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    Than Edward CHRISTMAN and Tina Marie Christman, Plaintiffs and Appellants, v. Roy CLAUSE and Betty Clause, Defendants and Appellees.
    DA 18-0407
    Supreme Court of Montana.
    Submitted on Briefs: February 20, 2019 Decided: June 4, 2019
    For Appellants: D. Michael Eakin, Eakin, Berry & Grygiel, PLLC, Billings, Montana
    For Appellees: Christopher T. Sweeney, Peter M. Damrow, Moulton Bellingham PC, Billings, Montana
   Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellants Than Edward Christman and Tina Marie Christman (collectively "Christmans") appeal the Order of the Thirteenth Judicial District Court, Yellowstone County, denying their Motion for Summary Judgment. We address the following issue:

Whether the District Court erred in denying the Christmans' Motion for Summary Judgment.

¶2 We reverse.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On October 14, 2009, the Christmans and Roy and Betty Clause (collectively "Clauses") entered into an Installment Sale Contract and Security Agreement (Agreement) to buy a mobile home in Cherry Creek Development. The Christmans were to purchase the mobile home for $ 68,900 from the Clauses. They paid $ 5,512 down and financed the balance of $ 63,388, to be paid in monthly installments of $ 701 for a period of fifteen years.

¶4 The Agreement gave the Clauses a security interest in the mobile home. The Agreement included the following provision regarding potential default by the Christmans:

Default . If [the Christmans] fail[ ] to perform any of the covenants or promises called for hereunder such failure shall, at the election of [the Clauses] constitute a default in the performance of this agreement. If [the Christmans] fail[ ] to cure any such default within [ ] THIRTY (30) days after written notice thereof to [the Christmans], [the Clauses] may, without further notice or period of grace, declare the entire unpaid balance of the purchase price, principal and accrued interest, immediately due and payable. Upon nonpayment thereof, after the same shall become due and payable, [the Clauses] may as an alternative to any other remedy provide [sic] at law or equity, terminate this agreement and retain all payments made as liquidated damages for breach of this agreement and rent for the use of the property. [The Christmans] and [the Clauses] agree that THIRTY (30) days notice is a reasonable time period for notice of termination of this agreement.

¶5 From 2009-2015, the Christmans continually missed payments on their mobile home, only to then make large lump sum payments to bring the loan current. The Clauses made accommodations, including adjusting the loan in November 2014 to put the delinquent amount at the end of the loan, but the Christmans again fell behind on payments.

On August 21, 2015, the Clauses sent the Christmans a Notice of Default. On September 18, 2015, the Christmans paid $ 2,900 in an attempt to become current. Four days later, the Clauses sent a notice that they were invoking the acceleration clause in the default provision of the Agreement and demanded the outstanding balance on the Agreement plus notice fees, a total of $ 57,397.64, within thirty days. In December 2015, after receiving the acceleration notice, the Christmans moved out of the mobile home and voluntarily returned it to the Clauses. At that point, the Christmans owed a balance of $ 54,205.54. The Clauses testified they then spent $ 3,273.83 refurbishing and repairing the mobile home. Two months later, the Clauses sold the mobile home to a new buyer for $ 59,800.

¶6 On January 18, 2017, the Christmans brought suit against the Clauses. On February 14, 2017, the Christmans filed an amended complaint, alleging that the Clauses violated provisions of Article 9A of Montana's adopted version of the Uniform Commercial Code (U.C.C.). The Christmans alleged that the Clauses failed to resell the mobile home in a commercially reasonable manner as required by § 30-9A-625(4), MCA. The Christmans sought $ 69,672 in damages under § 30-9A-625(3)(b), MCA : the time price differential plus ten percent of the cash price. Alternatively, Christmans alleged that they were entitled to any surplus realized for the resale of the mobile home pursuant to § 30-9A-615(4)(a), MCA. The Christmans asserted they owed a balance of $ 17,169.50, and that the Clauses resold the mobile home for $ 59,800, amounting to a surplus of $ 42,630.50. The Christmans also contended that the Clauses were barred from collecting any late fees, finance charges or collection costs on the Agreement because the Agreement violated various provisions of Montana's Retail Installment Sales Act (RISA).

¶7 On June 13, 2017, the Christmans moved for summary judgment. On March 9, 2018, the District Court denied the Christmans' Motion. The District Court held there were material facts in dispute as to both the application of the U.C.C. to the Agreement and whether the Christmans were equitably estopped from asserting their claims against the Clauses.

¶8 On March 26-28, 2018, the District Court presided over a jury trial. On March 28, 2018, the jury returned a verdict in favor of the Clauses. The jury unanimously agreed that the Clauses proved that the Agreement terminated when the Christmans moved out of the mobile home in December 2015. Following the jury verdict, the District Court entered a Final Judgment in which it ordered that the Christmans' action against the Clauses be dismissed on the merits, and that the Christmans pay the Clauses' costs.

¶9 On May 2, 2018, the Christmans moved for a new trial pursuant to M. R. Civ. P. 59(a)(1)(A). The District Court denied the Christmans' Motion.

STANDARDS OF REVIEW

¶10 We review a district court's summary judgment ruling de novo, applying the criteria of M. R. Civ. P. 56. McClue v. Safeco Ins. Co. , 2015 MT 222, ¶ 8, 380 Mont. 204, 354 P.3d 604 ; Yorlum Props., Ltd. v. Lincoln County , 2013 MT 298, ¶ 12, 372 Mont. 159, 311 P.3d 748. Whether a party is entitled to judgment on the facts is a conclusion of law that this Court reviews for correctness. Hutzenbiler v. RJC Inv., Inc. , 2019 MT 80, ¶ 7, 395 Mont. 250, 439 P.3d 378 (citing Yorlum Props., Ltd. , ¶ 12 ). Summary judgment is appropriate only when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3) ; Svaldi v. Anaconda-Deer Lodge County , 2005 MT 17, ¶ 12, 325 Mont. 365, 106 P.3d 548. The evidence, as well as all justifiable inferences drawn from it, must be viewed in a light most favorable to the non-moving party. Svaldi , ¶ 12.

DISCUSSION

¶11 Whether the District Court erred in denying the Christmans' Motion for Summary Judgment.

¶12 Generally, Montana law allows for a "contract in writing [to] be altered by a contract in writing or by an executed oral agreement, and not otherwise." Section 28-2-1602, MCA. However, contracts involving secured transactions are governed by Montana's adopted version of the U.C.C., codified at Title 30, Chapter 9A, and subject both the debtor and creditor parties to additional obligations and rights.

¶13 The Agreement between the Christmans and Clauses involved the sale of a consumer good (the mobile home) in which the Clauses took a security interest. The creation of the security interest in the mobile home triggered the applicability of Title 30, Chapter 9A. E.g. , § 30-9A-102(1)(bbb), MCA.

¶14 Section 30-9A-610, MCA, provides for disposition of collateral after default. "Default" is generally defined by the security agreement. 4 James J. White, Robert S. Summers, & Robert A. Hillman, Uniform Commercial Code: Practitioner Treatise Series § 34:5, at 530 (6th Ed. 2015) (internal citations omitted); Hutzenbiler , ¶ 28 (McKinnon, J., dissenting); 68A Am. Jur. 2d Secured Transactions § 426 (2014). After a debtor defaults, a secured creditor who takes possession of the collateral has the following options: (1) file suit on the obligation and reduce its claim to judgment; (2) " 'sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing' "; or (3) " 'accept collateral in full or partial satisfaction of the obligation it secures.' " Kapor v. RJC Inv., Inc. , 2019 MT 41, ¶ 16, 394 Mont. 311, 434 P.3d 869 (citing §§ 30-9A-601(1)(a), -610(1), -620(1), MCA ).

¶15 Accordingly, although a creditor's disposition of the collateral terminates the security interest under § 30-9A-617(1)(b), MCA, termination of the security interest does not do away with the obligations of a creditor under Title 30, Chapter 9A. Section 30-9A-602(5), (13), MCA (a debtor may not waive or vary the rules in § 30-9A-608(1), MCA, and § 30-9A-615(4), MCA, to the extent that they require accounting for or payment of surplus proceeds of collateral); Kapor , ¶ 14. The creditor remains obligated to: give the debtor notice of how the creditor intends to dispose of the collateral; conduct a commercially reasonable resale of the collateral, if there is a resale; and the creditor must account to the debtor for any surplus realized from the sale of the collateral. Sections 30-9A-614, -616, -610, -615, -624, -611, MCA.

¶16 Abandonment, voluntary surrender, or voluntary repossession of the collateral does not waive the debtor's right to notice of resale of the collateral. See § 30-9A-602, MCA ; Westmont Tractor Co. v. Cont'l I, Inc. , 224 Mont. 516, 523-24, 731 P.2d 327, 331 (1986) ; see also § 30-9A-619(3), MCA ("transfer of the record or legal title to collateral to a secured party ... does not of itself relieve the secured parties of its duties under this chapter. ..."). Thus, a debtor who voluntarily returns a mobile home to the creditor is still entitled to notice. See Kapor , ¶¶ 13-14, 23, 28 ; Hutzenbiler , ¶¶ 11, 13-14 ; see also W. Nat'l Bank of Casper v. Harrison , 577 P.2d 635, 638 (Wyo. 1978) ; Lindberg v. Williston Indus. Supply Corp. , 411 N.W. 2d 368, 373 (N.D. 1987) ; Vermont Nat. Bank v. Hamilton , 149 Vt. 477, 546 A.2d 1349, 1352 (1988). A debtor may waive notice of disposition of collateral under § 30-9A-611, MCA, only through an authenticated, signed writing after default. Section 30-9A-624(1), MCA.

¶17 Where there are no questions of fact with regards to the adequacy of or failure to give notice, a court may properly determine the adequacy of a particular notice as a matter of law. See Westmont Tractor Co. , 224 Mont. at 520-21, 523, 731 P.2d at 329-31 (citing § 30-9-504, MCA, now § 30-9A-611, MCA ); see also Mack Fin. Corp. v. Tezak , 253 Mont. 492, 495-96, 834 P.2d 396, 397-98 (1992) (citing § 30-9-504, MCA, now § 30-9A-611, MCA ); 68A Am. Jur. 2d Secured Transactions § 605.

