text:
    IN THE MATTER OF R.B.O., D.R.O., R.I., G.M., T.M., Youths in Need of Care.
    No. 95-387.
    Submitted on Briefs March 7, 1996.
    Decided July 22, 1996.
    53 St.Rep. 640.
    277 Mont. 272.
    921 P.2d 268.

      For Appellant: Robert G. McCarthy; Dayton & McCarthy, Anaconda.
    For Respondent: Ross P. Richardson; Henningsen, Vucurovich & Richardson, Butte.
   JUSTICE GRAY

delivered the Opinion of the Court.

Laura Ison (Ison) appeals from the judgment entered by the Second Judicial District Court, Silver Bow Comity, on its findings of fact, conclusions of law and order terminating her parental rights. We affirm.

We address the following issues:

1. Did the District Court err in terminating Ison’s parental rights pursuant to § 41-3-609, MCA?

2. Was Ison denied due process of law by the District Court’s reliance on reports submitted by individuals who were not subject to cross-examination?

Ison is the mother of R.B.O., D.R.O., R.I., G.M. and T.M. She has a long history of contact with the Montana Department of Family Services (DFS), now the Department of Public Health and Human Services. In 1989, DFS obtained a Temporary Investigative Authority (TLA) relating to Ison’s care of her children. The children were placed in foster care and Ison participated in an informal treatment plan. The TIA was dismissed in January of 1990.

On January 22, 1990, DFS received a complaint that Ison was taking illegal drugs and leaving her children unattended. On February 15, 1990, she was arrested in Great Falls for felony theft. The children were placed in foster care and remained there until June 1, 1990, when they were placed with relatives in Butte. R.B.O., D.R.O. and R.I. were returned to Ison in September, and G.M. and T.M. in October, of 1991.

On April 3,1992, Ison filed a complaint with DFS alleging that four of her children had been sexually abused. DFS provided counseling for Ison and day care and counseling for her children. On June 30, 1992, DFS received a complaint, which was later substantiated, that Ison had left her children unattended. On October 5, 1992, DFS received another complaint alleging that Ison had left her children unattended; DFS determined that this complaint was not valid.

In October of 1992, Ison informed DFS that she did not have a residence for the children. G.M. and T.M. were placed in foster care, while the other three children remained at a residence in Butte. Ison left Butte for a week and, on her return on October 21,1992, she took the children to stay with her at a local motel.

On January 13 and February 4, 1993, DFS received complaints that Ison’s children had not been picked up from school; DFS determined that the complaints were valid. On February 12, 1993, Ison’s parole officer informed DFS that Ison was in the Women’s Transitional Center (Pre-Release Center) as the result of a parole violation. The children stayed with friends in Butte at that time, but on March 19,1993, Ison informed DFS that the children needed placement. She entered into an agreement with DFS under which she agreed to temporarily place her children in foster care.

Ison later arranged for the children to reside with friends in Butte and, as a result, the children were removed from foster care on June 9, 1993. On July 1, 1993, the individuals caring for the children informed DFS that they could no longer do so. At that time, DFS petitioned the District Court for another TIA and the children were again placed in foster care, where they have remained. On August 16, 1993, the court found the children to be youths in need of care as defined in § 41-3-102, MCA.

While in the Pre-Release Center, Ison entered into a treatment plan with DFS which commenced on October 29,1993, and ended, by its terms, on April 29,1994. The treatment plan was filed with, and approved by, the District Court. On April 28, 1994, DFS moved for a continuation of temporary legal custody of the children based on a report by DFS social worker Dave Evans (Evans). The Evans report noted that Ison had complied with the treatment plan, but recommended that the children remain in DFS’ temporary custody for an additional sixty-day period while efforts toward reuniting Ison with her children continued.

On May 3,1994, while Ison was living away from the Pre-Release Center, but subject to its day reporting program, Ison was again arrested and jailed for using methamphetamines in violation of program regulations. Ison’s parole officer informed DFS that she would be incarcerated for a minimum of 120 days at the Women’s Correctional Center. In an updated report dated May 6,1994, which contained this information, Evans noted Ison’s inability to provide proper care and supervision of her children; his concern about her ability to remain involved with her children was evident. The District Court extended DFS’ temporary legal custody of Ison’s children for ninety days on June 3,1994.

On August 18, 1994, DFS petitioned for termination of Ison’s parental rights and permanent legal custody of her children. Counsel was appointed to represent Ison and the court continued DFS’ temporary custody of her children pending a hearing on the petition to terminate. The hearing was continued several times by motion or agreement of Ison. On December 6, 1994, DFS moved to dismiss the petition and continue temporary legal custody of Ison’s children for an additional six months; Ison stipulated to the six-month continuation of temporary custody. The District Court continued DFS’ temporary legal custody on December 14, 1994; it did not dismiss the petition to terminate Ison’s parental rights.

Ison had returned to the Pre-Release Center from the Women’s Correctional Center in late November of 1994 and, thereafter, DFS attempted to work on a new treatment plan for her. DFS ultimately presented the treatment plan, which retained the possibility of returning Ison’s children to her care and custody, to Ison and asked her to sign it; she refused. On January 20,1995, DFS moved the District Court for approval of the new treatment plan and a hearing was scheduled for January 27, 1995.

On or about January 21, 1995, however, Ison was again found to have used drugs and jailed. DFS was advised that she again would be sent to the Women’s Correctional Center. Ison was scheduled to be released on August 21,1995.

Following Ison’s reincarceration, Evans concluded that another treatment plan would not be practical. Due to her repeated drug violations, he felt that the October 29, 1993, treatment plan clearly had been unsuccessful. Accordingly, DFS again petitioned the District Court for termination of Ison’s parental rights on February 6, 1995; an amended petition was filed a week later.

At the beginning of the March 9,1995, hearing on DFS’ petition to terminate, Ison moved to dismiss the petition on the grounds that no court-approved treatment plan was in place as required by § 41-3-609, MCA. The District Court requested briefs on the issue and completed the hearing. Ison’s motion to dismiss subsequently was denied.

On April 4, 1995, the court ordered a post-hearing supplemental evaluation of Ison and report by Dr. Mark Mozer (Mozer), a clinical psychologist who had evaluated her in June of 1994. Ison moved to vacate the order, requesting the District Court to appoint some other suitable professional to perform the evaluation. The court denied Ison’s motion. Mozer subsequently performed a psychological evaluation of Ison and submitted his report to the court.

On June 27, 1995, the District Court issued its findings of fact, conclusions of law and order terminating Ison’s parental rights. Ison appeals.

Did the District Court err in terminating Ison’s parental rights pursuant to § 41-3-609, MCA?

Section 41-3-609(1), MCA, provides that a district court may terminate a person’s parental rights if it finds that:

(c) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time[.]

The District Court found that the three conditions set forth in § 41-3-609(l)(c), MCA, existed and, on that basis, terminated Ison’s parental rights.

