996). In contrast, a person acts negligently for the purposes of negligent endangerment when the person consciously disregards the risk that his conduct will result in a substantial risk of death or serious bodily injury to another or when the person disregards a risk of which the person should be aware that such a result will occur. Section 45-2-101(43), MCA.

¶10 "A lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense." Section 46-16-607(2), MCA. Two criteria must be met before a defendant is entitled to a lesser included offense instruction. First, the offense must actually constitute a lesser included offense of the offense charged, and second, there must be sufficient evidence to support the included offense instruction. State v. Freiburg , 2018 MT 145, ¶ 13, 391 Mont. 502, 419 P.3d 1234. Regarding the second criterion, a lesser included offense instruction is not supported by the evidence if it "shows clearly that the defendant acted knowingly" or if "the defendant's evidence or theory, if believed, would require an acquittal." Shegrud , ¶ 13.

¶11 Jensen contends that, in light of the evidence presented, a rational jury could have been warranted in finding that he acted negligently, rather than knowingly, when he made the decision to drive at speeds of up to 75 miles per hour over the posted speed limit. Jensen maintains that because there was no proof that he knowingly failed to obey law enforcement signaling him to stop and because he was not driving erratically, the evidence did not clearly establish that he acted "knowingly." The State counters that the testimony describing Jensen's actions established that Jensen was aware of his actions and the risk they created and supported only a finding that he acted knowingly, not negligently.

¶12 In State v. Martinosky , 1999 MT 122, ¶ 8, 294 Mont. 426, 982 P.2d 440, after a high-speed pursuit in a residential area that ended in a truck crashing into a garage and house, Martinosky was charged with DUI and criminal endangerment. We held that the trial court did not err in refusing the defendant's proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment. Martinosky , ¶ 22. This Court evaluated the evidence concerning Martinosky's mental state and recognized that in response to a patrol car's lights and sirens, Martinosky chose to run two stop signs and a traffic light while traveling at speeds of up to 65 miles per hour in a residential area, and he made the choice to continue to evade law enforcement. Martinosky , ¶ 21. We recognized that the evidence established that Martinosky was "fully aware of his actions and the probable outcome of those actions, thus acting knowingly." Martinosky , ¶ 22.

¶13 In State v. Russell , 2016 MT 268, ¶ 1, 385 Mont. 208, 383 P.3d 198, Russell was charged with criminal endangerment after engaging in a high-speed pursuit with law enforcement and driving erratically, badly damaging her car and causing oncoming traffic to swerve to avoid collision. Relying on Martinosky and the evidence demonstrating that Russell acted knowingly, we held that the district court did not abuse its discretion in finding the evidence insufficient to support an instruction on the lesser included offense of negligent endangerment. Russell , ¶ 25. Russell professed confusion over the reason she was stopped, asking numerous times why she was in trouble and telling officers she did not think she had been "running" from them. Russell , ¶ 9. The record nonetheless showed that Russell was aware that she was fleeing from the police because after an initial traffic stop, she swore at the officer, then sped away, refusing to stop again for multiple officers who had their emergency lights and sirens activated. Russell , ¶ 22. During the pursuit, Russell used her brakes and turn signal, illustrating her general awareness while driving. Russell , ¶ 23. We held that these facts taken together demonstrated Russell's knowledge that she was eluding police. Russell , ¶ 23. We observed that Russell's "extreme behavior"-driving at high speeds, forcing oncoming traffic to take evasive measures, and driving on a flat tire with an exposed rim-demonstrated knowledge that she engaged in conduct creating a substantial risk of death or serious bodily injury to another. Russell , ¶ 24.

¶14 We reached the opposite conclusion in Shegrud based on the evidence presented at trial. Law enforcement had received a report of a maroon truck driving erratically. Soon after, an officer located a red truck at a stop sign. As the officer followed it, he observed no erratic driving. Shegrud , ¶ 3. Shegrud stopped at a gas station, and officers made contact with him and saw a child in his vehicle. An officer noticed an odor of alcohol, leading him to believe Shegrud was impaired. Shegrud , ¶ 4. Shegrud admitted to consuming two beers and his prescribed Oxycodone. Shegrud , ¶ 5. Shegrud was charged with DUI and criminal endangerment. Shegrud , ¶ 5. We held that the District Court erred in declining Shegrud's proposed jury instruction of negligent endangerment. Shegrud , ¶ 19. Shegrud "did not flee law enforcement or even respond to questioning evasively." Shegrud , ¶ 14. There was no expert testimony that Shegrud was impaired, his BAC was under the legal limit, and officers observed no erratic driving. Shegrud , ¶ 16. Because the evidence was not conclusive that Shegrud acted knowingly, the facts were sufficient to support both criminal endangerment and negligent endangerment, and the district court should have instructed the jury on the lesser included offense. Shegrud , ¶ 17.

¶15 When the District Court refused Jensen's proposed negligent endangerment instruction, it reasoned:

Ok. I've had a chance actually to look over numerous cases on this. I'll note for the record Martinosky , Shegrud , and Russell , while I do not believe that this rises to the extent of Russell as you mentioned. What I do see and what I remember from the testimony is that there was driving that showed certain characteristics here. Driving in the passing lane to pass people. I think that showed what was going on at the time.
I do remember the testimony from both officers. Of Zufelt, while he didn't turn on his lights right away, he did testify that there was an increase of speed and pulling away as he crossed the median. Trooper Wyant testified, to my recollection, that as he saw the car coming, he got into the median of the road driving directly at the lime green Charger [sic] that was in the passing lane and had his lights on and siren on. He then turned around, and the car did not not stop for three to four miles. I find from that driving action, I think that it is analogous in this case to a certain extent in Russell and I'm not going to give the lesser included.

¶16 We conclude that the District Court did not abuse its discretion. Jensen was not just speeding or engaging in risky behavior. The record shows that Jensen-traveling with a mixed drink in the console-drove at an alarmingly high rate of speed, passing multiple vehicles. Trooper Zufelt testified that when he crossed the median Jensen increased his speed and then pulled away as the trooper followed with his lights and sirens on. Trooper Wyant testified that he crossed the median and drove "directly" at Jensen with his lights and siren on. Hauer's fear when Jensen "scream[ed]" past him that he would cause a serious accident led him to seek law enforcement assistance. Whether Jensen lacked specific intent to injure anyone, he knowingly drove down a winding and mountainous highway at up to 50 to 75 miles per hour over the posted speed limit. His driving at speeds up to double the posted speed limit on that stretch of highway at a busy time created a substantial risk of death or serious bodily injury to others. Jensen told the troopers he liked to drive fast, but gave no indication that he had not noticed them in pursuit. The record supports the District Court's conclusion that Jensen acted knowingly by driving up to 150 miles per hour on a mountainous stretch of highway and overtaking multiple vehicles on the pass, with patrol cars following, their emergency lights and sirens activated. The District Court did not abuse its discretion in concluding that the evidence was insufficient to warrant a reasonable jury finding Jensen guilty of negligent endangerment. See Martinosky , ¶ 22 ; Russell , ¶ 24.

CONCLUSION

¶17 We affirm the District Court's refusal of Jensen's proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment.

We Concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF: S.C.L., a Youth in Need of Care.
    DA 18-0274
    Supreme Court of Montana.
    Submitted on Briefs: January 9, 2019 Decided: March 19, 2019
   For Appellant: Kelly M. Driscoll, Montana Legal Justice, PLLC, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County Attorney, Missoula, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 A.C.L. (Mother) appeals from an order of the Fourth Judicial District Court, Missoula County, terminating her parental rights to her child S.C.L. (Child). We affirm.

¶2 The issue on appeal is:

Whether the District Court abused its discretion in terminating Mother's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In October 2016, Mother delivered Child in a hospital bathroom.

Child tested positive for methamphetamine at birth and the Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) removed Child from Mother's care. Mother told the Department who she believed the Child's father (Father) was, but paternity was never confirmed. The Department eventually lost contact with him. At the time of Child's removal, Mother had three prior children, none of whom resided with Mother. Two of the children were placed with their maternal grandmother through a guardianship proceeding and the other child was placed with his paternal grandparents through a private parenting plan.

¶4 On October 25, 2016, the Department filed a Petition for Emergency Protective Services (EPS), Adjudication of Child as a Youth in Need of Care (YINC), and Temporary Legal Custody (TLC) of Child. The District Court granted EPS on October 26, 2016. In December 2016, the District Court found that the Indian Child Welfare Act (ICWA) did not apply to Child. On December 21, 2016, the District Court adjudicated Child as a YINC and granted the Department TLC. Mother was not present and the court entered her default. On March 7, 2017, the court found Mother's treatment plan appropriate and ordered her to complete it. Over the next several months, Mother failed to meet with the Department to go over her treatment plan and did not complete any of the required tasks. Mother failed to attend many of the hearings in this matter.