¶18 The right of the debtor for any surplus obtained from the sale of collateral is set out in two places in Article 9 of the U.C.C.: § 30-9A-608(1)(d), MCA, and § 30-9A-615(4)(a), MCA. Surplus money is generated by the sale of the debtor's assets "over and above the amount needed to satisfy the debtor's obligations to the secured lender, the secured lender is obligated to make an accounting to the debtor and to pay over to the debtor any such surplus." 68A Am. Jur. 2d Secured Transactions § 554 ; §§ 30-9A-615(6), -626, MCA. "Except as allowed under other U.C.C. provisions, [a party's] discharge or release [of obligations under a secured transaction for the sale of a mobile home] cannot [ ] waive or vary [the creditor's] duty to account for or [the debtor's] right to receive any surplus proceeds from the resale of the mobile home." Kapor , ¶ 13 ; Hutzenbiler , ¶ 10 ; § 30-9A-602, MCA.

¶19 If a secured party fails to comply with the requirements of Title 30, Chapter 9A, and the collateral is a consumer good, the debtor "may recover for that failure in any event an amount not less than the credit service charge plus 10% of the principal amount of the obligation or the time-price differential plus 10% of the cash price." Section 30-9A-625(3)(b), MCA ; see also Bank of Sheridan v. Devers , 217 Mont. 173, 177, 702 P.2d 1388, 1390 (1985) (where a creditor failed to provide a debtor with adequate notice, the creditor was precluded from recovering any deficiency judgment from the debtor).

¶20 Recently, we reversed the district courts' rulings in two cases where the district courts determined that the U.C.C. no longer governed the sales contracts and installment agreements between a creditor and debtors selling and purchasing mobile homes. Kapor , ¶¶ 14, 30 ; Hutzenbiler , ¶¶ 9, 15. The debtors in Kapor and Hutzenbiler signed releases provided by the creditor purporting to terminate the installment agreements. Kapor , ¶¶ 3-5 ; Hutzenbiler , ¶¶ 3-5. The creditor then resold the mobile homes without providing the debtors notice of the resale of the mobile home or an accounting of any potential surplus. Kapor , ¶¶ 3-4 ; Hutzenbiler , ¶ 4. The districts courts concluded that the releases terminated the installment agreements and ended the applicability of the U.C.C. to the parties' relationship. Kapor , ¶ 5 ; Hutzenbiler , ¶¶ 6, 9. We disagreed, holding that the releases "did not, by [their] express terms, lift the parties' relationship from that of debtor and creditor under U.C.C. Article 9 or render obsolete the protections afforded a debtor under §§ 30-9A-608(1)(d) and -615(4)(a), MCA." Kapor , ¶ 14 ; Hutzenbiler , ¶ 12.

¶21 Here, the District Court denied the Christmans' Motion for Summary Judgment after concluding that neither Montana law nor the U.C.C. rendered the Christmans' waiver (orally and by conduct) ineffective, and that there were genuine issues of material fact as to whether the parties terminated the Agreement. The District Court concluded that the Christmans voluntarily abandoned their mobile home in December 2015 and gave every indication they were cancelling the Agreement and walking away from the mobile home and their payment obligations. Thus, the U.C.C. no longer governed the parties' relationship. The District Court further concluded that even if Article 9 of the U.C.C. applied to bar the parties from terminating the Agreement, there was a genuine issue of material fact as to whether equitable estoppel precluded the Christmans' claims. Accordingly, the District Court could not grant summary judgment to the Christmans on the issue of the Clauses' liability.

¶22 The Christmans argue the material facts of this case are not in dispute, and they were entitled to judgment as a matter of law. They contend that Article 9 of the U.C.C. establishes set procedures that must be followed once a secured party takes possession of the collateral that secures a debt, and that the undisputed facts demonstrate that the Clauses failed to follow those procedures. The Christmans contend that the Clauses failed to give proper notice and to account for any surplus as required by the U.C.C. The Christmans contend that they never waived any rights, either orally or in writing, regarding the mobile home. Finally, the Christmans argue that the Clauses may not assert the defense of equitable estoppel, and that the District Court was wrong when it permitted the Clauses to do so.

¶23 The Clauses counter that the District Court properly denied the Christmans' Motion for Summary Judgment in light of the disputed issues of material fact. The Clauses argue that the Christmans agreed to terminate the Agreement, vacated the mobile home, and left it to the Clauses. This series of events served to absolve the Christmans of any further obligation they had to pay under the Agreement and transferred their rights in the mobile home back to the Clauses in exchange for discharging the Clauses' contractual obligations to them. The Clauses argue that once the Christmans terminated the Agreement, the security interest the Clauses had in the mobile home dissolved, and the Agreement was no longer governed by Article 9 of the U.C.C. The Clauses contend that even if Article 9 continued to govern the parties' relationship, the Clauses would be entitled to recover a deficiency from the Christmans, and the Christmans would not be entitled to any surplus or damages.

¶24 Finally, the Clauses argue the District Court properly denied the Christmans' Motion for Summary Judgment on the grounds that disputed issues of material fact existed regarding whether the Christmans were equitably estopped from asserting their claims. The Clauses contend they provided substantial evidence to establish all six elements of equitable estoppel, and the District Court correctly concluded there were disputed material issues not proper for resolution on a motion for summary judgment. We disagree.

¶25 There is no dispute that when the parties entered into the Agreement for the sale of the mobile home, the Agreement was governed by Article 9 of the U.C.C. There is also no dispute that the Clauses did not provide notice of the resale of the collateral or account to the Christmans for any potential surplus. See §§ 30-9A-611, -616, -608(1)(d), -615, MCA. The Christmans were in default and vacated because they were unable to pay the more than $ 50,000 due upon invocation of the acceleration clause. A voluntary repossession indicates a debtor has defaulted, but it does not mean a debtor waived all post-default rights and remedies under the U.C.C. or abandoned interest in any potential surplus. See § 30-9A-602, MCA. Regardless of whether the Clauses voluntary repossessed the mobile home after the Christmans vacated the premises, notice to the Christmans was still required. See Westmont Tractor Co. , 224 Mont. at 523-24, 731 P.2d at 331.

¶26 The Christmans' situation is even more attenuated than that of the debtors in Kapor and Hutzenbiler who signed releases that purportedly waived U.C.C. applicability. The protections and obligations under the U.C.C. still governed the Agreement. See Kapor , ¶ 14 ; Hutzenbiler , ¶¶ 12-13. The Clauses did not provide notice of the resale of the mobile home as required by § 30-9A-611, MCA. The Clauses were obligated to give notice to the Christmans of how they intended to dispose of the mobile home, and they were required to account to the Christmans for any surplus realized from the sale of the collateral. See §§ 30-9A-611, -624, MCA. Although the Christmans theoretically could have waived their right to notice prior to the resale of the collateral, to legitimately do so, any waiver of the notice would have had to take the form of an authenticated writing signed after default. See § 30-9A-624, MCA. In this case, no notice was sent, no authenticated writing was signed, and, consequently, there was no waiver of the right to notice. See § 30-9A-624, MCA.

¶27 There were no genuine issues of material fact as to the Clauses' U.C.C. violations, and the Christmans were entitled to judgment as a matter of law on that issue. See Yorlum Props. Ltd. , ¶ 12 ; M. R. Civ. P. 56. Accordingly, the District Court erred in denying the Christmans' Motion for Summary Judgment as it pertained to the continued application of the U.C.C. to the Christmans' claims. See McClue , ¶ 8 ; Yorlum Props. Ltd. , ¶ 12.

¶28 Finally, the Christmans also argue that the Clauses may not assert the defense of equitable estoppel, and that the District Court was wrong when it concluded the Clauses were permitted to do so. We recently concluded that "the doctrine of equitable estoppel may apply to cases governed by the U.C.C. unless displaced by specific U.C.C. provisions." Kapor , ¶ 32. The Christmans argue that equitable estoppel cannot apply here for four reasons: (1) the Clauses do not have clean hands; (2) public policy dictates that equitable estoppel not apply; (3) estoppel is not available to defeat U.C.C. remedies; and (4) the Clauses' argument of equitable estoppel is disingenuous. The Christmans' argument does not assert any U.C.C. provisions in Article 9 relevant to this case that may displace equitable estoppel. Thus, although the District Court erred by holding that the U.C.C. did not apply to the Christmans' claims, it correctly held that the Clauses may assert equitable estoppel as it may pertain to those claims.

CONCLUSION

¶29 The District Court erred when it denied the Christmans' Motion for Summary Judgment on the grounds that Article 9 no longer applied to the Agreement. We reverse and remand this case to the District Court for further proceedings consistent with this Opinion.

We Concur:

MIKE McGRATH, C.J.

LAURIE McKINNON, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

      The Clauses own Cherry Creek Development.

      The Christmans' first complaint named RJC Investment, Inc. as the defendant in this action. Roy Clause is the President of RJC. Roy and Betty Clause were the named Sellers on the Agreement with the Christmans, and the Christmans named the Clauses as defendants in their amended complaint.

      Under the 2009 U.C.C. statutes, which govern the parties' Agreement, "manufactured homes" are defined as "goods" under § 30-9A-102(1)(rr)(i)(E), MCA, and § 30-9A-102(1)(aaa), MCA. Section 30-9A-102(1)(w), MCA, defines a "consumer good" as "goods that are used or bought for use primarily for personal, family, or household purposes." The Christmans testified that they resided in the mobile home and did not use it to conduct any business or rent any portion of it. The mobile home was therefore a "consumer good" within the meaning of § 30-9A-102(1)(w), MCA.


text:
    STATE of Montana, Plaintiff and Appellee, v. David Dean KURTZ, Defendant and Appellant.
    DA 16-0565
    Supreme Court of Montana.
    Submitted on Briefs: April 17, 2019 Decided: June 4, 2019
    For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Morgan E. Shaw, Deputy County Attorney, Billings, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 David Kurtz appeals the Thirteenth Judicial District Court's order denying his motion to dismiss for violation of his right to a speedy trial. Kurtz argues that applying this Court's established speedy trial standards, the 422-day delay in resolving his felony driving under the influence charge violated his constitutional rights. We reverse and remand for dismissal of Kurtz's charge.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 A Montana Highway Patrol trooper arrested Kurtz in Yellowstone County on May 3, 2015, and the State charged him with felony driving under the influence of alcohol and misdemeanor driving while license suspended. Kurtz pleaded not guilty. The District Court set bond at $ 20,000, which Kurtz was unable to post. The District Court initially scheduled trial for August 17, 2015. Kurtz filed a motion to suppress on July 22, 2015, contesting the legality of the traffic stop. One week later, the State moved to postpone the trial because the results from the crime lab had not yet been received. Kurtz did not oppose this motion; he agreed the trial should be postponed pending the toxicology results. The court vacated the August trial date and set the trial for September 21, 2015.