In Matter of D.H. (1994), 264 Mont. 521, 872 P.2d 803, we clarified the standards under which we review a district court’s determinations in proceedings to terminate parental rights. We review a district court’s factual findings to determine whether they are clearly erroneous. Matter of D.H., 872 P.2d at 805. Such a finding is clearly erroneous if it is not supported by substantial evidence; or, if so supported, the district court misapprehended the effect of the evidence; or, if so supported and the district court did not misapprehend the effect of the evidence, this Court is left with the definite and firm conviction that a mistake has been committed. Matter of D.H., 872 P.2d at 805 (citing Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). With the exception of a district court’s conclusions involving the exercise of discretion, such as a determination that a child is abused and neglected, we review conclusions of law in termination of parental rights cases to determine whether they are correct. Matter of D.H., 872 P.2d at 805-06.

Ison contends that the statutory requirements of § 41-3-609, MCA, were not satisfied and, therefore, that the District Court erred in terminating her parental rights. We begin by addressing the District Court’s findings under § 41-3-609(l)(c), MCA, in turn.

The District Court found that Ison’s children were adjudicated youths in need of care. Ison does not dispute this finding and, indeed, the record reflects that she stipulated that her children were abused, neglected or dependent youths at the time of the court’s adjudication in August of 1993.

The District Court also found, under § 41-3-609(l)(c)(i), MCA, that Ison’s court-approved treatment plan, which had expired on April 29,1994, was not successful. We review the record to determine whether substantial evidence supports this finding.

Ison had been residing at the Pre-Release Center for at least eight months by the time the District Court approved the October 29,1993, treatment plan. Both her involvement with law enforcement and her problems in providing a stable and appropriate home for her children resulted in large part from Ison’s drug use.

The stated purposes of the treatment plan were 1) to facilitate the establishment of physical and emotional stability for Ison’s children; 2) to assist Ison in establishing herself as a person capable of providing consistent and adequate care for her children; and 3) to provide DFS with information necessary to develop the most appropriate permanent plan for her children. The plan set forth numerous tasks for Ison, including individual and family counseling, weekly contact with her children and release of information from her family, mental health and chemical dependency counselors regarding her progress. Within two weeks of her release from the Pre-Release Center, the treatment plan required Ison to secure adequate housing for herself and her children; moreover, “during this time when Laura’s children are returned to her care,” she was to remain drug and alcohol free and her children were to be supervised at all times. Evans testified, and these latter provisions of the treatment plan clearly contemplate, that the plan could not be successfully completed while Ison continued to reside at the Pre-Release Center.

Evans testified, and it is undisputed, that Ison complied with the applicable provisions of the court-approved treatment plan while residing at the Pre-Release Center. Ison’s actual residence at the Pre-Release Center ended in approximately mid-April, 1994, when she moved into a house trailer in Butte, but she remained subject to the Pre-Release Center’s day reporting program. According to Evans, Ison was living in adequate housing when the treatment plan expired by its terms on April 29, 1994; Evans’ report filed April 28, 1994, recommended that DFS’ temporary legal custody of Ison’s children be continued for sixty days while Ison’s ability to continue to establish a home environment, maintain counseling and work towards being reunited with her children in her home were monitored. Thus, the record is clear that, while Ison was making progress vis-a-vis the eventual return of her children to her care, the purposes of the treatment plan had not yet been accomplished at the time the treatment plan expired on April 29,1994.

On May 3,1994, less than a week after the treatment plan expired, Ison was arrested and jailed at the Butte-Silver Bow Jail for drug involvement; she subsequently was incarcerated at the Women’s Correctional Center. Evans opined that, based on Ison’s continued drug use and reincarceration, the treatment plan had not been successful. As a result, DFS petitioned to terminate Ison’s parental rights.

For reasons not clearly reflected in the record, DFS later determined not to pursue the petition to terminate. Instead, DFS tried to work toward a new treatment plan for Ison, still contemplating the possibility of the eventual return of her children to her care. Ison refused to sign the plan. DFS moved for court approval of the new treatment plan on January 20, 1995, and a January 27 hearing was scheduled.

On January 21, 1995, the day after DFS’ motion, Ison was again found to have used methamphetamines. Indeed, Linda Rogers (Rogers), Ison’s chemical dependency counselor at the Pre-Release Center, testified that Ison discussed the possibility of doing so with her in advance and, notwithstanding her advice to Ison that such an action could have significant consequences with regard to her efforts to regain custody of her children, Ison went ahead with the drug use. Ison was again jailed and subsequently returned to the Women’s Correctional Center. Evans concluded again that the October 29, 1993, treatment plan had not been successful and that another plan would not be practical.

Mary Kay Starin (Starin), the guardian ad litem for Ison’s children, also testified at the hearing on DFS’ petition to terminate Ison’s parental rights. In Starin’s opinion, chemical dependency was Ison’s central problem and Ison had not yet dealt successfully with that problem. Thus, Starin opined that the treatment plan was not successful.

In addition to the testimony of Evans and Starin, Ison’s own testimony at the hearing indicates that the treatment plan had not been successful. She admitted, although not consistently, that she knew one of the goals of the treatment plan was that she remain drug-free, and the record is clear that she had not done so in either May of 1994 or January of 1995. Ison conceded that her actions “in the last couple of years” had not been in the best interests of her children. She confirmed Rogers’ version of the conversation between them the day before she used drugs in January of 1995. Ison admitted that she was addicted to methamphetamines and that she knew that continuing her drug use would have a negative effect on her children and her efforts to regain their custody and retain her parental rights. While tending to blame the lack of availability of a particular treatment plan for her continued dependency on drugs, Ison stated candidly that “[i]t was my choice and I chose to use.”

The record before us contains more than substantial evidence in support of the District Court’s finding, pursuant to § 41-3-609(l)(c)(i), MCA, that Ison’s treatment plan had not been successful. Moreover, the testimony and reports discussed above also constitute substantial evidence in support of the District Court’s finding, pursuant to § 41-3-609( l)(c)(ii), MCA, that Ison’s condition was unlikely to change in a reasonable time. The court did not misapprehend the evidence in these regards and we are not left with a definite and firm conviction that a mistake has been committed. Thus, we conclude that the District Court’s findings on the three conditions required by § 41-3-609(l)(c), MCA, before parental rights can be terminated are not clearly erroneous.

Ison argues, however, that the District Court erred as a matter of law in terminating her parental rights because (1) there was no court-approved treatment plan in existence after April 29,1994, and (2) the court’s review of a treatment plan existing only under a dismissed petition for termination of parental rights allows consideration of matters too remote to serve as a basis for termination. She cites no authority for either proposition and, as a result, we address her arguments only briefly.

Ison’s first argument appears to be that her parental rights could not be terminated because no court-approved treatment plan existed after the April 29,1994, expiration of her treatment plan and, therefore, the statutory requirement of a court-approved treatment plan was not met. It is true that § 41-3-609(l)(c)(i), MCA, requires an appropriate and court-approved treatment plan. However, nothing in the statute requires, or even suggests, that a treatment plan must be in effect at the time proceedings to terminate parental rights are begun or completed. Indeed, from a practical standpoint, such a requirement would preclude terminations because the parent could always assert that he or she still had an opportunity to successfully comply.