¶5 On December 4, 2017, the Department petitioned to terminate Mother's and Father's parental rights to Child. In its petition to terminate Mother's parental rights, the Department cited that Mother failed to complete the treatment plan, that Mother was unlikely to change the conduct or condition rendering her unfit to parent Child within a reasonable time, and that Mother abandoned Child. Section 41-3-609(1)(b), (d), (f), MCA. On December 7, 2017, Mother failed to attend a permanency hearing. The District Court scheduled a termination hearing on February 2, 2018, for which Father was served by publication and Mother was hand-served while incarcerated at the Missoula County Detention Facility. Mother attended the termination hearing and testified on her own behalf. On April 18, 2018, the District Court issued a thirty-page order terminating Mother's and Father's parental rights to Child. The District Court terminated Mother's parental rights pursuant to § 41-3-609(1)(f), MCA. The District Court found Mother failed to complete her treatment plan and the condition or conduct rendering her unfit, unwilling or unable to parent was unlikely to change within a reasonable time. The District Court found:

The conduct or condition of Mother renders her unfit, unable or unwilling to provide adequate parental care to [Child]. This conduct or condition is unlikely to change within a reasonable time as demonstrated by Mother's history of substance use and chemical dependency, Mother's history of not being in a safe position to care for her older children, Mother's abandonment of [Child] for nearly 8 months during this proceeding, Mother's lack of engagement in the reunification process, Mother's unwillingness to comply with the main objectives of her Treatment Plan, Mother's unwillingness to follow through with treatment services and service providers, Mother's failure to timely address the issues that caused [Child] to be adjudicated as a [YINC], and Mother's lack of meaningful change since the birth and removal of [Child].

Mother appeals.

STANDARD OF REVIEW

¶6 This court reviews a district court decision to terminate parental rights for an abuse of discretion. In re A.S. , 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848 ; In re K.A. , 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. A district court abuses its discretion if it terminates parental rights based on clearly erroneous findings of fact, incorrect conclusions of law, or otherwise "act[s] arbitrarily without employment of conscientious judgment or exceed[s] the bounds of reason resulting in substantial injustice." In re M.V.R. , 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058 ; In re I.M. , 2018 MT 61, ¶ 13, 391 Mont. 42, 414 P.3d 797. Findings of fact are clearly erroneous if not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if this Court has a definite and firm conviction that the lower court was mistaken. In re J.B. , 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715. We review conclusions of law de novo for correctness. In re D.E. , 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586.

DISCUSSION

¶7 Whether the District Court erred in terminating Mother's parental rights.

¶8 Mother argues on appeal that the District Court erred in terminating her parental rights. While Mother concedes she did not comply with the approved treatment plan, she argues that the conduct or condition rendering her unfit to parent Child was likely to change within a reasonable time.

¶9 Specifically, Mother argues that the District Court's reliance on evidence of her past inability to care for her older children to conclude Mother was unlikely to change within a reasonable time violated Mont. R. Evid. 404(b). Contrary to Mother's argument, this Court has consistently found:

[T]o determine whether the conduct or condition rendering a parent unfit is likely to change within a reasonable time, the District Court is required to assess the past and present conduct of the parent. We do not have a crystal ball to look into to make this determination, so it must, to some extent, be based on a person's past conduct .

In re J.C. , 2003 MT 369, ¶ 11, 319 Mont. 112, 82 P.3d 900 (emphasis added); In re I.M. , 2018 MT 61, ¶ 34, 391 Mont. 42, 414 P.3d 797 ; In re C.B. , 2014 MT 4, ¶ 23, 373 Mont. 204, 316 P.3d 177.

¶10 The District Court's consideration of Mother's history and her inability to care for her older children did not violate M. R. Evid. 404(b). This evidence was not used to prove Mother's character and then demonstrate she acted in conformity therewith. The same concerns prompting the Department's involvement in this case-untreated chemical dependency, continued drug use, and instability resulting in Mother's inability to provide safe care for her children-prompted the Department's previous involvement with Mother and her older children. Mother has not successfully addressed the parenting deficiencies which render her unfit, unable, or unwilling to parent.

¶11 Mother did not engage with the Department throughout this proceeding, Mother's older children are not in her care, and the Department continues to have the same concerns now that it had when it was previously involved with Mother. Given the duration of the conduct rendering Mother unfit to parent and Mother's failure to rehabilitate or progress during that time, the District Court reasonably concluded that Mother's conduct was unlikely to change within a reasonable period of time. The District Court's consideration of Mother's past inability to care for her older children was more akin to proof of knowledge or absence of mistake. Mother had previously been through this process with the Department, knew what was expected of her, and still did not participate in a meaningful way.

¶12 Mother's assertion that M. R. Evid. 404(b) applies to abuse and neglect proceedings, including termination of parental rights proceedings pursuant to § 41-3-609, MCA, is inaccurate. The Montana Rules of Evidence apply to abuse and neglect proceedings "except as modified in" Chapter 3, Title 41 of the Montana Code Annotated. Section 41-3-422(4), MCA. This Court has previously held that "the District Court is required to assess the past and present conduct of the parent" in determining whether the conduct or condition of a parent is likely to change. In re J.C. , ¶ 11. Thus, even if the District Court's ruling can be construed to conflict with M. R. Evid. 404(b), termination of parental rights pursuant to § 41-3-609(2), MCA, requires the district court to consider a parent's past and present conduct in deciding whether the conduct rendering the parent unfit, unwilling, or unable to parent is likely to change within a reasonable time. The District Court properly considered Mother's past conduct regarding her three older children together with her conduct throughout this proceeding to conclude Mother's conduct was unlikely to change within a reasonable time.

¶13 The District Court's reliance on Mother's history regarding her other children was only one of many factors the court relied upon in its determination to terminate Mother's parental rights. Overwhelming evidence supports the District Court's determination that the conduct or condition rendering Mother unfit, unwilling, or unable to parent was unlikely to change within a reasonable time. Mother failed to: meet with the Department to go over her treatment plan; contact Child for approximately eight months during this cause; consistently attend visits with Child; complete parenting classes; enroll in and complete the SafeCare parent training program; follow through with referrals; engage in and complete a chemical dependency evaluation and treatment; consistently participate in random drug testing; demonstrate an ability to remain free from the use of dangerous drugs;

complete a psychological evaluation; enroll in and attend counseling; secure consistent safe and stable housing; and engage and maintain consistent contact with the Department.

¶14 Mother next argues the District Court abused its discretion when it found termination of Mother's parental rights was in Child's best interests. Section 41-3-604(1), MCA, provides if a Child is in a foster placement for fifteen of the most recent twenty-two months, there is a presumption that termination is in the Child's best interests. Mother did not provide any evidence the District Court or this Court could utilize to overcome this presumption, arguing only that a long-term placement had not yet been identified. Lack of an identified permanent placement alone does not overcome this presumption. Mother asserts that a guardianship with Child's grandmother would be more appropriate than the termination of her parental rights. However, the issue before this Court is whether the District Court abused its discretion in terminating Mother's parental rights in Child's best interests. While this Court continues to encourage Montana courts to consider guardianships as viable means of attaining timely permanency for children in dependency and neglect proceedings, Mother gave neither the District Court nor this Court any basis to overcome the presumption that termination was in Child's best interests.

CONCLUSION

¶15 The District Court properly considered Mother's past and current conduct in determining whether the conduct or condition rendering Mother unfit, unable, or unwilling to parent was likely to change within a reasonable time. The District Court did not abuse its discretion in finding Mother did not overcome the presumption that termination was in the Child's best interests or in terminating Mother's rights to Child.

¶16 Affirmed.

We concur:

LAURIE McKINNON, J.

BETH BAKER, J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

      Mother was at times out of state and out of contact with her attorney. Two days before the final hearing, Mother gave birth to her fifth child. This child also tested positive for methamphetamine at birth.

      Mother's parental rights were terminated under § 41-3-609(1)(f), MCA, which requires "(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time."

      "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M. R. Evid. 404(b).


text:
    STATE of Montana, Plaintiff and Appellee, v. Samantha Lee NELSON, Defendant and Appellant.
    DA 17-0609
    Supreme Court of Montana.
    Submitted on Briefs: January 30, 2019 Decided: March 19, 2019
    For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana
   Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Samantha Nelson (Nelson) appeals from a criminal sentence imposed by the Nineteenth Judicial District Court, Lincoln County. We affirm and address the following issue:

Did the District Court err by determining that § 46-18-201(1)(b), MCA, barred it from deferring the defendant's sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In May 2017, the State charged Nelson with felony criminal possession of dangerous drugs. Nelson pleaded guilty. The State and Nelson agreed to jointly recommend a two-year deferred sentence if Nelson was eligible and, if not, a two-year suspended sentence. It was later revealed that, in 2015, an Arizona state court convicted Nelson of second degree escape, a class five felony in Arizona with a maximum potential sentence of two years' imprisonment for a first-time felony offender. See Ariz. Rev. Stat. § 13-702(A)-(D). The Arizona court, however, sentenced Nelson to seventeen days in jail and one year of supervised probation. Nelson eventually discharged her one-year probation term.