¶3 The District Court held a hearing on Kurtz's motion to suppress on August 31, 2015, and denied the motion in late November. On December 14, 2015, the court reset the trial for January 4, 2016, noting that the September trial date had "passed with no resolution." Four days later, Kurtz's counsel e-mailed the District Court's judicial assistant requesting the court "not call a jury for January 4, 2016." The judicial assistant replied that if there is not going to be a trial, Kurtz would have to file a motion to continue with a waiver.

¶4 On December 21, 2015, Kurtz filed a status report requesting that the District Court vacate the January 4 trial and set a change of plea hearing. No hearing was set. The January trial date passed. On April 12, 2016, the State requested the court to reset the trial. The following day, the court set a new trial date for May 23, 2016. Kurtz filed a motion to dismiss on May 11, 2016, alleging that his right to a speedy trial was violated. The May trial date passed. The District Court held a hearing on Kurtz's motion to dismiss on June 1, 2016, and denied it three weeks later. The court found that the length of delay and reasons for the delay weighed in favor of finding a speedy trial violation but concluded that Kurtz's response to the delay and the prejudice to Kurtz did not weigh in Kurtz's favor. The court determined that, on balance and because Kurtz's defense was not impaired, Kurtz was not denied a speedy trial.

¶5 Kurtz entered a change of plea with the District Court four days later. Kurtz pleaded guilty to felony driving under the influence of alcohol and waived his right to a presentence investigation. On the State's motion, the court dismissed the misdemeanor charge. It sentenced Kurtz to the maximum, thirteen-month commitment with the Department of Corrections, followed by a five-year suspended sentence. Because Kurtz's pretrial incarceration was twenty-six days longer than his thirteen-month sentence of imprisonment, Kurtz was released immediately and awarded a $ 2,470 credit against the $ 5,000 fine imposed.

STANDARDS OF REVIEW

¶6 On appeal of a speedy trial ruling, we review a district court's factual findings for clear error. State v. Ariegwe , 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. The trial court's findings are "clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with a definite and firm conviction that a mistake has been made." Ariegwe , ¶ 119. Whether the factual circumstances establish a speedy trial violation is a question of constitutional law that we review de novo. Ariegwe , ¶ 119.

DISCUSSION

¶7 The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution both guarantee a criminal defendant the right to a speedy trial. If the delay between accusation and trial exceeds 200 days, this Court must examine speedy trial violations under the Ariegwe four-factor test. Ariegwe , ¶ 41. The test balances: (1) the length of delay; (2) the reasons for the delay; (3) the accused's response to the delay; and (4) the prejudice to the accused. Ariegwe , ¶ 34. "No one factor is dispositive by itself; rather, the factors are related and must be considered together with such other circumstances as may be relevant." Ariegwe, ¶ 112.

Factor One: The Length of the Delay

¶8 Kurtz pleaded guilty to felony DUI 422 days after he was arrested and charged, a delay that triggers our four-factor balancing test. Ariegwe , ¶ 107. The presumption of prejudice intensifies, and the State's burden to justify the delay increases, as the delay stretches beyond the 200-day threshold. Ariegwe , ¶ 62.

¶9 The 422-day delay in this case substantially increases the State's burden under Factor Two and Factor Four. The State must provide "particularly compelling justifications" for the delay under Factor Two. Ariegwe , ¶ 123. Further, the State must make a more persuasive showing that Kurtz was not prejudiced by the delay, while the quantum of proof that may be expected of Kurtz to demonstrate prejudice is correspondingly lower. Ariegwe , ¶ 123 ; accord State v. Rose , 2009 MT 4, ¶ 46, 348 Mont. 291, 202 P.3d 749 (holding that a 507-day delay "substantially" increased the State's burden under Factor Two, the presumption that pretrial delay prejudiced Rose is increased, and the quantum of proof expected of Rose under Factor Four is substantially decreased).

Factor Two: The Reasons for the Delay

¶10 Kurtz challenges the weight given to two periods of delay: (1) the sixty-four-day delay between the September trial date and the date the District Court denied Kurtz's suppression motion; and (2) the ninety-nine-day delay between the January 1, 2016 trial date and the date the State asked to reset the trial. The parties do not contest the District Court's analysis of the other periods of delay.

¶11 "[T]he prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner[,] and ... this duty requires a good faith, diligent effort to bring him to trial quickly." Ariegwe , ¶ 65 (internal citations and quotations omitted). The State therefore bears the burden of explaining the pretrial delays. Ariegwe , ¶ 64. Delay is charged to the State unless the accused caused the delay or affirmatively waived his speedy trial right for that period. State v. Billman , 2008 MT 326, ¶ 20, 346 Mont. 118, 194 P.3d 58.

¶12 Under Factor Two, we assign weight to each period of delay based on the specific cause of the delay. State v. Zimmerman , 2014 MT 173, ¶ 19, 375 Mont. 374, 328 P.3d 1132. The weight assigned will depend on the party's culpability in causing the delay. Ariegwe , ¶ 67. The prosecution's negligence or lack of diligence is weighed against the State less heavily than is bad faith, but "still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun." Ariegwe , ¶ 69. Institutional delays-"those that are caused by overcrowded court dockets and other similar events"-are attributable to the State but weigh even less heavily. Adams v. State , 2007 MT 35, ¶ 31, 336 Mont. 63, 153 P.3d 601 (citing State v. Small , 279 Mont. 113, 118-19, 926 P.2d 1376, 1379 (1996) ).

Sixty-Four-Day Delay from September 21 to November 24, 2015

¶13 The September 21 trial setting passed without being vacated or continued. On November 24, the court issued findings of fact and conclusions of law denying Kurtz's motion to suppress. The District Court concluded that the period of delay between September 21 and November 24, 2015, was attributable to all parties and deemed institutional. The District Court explained that the delay was due to: (1) the court's consideration of Kurtz's suppression motion; (2) the delay in ruling on the suppression motion pending Kurtz's response to the court's disclosure of a potential conflict of interest; and (3) the presiding judge attending a training seminar. The court reasoned that the delay was attributable in part to Kurtz because he filed the motion to suppress, and a delay caused by defense motions is typically attributable to the defendant. The District Court concluded that the delay also was attributable to the State because the court could have followed up with Kurtz or set a status hearing sooner, and the State could have sought a status hearing.

¶14 Six days before the September trial setting, the District Court contacted counsel for both parties to arrange a conference call. Kurtz's counsel responded the same day and scheduled the call for the next day. The judge revealed a potential conflict of interest arising from his appearance, while a deputy county attorney, in a proceeding involving one of Kurtz's prior DUI charges. Both defense counsel and the court would recall at the suppression hearing that counsel advised the court she did not believe there would be a problem and that the court asked her to discuss it with Kurtz and advise the court "if there's any issues." Because Kurtz had no concerns, counsel did not report back.

¶15 Kurtz argues that the sixty-four-day delay was attributable solely to the State's lack of diligence because the State failed to set Kurtz's case for trial. Kurtz maintains he should not be charged with delay for not following up with the court based on the court's instruction to bring it back only if Kurtz took issue with the possible conflict. The State argues that Kurtz's failure to follow up with the court delayed the court's ruling on the suppression motion.

¶16 A defendant will be charged with delay caused by his or her pretrial motions. See, e.g., Adams , ¶ 32 (holding that delay caused by defense counsel's motion to withdraw as counsel is attributable to the defense); State v. Collier , 277 Mont. 46, 55, 919 P.2d 376, 382 (1996) (holding that delay caused by a motion to vacate and reset the trial date to allow defense counsel additional time to prepare a defense is attributable to the defendant).

¶17 Unlike Adams and Collier , Kurtz's motion to suppress did not seek to continue the trial or cause a resulting delay. Kurtz's motion, filed two months before the September trial date, sought suppression of all evidence collected after the Highway Patrol trooper activated his emergency lights. Kurtz's failure to follow up with the District Court regarding the potential conflict of interest does not support a finding that Kurtz is to blame for the delay; the District Court told Kurtz to follow up only if there was a problem. With the trial just six days later, Kurtz reasonably assumed the court would proceed if he expressed no concern.

¶18 The sixty-four-day delay was at least partly institutional because of the court's training schedule. But the State points to nothing else in the record to support a finding that this delay is "inherent to the criminal justice system and caused by circumstances largely beyond the control of the prosecutor and the accused." Ariegwe , ¶ 68. The presiding judge attended training during the latter half of October and returned on November 2, 2015. By then the trial setting had passed with no resolution. The delay continued twenty-two days after the judge's return with no attempt by the State to timely move the case forward. The sixty-four-day delay therefore weighs more heavily against the State than institutional delay.

Ninety-Nine-Day Delay between January 4 and April 12, 2016

¶19 The District Court concluded that the delay between the January trial date and April 12, when the State asked to reset the trial, was attributable to all parties as institutional delay because: (1) although Kurtz asked the court to set a change of plea hearing, he did not otherwise pursue the change of plea or the setting of the hearing; (2) the District Court did not notice Kurtz's change of plea request in Kurtz's status report; and (3) the State did not actively prosecute Kurtz.