Moreover, we recently have held that treatment plans can be found to be unsuccessful after the plan is completed. In Matter of S.C. (1994), 264 Mont. 24, 869 P.2d 266, the mother complied with two treatment plans which had been approved by the district court; following completion of the treatment plans, however, the mother again became involved with drugs and attempted to commit suicide. In affirming the district court’s determination that the treatment plan had not been successful, we stated:

It is well established that a parent must not only comply with the treatment plan, but the treatment plan must also be successful. [Citation omitted.] After reviewing the record in this case we conclude that the District Court properly determined that the treatment plans were appropriate and they were complied with, but were not successful in resolving M.C.’s long-term mental illness problems.

Matter of S.C., 869 P.2d at 269.

In the instant case, one of the goals of the treatment plan was that Ison remain drug-free. It is undisputed that Ison complied with the October 29,1993, treatment plan while it was in effect through April 29, 1994. However, mere days after the expiration of the treatment plan, and before her children were returned to her, Ison again used drugs and was reincarcerated. Ison again tested positive for drug use in January of 1995, while residing at the Pre-Release Center, whereupon she was returned to the Women’s Correctional Center. Thus, given the goals of the treatment plan, it is clear that Ison’s continued refusal to refrain from drug use is sufficient to establish, under § 41-3-609(l)(c)(i), MCA, that a “treatment plan that has been approved by the court... has not been successfulf.]”

Ison also argues that, upon the dismissal of DFS’ original petition to terminate parental rights based on the lack of success of the expired treatment plan, the District Court erred in not requiring a new treatment plan. Ison’s argument is based on a misreading of the record.

The record reflects that on December 6, 1994, DFS moved to dismiss without prejudice its August 18, 1994, petition to terminate Ison’s parental rights; as part of the same motion, DFS requested a six-month extension of its custody of Ison’s children. Ison stipulated to the continuance of DFS’ custody of her children and, on December 14,1994, the District Court granted that continuation of custody. The District Court did not dismiss the August 18, 1994, petition to terminate. One week later, Ison again used drugs and DFS proceeded with termination proceedings rather than continuing its efforts toward obtaining court approval of a new treatment plan.

Thus, contrary to Ison’s assertion, DFS’ original petition to terminate was not dismissed. On this record, therefore, the issue of whether dismissal of a petition to terminate parental rights, where the petition had been based on an alleged lack of successful completion of a treatment plan, necessitates a new court-approved treatment plan and subsequent statutorily-required proceedings prior to termination of parental rights is not before us.

Finally, Ison’s related argument that the lack of a new treatment plan permitted the District Court to consider matters “too remote” is without merit. Ison’s drug dependency was a long-term problem impacting directly on her ability to successfully parent her children. She could not, or would not, resolve the problem, as evidenced by two incidents of drug use over an approximately eight-month period while she was still subject to Pre-Release Center drug monitoring. There is nothing “remote” about Ison’s repeated drug use here; it is strong evidence, as was the case in Matter of S. C., that the treatment plan was not successful.

We hold that the District Court did not err in terminating Ison’s parental rights pursuant to § 41-3-609(1), MCA.

Was Ison denied due process of law by the District Court’s reliance on reports submitted by individuals who were not subject to cross-examination?

Ison argues generally that the District Court denied her due process of law by relying on reports contained in her file without requiring the authors of those reports to testily, and be subjected to cross-examination, at the hearing on DFS’ petition to terminate her parental rights. Her primary contention is that the District Court erred in ordering a post-hearing psychological evaluation by Mozer and in relying on Mozer’s report from that evaluation in its findings of fact and conclusions of law. Ison also makes a passing reference to the District Court’s allegedly erroneous reliance on reports from the Pre-Release Center.

We repeatedly have warned district courts that the receipt and consideration of even pre-hearing reports in proceedings such as those to terminate parental rights can have severe due process consequences. See, e.g., Matter of Moyer (1977), 173 Mont. 208, 211, 567 P.2d 47, 49. The possibility of error is great when trial courts rely on reports not supported through examination of their authors by the parties. Matter of M.F. (1982), 201 Mont. 277, 287, 653 P.2d 1205, 1210.

Here, however, Ison did not raise her due process concerns relating to the District Court’s post-hearing order for an evaluation and report by Mozer, and the court’s reliance on Mozer’s report, in the District Court. The record reflects that Ison recognized, and availed herself of, the opportunity to object to the court’s post-hearing order; indeed, she moved to vacate the order requiring the psychological evaluation and corresponding report. The basis of her motion, however, was not the due process argument she attempts to raise here that the author of the report would not be subject to cross-examination. Rather, Ison objected to Mozer performing the evaluation, alleging bias, and merely requested that a different professional perform the evaluation.

We have long refused to address issues raised for the first time on appeal. Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d 1143, 1145. Ison’s due process argument relating to her inability to cross-examine Mozer prior to the District Court relying on his post-hearing evaluation report is raised for the first time on appeal and after a recognized opportunity — indeed, an exercised opportunity — to object. We refuse to address Ison’s argument.

Ison also makes a passing reference to the District Court’s error in relying on reports by Michelle Jenicek, her primary counselor at the Pre-Release Center, apparently urging the same due process argument set forth above. The record reflects, however, that Ison was not only aware of the reports but that her counsel cross-examined Evans with regard to the contents of those reports. Nor did she object to the presence of the reports in the file or the District Court’s reliance on them. Indeed, Ison’s counsel stated that “[r]ather than going through the details of each report, I’d ask that the Court review those individual reports.”

A party cannot assert error on appeal with regard to a matter in which it acquiesced in the trial court. In re Pederson (1993), 261 Mont. 284, 287, 862 P.2d 411, 413; In re Marriage of West (1988), 233 Mont. 47, 51, 758 P.2d 282, 285. Here, Ison not only acquiesced in the District Court’s reliance on the Pre-Release Center reports, she actively encouraged it. As a result, we will not address her assertion of error in this regard.

Affirmed.

JUSTICES HUNT, ERDMANN, NELSON and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    IN THE MATTER OF J.L., D.L. and A.G. YOUTHS IN NEED OF CARE.
    No. 95-536.
    Submitted on Briefs June 13, 1996.
    Decided July 22, 1996.
    53 St.Rep. 649.
    277 Mont. 284.
    922 P.2d 459.

      For Appellant: Derik Pomeroy, Bozeman.
    For Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General; A. Michael Salvagni, Gallatin County Attorney, Gary Balaz, Deputy Gallatin County Attorney, Bozeman; Montana; Jeannine Newville, Bozeman, guardian ad litem; Todd Hillier, Bozeman, guardian ad litem; Marcelle Quist, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Stephanie G. (Stephanie), the natural mother of J.L., D.L., and A.G., appeals the decision of the Eighteenth Judicial District Court, Gallatin County, terminating her parental rights to her son J.L. We affirm.

ISSUE

The sole issue raised on appeal is whether the District Court abused its discretion by terminating Stephanie’s parental rights to J.L.