¶3 Section 46-18-201(1)(b), MCA, provides that a court may not defer an offender's sentence in a felony case if she was previously convicted of a felony. The State and Nelson disagreed as to whether Nelson's Arizona conviction was a felony under § 46-18-201(1)(b), MCA. Nelson argued it was not a felony in Montana based on the sentence actually imposed by the Arizona court; the State argued it was a felony as designated by the Arizona court. The District Court ultimately agreed with the State and concluded Nelson's Arizona conviction was a felony that barred her from receiving a deferred sentence. The court accordingly imposed a two-year suspended sentence, as agreed to by the parties in the event Nelson was not eligible for a deferred sentence. Nelson appeals.

STANDARD OF REVIEW

¶4 District courts have broad discretion in determining an appropriate punishment and this Court only reviews a criminal sentence for legality-i.e., whether the sentence is within statutory parameters. State v. Webb , 2005 MT 5, ¶ 8, 325 Mont. 317, 106 P.3d 521. A district court's statutory interpretation is a question of law, which we review for correctness. Webb , ¶ 8.

DISCUSSION

¶5 Section 46-18-201(1)(b), MCA, provides that a sentencing judge may not defer an offender's sentence in a felony case if the offender was "convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended." In other words, a sentencing judge may only defer a first-time felony offender's sentence; he may not defer a felony sentence if the offender was "convicted of a felony on a prior occasion," regardless of whether the sentence was imposed, deferred, or suspended. Section 46-18-201(1)(b), MCA. In this case, we must determine whether a prior conviction is a felony that bars the sentencing judge from deferring the offender's sentence under § 46-18-201(1)(b), MCA, when the offender actually received a sentence of less than a year of imprisonment for the prior offense, although her potential sentence could have exceeded one year. Nelson argues a prior conviction is a felony under § 46-18-201(1)(b), MCA, only if the court actually sentenced the offender to imprisonment in a state prison for a term exceeding one year. The State, on the other hand, argues a prior conviction is a felony under § 46-18-201(1)(b), MCA, if the prior conviction's maximum potential sentence was death or imprisonment in a state prison for a term exceeding one year. For the reasons set forth below, we agree with the State and conclude a prior conviction is a felony under § 46-18-201(1)(b), MCA, if the prior conviction's maximum potential sentence was death or imprisonment in a state prison for a term exceeding one year.

¶6 When interpreting a statute to discern legislative intent, "we first look to the statute's plain language. If that language is clear and unambiguous, no further interpretation is required." State v. Hastings , 2007 MT 294, ¶ 14, 340 Mont. 1, 171 P.3d 726. "In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section 1-2-101, MCA.

¶7 Nelson urges us to use Title 45, MCA's narrow definition of "felony" to define a prior "felony" conviction under § 46-18-201(1)(b), MCA. Section 45-2-101, MCA, first provides that "the following definitions apply in [Title 45]." The statute then defines "felony" as "an offense in which the sentence imposed upon conviction is death or imprisonment in a state prison for a term exceeding 1 year." Section 45-2-101(23), MCA. The statutory definition is narrow; it classifies an offense as a felony based on the actual sentence imposed. While the definition of "felony" in Title 45, MCA, may be helpful in ascertaining the term's general meaning, § 45-2-101, MCA, explicitly explains that its definitions only apply in Title 45, MCA, and applying that definition to the term "felony" in § 46-18-201(1)(b), MCA, creates an internal inconsistency in the statute.

¶8 "Whenever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears." Section 1-2-107, MCA. Section 46-18-201(1)(b), MCA, provides that a sentencing judge may not defer a sentence in a felony case when the offender has a prior felony conviction, regardless of "whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended." The statute's plain language clearly specifies that the prior conviction's felony classification does not depend on whether the sentence was imposed, deferred, or suspended. The statute therefore unquestionably expands the scope of Title 45, MCA's definition of "felony," which limits the classification to the sentence imposed. The Legislature clearly intended to broadly classify a prior felony conviction under § 46-18-201(1)(b), MCA, not limit the classification to the actual sentence imposed. The more particular statute, § 46-18-201(1)(b), MCA, specifically barring the sentencing judge from deferring a second-time felony offender's sentence, regardless of whether the prior felony sentence was imposed, deferred, or suspended, controls over the more general statute, § 45-2-101(23), MCA, defining felony for all of Title 45, MCA, and classifying a felony offense based only on the sentence actually imposed. See § 1-2-102, MCA ("When a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it."). We accordingly decline to apply the narrow definition of "felony" in Title 45, MCA, to § 46-18-201(1)(b), MCA, because the statute plainly sets forth a contrary intention.

¶9 "This Court operates under the presumption that the Legislature does not pass meaningless legislation, and we will harmonize statutes relating to the same subject in order to give effect to each statute." State v. Brendal , 2009 MT 236, ¶ 18, 351 Mont. 395, 213 P.3d 448. Other statutes classify a "felony" more broadly than Title 45, MCA's narrow definition-there are instances in which a felony classification depends on the offense's maximum potential sentence instead of the actual sentence imposed. See, e.g. , § 46-1-202(18)(a), MCA. For example, when determining the court's jurisdiction at the action's commencement or when determining the statute of limitations, an offense is designated as either a felony or a misdemeanor "based upon the maximum potential sentence which could be imposed by statute." Section 45-1-201(1), MCA. The plain language of § 46-18-201(1)(b), MCA, clearly states that the prior conviction's felony classification is independent of the actual sentence imposed, and therefore it is most appropriate to classify a prior conviction based on the prior offense's maximum potential sentence.

¶10 The statutes explaining felony sentences, notwithstanding their differences regarding whether the sentence is actually imposed, explain that a felony is an offense for which the sentence could be death or imprisonment exceeding one year. Compare § 45-2-101(23), MCA (defining felony as "an offense in which the sentence imposed upon conviction is death or imprisonment in a state prison for a term exceeding 1 year"), with § 46-1-202(18)(a), MCA (noting that, for the purpose of designating a persistent felony offender, a prior felony conviction is any offense that was committed in Montana or any other jurisdiction "for which a sentence of imprisonment in excess of 1 year could have been imposed"). By harmonizing the plain language of § 46-18-201(1)(b), MCA, with the various ways the Legislature classifies a felony, we conclude a prior felony conviction under § 46-18-201(1)(b), MCA, is a conviction of an offense in any jurisdiction that has a maximum potential sentence of death or imprisonment exceeding one year.

¶11 In this case, the prior conviction at issue is Nelson's 2015 Arizona conviction for escape, a class five felony in Arizona. In Arizona, a class five felony has a maximum potential sentence of two years' imprisonment for a first-time felony offender. Ariz. Rev. Stat. § 13-702(A)-(D). Because Nelson's Arizona conviction had a maximum potential sentence of imprisonment exceeding one year, it is a prior felony conviction under § 46-18-201(1)(b), MCA. Section 46-18-201(1)(b), MCA, accordingly barred the District Court from deferring Nelson's sentence for felony criminal possession of dangerous drugs. We therefore affirm the court's two-year suspended sentence based on the parties' agreement.

CONCLUSION

¶12 Whether a prior conviction is classified as a felony under § 46-18-201(1)(b), MCA, depends on the prior conviction's maximum potential sentence, not on the sentence actually imposed. Under § 46-18-201(1)(b), MCA, a prior felony conviction is a prior conviction in any jurisdiction for which the maximum potential sentence was death or imprisonment in a state prison for a term exceeding one year. Accordingly, a sentencing judge may not defer a sentence in a felony case if the offender was previously convicted of an offense for which the maximum potential sentence was death or imprisonment in a state prison for a term exceeding one year. In this case, the District Court correctly determined that § 46-18-201(1)(b), MCA, barred it from deferring Nelson's sentence and we accordingly affirm Nelson's two-year suspended sentence.

We concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

      See generally § 45-1-201(1), MCA ("For [certain purposes], the offense shall be designated a felony or misdemeanor based upon the maximum potential sentence which could be imposed by statute."); § 45-2-101(23), MCA (defining felony as "an offense in which the sentence imposed upon conviction is death or imprisonment in a state prison for a term exceeding 1 year"); § 46-18-201(1)(b), MCA (providing that the court may not defer a sentence in a felony case if the offender was "convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended"); § 46-1-202(18)(a), MCA (noting that, for the purpose of designating a persistent felony offender, a prior felony conviction is any offense that was committed in Montana or any other jurisdiction "for which a sentence of imprisonment in excess of 1 year could have been imposed").


text:
    In the MATTER OF: J.D., A Youth in Need of Care.
    DA 18-0181
    Supreme Court of Montana.
    Submitted on Briefs: December 19, 2018 Decided: March 19, 2019
    For Appellant: Katy Stack, Stack & Kottke, PLLC, Missoula, Montana Shannon Hathaway, Montana Legal Justice, Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Missoula, Montana
    For Amicus: Emily Von Jentzen, Montana CASA GAL Association, Kalispell, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 L.L.-C. (Mother) and O.D. (Father) independently appeal from an order of the Fourth Judicial District Court, Missoula County, terminating parental rights to their child, J.D. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court abused its discretion in terminating Mother's and Father's parental rights to J.D.
2. Whether the District Court abused its discretion in granting the CASA a subpoena to review notes from Father's therapist.
3. Whether the District Court abused its discretion in allowing the CASA to question witnesses at the termination of the parental rights hearing.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 J.D. was born in 2007. Father was not present in J.D.'s life from age two until age eight. The Department became involved with Mother and seven-year old J.D. in October 2014, when Mother and J.D. went to Saint Patrick's Hospital Emergency Room in Missoula, Montana, for psychiatric care. Mother was first admitted to Providence Saint Patrick's Hospital, in Missoula, and then to the Dakota Place Crisis Facility, in Missoula, for more intensive care. J.D. was admitted to Shodair Children's Hospital in Helena, Montana. Mother acknowledged she was then unable to care for J.D. due to her and J.D.'s mental health needs. Neither Mother nor J.D. were current on their medications. Mother has a history of mental health issues, including diagnoses for anxiety, bipolar disorder, mild neurocognitive disorder, posttraumatic stress disorder (PTSD), and personality disorder. J.D. has bipolar disorder with psychotic symptoms, intermittent explosive disorder, reactive attachment disorder, PTSD, and misophonia.

¶4 In November 2014, the Montana Department of Health and Human Services (Department) petitioned for emergency protective services, adjudication of J.D. as a youth in need of care (YINC), and temporary legal custody (TLC) of J.D. J.D. was transferred from Shodair Children's Hospital to Whiteway Group Home in Butte, Montana, where J.D.'s condition improved due to the structure and consistency of the facility. The District Court appointed counsel, Amy Lord, for J.D., and a Court Appointed Special Advocate (CASA). Darla Keck served as J.D.'s CASA starting on December 9, 2015. Both Lord and CASA Keck are licensed attorneys in the State of Montana.

¶5 Mother initially contested the Department's petition. At the show cause hearing, Mother stated she and J.D. had fled from Father when J.D. was two due to domestic violence. The District Court issued a Civil No Contact Order at Mother's request, prohibiting Father from contacting her except through his attorney. The court additionally ordered supervised contact between Father and J.D.

¶6 After a December 18, 2014 intervention conference, the parties vacated the show cause hearing, and the District Court adjudicated J.D. as a YINC and granted TLC to the Department for six months, to which Mother stipulated. On January 22, 2015, the District Court approved Mother's phase one treatment plan, to which Mother stipulated. The treatment plan required her to address her mental health needs and improve her mental stability and parenting skills, maintain safe and stable housing, and complete general tasks with the Department.

¶7 Following a March 17, 2015 hearing considering Father's ability to parent J.D., the District Court continued the Department's TLC. Father failed to respond to the petition or appear in court after service by publication. In April, the District Court ordered Father to complete a phase one treatment plan, requiring Father to: complete an anger management class; complete a danger risk assessment; have weekly or written communication with J.D.; complete a parenting class; maintain safe and stable housing; and maintain contact with the Department.

¶8 In late April 2015, the Department planned to transition J.D. to Watson Children's Shelter, a therapeutic foster home in Missoula, Montana, until Mother progressed further in her treatment plan. Mother opposed, arguing J.D. should be placed in her care. At a May 29, 2015 hearing, the District Court extended the Department's TLC until June 16, 2015, to monitor Mother's progress and visitations with J.D.

¶9 On June 8, 2015, the Department petitioned the District Court to extend TLC because it felt Mother needed additional monitoring and time to successfully complete her treatment plan. The Department expressed concern that Mother could not meet J.D.'s needs. Father attended a June 16, 2015 status hearing by phone and supported J.D.'s return to Mother's care. Father stated he was currently unemployed and lived with his mother in Libby, Montana, but wanted to reunite with J.D. The District Court extended the Department's TLC of J.D. for thirty days.

¶10 Following status hearings, the District Court extended TLC to the Department five additional times between July 18, 2015, and August 3, 2017, before the Department petitioned for termination of parental rights.

¶11 In July 2015, the Department transitioned J.D. to a trial home visit in Mother's care, with specialists from AWARE, Inc., a Montana mental health and residential service non-profit, providing in-home services for six hours per week, and support from additional wrap-around services. J.D.'s behavior at school deteriorated rapidly in Mother's care. He hit, kicked, threw things at adults, tried to choke another child, and was unstable and uncontrollable. Mother's mental health deteriorated as well. The trial home visit lasted five months before the Department removed J.D. from Mother and placed him back at Watson Children's Shelter. The Department determined Mother was unable to meet J.D.'s emotional needs and that J.D. felt unsafe in the care of his Mother.

¶12 At a December 2015 permanency plan hearing, the District Court approved a permanency plan first contemplating reunification with Mother, then, where reunification with Mother was untenable, contemplating reunification with Father. Father's counsel and CASA Keck informed the court that Father was writing to J.D., attending anger management, and working on his treatment plan. Father moved to Missoula and lived with his aunt to establish a relationship with J.D.

¶13 On April 22, 2016, J.D. was admitted to Saint Patrick's Hospital Emergency Room for expressing suicidal thoughts and making gestures to his counselor and school teachers indicating a desire to hang or stab himself. An affidavit submitted to the court by Child Protection Specialist (CPS) Angelo stated that J.D. was "worried about [Mother] and so he can't [talk about his feelings around her] and can't tell her that he is frustrated because it is bad for her and it makes him worried about what will happen to her if he 'acts the way he feels.' " J.D. told CPS Angelo that he felt "torn between his parents and [felt] like [Mother] doesn't like that he likes his [Father] and this makes him feel worse." CPS Angelo stated her belief that J.D.'s worsening dysregulation stemmed from the emotional conflict J.D. felt between his parents and his concerns for Mother's mental health. J.D. returned to Shodair Children's Hospital to stabilize and was eventually transferred to Rosemary Gallagher Children's Home, in Missoula, where he currently resides. According to reports, J.D. has worked hard to address his mental health needs and has progressed significantly in the highly structured environment at Rosemary Gallagher.

¶14 On June 28, 2016, the Court ordered Mother to complete a phase two treatment plan, to which she stipulated. On July 5, 2016, the District Court ordered Father to complete a phase two treatment plan, to which he stipulated.

¶15 Beginning in July 2016, Father attended nine individual therapy sessions with Debbie Viegut, a private clinical social worker in Missoula. Ms. Veigut identified two major problem areas for Father to work on: 1) mild to moderate depression; and 2) understanding the level of severity regarding his son's therapeutic needs. Father began working full-time, including extensive travel, and while he made time to visit J.D., Father struggled to find time to continue therapy. His last session with Ms. Veigut was on November 17, 2016.

¶16 Beginning in September 2016, Father began having weekly therapeutic visitation with J.D. Ryan Norton, J.D.'s therapist at Rosemary Gallagher, testified that J.D. and Father had a playful and loving relationship in their interactions with one another, but Father struggled to understand the seriousness of J.D.'s mental health needs. For example, Father thought chewing louder would desensitize J.D. of misophonia, a noise sensitivity disorder triggered by people chewing. Norton testified that Father seemed unwilling to alter his parenting style and follow therapeutic recommendations.

¶17 On April 11, 2017, the District Court granted CASA Keck's request and issued a subpoena for Father's medical and therapy records, specifically Father's entire file from Ms. Viegut. Father objected to the subpoena, arguing that Ms. Veigut had already submitted her mental health report to the Department and that the subpoena violated his privacy and that his private communications with his therapist were privileged as a matter of law. The District Court overruled Father's objection, noting that CASA Keck had special skills as an attorney. However, the court required CASA Keck to confidentially handle all materials received because of the subpoena. Ms. Veigut later testified that the subpoena violated her therapeutic relationship with Father.

¶18 On July 10, 2017, the Department petitioned for termination of both Mother's and Father's parental rights to J.D. The Department stated that Mother and Father had not completed their treatment plans and that their treatment plans were unsuccessful. The Department further argued that the conduct or conditions rendering Mother and Father unfit, unable, or unwilling to provide adequate parental care to J.D. were unlikely to change within a reasonable time. At the time of petition, J.D. had been in the Department's custody for twenty-six months.