¶20 Kurtz maintains that the ninety-nine-day delay was attributable to the State because, after he requested the District Court to set a change of plea hearing, it was the State's burden to ensure a hearing was set for disposition of the case. The State argues that "Kurtz bears some responsibility for representing to the court that a plea deal had been reached but not entering a plea." The State maintains that this case is factually similar to State v. Stewart , 2017 MT 32, 386 Mont. 315, 389 P.3d 1009, in which this Court concluded that a defendant and the State bore shared responsibility for the delay.

¶21 In Stewart , both Stewart and the State filed status reports asking that the District Court "not assemble a jury." Stewart , ¶ 12. Stewart's report further advised the District Court that "a change of plea has occurred or is scheduled." Stewart , ¶ 12. Stewart was incarcerated in another county on other charges, and both parties were working together to arrange Stewart's appearance by video to change his plea, but those efforts failed. Stewart , ¶ 12. As a result, the trial date passed with no resolution. Stewart , ¶ 12. On appeal, Stewart argued that the State should be apportioned the delay because the State bore the responsibility to bring him to trial. Stewart , ¶ 12. We disagreed and found that Stewart bore "primary responsibility" for the delay, reasoning that Stewart did not enter a plea, as he claimed he intended, but instead moved to substitute the judge and filed complaints against his attorney, which caused delays. Stewart , ¶ 13.

¶22 Here, once Kurtz filed his December 21, 2015 motion to vacate the January trial date and set a change of plea hearing, it was the State's responsibility to schedule that hearing. Unlike Stewart , Kurtz did not engage in any tactics to further the delay. At the speedy trial hearing, he told the judge that he was "just waiting for things to happen." "[O]ngoing negotiations, whether they be for deferred prosecution or a plea bargain," do not relieve the prosecution of its duty to bring defendants to trial in a timely fashion. Small , 279 Mont. at 118, 926 P.2d at 1379. Kurtz did not cause the delay when he asked for a change of plea hearing to be set and the court failed to schedule one. The delay therefore is not attributable to Kurtz.

¶23 The District Court erred in finding that the ninety-nine-day delay was institutional. There is no evidence that the State acted in bad faith or made a deliberate attempt to hamper Kurtz's defense. The State lacked diligence, however, for "inadvertently failing to request the [trial court to] reset this matter for trial." The prosecutor admitted that the State's request for the trial to be reset "basically fell off [his] tickler, [his] radar." The District Court agreed that it was error to fail to set a change of plea hearing. This delay weighs more heavily than institutional delay.

¶24 The sixty-four-day delay and the ninety-nine-day delay were not institutional and not attributable to Kurtz. These 163 days of delay due to the State's lack of diligence weigh against the State. Relying on the District Court's determinations for the rest of the delay, we calculate 35 days of valid delay, 168 days of institutional delay, 183 days of delay based on the State's lack of diligence (including 20 days the District Court attributed that are not at issue on appeal), 32 days attributable to the defendant, and 4 days from the speedy trial ruling to the date Kurtz changed his plea. Without the delays caused by the prosecution's lack of diligence, Kurtz's pretrial delay would barely exceed the 200-day threshold. The State did not meet its burden to show a "particularly compelling justification" for the added pretrial delay. See Ariegwe , ¶ 123. Factor Two therefore weighs in Kurtz's favor.

Factor Three: The Accused's Responses to the Delay

¶25 The District Court concluded that Kurtz did not want a speedy trial: (1) Kurtz stated that he did not want a trial; (2) Kurtz represented to the court that the case would resolve without trial and that the parties reached a plea agreement; (3) Kurtz indicated a willingness to waive speedy trial; and (4) Kurtz waited until twelve days before the fourth set trial date to file his speedy trial motion. The District Court discounted Kurtz's request for a change of plea hearing, reasoning: "Changing one's plea is incompatible with a speedy trial because part of the colloquy that is a prerequisite threshold to the Court accepting a guilty plea involves informing the defendant he is waiving his right to a trial and what the trial involves."

¶26 Kurtz points out that a defendant does not abandon his right to a speedy trial when he engages in plea negotiations. See Small , 279 Mont. at 118, 926 P.2d at 1379. Kurtz argues that he was not required repeatedly to ask that the case proceed. The State maintains that Kurtz's conduct demonstrated his desire to avoid trial when he did not complain about the delay. The State argues that Kurtz's status report requesting that the court "not call a jury for January 4, 2016," and his intention to plead guilty support the finding that Kurtz did not desire a speedy trial.

¶27 Under the third factor, the court evaluates the defendant's acquiescence in or objections to pretrial delays in light of the circumstances. Ariegwe , ¶ 110. The court must evaluate the totality of circumstances to determine whether the defendant actually wanted a speedy trial, "which in turn informs the inquiry into whether there has been a deprivation of the right." Ariegwe , ¶ 110. "The timing and number of instances in which the accused objects to pretrial delay are not talismanic." Ariegwe , ¶ 80. Assertion of the speedy trial right must be viewed in the light of the accused's other conduct. Ariegwe , ¶ 80.

¶28 We rejected the argument in Small that the defendant's continued participation in plea negotiations created "the impression that there would be no trial and thus no speedy trial problem." Small , 279 Mont. at 118, 926 P.2d at 1379. We conclude likewise here that Kurtz's involvement in plea negotiations is not incompatible with his desire for a speedy trial and does not weigh against him in the analysis.

¶29 We also reject the State's argument that Kurtz failed to demonstrate desire for a speedy trial when he made no attempt pursue a change of plea hearing. Kurtz affirmatively sought resolution of the case through a change of plea hearing. It was the State's burden to move forward with either a trial or a change of plea. The District Court should have weighed Factor Three in favor of Kurtz.

Factor Four: Prejudice to the Accused

¶30 The District Court concluded that the delay did not prejudice Kurtz because Kurtz did not show any impact on witness availability or his ability to raise a specific defense. The District Court also reasoned that Kurtz's counsel acknowledged he was not claiming impairment of the defense, "the most serious interest protected by the speedy trial right."

¶31 The court assesses prejudice in the light of the interests that the speedy trial right was designed to protect: "(i) preventing oppressive pretrial incarceration; (ii) minimizing anxiety and concern caused by the presence of unresolved criminal charges, and (iii) limiting the possibility that the accused's ability to present an effective defense will be impaired." Ariegwe , ¶ 111.

¶32 "The first interest-preventing oppressive pretrial incarceration-reflects the 'core concern' of the speedy trial guarantee: 'impairment of liberty.' " Ariegwe , ¶ 89 (quoting United States v. Loud Hawk , 474 U.S. 302, 312, 106 S. Ct. 648, 654, 88 L.Ed.2d 640 (1986) ). The longer the period of pretrial incarceration, the more likely it has been oppressive and the more likely the defendant has been prejudiced by the delay. Ariegwe , ¶ 90. When considering whether pretrial incarceration was oppressive, we consider duration of the incarceration, complexity of the charged offense, any misconduct by the accused directly related to the pretrial incarceration, and conditions of the incarceration. Ariegwe , ¶ 113.

¶33 Kurtz was incarcerated more than three weeks longer than the maximum period of confinement to which he could have been sentenced for felony DUI. In support of its finding that Kurtz's fourteen-month incarceration did not show prejudice, the District Court relied on State v. Hodge , 2014 MT 308, ¶¶ 23, 25, 377 Mont. 123, 339 P.3d 8, stating, "918 days' pretrial incarceration does not by itself show prejudice." The accused in Hodge , however, was incarcerated for almost none of the 918-day delay, much of which was attributed to Hodge's decision to abscond for approximately two years. Hodge , ¶¶ 8, 25. The District Court's reliance on Hodge for the notion that the duration of Kurtz's pretrial incarceration was insufficient to show oppression and commensurate prejudice is therefore misplaced.

¶34 Kurtz's lengthy incarceration-alone an indication of oppressiveness (e.g. , State v. Blair , 2004 MT 356, ¶ 28, 324 Mont. 444, 103 P.3d 538 )-is especially egregious because he was incarcerated for a period that exceeded the maximum sentence of confinement for his charged offense. Further, absent other factors not present here, DUI offenses are relatively simple, ordinary driving offenses for which the tolerable delay is relatively low. See, e.g. , Zimmerman , ¶ 21 ; Billman , ¶ 40.

¶35 We also consider the conditions of confinement. The "seriousness of a deprivation of liberty due to pretrial incarceration will vary with the conditions of the defendant's confinement." Ariegwe , ¶ 93 (internal citation omitted). The question is one of oppressiveness, not merely occasional unpleasantness or disagreeable conditions. Ariegwe , ¶ 93.

¶36 Unable to post the $ 20,000 bond, Kurtz remained incarcerated from the time of his arrest until the day he changed his plea. At the time of hearing on his motion to dismiss, Kurtz was housed with seventy-five other men in a jail unit built to house sixty. The evidence showed that Kurtz did not receive his prescribed sleep aid medication for the first five to six months he was in jail. Kurtz also was denied his mental health medication for approximately the first four months he was incarcerated. When he finally received his anti-depression medication, it was at a dose significantly lower than what he had been prescribed-two milligrams instead of forty milligrams. Kurtz testified that the change in dosage made his medication ineffective, and his mental health condition worsened. Further, prior to his incarceration, Kurtz had issues with his back, including bone spurs, degenerative disc disease, and missing cushion between some vertebrae. Kurtz was going to physical therapy for his back and taking prescribed pain medication three times a day. Kurtz's doctor recommended that Kurtz not lift anything or "pretty much [ ] do anything." Kurtz was not allowed to resume taking his prescribed pain medication in the jail, and he could not afford the over-the-counter medication the jail offered. Kurtz was denied a medical mattress each of the twenty times he requested it either verbally or in writing. Kurtz was required to push a dust mop around his jail unit, which aggravated his pain. As noted, Kurtz's pretrial incarceration surpassed the maximum prison sentence he could receive; that prevented him from participating in or completing a residential alcohol treatment program-the primary purpose of such a sentence. See § 61-8-731(1)(a), MCA. Kurtz's lack of prescribed medical treatment, along with the fact he was incarcerated for longer than the maximum sentence allowed, supports the conclusion that his incarceration was oppressive.