FACTS

Stephanie is the single parent of three sons, who are currently ten, eight, and four years old. The middle child, D.L., is deaf. In 1993, all three boys were adjudged youths in need of care and removed from the home due to Stephanie’s inability to provide a clean, safe, and structured home environment for them. Stephanie suffered from major depression and post-traumatic stress disorder and demonstrated a passive and avoidant personality. Following the children’s removal from the home, Stephanie began working with the Department of Family Services (DFS) to attempt to complete a prescribed treatment plan in order to regain custody of the children.

In early 1994, the District Court held a hearing evaluating Stephanie’s progress. The District Court found that Stephanie had successfully completed seven of the objectives listed in her treatment plan, but that she had failed to complete five other objectives. The rest had been partially completed or were moot. The District Court recognized that Stephanie loved the boys but concluded that her parenting skills and mental health needed further improvement. The District Court also determined that J.L. was experiencing emotional problems which necessitated his placement in a therapeutic foster home. Accordingly, the District Court extended DFS’s temporary investigative authority for another year and left the boys in various placements outside Stephanie’s home. Stephanie subsequently agreed to a second treatment plan to pursue during the following year.

In late 1994, DFS petitioned the District Court to terminate Stephanie’s parental rights, asserting that Stephanie had not complied with the latest treatment plan and was not visiting any of the boys on a regular basis. In December, 1994, the District Court held a three-day hearing in this case, during which it received evidence and heard extensive testimony from all interested parties. At the hearing, the rights of the boys’ respective fathers were terminated, a decision which none of the fathers appeals. Also at the hearing, Stephanie voluntarily relinquished her rights to A.G., the youngest boy, provided that he be adopted by his aunt, Stephanie’s former sister-in-law.

In 1995, the District Court issued its findings of fact, conclusions of law, and order regarding termination of Stephanie’s parental rights to J.L. and D.L. The District Court noted that Stephanie again had failed to comply with the treatment plan in its entirety. Nevertheless, it declined to terminate Stephanie’s rights regarding D.L., finding that he was benefitting from the structured environment of the Great Falls School for the Deaf. The District Court found that Stephanie had made progress in learning sign language and in educating herself regarding D.L.’s handicap. It further found that, with the assistance of her family, she should be able to handle the demands of a single child.

By the same order, the District Court terminated Stephanie’s parental rights to J.L. The District Court recognized that Stephanie had made significant strides in coping with her personal and parenting problems, as evinced by accomplishments such as obtaining a driver’s license and full-time employment. However, the District Court found that Stephanie had maintained only minimal contact with the children. It further found that she continued to experience emotional problems including a tendency to become easily overwhelmed by multiple demands and an animosity towards “the system,” both of which contributed to her inability to complete the treatment plan. The District Court further noted that J.L.’s emotional state had greatly improved following his placement in the therapeutic foster home and that it was in his best interests to remain in a highly structured environment. For these reasons, the District Court terminated Stephanie’s parental rights to J.L. Stephanie appeals.

STANDARD OF REVIEW

In cases involving the termination of parental rights, this Court will affirm a district court’s findings of fact unless the findings are clearly erroneous. In the Matter of J.S. and P.S. (1994), 269 Mont. 170, 173, 887 P.2d 719, 720. We will affirm a district court’s conclusions of law if they are correct. Matter of J.S., 887 P.2d at 720. See also In the Matter of D.H. and F.H. (1994), 264 Mont. 521, 872 P.2d 803; In the Matter of K.F.L. and N.L. (1996), 275 Mont. 102, 910 P.2d 241.

Because the termination of parental rights involves fundamental liberty interests, the party seeking termination must present clear and convincing evidence to the District Court that the prerequisite statutory criteria for termination have been met. In the Matter of M.M. (1995), 271 Mont. 52, 56, 894 P.2d 298, 301 (citing In the Matter of J.R. (1992), 253 Mont. 434, 438, 833 P.2d 1063, 1066). The criteria for termination are set forth in § 41-3-609, MCA, which provides in pertinent part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: ...
(c) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. ...

Section 41-3-609(l)(c), MCA. Section 41-3-609, MCA, further provides that

[i]n determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time. ...

Section 41-3-609(2)(a), MCA. When making such a determination, the district court must give primary consideration to the best interests of the child, as demonstrated by the child’s physical, mental, and emotional conditions and needs. Section 41-3-609(3), MCA; In the Matter of T.M. (1994), 267 Mont. 75, 79, 881 P.2d 1333, 1336; In the Matter of J.J.G. (1994), 266 Mont. 274, 282, 880 P.2d 808, 813.

DISCUSSION

In arguing that the District Court erred by terminating her parental rights to J.L., Stephanie alleges two specifications of error. First, she argues that the District Court’s decision was not supported by clear and convincing evidence and, therefore, must be reversed. Second, she argues that the District Court’s decision is “logically inconsistent,” because it determined that she was fit to parent one of the boys but unfit to parent the other.

Stephanie asserts that the District Court could not have found clear and convincing evidence to justify termination of her parental rights because the evidence presented at the hearing conflicted in part. While the children’s guardian ad litem recommended that Stephanie’s parental rights be terminated, two psychologists testified that she should be allowed to retain her parental rights and resume custody of the children. While the District Court highlighted Stephanie’s on-going difficulties in working with the system and taking responsibility, it also acknowledged that Stephanie’s personal and parenting problems were improving, as illustrated by her obtaining both a steady job and a driver’s license. Stephanie contends that the existence of such conflicting testimony and findings precluded the District Court from discovering clear and convincing evidence in favor of termination of her parental rights.

This Court has not defined “clear and convincing evidence” in the area of termination of parental rights. However, in a similar case, the Kansas Supreme Court held that

[c]lear and convincing proof is simply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof. This requirement does not call for unanswerable or conclusive evidence. The quality of proof, to be clear and convincing, is somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt.

In the Interest of S.M.Q. (Kan. 1990), 796 P.2d 543, 545. This definition also comports with the meaning of “clear and convincing evidence” as articulated in Montana case law and Montana statutory law in other legal areas. See In the Matter of Shennum (1984), 210 Mont. 442, 684 P.2d 1073 (commitment of an adult for serious mental illness); § 27-1-221(5), MCA (entitlement to punitive damages). Accordingly, the fact that the evidence presented in a case conflicts does not automatically preclude a finding that clear and convincing evidence to support a given position exists.

Moreover, while the District Court was charged with discovering clear and convincing evidence to justify termination of Stephanie’s parental rights, it is not the function of this appellate court to “reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of witnesses.” Interest of S.M.Q., 796 P.2d at 545. Rather, we must ask whether the District Court’s findings are clearly erroneous. Matter of J.S., 887 P.2d at 720. If they are not, they must be upheld.

In this case, the District Court recognized the strides Stephanie made in improving herself, both as an individual and as a parent. Yet the District Court also found that Stephanie still experienced very significant problems in taking responsibility and in dealing with the pressures of parenting, as evinced by her continued inability to substantively comply with a treatment plan and by her sporadic contact with the children. Moreover, the District Court further found that J.L.’s continuing emotional problems necessitated permanent placement in a highly structured environment. These findings are supported by substantial evidence and are not otherwise clearly erroneous.