¶19 Father subsequently contacted Ms. Veigut, asking to re-engage in therapy sessions. Ms. Veigut testified she needed more information from CPS Angelo before Father could re-engage in therapy sessions.

¶20 On August 15, 2017, the District Court denied Father's motions to remove CASA Keck for failure to submit a written report and to compel CASA Keck to produce the discoverable information she obtained in her role as J.D.'s CASA. The court concluded that CASA Keck had been "actively and consistently involved with the case and ha[d] provided considerable oral information to guide the court." The District Court declined to remove her for not utilizing the standard written form. However, the District Court directed CASA Keck to make available to any party evidence she reasonably expected to use in making her recommendation to the court.

¶21 The District Court held a hearing on the termination of Mother's and Father's parental rights from August 30, 2017, to September 1, 2017, in which it heard testimony from Mother, Father, and nine witnesses involved in providing services to Mother, Father, and J.D. The District Court allowed CASA Keck to question witnesses, to which Father objected. CASA Keck cross-examined Father regarding past domestic violence alleged by Mother. CASA Keck did not submit evidence to the court to support her line of questioning. On March 2, 2018, the District Court ordered termination of Mother's and Father's parental rights. Mother and Father appealed. On November 20, 2018, Montana CASA GAL Association submitted an amicus brief urging this Court to affirm the District Court's decision, and, in doing so, to clarify the role of CASAs in dependency matters.

STANDARD OF REVIEW

¶22 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re A.S. , 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848 ; In re K.A. , 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. This Court reviews a district court's findings of fact for clear error and conclusions of law for correctness. In re M.V.R. , 2016 MT 309, ¶ 23, 385 Mont. 448, 384 P.3d 1058. "A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if review of the record convinces the Court a mistake was made." In re J.B. , 2016 MT 68, ¶ 10, 383 Mont. 48, 368 P.3d 715. "To reverse a district court's evidentiary ruling for an abuse of discretion, this Court must determine the district court either acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." In re I.M. , 2018 MT 61, ¶ 13, 391 Mont. 42, 414 P.3d 797.

DISCUSSION

¶23 1. Whether the District Court abused its discretion in terminating Mother's and Father's parental rights to J.D.

¶24 In termination proceedings, § 41-3-609(1)(f), MCA, protects a parent's fundamental right to the care and custody of a child. In re D.B. , 2007 MT 246, ¶ 17, 339 Mont. 240, 168 P.3d 691. A district court may only terminate the parent-child relationship of an adjudicated YINC if it finds "by clear and convincing evidence that: (1) an appropriate court-approved treatment plan was not complied with by the parents or was not successful; and that (2) the conduct or condition of the parents rendering them unfit was unlikely to change within a reasonable time." In re X.M. , 2018 MT 264, ¶ 18, 393 Mont. 210, 429 P.3d 920 (citing § 41-3-609(1)(f)(i), (ii), MCA ). A district court's foremost priority is the best interests of the child. In re T.S. , 2013 MT 274, ¶ 30, 372 Mont. 79, 310 P.3d 538.

¶25 Prior to the termination of parental rights, "the [D]epartment shall make reasonable efforts to prevent the necessity of removal of a child from the child's home and to reunify families that have been separated by the state." Section 41-3-423(1), MCA. To this end, the Department must develop and execute an appropriate "treatment plan to preserve the parent-child relationship and the family unit." In re D.B. , ¶ 33. While the Department must in good faith assist a parent in completing his or her treatment plan, the parent retains "the ultimate responsibility for complying with the plan." In re T.D.H. , 2015 MT 244, ¶ 42, 380 Mont. 401, 356 P.3d 457.

¶26 Section 41-3-609(1)(f), MCA, "requires complete compliance with a treatment plan, as opposed to partial or even substantial compliance." In re T.L. and K.L. , 2005 MT 256, ¶ 14, 329 Mont. 58, 122 P.3d 453. "[W]ell-intentioned efforts toward successful completion of a treatment plan do not demonstrate either the completion or the success of the plan." In re Custody & Parental Rights of D.A. , 2008 MT 247, ¶ 22, 344 Mont. 513, 189 P.3d 631.

¶27 Section 41-3-609(2), MCA, states:

In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.

¶28 "Conduct or condition of the parent" means the condition or reason causing the treatment plan to be unsuccessful. In re J.B. , ¶ 22. In making its determination, a district court gives "primary consideration to the physical, mental, and emotional conditions and needs of the child" and considers the "emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time." Section 41-3-609(2)(a), (3), MCA. "Children cannot always afford to wait for their parents to be able to parent." In re L.S. , 2003 MT 12, ¶ 15, 314 Mont. 42, 63 P.3d 497.

MOTHER

¶29 On appeal, Mother argues that the conduct or conditions rendering her unfit to parent J.D. are likely to change within a reasonable time. Mother recently changed her medication regime, felt more stable, and had completed most of the tasks required by her treatment plan.

¶30 The issue here is not merely whether Mother made some progress or whether she will continue to make progress in the future. The issue is whether she is likely to make enough progress, within a reasonable time, to overcome the circumstances rendering her unfit to provide J.D. with the structure and permanency he requires. See In re D.F. , 2007 MT 147, ¶ 43, 337 Mont. 461, 161 P.3d 825. What constitutes a reasonable time varies case by case and is largely dependent on J.D.'s extensive mental health needs. See In re D.F. , ¶ 43.

¶31 This Court, the District Court, and all parties involved, acknowledge Mother's love for J.D. and J.D.'s love for Mother. However, this Court and the District Court prioritize the best interests of the child in termination proceedings. The District Court ultimately found that Mother's treatment plan was unsuccessful, and that the conduct or conditions rendering Mother unfit to parent J.D. were unlikely to change within a reasonable time. The District Court considered witness testimony and an extensive record in its decision-making. Although Mother successfully completed many of the tasks asked of her and showed progress in her ability to parent J.D., the District Court concluded that Mother, due to her demanding mental health needs, difficulties managing medication and finances, and housing instability, did not show an ability to provide J.D. with the structure and permanency required to meet his demanding mental health needs.

¶32 A specific goal of family therapy for J.D. and Mother was for J.D. to see Mother as a competent and capable parent and for Mother to manage her emotions and stressors. This goal was not accomplished. Several specialists involved with Mother and J.D. noticed that "J.D. seemed to assume the caretaker role for his Mother while Mother seemed like she needed [J.D.'s] support and help." J.D.'s trial home visit with Mother was unsuccessful and resulted in a severe decline in J.D.'s mental health. Each time the Department removed J.D. from Mother's care, J.D. demonstrated less stress and dysregulation, discontinued the observable self-loathing behaviors, and showed more focus and ability to maintain himself at school; Mother's instability triggered J.D.'s dysregulation.

¶33 While Mother completed a parenting course, consistently visited and participated in family therapy with J.D., and attended individual therapy, Mother did not implement the therapeutic tools or recommendations from her therapists in her parenting. The District Court found that Mother "failed to demonstrate she [could] be a predictable caregiver and prioritize [J.D.'s] needs." The Department repeatedly extended TLC to give Mother time to complete her treatment plan and reunify with J.D. Mother was ultimately unable to make the progress necessary over the twenty-six-month period to ensure J.D.'s safe-keeping in her care.

¶34 J.D. worries about his Mother's financial and mental instability and has suicidal thoughts and extensive mental health needs of his own. A sense of permanency and structure is critical to his well-being. The District Court determined it was against J.D.'s best interests to continue reunification efforts where he had already waited twenty-six months in flux and Mother's progress did not convince the court she would ever be able to meet J.D.'s needs. The District Court did not abuse its discretion in terminating Mother's parental rights to J.D.

FATHER

¶35 On appeal, Father argues that the Department failed to provide reasonable efforts to reunify him with J.D. pursuant to § 41-3-423(1), MCA, that he completed the majority of the tasks required by the treatment plan, and that the conduct or conditions rendering him unfit to parent J.D. were likely to change within a reasonable time. Specifically, Father contends the Department did not in good faith make reasonable efforts to reunite him with J.D., because the Department allowed Father to spend only limited time with J.D. Father was thus unable to improve his parenting skills and fully understand J.D.'s mental health needs. Father contends the Department then relied on Father's lack of parenting skills and understanding of J.D.'s needs to terminate his parental rights to his son.