¶37 The second interest requires inquiry whether the delay has unduly prolonged the disruption of the defendant's life or aggravated the anxiety and concern inherent with being accused of a crime.

Ariegwe , ¶ 111. Aggravated mental health problems and the accused's deteriorating financial situation are relevant. See, e.g. , Zimmerman , ¶ 32 (holding that "the critical question is whether the delay in bringing the accused to trial unduly prolonged the disruption in his life or aggravated the anxiety and concern that are inherent in being accused of a crime" (emphasis in original)); Billman , ¶¶ 43-45 (holding that pretrial incarceration unduly prolonged the disruption to Billman's life when he lost his employment, began taking antidepressants and anti-anxiety medication as a result of his incarceration, and was no longer allowed to see his children).

¶38 The State argues that Kurtz's depression existed before his incarceration, and there is no evidence that the pretrial delay unduly prolonged the disruption to Kurtz's life or aggravated Kurtz's anxiety and concern. The State maintains that Kurtz was provided his antidepressants within the 200-day threshold, and therefore the lack of medication should not factor into the analysis. Kurtz testified that after he was incarcerated, his anxiety levels were "through the roof," and continued incarceration made his depression "way worse" and caused him to "feel really worthless." Kurtz's testimony indicates that his aggravated anxiety was from the length of his incarceration and not from the charges brought against him. When asked if he had anything to add about being incarcerated, Kurtz replied, "I wish they could give me more help with my mental issues, which has been denied all the way through." Although Kurtz was allowed to resume taking his prescribed antidepressants within about four months of his incarceration, it was reduced-without an apparent explanation-for the duration of his pretrial incarceration to a level that rendered it ineffective.

¶39 Beyond Kurtz's prolonged mental health problems, Kurtz lost his home while incarcerated. A few months after his arrest, Kurtz's landlord visited him at the jail and told him that his mobile home would be sold for scrap if he was unable to pay rent. Kurtz asked his landlord to wait until he got out or allow him time to arrange something else. His landlord refused, however, and sold his trailer for scrap with no formal eviction proceedings.

¶40 Although the State contends that Kurtz lost his home prior to the 200-day threshold, the State has not made a "highly persuasive showing" that Kurtz's anxiety and concerns were not unduly prolonged, as is required with this length of delay. This factor weighs in favor of finding prejudice.

¶41 Finally, Kurtz does not claim impairment of his defense. We assess prejudice under Factor Four in light of all of the interests the speedy trial right was designed to protect. State v. Velasquez , 2016 MT 216, ¶ 27, 384 Mont. 447, 377 P.3d 1235. Kurtz's interests in preventing oppressive pretrial incarceration and minimizing his anxiety and concern were prejudiced by the delay.

Balancing

¶42 Balancing the four Ariegwe factors, we disagree with the District Court's conclusion that Kurtz's constitutional right to speedy trial was not violated. At bottom, Kurtz fell through the cracks in Montana's overworked Thirteenth Judicial District. With little notice, Kurtz spent every day of the 422-day delay in pretrial incarceration, confined in an overcrowded unit longer than the maximum sentence his charged crime allowed. He did not receive his prescribed medication, his mental and physical health deteriorated, and he lost his home. These consequences ill-serve the objective in a felony DUI case that a repeat offender meaningfully address his substance addiction.

¶43 Our standards requiring the State to provide "particularly compelling justifications" for such a lengthy pretrial delay and a "highly persuasive showing" that the delay did not prejudice the defendant are not theoretical objectives. The State failed to demonstrate either. Balancing the four Ariegwe factors in light of surrounding circumstances, Ariegwe , ¶ 113, we conclude that Kurtz's right to a speedy trial was violated.

CONCLUSION

¶44 We reverse the District Court's denial of Kurtz's motion to dismiss. The case is remanded with instructions to dismiss the charge.

We Concur:

JAMES JEREMIAH SHEA, J.

INGRID GUSTAFSON, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.


text:
    In the MATTER OF: B.J.J., Jr., A Youth in Need of Care.
    DA 19-0010
    Supreme Court of Montana.
    Submitted on Briefs: May 8, 2019 Decided: June 4, 2019 Rehearing Denied July 9, 2019
    For Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 B.J. (Father) appeals from the Findings of Fact, Conclusions of Law and Order Terminating Parental Rights issued by the Nineteenth Judicial District Court, Lincoln County, on December 12, 2018. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether Father was denied due process when the District Court terminated Father's parental rights.
2. Whether Father's treatment plan was appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Montana Department of Health and Human Services, Child and Family Services Division (Department), became involved with B.J.J., Jr. (Child) when it learned Mother and Father were not actively parenting five-year old Child, but had left him in the care of his maternal grandmother without providing a power of attorney or any financial support. ¶4 On April 6, 2017, the Department filed a petition for emergency protective services (EPS), appointment of a guardian ad litem, adjudication of Child as a youth in need of care (YINC), and for temporary legal custody (TLC). At the time of the petition, Child had been residing in Grandmother's home in Montana for some time, Mother was homeless and allegedly using illegal drugs, and Father was incarcerated in prison in Nevada. Father was appointed counsel to represent him. The show cause hearing was held on May 15, 2017. Although Father was still incarcerated and not present at the hearing and had not yet been personally served with the petition, his counsel represented he had spoken to Father and that Father did not agree with all of the allegations contained in the affidavit, but did not oppose the relief sought by the Department. At the time, as Father was still incarcerated in Nevada, he was not in a position to parent Child. At the conclusion of the hearing, the District Court granted the requested show cause relief, adjudicated Child a YINC, granted the Department TLC for a period of six months, and indicated it would allow Father to move the court to rescind or amend its order and relitigate the petition after Father was served should he so desire. Father was served on May 22, 2017. The court followed its oral order with a written order on June 5, 2017.

¶5 Father was released from prison in July 2017. He contacted Child Protection Specialist (CPS) Weber in mid-August and reported he was living with his father in Nevada and working two jobs at McDonald's and Dairy Queen. CPS Weber provided Father with his contact information as well as that of Father's attorney. CPS Weber also sent Father a copy of the Department's proposed treatment plan. CPS Weber again spoke with Father via telephone in October 2017. Father reported he had not yet begun the tasks of his treatment plan but was in compliance with his probation and in conjunction therewith was working, attending some counseling, and submitting to drug testing. CPS Weber requested Father sign and return the treatment plan which Father indicated he would. CPS Weber also discussed with Father the importance of Father maintaining contact with him and his attorney as well as Father's need to begin to build a relationship with Child by sending him pictures, cards, and letters, after which CPS Weber would then establish telephone contact between Father and Child. Following this conversation, CPS Weber confirmed with Father's probation officer that Father was in compliance with his probation. CPS Weber did not thereafter follow up with Father's probation officer as he believed Father to be discharging from probation in October 2017.

¶6 When Father failed to sign and return his treatment plan as he indicated he would, the Department filed a written motion to approve Father's treatment plan. The District Court held a hearing on this motion on February 12, 2018. Without objection, CPS Weber testified as to the specific goals and tasks in the treatment plan and how they were designed to assist Father to be able to safely parent Child. At the conclusion of the hearing, the District Court approved the Department's proposed treatment plan for Father. Thereafter, Father did not contact CPS Weber further. CPS Weber, however, made repeated attempts to contact Father by telephone without getting an answer. When CPS Weber did get an answer at the telephone number Father had provided, it was a different person's voicemail. At the extension of the TLC hearing on April 16, 2018, Father's counsel indicated he had had no contact from Father, and therefore could not advocate Father's position on the matter.

¶7 The Department filed a motion to approve permanency plan and for termination of Father's parental rights on October 23, 2018. At this time, Father was again incarcerated in Nevada. Father was re-assigned counsel and on October 25, 2018, Brianne Franklin filed her notice of appearance as Father's counsel. On October 28, 2018, while still incarcerated, Father was personally served with the termination petition and notice of the termination hearing set for December 3, 2018. At his counsel's request, the District Court attempted to contact Father by phone at the commencement of the termination hearing on December 3, 2018. Father did not answer, and the court proceeded with the hearing. After CPS Weber testified on direct examination, the court made another attempt to reach Father by phone. Father answered this call and thereafter appeared telephonically through the remainder of the hearing. At the hearing, CPS Weber testified extensively to Father's failure to complete any of his treatment plan tasks, Father's failure to maintain contact with CPS Weber throughout the case, and Father's failure to make even minimal progress in rebuilding a relationship with Child. Upon cross-examination, although he commended Father for appearing telephonically at the hearing, CPS Weber did not believe that if Father was in a new position in his life where he was now prepared to work his treatment plan that such would be in Child's best interest. CPS Weber explained that Father had been provided opportunity over the past two years to work on the issues which precluded him from safely parenting and that he had not shown much interest in his son or any desire to parent him. CPS Weber testified, given Father's complete lack of progress to date, it was not in Child's best interest to wait longer for permanency. Father declined to testify. At the conclusion of the hearing, Father requested the court deny the termination petition and instead extend TLC as Father was in a new position in his life where he was now prepared to work his treatment plan.

¶8 The District Court then determined Father did not successfully complete his treatment plan and the condition rendering him unfit, unable, or unwilling to parent was not likely to change within a reasonable time and terminated his parental rights. Father appeals.

STANDARD OF REVIEW

¶9 This Court reviews a district court's decision to terminate parental rights for an abuse of discretion. In re K.A. , 2016 MT 27, ¶ 19, 382 Mont. 165, 365 P.3d 478. The Department has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been satisfied. In the context of parental rights cases, clear and convincing evidence is the requirement that a preponderance of the evidence be definite, clear, and convincing. In re K.L. , 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. This Court reviews a district court's findings of fact for clear error and its 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 this 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 (citing In re O.A.W. , 2007 MT 13, ¶ 32, 335 Mont. 304, 153 P.3d 6 ).