Stephanie also argues that the decision of the District Court is ‘logically inconsistent” because the District Court found that Stephanie could properly parent D.L., while simultaneously terminating her parental rights to J.L. Stephanie contends that she is either an adequate parent or she is not, and that if she can successfully parent one of her children she can successfully parent both of them.

We disagree. The District Court specifically found that Stephanie functioned better when dealing with D.L. alone, rather than when faced with the responsibility for caring for more than one child at a time. Further, it found that J.L. needed a highly-structured therapeutic environment which Stephanie could not give him. D.L., on the other hand, would not present such a difficult parenting challenge because of his continued enrollment in the Great Falls School for the Deaf and because of the assistance of Stephanie’s family. Again, these findings are supported by substantial evidence and are not clearly erroneous.

The judgment of the District Court is affirmed.

JUSTICES GRAY, TRIEWEILER, ERDMANN and NELSON concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. DONALD SCHNITTGEN, Defendant and Respondent.
    No. 95-384.
    Heard May 7, 1996.
    Submitted May 9, 1996.
    Decided July 30, 1996.
    53 St.Rep. 710.
    277 Mont. 291.
    922 P.2d 500.

      For Appellant: Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing and Brenda Nordlund, Assistant Attorneys General, Helena; Mark J. Murphy, Special Phillips County Attorney, Helena; Ed Amestoy, Phillips County Attorney, Malta.
    For Respondent: David L. Irving, Glasgow; Elizabeth A. Best, Best Law Offices, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

The State of Montana appeals from a judgment of the Seventeenth Judicial District Court, Phillips County, dismissing a criminal charge against Donald Schnittgen (Schnittgen). Schnittgen was charged with criminal mischief as a result of an incident at a bar in Zortman, Montana. Based on his behavior the same evening, Schnittgen was subsequently terminated from his position as deputy sheriff. Schnittgen moved to dismiss the criminal charge contending that his prosecution violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution. After holding an evidentiary hearing on the motion, the District Court entered findings of fact, conclusions of law, and order dismissing the charge of criminal mischief as violative of Schnittgen’s constitutional right against double jeopardy. We reverse.

ISSUE

Did the District Court err in dismissing the felony criminal mischief charge filed against Schnittgen on the basis that it violated the constitutional prohibition against double jeopardy?

BACKGROUND

On March 29,1994, Schnittgen, a deputy sheriff in Phillips County, allegedly damaged substantial property at the Miner’s Club Bar in Zortman, Montana. Schnittgen was off-duty at the time. He was at the bar with a friend, James Lile, when the Phillips County under-sheriff and a deputy arrested Lile for criminal trespass because Lile refused to leave the bar after repeated requests. Schnittgen verbally abused the officer who arrested Lile. Upon returning from taking Lile to the county jail, the officers heard over the radio dispatch that Schnittgen was breaking things at the bar. Undersheriff Weber and Officer Sandsness called for backup and waited for Sheriff Peigneux and Deputy Miller to arrive. When the sheriff arrived, Schnittgen locked the door to the bar. After nearly a half an hour, Schnittgen agreed to come out of the bar and went to the county jail in Malta with Sheriff Peigneux and Deputy Miller. Schnittgen sprayed catsup and mustard on the jail surveillance camera in his cell, causing damage to the camera.

On March 31, 1994, Schnittgen was charged with criminal mischief, a felony, in violation of § 45-6-101(1), MCA, for damaging the property of the Miner’s Club Bar and was served with a complaint and notice to appear. Schnittgen appeared before Gayle Stahl, Justice of the Peace, and was later released on a $5,000 bond. Immediately following this incident, Phillips County suspended Schnittgen without pay but subsequently changed his status to leave with pay.

On May 9, 1994, a specially-appointed deputy county attorney charged Schnittgen by information with criminal mischief, a felony, in violation of § 45-6-101, MCA, for damaging the bar in an amount exceeding $15,000. On June 2, 1994, at Schnittgen’s initial appearance, the District Court appointed a public defender to represent him, released the bail he had posted, and released him on his own recognizance. At his arraignment on October 4, 1994, Schnittgen entered a “not guilty” plea and gave notice that he would use the defense of mental disease or defect.

On December 1, 1994, the Phillips County Attorney sent a letter to Schnittgen giving him notice of the Phillips County Sheriff’s intent to terminate Schnittgen’s employment and setting a date for a hearing before the Phillips County Board of Commissioners. The county attorney enclosed an affidavit disclosing, in summary, the following causes for Schnittgen’s termination: disobeying the orders of the Sheriff and Undersheriff; insubordination to superior officers; criminal mischief to Phillips County property by damaging the jail cell camera; placing fellow officers in a hazardous situation; and incapacity materially affecting his ability to perform his official duties.

More specifically, the termination notice set forth the following as reasons for the termination proceeding:

a. After making an arrest on James Lile, a friend of Deputy Schnittgen, Undersheriff Bryan Weber indicated that Deputy Schnittgen became verbally abusive to Undersheriff Weber. Undersheriff Weber instructed Deputy Schnittgen to go home, to which Deputy Schnittgen replied “Is that a [f_]ing order boss?” Undersheriff Weber affirmed that it was an order to which Deputy Schnittgen replied, “Who’s going to make me?” Deputy Schnittgen did not obey the order of the Undersheriff and remained at the scene. Deputy Schnittgen was ordered by Sheriff Gene Peigneux to remove himself from the bar and return to Malta. Deputy Schnittgen disobeyed the order of the Sheriff and continued to destroy property in the bar until a later time when he was finally convinced to go with the Sheriff and the Deputies. By these actions, Deputy Schnittgen disobeyed the reasonable orders of the Under-sheriff and Sheriff.
b. While completing the arrest on Deputy Schnittgen’s friend, Jim Lile, at the Zortman Bar, Deputy Schnittgen was insubordinate and verbally abusive to Undersheriff Weber by challenging him and telling him that he should quote “Suck [d_].” Deputy Schnittgen was also insubordinate to Sheriff Peigneux by failing to cease and desist his activities inside the Zortman Bar after the arrival of Sheriff Peigneux.
c. While off duty on the date in question, Deputy Schnittgen was drank and disorderly and destroyed the property of the owners of the Zortman Bar. The estimated damages to the Zortman Bar as a result of Deputy Schnittgen’s action was in the amount of $15,000. Subsequently, Deputy Schnittgen was charged with a felony offense and the trial in such criminal case in [sic] currently pending before the Seventeenth Judicial District Court.
d. Deputy Schnittgen was arrested and placed in the Phillips County Jail after the incident in Zortman. While in the Phillips County Jail, Deputy Schnittgen damaged county property by rubbing ketchup and mustard on a jail cell camera. Such abuse to the camera caused it to malfunction and required it to be sent in for repair.
e. Deputy Schnittgen placed himself as well as other deputy sheriff’s [sic] in a hazardous situation when he would not leave the bar area with the law enforcement officers and also by challenging the officers and telling the officers to shoot him while he was in the bar area.
f. The violent and destructive outburst displayed by Deputy Schnittgen on March 29, 1994, which resulted in a substantial amount of damage to the Zortman Bar, the challenging of fellow officers, the disobedience to the Sheriff and the Undersheriff and the damaging of Phillips County property displays an incapacity on Deputy Schnittgen’s part which materially effects [sic] his ability to perform his official duties as a deputy sheriff.