¶36 Father was absent from J.D.'s life until 2015, when he informed the court he was unemployed, lived in Libby with his Mother, and was then unable to care for J.D. The District Court required Father to complete a treatment plan. The District Court found the Department's treatment plan to be "reasonable and adequate." The District Court concluded, and Father conceded at the termination hearing, that he did not complete his treatment plan. The District Court stated:

[Father] made some well-intentioned efforts in some areas of his [t]reatment [p]lan, like establishing contact with his child and participating in visits and family therapy, but Father has not complied with other areas of his [t]reatment plan such as following the recommendations of the professionals working with Father and [J.D.], mental health tasks, housing tasks, and other general tasks in his treatment plan.

This conclusion is supported by substantial evidence in the record.

¶37 While J.D. had at times expressed a desire to live with Father, the record supports that living with Father was not in J.D.'s best interests. Mr. Norton discontinued J.D. and Father's outings because J.D. expressed fear of his father and was destabilized after those visits. Mr. Norton, Ms. Veigut, and Mr. Halpern, J.D.'s fourth grade teacher, each expressed concerns that Father did not understand the severity of J.D.'s mental health needs, did not make any significant progress to understand J.D.'s needs, and did not implement specific parenting strategies to target those needs despite their support. The record shows that Father believed J.D.'s dysregulations and misophonia were attention-seeking, that J.D. was becoming institutionalized in the Department's care, and that appropriate discipline could resolve these issues. Mr. Norton testified he explained to Father that J.D.'s mental health issues needed to be taken seriously and that it was important for J.D. to feel believed and validated by Father. "However, Father was not receptive to altering his parenting style and expressed [J.D.] was fabricating his issues and that [J.D.]'s behaviors needed to be ignored." Despite a year of intensive therapeutic work, Mr. Norton did not observe any significant progress from Father and does not believe Father is able to change to meet J.D.'s needs.

¶38 This Court recognizes Father's love for J.D. and that Father maintained stable housing throughout this proceeding, moved to Missoula to be closer to J.D., and found full-time employment. However, Father conceded his housing was not currently suitable for J.D. Likewise, Father's demanding work schedule meant he missed J.D.'s medical appointments, progress meetings with the Department, and individual therapy sessions, and did not maintain regular contact with the Department, as required by the treatment plan.

¶39 Father had over two years to complete his treatment plan. The District Court ultimately concluded "Father fail[ed] to recognize that intensive therapeutic support, ongoing attachment work, structure[,] and medication management [were J.D.]'s reality and necessary for [J.D.] to lead a successful life." The District Court did not abuse its discretion in terminating Father's parental rights to J.D. The record supports that Father did not complete his treatment plan, that the Department exerted reasonable efforts to reunify Father and J.D., and that Father's conduct rendering him unfit to parent J.D. was unlikely to change within a reasonable time.

¶40 2. Whether the District Court abused its discretion in granting the CASA a subpoena to review notes from Father's therapist.

¶41 CASA Keck requested the District Court to issue a subpoena requiring Ms. Veigut to produce Father's "entire file," including: "all notes, opening sheets, clinical data, testing, interview notes, clinical materials, appointment calendar reflecting his attendance at appointments, and any and all historical and biographical information." Father objected arguing that the subpoena request violated his constitutional right to privacy, that his private communications with Ms. Veigut were privileged, and that this breach of confidentiality ultimately did not serve J.D.'s best interests. See Mont. Const. art. II, § 10 ; § 26 -1-807, MCA; § 37-23-301, MCA. The District Court dismissed Father's objections, noting the confidential nature of dependency and neglect proceedings.

¶42 "In every case involving a victim of child abuse or neglect which results in a judicial proceeding," compliance with federal law requires:

a guardian ad litem [GAL], who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a [CASA] who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings-
(I) to obtain first-hand, a clear understanding of the situation and needs of the child; and
(II) to make recommendations to the court concerning the best interests of the child.

42 U.S.C. § 5106a(b)(2)(B)(xiii) (2018)

¶43 In Montana, "the court shall appoint a [CASA] as the [GAL] for any child alleged to be abused or neglected" in every judicial proceeding. Section 41-3-112(1), MCA. "If a [CASA] is not available for appointment, the court may appoint an attorney or other qualified person to serve as the [GAL]." Section 41-3-112(1), MCA. A court may also discretionarily assign a child an attorney in addition to a child's GAL. Section 41-3-425 (3), MCA. A Court must assign an attorney for a child in dependency and neglect proceedings where a child does not have an appointed GAL. Section 41-3-425(2)(b), MCA.

¶44 The general role of a CASA as a child's GAL in dependency and neglect proceedings is to act as an agent of the court, in the best interests of the child. CASAs are factual investigators that effectively serve as the eyes and ears of the court. Montana law states that a CASA acting as a child's GAL performs the following general duties:

(a) to conduct investigations to ascertain the facts constituting the alleged abuse or neglect;
(b) to interview or observe the child who is the subject of the proceeding;
(c) to have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or custodians;
(d) to make written reports to the court concerning the child's welfare;
(e) to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's welfare;
(f) to perform other duties as directed by the court.

Section 41-3-112(3)(a)-(f), MCA.

¶45 In Montana, a CASA is not a party to these proceedings, regardless of his or her status as an attorney. Section 41-3-112, MCA.

"[A]ny party may petition the court for the removal and replacement of the" CASA appointed as the child's GAL. Section 41-3-112(5), MCA. If a CASA were a party, another party could not petition the court for his or her removal. While Montana courts may discretionarily appoint counsel for a CASA "when appropriate and in accordance with judicial branch policy," CASAs do not have a right to legal representation. Section 41-3-425(1), (4), MCA.

¶46 A CASA does not have party status independent of a child, or as the child's representative, because a CASA does not represent a child in dependency and neglect proceedings. As an agent of the court, a CASA's role differs from that of a child's attorney. Whereas a child's attorney is duty-bound by the Montana Rules of Professional Conduct to maintain confidentiality and to advocate for a child's wishes, a child's CASA is generally an appropriately trained volunteer charged with the representation of the child's best interests regardless of his or her status as an attorney. In re A.D.B. , 2013 MT 167, ¶ 88, 370 Mont. 422, 305 P.3d 739 (McGrath, J., concurring); In re T.D.H. , 2015 MT 244, ¶ 69, 380 Mont. 401, 356 P.3d 457 (McKinnon, J., concurring and dissenting); Section 41-3-112(2), (3), MCA. Here, the District Court's order appointing CASA Keck specifically stated her role in the proceeding was to "represent the best interests of" J.D., and to "file periodic reports to the [c]ourt concerning the welfare and best interests of the child and the status of the case," not to represent J.D.'s wishes. The District Court appointed Amy Lord as counsel to represent J.D.'s wishes.

¶47 Where a CASA appointed as a child's GAL is an attorney, § 41-3-112(3)(g), MCA, permits a CASA "to file motions, including but not limited to filing to expedite proceedings or otherwise assert the child's rights." However, Montana law states:

The confidential relations and communications between a psychologist, psychiatrist, licensed professional counselor, or licensed clinical social worker and a client must be placed on the same basis as provided by law for those between an attorney and a client. Nothing in any act of the legislature may be construed to require the privileged communications to be disclosed.

Section 26-1-807, MCA.

¶48 While § 41-3-112(3)(c), MCA, authorizes CASA Keck to access Father's "court, medical, psychological, law enforcement, social services, and school records" in her role as J.D.'s GAL, Ms. Veigut provided the Department and CASA Keck with Father's mental health report. The health report adequately addressed the progress Father made on his treatment goals during their sessions. In Montana, Ms. Veigut's private therapy notes concerning Father are privileged communications akin to those between an attorney and a client, and cannot be compelled by a CASA appointed as a GAL in a dependency and neglect action. See § 26-1-807, MCA. Ms. Veigut testified the subpoena required her to break her promise of confidentiality to Father; she was unsure whether continued therapy would be successful given the breach of trust.

¶49 This Court agrees that:

In order to meet the goal of the reunification plan, the purpose underlying the statutory privilege-effective treatment-is material and significant. In other words, if a parent is fearful that any communications with her provider will not be privileged, she may not be open and truthful during treatment, thereby undermining the effectiveness of treatment and ultimately defeating the goal of remedying the reason for the removal of the child.

In re Wieland , 89 Ohio St.3d 535, 733 N.E.2d 1127, 1131 (2000). The Department's purpose in requiring Father to complete a treatment plan and attend therapy was for Father to openly and honestly address the personal issues rendering him unfit to parent, so that he may improve and eventually reunite with his son. It is unproductive for the District Court to require disclosure of the very communication the Department encourages Father to have in therapy for use in termination proceedings. The purpose of therapy is thus undermined. Confidentiality better ensures productive, honest, and quality therapy, the goal of which is to help struggling parents reunite with their children. Maintaining the confidential therapist-patient privilege better serves the interests of a child in dependency and neglect proceedings. This Court holds that a GAL or CASA's access to psychological records pursuant to § 41-3-112(3)(c), MCA, does not include access to confidential therapy notes.