¶10 Father asserts this Court has "adopted a diminished appellate review standard for reviewing a district court's findings of fact regarding the required statutory criteria." Father contends that the clearly erroneous standard applied by this Court with regard to findings of fact is inconsistent with the United States Supreme Court's holding in Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982), that the constitutionally required burden of proof for establishing criteria for termination is no less than clear and convincing evidence. The Department asserts that Father's argument "conflates evidentiary burdens of proof with appellate standards of review." We agree with the Department. In abuse and neglect cases, the burden of proof generally lies with the Department. Section 41-3-422(5)(a), MCA. Thus, the Department must prove by clear and convincing evidence all required elements for termination of a parent's rights. The district court, as the fact finder, evaluates if the Department has met its burden of presenting clear and convincing evidence regarding all required elements for termination of a parent's rights. The district court's findings of fact and conclusions of law summarize the court's evaluation as to whether the Department has met its burden of proof that a preponderance of the evidence is definite, clear, and convincing. Upon appeal of a district court's findings of fact, conclusions of law, and order terminating a parent's parental rights, this Court does not substitute its judgment as to the strength of the evidence for that of the district court. In re A.N.W. , 2006 MT 42, ¶ 29, 331 Mont. 208, 130 P.3d 619. Rather, this Court reviews factual findings to determine if they are clearly erroneous, conclusions of law for correctness, and that the evidence found by the district court on a whole satisfies that a preponderance of the evidence is definite, clear, and convincing.

DISCUSSION

¶11 1. Whether Father was denied due process when the District Court terminated Father's parental rights.

¶12 Father asserts he was denied due process because he was not properly served and was denied notice and an opportunity to be heard, he received ineffective assistance of counsel, and the Department failed to make reasonable efforts to reunify him with Child.

¶13 Notice and Opportunity to be Heard. As a natural parent's right to care and custody of a child is a fundamental liberty interest which must be protected by fundamentally fair procedures, termination procedures must satisfy the Due Process Clause of the Fourteenth Amendment. In re C.J. , 2010 MT 179, ¶ 26, 357 Mont. 219, 237 P.3d 1282 (citations omitted). For a parent to establish a claim for violation of due process, a parent must demonstrate how the outcome would have been different had the alleged due process violation not occurred. See In re A.N.W. , ¶¶ 38, 47. This Court agrees with Father that "[k]ey components of a fair proceeding are notice and an opportunity to be heard." In re C.J. , ¶ 27 (citing In re T.C. and W.C. , 2001 MT 264, ¶ 22, 307 Mont. 244, 37 P.3d 70 ). In this case, however, Father was afforded fundamentally fair procedures and had equal opportunity to present evidence and test the evidence entered by the Department.

¶14 With regard to his claim of lack of notice and opportunity to be heard, Father primarily takes issue with the adjudication of Child as a YINC prior to Father being personally served with the petition seeking adjudication and TLC. Review of the adjudicatory proceeding leads to the conclusion that Father was provided a full and fair opportunity to contest the petition, but instead stipulated to the relief sought therein. At the hearing on May 15, 2017, Father's counsel represented he had spoken to Father and that Father had "no objection to the relief" sought, although he did not agree with all the allegations contained in the affidavit supporting the petition. Recognizing Father had not yet been personally served, the District Court indicated that although it was adjudicating Child a YINC and granting the Department TLC for a period of six months, it would leave the record open so that Father could, after service, raise objections and request the court amend or rescind the adjudication and TLC order. Thereafter, Father was personally served with the petition seeking adjudication and TLC on May 22, 2017. Father made no further objections or motions to amend or rescind the adjudication and TLC order. Further, Father has never asserted that his counsel's representations at the adjudicatory hearing were false, or disputed the sufficiency of evidence for adjudication and TLC. Finally, Father has not established how the outcome would have been different had the District Court held the adjudicatory hearing after Father was served on May 22, 2017. Father has failed to establish a violation of his right to due process based on his assertion of lack of notice and opportunity to be heard.

¶15 Ineffective Assistance of Counsel (IAC) Claim. Father asserts his appointed counsel, Stephen Dalby (Dalby), rendered ineffective assistance. We evaluate two nonexclusive benchmark factors in assessing the effectiveness of counsel in abuse and neglect proceedings: (1) counsel's training and experience, and (2) the quality of counsel's advocacy during the proceedings. In re A.S ., 2004 MT 62, ¶¶ 26-27, 320 Mont. 268, 87 P.3d 408. To establish an IAC claim, a parent must show he suffered prejudice resulting from counsel's ineffective representation. In re A.S. , ¶ 31. Father does not challenge Dalby's training and experience; instead he claims that the quality of Dalby's advocacy was ineffective. Father asserts Dalby was ineffective by representing Father while simultaneously representing two other natural fathers involved in companion proceedings. Father also asserts Dalby was ineffective for not objecting to adjudication prior to service, failing to object to the appropriateness of the treatment plan, failing to arrange Father's telephonic appearance at any proceedings, and failing to make objections and present witnesses or evidence throughout the case. From our review of the record, we do not find Father's counsel to have provided ineffective assistance.

¶16 While Father asserts Dalby had some type of conflict in representing all three fathers in the companion cases, he fails to identify any actual conflict that existed that would require each father's consent to Dalby's representation. M. R. Pro. Cond. 1.7(a) provides that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." If a "concurrent conflict of interest" exists, a lawyer "may represent a client if ... each affected client gives informed consent, confirmed in writing." M. R. Pro. Cond. 1.7(b). Although Father cites M. R. Pro. Cond. 1.7, he does not assert any particular conflict of interest existed in Dalby's representation of all the fathers in the companion cases nor does the record reveal any conflict. The other fathers had no parenting interest or relationship with Child and the three fathers' separate interests in parenting their respective children were not in conflict with one another.

¶17 Father asserts Dalby should have moved to continue the adjudicatory hearing until he was personally served. While Dalby could have made such an objection, Father has not established it was ineffective assistance not to do so. Pursuant to In re K.B. , 2016 MT 73, ¶ 19, 383 Mont. 85, 368 P.3d 722, failure to object to adjudication is not IAC when sufficient evidence supports the adjudication of the child as a YINC. As previously indicated, Father has never asserted the evidence was insufficient to support the District Court's adjudication of Child as a YINC. Father has also never contested his stipulation to the adjudicatory relief.

¶18 Finally, Father asserts IAC based on counsel failing to object to the appropriateness of the treatment plan, failing to arrange Father's telephonic appearance at any proceedings, and failing to make objections and present witnesses or evidence throughout the case. Given Father's lack of engagement with the Department and his lack of contact with counsel throughout the course of this case, his IAC assertions are unavailing. When not incarcerated, Father was basically out of contact and unreachable by his counsel or the Department. Father had contact information for his counsel. Further, Dalby had sent Father the proposed treatment plan and was able to delay the District Court's consideration of it for a period of time as he had not been able to contact Father to discuss it. Father did not answer the telephone at the contact number he provided counsel and did not keep counsel apprised of his contact information when it changed. It is not realistic to expect counsel to make objections or particularly advocate for a client when counsel is unable to locate or contact the client and the client fails to contact the attorney. Without being able to reach Father, Dalby could not make objections, present evidence, or advocate to the court any client progress or position. A parent cannot establish IAC through his own failure to contact and engage with counsel. In this case, Dalby rendered legal services which were as effective as possible given Father's lack of contact and engagement with him.

¶19 Reasonable efforts. Finally, Father asserts his due process rights were violated by the Department's failure to engage in reasonable efforts to reunify him with Child. Specifically, Father argues the Department failed to make reasonable efforts by failing to determine whether his home was safe and appropriate for Child, follow up with his probation officer to confirm compliance with his Nevada conditions of release, definitively determine why Father was incarcerated, and provide Father services, referrals, and information.

¶20 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 ).

¶21 Since "a natural parent's right to care and custody of a child is a fundamental liberty interest," a district court "must adequately address each applicable statutory requirement" before terminating an individual's parental rights. In re A.T ., 2003 MT 154, ¶ 10, 316 Mont. 255, 70 P.3d 1247 (citing In re J.N. , 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317 ). One such requirement is found in § 41-3-423(1), MCA, which requires the Department to "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." Although determination of whether the Department made reasonable efforts is not a separate requirement for termination, it is a predicate for finding that the conduct or condition rendering a parent unfit, unwilling, or unable to parent is unlikely to change within a reasonable time-one of the factors required for termination of a parent's rights. See § 41-3-609(1)(f)(ii), MCA ; In re D.B ., ¶ 25.

¶22 To meet its requirements to provide reasonable efforts, the Department must in good faith develop and implement treatment plans designed "to preserve the parent-child relationship and the family unit" and must, in good faith, assist a parent in completing his treatment plan. In re D.B. , ¶ 33 ; see also In re T.D.H. , 2015 MT 244, ¶ 42, 380 Mont. 401, 356 P.3d 457. From our review of the record, we conclude the Department provided reasonable efforts as required by § 41-3-423(1), MCA.

¶23 Pursuant to the Department's policy, when a child is removed from a custodial parent, the non-custodial parent is the first placement option considered by the CPS. See Child and Family Services Policy Manual, § 304-1. Father asserts the Department made no efforts to determine whether his home was safe and appropriate for Child. At the point where the Department became involved with this family, Child was residing with his maternal grandmother with whom he had resided on and off for the majority of his life and with whom he had been residing continuously for approximately 14 months. Moreover, Father was incarcerated so he was not a viable first placement option.

Upon Father's release, there is nothing in the record indicating that Father desired Child be placed with him. From the testimony and affidavit of CPS Weber regarding his interactions with Father, the record indicates Father agreed he needed to address mental health, chemical dependency, housing and stability issues, and build a relationship with Child before he could safely parent Child. Father also claims the Department failed to follow up with his probation officer to confirm compliance with his conditions of release or provide him services, referrals, or information as to where he could obtain services related to his treatment plan tasks. This assertion is also not supported by the record. After Father reported engagement in some therapy and drug testing through his probation, CPS Weber contacted Father's probation officer in October 2017 and confirmed Father was compliant with his conditions of release. CPS Weber did not further follow up with the probation officer as he believed Father was discharging from supervision that month. Again, after this time, Father basically discontinued communicating with the Department. Although CPS Weber repeatedly attempted to contact Father at the number Father provided, Father did not answer. When CPS Weber reached voicemail, it indicated it was the voicemail box of someone other than Father. It was not until a few days before the termination hearing that Father's whereabouts became known again when he was re-incarcerated.