Schnittgen attended the hearing without counsel and read a statement that his participation in the hearing would violate his constitutional rights. On December 20, 1994, Phillips County terminated Schnittgen’s employment.

On March 13,1995, in the criminal proceedings, Schnittgen served a written notice of his intent to use the defense of mental disease or defect. He amended his notice on June 7, 1995, listing expert witnesses in support of this defense. The District Court appointed an additional expert to advise the defense, to assess medical records, and to coordinate expert testimony at trial. On June 15,1995, Schnittgen moved to dismiss the criminal charge against him, claiming that his prosecution violated the Double Jeopardy Clause because the same conduct underlying the criminal prosecution formed the basis for Phillips County’s termination of his employment. The State opposed the motion, claiming it was untimely filed and arguing that double jeopardy case law does not extend to a termination of employment.

Following a pretrial hearing, the District Court postponed consideration of Schnittgen’s motion to dismiss and other pretrial motions until July 11,1995. Following the July 11,1995, hearing, the District Court entered findings of fact, conclusions of law, and order dismissing the charge of criminal mischief on the basis that the charge violated the Double Jeopardy Clauses of the United States and Montana Constitutions.

The State appeals the District Court’s findings of fact, conclusions of law, and order.

STANDARD OF REVIEW

Whether the Double Jeopardy Clause is implicated in a course of conduct against an individual by the government is a question of constitutional law. Therefore, our standard of review is plenary. See United States v. Tolliver (5th Cir. 1995), 61 F.3d 1189, 1209, reVd on other grounds, Sterling v. United States (1996), _ U.S. _, 116 S.Ct. 900, 133 L.Ed.2d 834. We review a district court’s conclusions of law to determine if the court’s interpretation of the law is correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.

DISCUSSION

Did the District Court err in dismissing the felony criminal mischief charge filed against Schnittgen on the basis that it violated the constitutional prohibition against double jeopardy?

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, Article II, Section 25 of the Montana Constitution provides that no person shall “be again put in jeopardy for the same offense previously tried in any jurisdiction.” While the language of the Double Jeopardy Clauses in the federal and State constitutions is somewhat different, that difference is not material to our decision here. Accordingly, for purposes of this opinion, we treat the protections from double jeopardy afforded under both constitutions as co-extensive and will simply refer to both clauses collectively in the singular. See State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250.

The United States Supreme Court has on numerous occasions held that the Double Jeopardy Clause protects against three distinct abuses: 1) a second prosecution for the same offense; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. United States v. Halper (1989), 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496 (citing North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65); see also Witte v. United States (1995), _ U.S. _, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351, 361.

In the instant case, Schnittgen contends that the criminal prosecution violated the Double Jeopardy Clause’s protection against multiple punishments for the same offense because the same conduct underlying the criminal prosecution formed the basis for the termination of his employment. On the other hand, the State contends that the District Court erred in dismissing the criminal charges against Schnittgen because Schnittgen’s employment termination and his criminal prosecution did not constitute multiple punishments. Specifically, the State contends that Phillips County was driven by purposes other than punishment in terminating Schnittgen’s employment and, therefore, the Double Jeopardy Clause does not apply.

Whether the Double Jeopardy Clause prohibits the government from discharging a public employee from his employment for conduct which also gives rise to the filing of criminal charges against him is an issue of first impression before this Court. Notwithstanding, four United States Supreme Court cases, two federal circuit court cases, and a state supreme court case shed light on this question and guide our analysis. See, Halper, 490 U.S. 435. 109 S.Ct. 1892; Austin v. United States (1993), 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488; Department of Revenue v. Kurth (1994), 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767; United States v. Ursery (1996), _ U.S. _, 116 S.Ct. 2135, 135 L.Ed.2d 549; United States v. Reed (11th Cir. 1991), 937 F.2d 575; United States v. Payne (6th Cir. 1993), 2 F.3d 706; Loui v. Board of Medical Examiners (Hawaii 1995), 889 P.2d 705. Accordingly, a review of these cases is appropriate.

Historically, the protection against double jeopardy applied only to criminal proceedings. See, e.g., United States ex rel. Marcus v. Hess (1943), 317 U.S. 537, 548-49, 63 S.Ct. 379, 386, 87 L.Ed. 443, 450. However, in Halper, in what has now become a seminal case, the United States Supreme Court recognized the “intrinsically personal” character of the Fifth Amendment right and applied the proscription against multiple punishments to a penalty authorized by the civil False Claims Act, holding that civil as well as criminal sanctions may constitute punishment for double jeopardy purposes. Halper, 490 U.S. at 441, 109 S.Ct. at 1897-98.

Specifically, the Halper Court considered “whether and under what circumstances a civil penalty may constitute ‘punishment’ for the purposes of double jeopardy analysis,” noting that “[fit is well settled that ‘Congress may impose both a criminal and a civil sanction in respect to the same act or omission.’ ” Ursery, _ U.S. at _, 116 S.Ct. at 2149 (quoting Helvering v. Mitchell (1938), 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922). However, the Court went on to hold that “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Halper, 490 U.S. at 448-49, 109 S.Ct. at 1902.

In Halper, the defendant had been indicted and convicted for submitting false medicare claims in violation of the federal false claims statute and had been sentenced to prison for 2 years and fined $5,000. The government then brought a civil action against the defendant under the civil False Claims Act. Halper, 490 U.S. at 437, 109 S.Ct. at 1895-96. The federal district court granted summary judgment in favor of the government but found that imposing the full statutory penalty of more than $130,000 would constitute double jeopardy because, in application, the amount of the penalty was entirely unrelated and disproportionate to actual damages suffered by the government.

The parties did not dispute that the defendant had already been punished in a prior criminal proceeding, nor did they dispute that the civil and criminal proceedings concerned the same conduct — submission of 65 false claims. Rather, the sole issue was whether the statutory penalty authorized by the civil False Claims Act constituted punishment for the purposes of double jeopardy. Halper, 490 U.S. at 441, 109 S.Ct at 1897-98. The Court noted that civil enforcement of a remedial sanction does not constitute double jeopardy. Halper, 490 U.S. at 441, 109 S.Ct. at 1898 (citing Helvering, 303 U.S. 391, 58 S.Ct. 630). Accordingly, the Court held that to identify a violation of the Double Jeopardy Clause’s proscription against multiple punishments, a court should assess the character of the actual sanctions imposed on an individual by the machinery of the state. Importantly, whether a sanction constitutes punishment is not determined from the defendant’s perspective but rather by “the purposes actually served by the sanction in question.” Halper, 490 U.S. at 447 n 7, 109 S.Ct. at 1901 n.7. For example, the Court noted that a sanction designed to protect the government from financial loss rather than to vindicate public justice was civil in nature. Halper, 490 U.S. at 444, 109 S.Ct. at 1899 (citing U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379).