¶50 The District Court erred in issuing the subpoena, because the private communications between Father and his therapist are privileged in Montana, and disclosure beyond a therapist's mental health report discourages a parent in dependency and neglect proceedings from participating openly and honestly in therapy sessions, to the detriment of the child.

¶51 Despite the District Court's error in issuing the subpoena for Father's entire therapy record from Ms. Veigut, the court relied on evidence presented in open court, not on any confidential, privileged material or communications disclosed in Ms. Veigut's notes. The record strongly supports the District Court's determination to terminate Mother's and Father's parental rights to J.D. Therefore, the District Court's issuance of the subpoena was harmless error. See In re I.M. , ¶ 39.

¶52 3. Whether the District Court abused its discretion in allowing the CASA to question witnesses at the termination of the parental rights hearing.

¶53 On appeal, Father argues the District Court erred in permitting CASA Keck to cross-examine witnesses, because CASA Keck was not a party to the action, regardless of her expertise as an attorney.

¶54 CASA Keck, as J.D.'s GAL, is not a party and does not represent J.D. in an attorney capacity. Her role is "to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's welfare." Section 41-3-112(3)(e), MCA. Consistent with this statute, a district court may permit an attorney CASA appointed as a child's GAL to conduct limited questioning of a witness to assist in performing his or her statutory functions as an agent of the court, in the best interests of the child.

¶55 Here, Amy Lord was counsel for J.D. Lord had the right to cross-examine witnesses, including Father, and had access to CASA Keck's and Ms. Veigut's reports. Additionally, Lord listed CASA Keck as a witness, so she could ask CASA Keck about the basis for her opinions in her report. J.D. was adequately represented. The District Court erred in allowing CASA Keck to cross-examine witnesses in this proceeding.

¶56 Although CASA Keck's actions were well-intended, her cross-examination of Father far exceeded the scope of her role as J.D.'s CASA and the degree necessary to adequately inform the court of what course of action would be in J.D.'s best interests. Despite the District Court's order that CASA Keck make available any evidence she expected to use in her role as an agent of the court to the parties, CASA Keck did not offer any evidence to support her report's conclusions or line of questioning at the termination hearing. For example, CASA Keck's following exchange with Father lacked foundation and was entirely inappropriate:

Q [THE CASA]: [W]asn't the other reason that there was a requirement for anger management be that you were, as you said in your words, 'beating the shit' out of [Mother] during the marriage?
A [Father]: I never said that.
Q: Well, you said that on an audiotape to law enforcement, did you not?
A: No.
...
THE CASA: I have it on tape.

¶57 CASA Keck never made the tape available to the District Court or Father, yet during cross-examination relied on its existence to insinuate that Father physically abused Mother, a fact not substantiated by the record. The District Court erred in allowing such an exchange, especially considering that J.D.'s counsel cross-examined Father, and had the opportunity to call CASA Keck as a witness.

¶58 However, the record supports the District Court's determination to terminate Mother's and Father's parental rights to J.D. without consideration of the information learned from CASA Keck's cross-examination of Father, and the District Court did not rely on that line of questioning in its findings. The District Court's error was harmless. See In re I.M. , ¶ 39.

CONCLUSION

¶59 The District Court did not abuse its discretion in terminating Mother's and Father's parental rights to J.D. While Mother and Father made well-intentioned efforts at completing their treatment plans, their treatment plans were ultimately unsuccessful. Despite the length of this proceeding, Mother and Father did not demonstrate sufficient progress for the District Court to conclude that the conduct or conditions rendering them unfit to parent J.D. were likely to change within a reasonable time. Substantial credible evidence supports the District Court's decision that it would be detrimental to J.D. to prolong his uncertainty about his long-term care provider.

¶60 The District Court abused its discretion by issuing a subpoena for privileged communication between Father and his therapist, and by letting CASA Keck cross-examine witnesses, including Father, where J.D. also had appointed counsel. However, because the record supports the District Court's decision to terminate parental rights without reference to the material that should have been excluded, the District Court's errors are harmless. The District Court's decision does not warrant reversal.

¶61 Affirmed.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

JIM RICE, J.

      Because the District Court here appointed a CASA to serve as J.D.'s GAL, this Court will use the term CASA to refer to CASA Keck's role as J.D.'s GAL.


text:
    BAM VENTURES, LLC, a Montana Limited Liability Company, Plaintiff and Appellant, v. Reed P. SCHIFFERMAN and Robin Schifferman and all other persons, known or unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the Complaint below which is adverse to Plaintiff's ownership or a cloud upon Plaintiff's title thereto, whether such claim or possible claim be present on contingent, Defendants and Appellees.
    DA 18-0437
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: March 19, 2019
    For Appellant: Zane K. Sullivan, Nathan G. Wagner, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana
    For Appellees: John S. Warren, Attorney at Law, Dillon, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 BAM Ventures, LLC (BAM) appeals the order of the Fifth Judicial District Court, Beaverhead County, Montana, granting a preliminary injunction in favor of Reed and Robin Schifferman (Schiffermans). We affirm and restate the issue on appeal as follows:

Did the District Court err by granting a preliminary injunction without a finding of "great or irreparable injury?"

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The facts herein are taken from the record as developed only for purposes of the District Court's consideration of a preliminary injunction. The dispute concerns access to one of two pieces of adjacent property located in Wise River, Montana, owned respectively by BAM and the Schiffermans. In 2003, before improvements were made to the properties, Schiffermans purchased their lot, which then lacked physical access. In 2004, in an apparently fortuitous development, the Montana Department of Transportation completed an improvement project for Montana Highway 43, which ran along the southern border of the properties, and, during the project, added a paved apron extending from the highway toward the border of the properties and installed a "green gate" nearby. Since 2004, Schiffermans have used these improvements to access their lot, and further improved the access by installing an elevated driveway with culverts. In 2005, Schiffermans built a 1200 square foot garage on their lot, and constructed a house there in 2016. They also had a cattle guard installed near the gate. Construction contractors and suppliers used the apron and driveway to access the property. During these years, Schiffermans believed the access was on their lot, and received no objections about its use.

¶3 In 2017, BAM purchased the lot adjacent to the Schiffermans' lot, and uses its property to host disabled veterans for recreational activities. BAM's principal, Noah McMahon, believed Schiffermans' driveway ran across the corner of BAM's property, so he fenced off the driveway with temporary fencing and removed Schiffermans' cattle guard. In response, Schiffermans removed part of BAM's fencing and began driving across an unimproved grass and dirt area to access their driveway. As of the preliminary injunction hearing, Schiffermans had attempted to improve this altered route but found it did not provide comparable access. An expert testified it would take approximately two days and $ 7,000 to build a comparable access across the new route to the existing driveway.

¶4 BAM initiated this action in quiet title to resolve the question of property ownership of the disputed area. The Schiffermans disputed the boundaries allegations in their answer, and counterclaimed for a prescriptively acquired easement over the access route. Schiffermans have acknowledged that "at least a portion" of their property's access is located on BAM's property and, pertinent here, sought injunctive relief under § 27-19-201(1) - (3), MCA, based on their claim of a prescriptive easement, to bar BAM from restricting access to their lot across the original route pending outcome of the litigation.

¶5 After the hearing, the District Court determined Schiffermans had made a prima facie showing of their claim for prescriptive easement, and granted them a preliminary injunction pursuant to § 27-19-201(1), MCA. Although the District Court agreed with BAM's argument that Schiffermans had not established irreparable harm, and that money damages could not be considered irreparable harm, because "money damages may be recovered in an action at law without resort to equity," citing Caldwell v. Sabo , 2013 MT 240, ¶ 29, 371 Mont. 328, 308 P.3d 81, the court reasoned that Schiffermans did not need to establish "irreparable harm" because that requirement was necessary only for preliminary injunctive relief under subsection (2), not subsection (1), of § 27-19-201, MCA.

¶6 BAM appeals.

STANDARD OF REVIEW

¶7 District courts are afforded a high degree of discretion to grant or deny preliminary injunctions. Accordingly, we will not overturn the district court's decision absent a manifest abuse of discretion. "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." Caldwell , ¶ 18 (quotation and citation omitted). However, we review an injunction based on conclusions of law for correctness. In considering whether to issue a preliminary injunction, neither the District Court nor this Court will determine the underlying merits of the case giving rise to the preliminary injunction, as such an inquiry is reserved for a trial on the merits. Caldwell , ¶ 19.

DISCUSSION

¶8 Did the District Court err by granting a preliminary injunction without a finding of "great or irreparable injury?"

¶9 This case turns on reconciliation of seemingly inconsistent statements made in our cases about the standards governing issuance of a preliminary injunction, which the parties' arguments have well pinpointed.