¶24 We have long held that a parent has an obligation to avail himself of services arranged or referred by the Department and engage with the Department to successfully complete his treatment plan. In re R.J.F. , 2019 MT 113, ¶ 38, 395 Mont. 454, 443 P.3d 387 ; In re C.B. , 2014 MT 4, ¶¶ 19, 23, 373 Mont. 204, 316 P.3d 177 ; In re D.F., 2007 MT 147, ¶ 30, 337 Mont. 461, 161 P.3d 825 ; In re T.R. , 2004 MT 388, ¶ 26, 325 Mont. 125, 104 P.3d 439 ; In re L.S. , 2003 MT 12, ¶ 11, 314 Mont. 42, 63 P.3d 497. While "engaging in reasonable efforts requires more than merely suggesting services to a parent and waiting for the parent to then arrange those services for [him]self," they do not require herculean efforts. In re R.J.F. , ¶ 37 ; see also In re A.G. , 2016 MT 203, ¶ 17, 384 Mont. 361, 378 P.3d 1177. In order for the Department to make reasonable efforts, the parent has a corresponding obligation to engage with the Department and maintain sufficient contact with the Department for the Department to be able to assist the parent to obtain the treatment and services necessary for the parent to safely parent. Here, Father cannot establish the Department failed to make reasonable efforts to reunify him with Child through his own failure to remain in contact and engage with the Department.

¶25 2. Whether Father's treatment plan was appropriate.

¶26 Father, for the first time on appeal, claims that his court-ordered treatment plan was inappropriate and asserts plain error review is appropriate. Father contends the treatment plan ordered by the court requiring mental health, chemical dependency, housing and stability, and parenting and visitation tasks was inappropriate as "the only problems/conditions related to the abuse/neglect of [Child] by Father were that he left his child in the care of Grandmother without a power of attorney and without providing support."

¶27 Plain error review is discretionary and may be granted where an appellant shows: (1) the asserted error implicates a fundamental right, and (2) not reviewing the asserted error may result in a manifest miscarriage of justice, leave unsettled the question of fundamental fairness of the proceedings, or may compromise the integrity of the judicial process. In re M.K.S. , 2015 MT 146, ¶¶ 13-14, 379 Mont. 293, 350 P.3d 27. We employ plain error review sparingly, on a case-by-case basis. In re J.S.W. , 2013 MT 34, ¶ 16, 369 Mont. 12, 303 P.3d 741.

¶28 Although the asserted error implicates a fundamental right-the right to parent one's child-Father has failed to establish plain error review is warranted. At the outset of this matter, Father was appointed counsel and had full opportunity to contest the adjudication of Child as a YINC. Instead of contesting that his placement of Child in the care of an appropriate relative-maternal grandmother-was insufficient to establish the need for EPS pursuant to §§ 41-3-301, 41-3-427, and 41-3-432, MCA, or to establish Child as a YINC as defined in § 41-3-102(34), MCA, Father stipulated to the relief requested by the Department-EPS and adjudication of Child as a YINC. It is undisputed that Father and his counsel received the proposed treatment plan. Father had contact information for his counsel and the Department. Father also spoke with CPS Weber in August and October 2017. During those conversations CPS Weber discussed the requirements of Father's treatment plan. Father acknowledged to CPS Weber he had received the treatment plan, understood its requirements, and intended to sign it and return it to CPS Weber. Father related to CPS Weber he had not yet had time to work on any of the treatment plan tasks. Father did not express objection to the treatment plan or any of the tasks required therein or request assistance in lining up services. Father did not question the appropriateness of his treatment plan either before or after it was ordered. Father was represented by counsel, had contact information for his counsel, and had full opportunity to seek advice and confer with counsel if he had any questions, concerns, or objections to the treatment plan. Father never requested clarification, modification, or amendment to his treatment plan. Finally, attorney Franklin, who took over Father's representation from Dalby and against whom Father has not made any IAC claims, did not raise any objection to or issue regarding the treatment plan during the termination hearing. Through Father's failure to take advantage of the legal representation appointed to him to contest or object to his treatment plan and through his failure to express anything other than agreement with his treatment plan throughout the entire course of this case, Father has waived his right to appeal the appropriateness of the plan. The District Court's approval of Father's treatment plan did not constitute a manifest miscarriage of justice or compromise the integrity of the proceedings.

CONCLUSION

¶29 Father was not denied due process when the District Court terminated his parental rights, and plain error review regarding the appropriateness of Father's treatment plan is not warranted.

¶30 Affirmed.

We concur:

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

BETH BAKER, J.

JIM RICE, J.

      Child, along with Mother's two other children, had been residing with Grandmother who expressed concern Mother could attempt to take the children from her care. There is nothing in the record suggesting Child was abused or neglected or at risk of such in Grandmother's care. Father did not contest show cause or adjudication of Child as a youth in need of care nor does he appeal this issue.

      On December 3, 2018, Father's counsel filed a motion requesting Father be permitted to appear telephonically at the hearing as he was now residing at a sober living home in Nevada.

      Three children were involved in related proceedings. Mother was the natural mother of all three children, but each had a different natural father. While each of the children's cases was assigned a separate case number, all cases were heard simultaneously throughout the proceedings.

      Father's assertion that his treatment plan was not appropriate will be discussed under Issue 2.

      Further, the Department had alleged, and Father did not contest, that Mother and Father had placed Child in the care and custody of Grandmother.


text:
    KB ENTERPRISES, LLC, d/b/a Snappitz, Petitioner and Appellant, v. MONTANA HUMAN RIGHTS COMMISSION and Jerry James Bright, Respondents and Appellees.
    DA 18-0564
    Supreme Court of Montana.
    Submitted on Briefs: April 24, 2019 Decided: June 4, 2019
    For Appellant: Cynthia L. Walker, Poore, Roth & Robinson, P.C., Butte, Montana
    For Appellee Jerry James Bright: J. Ben Everett, Everett Law, PLLC, Anaconda, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 KB Enterprises, LLC, d/b/a Snappitz (KB) appeals the Order Affirming Final Agency Decision Issued by the Montana Human Rights Commission issued by the Third Judicial District Court, Anaconda-Deer Lodge County, on September 21, 2018. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court err in affirming the Final Agency Decision of the Montana Human Rights Commission?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 KB owns and operates a fabrication business in Anaconda which makes insulated pipe fittings. Appellee Jerry James Bright (Bright) is an African American man who worked as a fabricator at KB from January 2015 until April 2016. Dave Gustafson (Gustafson) was Bright's supervisor during Bright's employment at KB. On four occasions-in March 2015, June 2015, November 2015, and April 2016-Gustafson either directly called or referred to Bright as a "nigger" while the two were at work. Bright quit his job at KB following the April 2016 incident with Gustafson and filed a racial discrimination complaint against KB with the Montana Department of Labor and Industry's Human Rights Bureau (HRB).

¶4 On April 20 and 21, 2017, Office of Administrative Hearings Hearing Officer David A. Scrimm held a contested case hearing on the matter. Bright, Gustafson, Kevin Beck, Josh Blaz, Travis Scholler, and Misty Franklin testified at the hearing. On October 10, 2017, the Hearing Officer issued his Hearing Officer Decision and Notice of Issuance of Administrative Decision, which found that Bright was subjected to racial discrimination in his employment by KB. The Hearing Officer awarded Bright $ 18,357.70 in lost wage damages and $ 20,000.00 in emotional distress damages.

¶5 KB appealed the Hearing Officer's decision to the Montana Human Rights Commission (HRC). After briefing and a hearing, the HRC adopted the Hearing Officer's decision in full as its Final Agency Decision. KB then filed a petition for judicial review in the District Court. After briefing and a hearing, the District Court upheld the HRC's Final Agency Decision and dismissed KB's petition for judicial review. KB appeals.

STANDARD OF REVIEW

¶6 The Montana Administrative Procedures Act (MAPA) governs actions before the HRC. Bollinger v. Billings Clinic , 2019 MT 42, ¶ 26, 394 Mont. 338, 434 P.3d 885. MAPA provides the standard of judicial review of agency decisions:

The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decision are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Section 2-4-704(2), MCA. Under this standard of review, which applies to both the district court's review of the agency decision and this Court's review of the district court's decision, a reviewing court may not substitute its judgment for that of the administrative agency, but instead reviews the entire record to determine if the agency's findings of fact are clearly erroneous and its conclusions of law are correct. Bollinger , ¶ 26. A finding is clearly erroneous if it is not supported by substantial evidence, if the agency misapprehended the effect of evidence, or if this Court's review of the record convinces us a mistake has been made. Jones v. All Star Painting Inc. , 2018 MT 70, ¶ 14, 391 Mont. 120, 415 P.3d 986 (citing Arlington v. Miller's Trucking, Inc. , 2015 MT 68, ¶ 10, 378 Mont. 324, 343 P.3d 1222 ).

DISCUSSION

¶7 Did the District Court err in affirming the Final Agency Decision of the Montana Human Rights Commission?

¶8 KB asserts that the Hearing Officer made numerous incorrect findings of fact in this case, and that the HRC and District Court both wrongly upheld the Hearing Officer's decision. In support of this contention, KB essentially asks this Court to believe the testimony of its witnesses over that of Bright's witnesses. The basic facts of this case are that Bright testified that Gustafson called him a "nigger" on four separate occasions during his employment at KB, Gustafson testified that he did not, and the other witnesses generally testified that they did not hear it. The Hearing Officer received this testimony, weighed the credibility of the witnesses, and determined that Gustafson did in fact call Bright a "nigger" on those four occasions.