Under the Court’s analysis in Halper, the determination whether a given civil sánction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. A sanction constitutes punishment when, as applied to an individual, it serves the goals of punishment. Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02. Since punishment serves the two goals of retribution and deterrence, a civil sanction which serves only retributive or deterrent purposes constitutes punishment. Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02. However, the Court also carefully limited its holding in Halper to the “rare case” in which a fixed penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused — a point which, for the most part, was lost in the plethora of double jeopardy cases that followed in Halper’s wake.

Following Halper, in another case involving criminal charges and a civil forfeiture arising out of the same incident, the United States Supreme Court considered whether a civil forfeiture could violate the Excessive Fines Clause of the Eighth Amendment to the Constitution, which provides that “excessive bail shall not be required, nor excessive fines imposed ...”Austin, 509 U.S. at 605, 113 S.Ct. at 2803. In Austin, the government initiated civil forfeiture proceedings against a body shop and mobile home owner after the owner pleaded guilty to possessing cocaine with intent to distribute. The defendant contested the forfeiture based on the Excessive Fines Clause, but the district court and the court of appeals held the forfeiture constitutional. Ursery, _ U.S. at _, 116 S.Ct. at 2143. The Court limited its review to the question of “whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U.S.C. §§ 881(a)(4) and (a)(7)” andmore specifically whether a forfeiture under §§ 881(a)(4) and (a)(7) constituted punishment for purposes of the Eighth Amendment. Austin, 509 U.S. at 610, 113 S.Ct. 2806. The Court held that forfeiture under §§ 881(a)(4) and (a)(7) is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause. Austin, 509 U.S. at 622, 113 S.Ct. at 2812.

In its next related double jeopardy case, the United States Supreme Court considered the question of whether a state tax imposed on marijuana violated the Double Jeopardy Clause when the taxpayer had already been criminally convicted of owning the marijuana for which he was taxed. Kurth, 511 U.S. at _, 114 S.Ct. at 1941. In that case, the Court granted certiorari because our decision in Sorensen v. State Dep’t of Revenue (1992), 254 Mont. 61, 836 P.2d 29, upholding the Montana Drug Tax as not being excessive was “directly at odds with the conclusion reached in the federal proceedings involving the Kurths,” to the effect that the tax punished the Kurths a second time for the same conduct. Kurth, 511 U.S. at _, 114 S.Ct. at 1944. The Kurth Court questioned whether Montana’s drug tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. The tax was conditioned on the commission of a crime, was imposed after the taxpayer had been arrested, and was imposed on a taxpayer after the marijuana had been confiscated and presumably destroyed at the time the tax was imposed. These factors led the Court to hold that the tax was motivated by a “penal and prohibitory intent rather than the gathering of revenue.” Kurth, 511 U.S. at _, 114 S.Ct. at 1947.

Concluding that the Montana tax proceeding was the functional equivalent of a successive criminal prosecution, the Court upheld the federal district court judgment barring the tax. The Court stated that Montana’s tax being conditioned on the commission of a crime was significant of penal and prohibitory intent. Moreover, the Court noted that because tax statutes served a purpose different from civil penalties, it concluded that the Halper test for civil penalties did not apply to tax statutes. Rather, the Court’s central inquiry was whether the sanction imposed was rationally related to the damages the government suffered. Kurth, 511 U.S. at_, 114 S.Ct. at 1944. The Court held that Montana’s drug tax was not the kind of remedial sanction that may follow the punishment of a criminal offense, but instead, constituted a second punishment prohibited by the double jeopardy provision of the Constitution.

Faced with the Halper, Austin, and Kurth trilogy, in cases too numerous to mention, federal and state courts (including this Court) have tried in varying ways to apply the principles enunciated by the Supreme Court to factually diverse situations involving civil sanctions and criminal charges arising from the same incident. See, i.e., Sorensen, 836 P.2d 29 (effectively overruled by Kurth); Stuart v. Dept. of Social and Rehab. Serv. (1993), 256 Mont. 231, 846 P.2d 965 (discussed later in this opinion); and Nelson, 910 P.2d 247 (involving inmates being convicted of criminal escape subsequent to their administrative forfeiture of good time for the same conduct).

Important to our discussion here, however, are two circuit courts of appeal decisions wherein the courts were faced with double jeopardy claims based on fact situations specifically related to employment situations. In both cases, the courts distinguished Halper while, at the same time, applying its general principles.

In Reed, the Eleventh Circuit held that a disciplinary suspension imposed on a government employee at an arbitration proceeding did not implicate double jeopardy concerns where a subsequent prosecution for embezzlement was based on the same underlying conduct. Reed, 937 F.2d at 578. In that case, the defendant was discharged from his job as a letter carrier after the Postal Service accused him of misappropriating money he received from postal customers for COD parcels. Reed, 937 F.2d at 576. The defendant filed a grievance challenging his termination and initiated binding arbitration. Reed was subsequently charged by criminal indictment. The government conceded that the criminal prosecution concerned the same conduct at issue in the arbitration proceeding. Relying heavily on Halper, the defendant argued that the criminal prosecution following the disciplinary suspension violated the Double Jeopardy Clause’s protection against multiple punishments for the same offense.

The Reed court held that Halper announced a rule for the “rare case” and did not apply to the disciplinary suspension at issue. Specifically, the court concluded that the civil sanction was not imposed according to a statutory fixed-penalty provision, as in Halper, but, rather, as a result of a binding arbitration decision. Moreover, the court stated that because no damage award was imposed on the defendant, the Halper test necessitating a balancing of money damages with the government’s loss was inapposite to the facts. Reed, 937 F.2d at 577.

Notwithstanding, the court did look to Halper in framing its double jeopardy analysis noting that “the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.” Reed, 937 F.2d at 577 (quoting Halper, 490 U.S. at 448, 109 S.Ct. at 1901). Importantly, the court held that the sanction of suspension from employment was an attempt to vindicate the contract rights of the government and the defendant and therefore served “legitimate nonpunitive governmental objectives” and was by its nature remedial. Reed, 937 F.2d at 578. The court also noted that while the disciplinary suspension may carry the sting of punishment for the defendant, the Court in Halper stated that whether a civil sanction amounts to punishment, for double jeopardy purposes is not determined from the defendant’s perspective. Moreover, the court concluded that the application of the Halper test to a disciplinary suspension would work an absurd result.

If such was the law, then a government employee targeted by a criminal prosecution for actions taken within the scope of his employment could pursue arbitration, where that was an option, and thereby possibly avoid criminal sanctions greater in severity than any arbitrator’s decision. We will not offer up the Double Jeopardy Clause as a forum-shopping tool for government employees who have violated the law.

Reed, 937 F.2d at 578.