¶10 Section 27-19-201, MCA, provides that a preliminary injunction "may be granted in the following cases:"

(1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually;
(2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;
(3) when it appears during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant's rights, respecting the subject of the action, and tending to render the judgment ineffectual;
(4) when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party's property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;
(5) when it appears that the applicant has applied for an order under the provisions of 40-4-121 or an order of protection under Title 40, chapter 15.

Section 27-19-201, MCA.

¶11 BAM argues the District Court erred by granting the preliminary injunction in favor of the Schiffermans because they did not show they would suffer irreparable injury, which BAM contends must be demonstrated for a preliminary injunction to be issued under any of the five subsections of § 27-19-201, MCA. In support of their position, BAM cites to Benefis Healthcare v. Great Falls Clinic, LLP , 2006 MT 254, ¶¶ 13-14, 334 Mont. 86, 146 P.3d 714 ; Sandrock v. DeTienne , 2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123 ; and Davis v. Westphal , 2017 MT 276, ¶ 24, 389 Mont. 251, 405 P.3d 73. In particular, BAM relies on our recent statement in Davis :

[E]ven on proof of any grounds enumerated in § 27-19-201, MCA, a preliminary injunction should not issue absent an accompanying prima facie showing, or showing that it is at least uncertain, that the applicant will suffer irreparable injury prior to final resolution on the merits. Porter [v. K & S Partnership] , 192 Mont. [175] at 181, 627 P.2d [836] at 839 ; Rea Bros. Sheep Co. v. Rudi , 46 Mont. 149, 160, 127 P. 85, 87 (1912).

Davis , ¶ 24 (emphasis in original).

¶12 Schiffermans respond that the District Court did not err by granting a preliminary injunction under § 27-19-201(1), MCA, because they made a prima facie showing of their prescriptive easement claim, which BAM does not contest on appeal, and because a finding of irreparable injury was not necessary under the plain wording of that subsection. They cite our cases holding that "the subsections of this statute are disjunctive, meaning that findings that satisfy one subsection are sufficient." Sweet Grass Farms, Ltd. v. Board of County Comm'rs , 2000 MT 147, ¶ 27, 300 Mont. 66, 2 P.3d 825 ; accord Shammel v. Canyon Res. Corp. , 2003 MT 372, ¶ 15, 319 Mont. 132, 82 P.3d 912 ; Caldwell , ¶ 23 ; Stark v. Borner , 226 Mont. 356, 359, 735 P.2d 314, 317 (1987) (internal quotations and citation omitted).

¶13 Montana courts have managed over the years to address equitable preliminary injunctive relief under the standards of § 27-19-201, MCA, but it has not always been an easy task. The provision was originally enacted as Section 112 of the old Civil Practice Act by the Montana Territorial Legislature, sitting in Virginia City, on December 23, 1867. For historical context, Montana's adoption of the Civil Practice Act occurred contemporaneously with the ongoing impeachment controversy of President Andrew Johnson, about two years after the assassination of President Abraham Lincoln. Remarkably, the entire substantive text of Section 112 remains to this day within § 27-19-201, MCA, constituting the first three subsections of the statute. See 1867 Mont. Laws § 112, at 154. It has been a challenge for courts to interpret and apply the dated language of these provisions consistently.

¶14 However, as we have often recognized, the subsections of § 27-19-201, MCA, are written disjunctively. Demonstration of one, and not all, of the subsections suffices to authorize a court to grant equitable, preliminary injunctive relief, when its discretion is so moved. As we stated in Sweet Grass Farms , "only one subsection need be met for an injunction to issue." Sweet Grass Farms, Ltd. , ¶ 27 (citation omitted); Sandrock , ¶ 16 ; Caldwell , ¶ 23 ; State v. BNSF Ry. Co. , 2011 MT 108, ¶ 18, 360 Mont. 361, 254 P.3d 561 ; City of Whitefish v. Bd. of Cty. Comm'rs of Flathead Cty. , 2008 MT 436, ¶ 20, 347 Mont. 490, 199 P.3d 201 ; accord Stark , 226 Mont. at 359, 735 P.2d at 317 ; Mont. Cannabis Indus. Ass'n v. State , 2012 MT 201, ¶ 14, 366 Mont. 224, 286 P.3d 1161 ; Cole v. St. James Healthcare , 2008 MT 453, ¶ 26, 348 Mont. 68, 199 P.3d 810 ; Mustang Holdings, LLC v. Zaveta , 2006 MT 234, ¶ 13, 333 Mont. 471, 143 P.3d 456.

¶15 Regarding what is commonly referred to as "irreparable harm," only subsection (2) explicitly references the issue, and its precise language is often overlooked. Specifically, subsection (2) authorizes relief when it appears that commission or continuation of an act during the litigation would produce "a great or irreparable injury"-that is, an injury so significant it could not later be repaired even by means of the litigation.

¶16 However, while only mentioned explicitly by subsection (2) in terms of a great or irreparable injury, the prevention of some degree of harm or injury is an overlapping concept that is implied within all of the subsections of the statute. Under subsection (1), when it appears an applicant has established entitlement to relief under a legal claim that consists of "restraining the commission or continuance of [an] act," injunctive relief is authorized to stop the continuing illegal act, as well as the harm that is implicitly being done thereby. Under subsection (3), when a continuing or threatened act would violate "the applicant's rights" and tend to render "the judgment ineffectual," injunctive relief is authorized to prevent the act and the implied harm that would result from such circumstances. Subsection (4) authorizes relief to prevent the threatened removal or disposal of "the adverse party's property with intent to defraud" and the obvious harm such actions would cause. Likewise, without mentioning "harm" or "injury," subsection (5) nonetheless protects against threatened harm by authorizing relief to protect applicants from economic loss and from physical abuse or intimidation in domestic and order of protection proceedings. While our cases have not always used precise language, collectively they correctly stand for the principle that all requests for preliminary injunctive relief require some demonstration of threatened harm or injury, whether under the "great or irreparable injury" standard of subsection (2), or the lesser degree of harm implied within the other subsections of § 27-19-201, MCA. This was the essential meaning of our dichotomous statement in Porter , 192 Mont. at 182, 627 P.2d at 840, upon which we heavily relied for our recent holding in Davis , ¶ 24, that "[a]lthough no finding of injury or damage is required for a preliminary injunction under [subsection (1) ], it is the court's duty to minimize the injury or damage to all parties to the controversy." Porter , 192 Mont. at 182, 627 P.2d at 840.

¶17 Thus, in Caldwell , a breach of contract action, we reversed the preliminary injunction entered in that case after concluding the applicants had not established the necessary threatened harm under any of the first three subsections of § 27-19-201, MCA. Caldwell , ¶¶ 25-30. Under subsection (2), we noted, citing to Am. Music Co. v. Higbee , 1998 MT 150, ¶ 15, 289 Mont. 278, 961 P.2d 109, that the applicants' claim for money damages could not constitute great or irreparable harm because "money damages may be recovered in an action at law without resort to equity." Caldwell , ¶ 29. Under subsection (1), the applicants could not establish that the relief they sought consisted of "restraining the commission or continuance of an act" where they had contracted for that very act-scoria mining-to be performed on their property, the status quo was that the other party was engaged in the contracted-for mining activity, and the dispute was over contract compensation. Caldwell , ¶¶ 25-27 ("That the Caldwells have requested injunctive relief to prevent terms of the contract from being enforced, does not transform this action into one of equity."). Under subsection (3), the applicants could not establish any of their contractual rights were being violated because, inter alia , "the record is devoid of any facts which would support a conclusion that the Sabos are threatening to not pay for the scoria sold." Caldwell , ¶ 30.

¶18 In the case at bar, the District Court concluded the Schiffermans did not establish, under subsection (2), that they would apparently suffer an injury so great or irreparable it could not be addressed and compensated within the litigation. Nonetheless, upon making a prima facie showing of prescriptive easement, which is not contested on appeal, Schiffermans established they would suffer continuing harm by not being able to access their property, while the litigation was pending, by way of the access route they had used for many years, and thus satisfied subsection (1). Consequently, the purpose of equitable injunctive relief was here fulfilled, that is, to "preserve the status quo and minimize the harm to all parties pending final resolution on the merits." Davis , ¶ 24 (emphasis omitted). The "status quo" is "the last actual, peaceable, noncontested condition which preceded the pending controversy." Benefis , ¶ 14. The noncontested condition preceding the current controversy was the Schiffermans' use of the access created by the Department of Transportation and improved by them. We conclude the District Court did not abuse its discretion by entering the preliminary injunction permitting Schiffermans to continue to use the access pending the outcome of the litigation.

¶19 Affirmed.

We concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

LAURIE McKINNON, J.

      Apparently, prior attempts between the parties to informally resolve the access issue were unsuccessful.