¶9 "Administrative findings of fact may not be disturbed on judicial review if they are supported by substantial evidence in the record." Peretti v. Dep't of Revenue , 2016 MT 105, ¶ 18, 383 Mont. 340, 372 P.3d 447. Substantial evidence is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. Peretti , ¶ 18 (citing Taylor v. State Comp. Ins. Fund , 275 Mont. 432, 437, 913 P.2d 1242, 1245 (1996) ). "As long as we determine that substantial credible evidence exists to support the findings of the trier of fact, we may not re-weigh the evidence, but must instead defer to the Hearing Examiner." Benjamin v. Anderson , 2005 MT 123, ¶ 37, 327 Mont. 173, 112 P.3d 1039. "A hearing examiner, when one is used, is in the unique position of hearing and observing all testimony entered in the case.... The findings of the hearing examiner, especially as to witness credibility, are therefore entitled to great deference." Benjamin , ¶ 37 (quoting Moran v. Shotgun Willies, Inc. , 270 Mont. 47, 51, 889 P.2d 1185, 1187 (1995) ).

¶10 KB objects to a litany of the Hearing Officer's findings of fact, highlighting conflicting testimony given by the witnesses in this matter. Findings of Fact Nos. 11-17 each concern the four separate incidents where Gustafson called Bright a "nigger" while at work. Finding of Fact No. 23 relatedly concerns Misty Franklin's testimony that she did not remember any incidents of Gustafson using the "N-word." Substantial credible evidence exists to support each of these Findings of Fact as noted by the District Court in its Order. Bright testified to each instance happening and Gustafson denied each instance. The Hearing Officer is in the best position to determine the credibility of witness testimony and his determination that Bright's testimony was true is entitled to great deference. Benjamin , ¶ 37. Findings of Fact Nos. 11-17 and 23 are not clearly erroneous.

¶11 Finding of Fact No. 18 concerns Gustafson admitting to using the "N-word" at work in 2012, when speaking with William Sanders, an African American man who was then employed by KB. Finding of Fact No. 18 further notes that Gustafson had been accused of being a racist by Kevin Beck's father, Dave Beck, when he was the owner of the company. KB claims that this Finding of Fact is clearly erroneous because Dave Beck was no longer an owner of the company when Dave Beck called Gustafson a racist, however Gustafson testified that he was accused by Dave Beck of being a racist "during [his] employment at KB Enterprises" and "after the November 30th incident." While Dave Beck was no longer the owner of KB in 2015, the testimony of Gustafson does not preclude that Dave Beck did call Gustafson a racist during a period when he was the owner of the company. Dave Beck founded KB, was an owner for a period of time, and eventually gave control to Kevin Beck. Dave Beck and Kevin Beck had multiple meetings with Gustafson over the years regarding Gustafson's racist statements. Even after ceding control of KB to Kevin Beck, Dave Beck maintained apparent authority at the company-he could call all-hands employee meetings and was involved in the meetings with Kevin Beck and Gustafson regarding Gustafson's use of the "N-word" at work. Finding of Fact No. 18 is not clearly erroneous, because even though there is not a preponderance of the evidence that Dave Beck called Gustafson a racist while he was the owner of KB, substantial evidence is found in the record to support the Hearing Officer's conclusion that he did. Peretti , ¶ 18.

¶12 Finding of Fact No. 19 concerns Bright's admitted use of the term "nigga" as a term of endearment with other African American employees at work. KB claims that Bright can therefore not claim to be offended when his direct supervisor, who is not an African American, calls him a "nigger." This argument is nonsensical and ignores years of cultural history. See Daniel v. Wayans , 8 Cal. App. 5th 367, 390, 213 Cal.Rptr.3d 865 (2017) ("Nigga is not an unambiguous racial epithet in today's world, especially when used intraracially[.]") Bright testified that he was offended by Gustafson, a non-African American, calling him a "nigger," but used the diminutive "nigga" himself as a non-offensive greeting with fellow African Americans. There is a clear difference between African Americans using the term "nigga" amongst one another and a non-African American calling an African American man a "nigger." See generally Bailey v. Binyon , 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("The use of the word 'nigger' automatically separates the person addressed from every non-black person; this is discrimination per se .") Finding of Fact No. 19 is not clearly erroneous.

¶13 Findings of Fact Nos. 26 and 35 concern Bright's alleged failure to mitigate his damages by twice refusing KB's offers to return to work at KB after Bright quit in response to Gustafson's repeated racial abuse. The Hearing Officer found that at the time of each offer, Gustafson was still employed at KB. Substantial evidence supports this Finding of Fact, as Gustafson testified that he did not leave his job at KB until the end of June, while both of KB's offers to Bright were made in May. Bright obtained employment prior to the second offer, at an admittedly lower wage than he made at KB, but it is reasonable for him to reject KB's offers of reemployment at a company which still employs a supervisor who had repeatedly branded him with racial slurs. KB could toll the accrual of damages by offering Bright his job without conditions attached. Martinell v. Montana Power Co. , 268 Mont. 292, 323, 886 P.2d 421, 440 (1994). It did not do so in this case by offering Bright a job being supervised by Gustafson. KB's offer of reemployment to Bright was therefore conditioned on Bright possibly being subject to even more racial abuse. Findings of Fact Nos. 26 and 35 are not clearly erroneous.

¶14 Finding of Fact No. 32 concerns Bright being hurt by being called a "nigger" by Gustafson. Bright testified to how these experiences hurt him. "The experience of being called 'nigger,' 'spic,' 'Jap,' or 'kike' is like receiving a slap in the face. The injury is instantaneous." State v. Hoshijo , 76 P.3d 550, 565 (Haw. 2003) (quoting Taylor v. Metzger , 152 N.J. 490, 706 A.2d 685, 691 (1998) ). It is abundantly clear that throughout the history of the United States, the term "nigger" has been used as a vicious racial slur to degrade and demean African Americans. The Hearing Officer's Finding of Fact No. 32 that Bright was hurt by this experience is supported by substantial evidence and not clearly erroneous.

¶15 Finding of Fact No. 33 concerns Kevin Beck being aware of Gustafson's racist conduct toward Bright. Bright reported that Gustafson was using "the (N) word" in a written statement to KB. KB admits that it received the statement. Kevin Beck was therefore aware of Bright's allegations and did nothing to protect Bright from Gustafson's racist abuse. Finding of Fact No. 33 is not clearly erroneous.

¶16 KB asserts that Finding of Fact No. 20 regarding Josh Blaz witnessing Gustafson using the "N-word" toward Bright is clearly erroneous because not all of Blaz's testimony at the hearing was truthful. "The jury is to be instructed by the court on all proper occasions that ... a witness false in one part of the witness's testimony is to be distrusted in others[.]" Section 26-1-303(3), MCA. KB claims that the Hearing Officer should have disregarded Blaz's testimony due to this statute. Section 26-1-303, MCA, is, by its plain language, a jury instruction statute and therefore irrelevant to the proceedings before the Hearing Officer in this case. The Hearing Officer is entitled to judge witness credibility and "the findings of the hearing examiner, especially as to witness credibility, are ... entitled to great deference." Benjamin , ¶ 37. Finding of Fact No. 20 is not clearly erroneous.

¶17 Finding of Fact No. 34 concerns the Hearing Officer's conclusion that the racial harassment of Bright was sufficiently severe so as to alter the conditions of Bright's employment. There is no precise test to determine whether instances of discriminatory conduct have created a work environment that it so hostile or abusive that it alters the conditions of an employee's employment-each case must be judged by looking at all the circumstances from the perspective of a reasonable person. Harris v. Forklift Sys. , 510 U.S. 17, 21-22, 114 S. Ct. 367, 370, 126 L.Ed.2d 295 (1993). "Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates." McGinest v. GTE Serv. Corp. , 360 F.3d 1103, 1116 (9th Cir. 2004) (quoting Rodgers v. Western-Southern Life Ins. Co. , 12 F.3d 668, 675 (7th Cir. 1993) ). There is simply no question that the use of the word "nigger" by a supervisor toward an African American employee objectively creates a hostile and abusive working environment that alters the conditions of that employee's employment. Kevin Beck, the owner of KB, testified to as much during the HRB hearing. Finding of Fact No. 34 is not clearly erroneous and to the extent that it is a conclusion of law, it is correct.

¶18 Finally, KB objects to Findings of Fact Nos. 36 and 41, which concern the Hearing Officer's determination that Bright is entitled to damages. Specifically, Finding of Fact No. 41 awarded Bright $ 20,000.00 for emotional distress. KB claims that this award is excessive and out of line with previous cases, and cites several decisions with lower damages awards in its briefing-though quite notably none where a plaintiff was subjected to the slur used by Gustafson in this case. KB asserts that any emotional distress award should be "directly in line with" Johnson v. Hale , 13 F.3d 1351 (9th Cir. 1994). In Johnson , the plaintiffs were two African American men who were refused an apartment in Billings by a landlord who stated that her husband would not allow her to rent to "Negro men." Johnson , 13 F.3d at 1352. The Ninth Circuit Court of Appeals set aside the district court's de minimis emotional distress award of $ 125.00 to each plaintiff and remanded to the district court to award each plaintiff "not less than $ 3,500 plus costs and attorneys' fees." Johnson , 13 F.3d at 1354. The Ninth Circuit noted "[t]hat sum would appear to be the minimum that finds support in recent cases and takes into account inflation, the purpose of [ 42 U.S.C.] § 1982, and other factors[,]" and stated that the district court "may, of course, award more after reviewing the authorities cited above." Johnson , 13 F.3d at 1354. Taking inflation into account, as the Ninth Circuit did in Johnson , and noting that the plaintiffs in Johnson were subjected to a single instance of racial abuse from a prospective landlord, rather than multiple instances of racial abuse by a direct supervisor, we do not find the Hearing Officer's emotional distress award of $ 20,000.00 to be excessive. Substantial evidence supports the emotional distress award in Findings of Fact Nos. 36 and 41 and those findings are not clearly erroneous.

CONCLUSION

¶19 The Hearing Officer's Findings of Fact were not clearly erroneous, did not misapprehend the effect of evidence, and this Court's review of the entire record does not convince us that a mistake has been made. The District Court correctly affirmed the HRC's Final Agency Decision and dismissed KB's petition for judicial review.

¶20 Affirmed.

We concur:

MIKE McGRATH, C.J.

LAURIE McKINNON, J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

      Mr. Gustafson is not related to Justice Gustafson.