The Sixth Circuit followed the reasoning of Reed. See Payne, 2 F.3d 706. In Payne, the court held that an administrative termination did not amount to punishment for double jeopardy purposes because the postal service dismissed the employee for the legitimate purpose of enforcing its employment contract. Payne, 2 F.3d at 710-11. In Payne, a grand jury charged defendant with soliciting bribes, attempting to solicit bribes, obstructing mail, and deserting mail. A jury found the defendant guilty of obstruction and desertion of mail. Before the federal indictment, the United States Post Office administrator had removed the defendant from employment for substantially the same allegations as the federal indictment. Payne, 2 F.3d at 708, 710.

Payne contended that the Double Jeopardy Clause prevented the government from bringing criminal charges against him because the postal service had already punished him by removing him from its employment. The court however analogized to Reed and held that since the suspension from employment served “legitimate nonpunitive governmental objectives under the employment contract, it did not amount to punishment for double jeopardy purposes.” Payne, 2 F.3d at 710.

Similarly, in a somewhat related context, the Supreme Court of Hawaii recently addressed the issue of whether a suspension of a doctor’s medical license based on his conviction for attempted first-degree sexual abuse and kidnapping violated the Double Jeopardy Clause. Loui, 889 P.2d at 707. The doctor relied mainly on Halper to argue that the suspension of his medical license after he had been previously sentenced by the circuit court violated the Fifth Amendment’s protection against multiple punishments for the same offense. Loui contended that the purpose of the suspension was to deter him from committing the same offense again and served no remedial purpose but could only be characterized as retribution. Loui, 889 P.2d at 710.

The Hawaii Supreme Court rejected the doctor’s argument. Rather, the court viewed Halper as applying mainly to instances where the government seeks monetary damages unrelated to the goal of making the government whole by way of a civil proceeding against an individual who has already been criminally punished for the same offense. Loui, 889 P.2d at 711. The court distinguished Halper, noting that the suspension of a doctor’s license did not involve monetary damages and thus the Halper test that “requires a comparison between the civil penalty and the government’s loss resulting from defendant’s conduct” did not apply. Loui, 889 P.2d at 711 (citing Reed, 937 F.2d at 577). Instead, the court looked to the broad principle of determining the purpose actually served by the sanction in question. In Loui, the court concluded that the suspension was designed to protect the public from unfit physicians and therefore served legitimate nonpunitive governmental objectives and thus did not amount to a violation of the Double Jeopardy Clause. Loui, 889 P.2d at 711-13.

Likewise, while not directly on point, this Court has tangentially considered the application of the Double Jeopardy Clause to an employment situation. In Stuart, we considered and rejected the appellant’s claim, based on Halper, that the Montana Department of Social and Rehabilitative Services’ refusal to pay employees for their accrued vacation following their termination for cause violated the Double Jeopardy Clause within the particular statutory context in which the case arose. Stuart, 846 P.2d at 968-69.

We noted that in Halper, the government sought to enforce an actual statutory civil sanction or penalty against a person who had already been punished in a criminal prosecution. Stuart, 846 P.2d at 969. We determined that Halper was inapposite and focused our analysis on the question of whether the statute at issue, § 2-18-617, MCA, constituted a civil sanction. “ ‘Sanction’ is defined by the Webster’s Third New International Dictionary as the ‘detriment, loss of reward, or other coercive intervention that is annexed to a violation of a law as a means of enforcing the law....’ ” Stuart, 846 P.2d at 969. We concluded that while the facts in Halper clearly met the definition, in Stuart there was no subsequent proceeding annexed to a violation of any law and therefore the State’s refusal to compensate the appellants for their accrued vacation leave did not constitute a civil sanction. “Failure to satisfy a condition does not equate to violating a law and facing an additional enforcement proceeding.” Stuart, 846 P.2d at 969.

As is apparent from the foregoing discussion, in the context of scenarios (including employment situations), where the facts are distinguishable and where the differing goals of civil vs. criminal sanctions are evident, courts faced with Halper-based double jeopardy claims have attempted to more narrowly apply the broad general principles enunciated in that case, as further expanded or narrowed, depending upon one’s perspective, in Austin said Kurth. Importantly, that approach is consistent with the Supreme Court’s most recent double jeopardy ruling in Ursery wherein the Court clarified and narrowed the breadth of its holdings in Halper, Austin, and Kurth. Moreover, of particular interest in the instant case, the Court’s analysis in Ursery supports the approaches and decisions of the courts in Reed, Payne, and Loui. Ursery, _ U.S. at _, 116 S.Ct. at 2142.

In Ursery, police found marijuana growing adjacent to the defendant’s house and discovered seeds, stems, a growlight, and other marijuana paraphernalia. The police subsequently initiated forfeiture proceedings against the house. Before the forfeiture settlement had been reached, the defendant was indicted, convicted, and sentenced for manufacturing marijuana. The court of appeals held that the criminal conviction violated the Double Jeopardy Clause, basing its decision on its analysis that Halper and Austin meant that civil forfeiture under § 881(a)(7) constitutes punishment for purposes of the Double Jeopardy Clause and more specifically, that the defendant had been punished in the forfeiture proceeding and could not subsequently be criminally tried.

Disagreeing, the Supreme Court noted that “[s]ince the earliest years of this Nation, Congress has authorized the Government to seek parallel in rem, civil forfeiture actions and criminal prosecutions based upon the same underlying events.” Ursery, _ U.S. at _, 116 S.Ct. at 2140. The Court delineated the question as whether a forfeiture proceeding is by its nature criminal and punitive or civil and remedial. According to Ursery, that inquiry is two-fold. First, the Court looked to Congress’ intent: whether such proceedings had traditionally been viewed as civil proceedings; whether such proceedings reached a broader range of conduct than their criminal analogue; and whether such proceedings furthered broad remedial aims. Second, the Court looked to whether the statutory scheme was so punitive either in purpose or effect as to negate Congress’ intention to establish a civil remedial mechanism which balances the government’s harm against the size of the penalty. Ursery, _ U.S. at _, 116 S.Ct. at 2145.

The Court concluded that civil forfeiture does not qualify as an additional penalty for the commission of a criminal act, but rather as a separate civil sanction that is remedial in nature. The Court carefiilly distinguished in personam penalties from in rem forfeitures. The Court accordingly limited Halper’s double jeopardy rule to civil penalties. “Civil penalties are designed as a rough form of ‘liquidated damages’ for the harms suffered by the Government as a result of a defendant’s conduct.” Ursery, _ U.S. at _, 116 S.Ct. at 2145. The Court determined that civil forfeitures, in contrast to civil penalties, do more than simply compensate the government. The Court observed that it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture. Therefore, according to the Court, as a practical matter, it is difficult to determine whether a particular forfeiture bears a rational relationship to the nonpunitive purposes of that forfeiture or whether it does not. Ursery, _ U.S. at _, 116 S.Ct. at 2145. In a footnote answering Justice Stevens’ dissent, the majority clarified that for a second sanction to pass constitutional muster, it may be partly deterrent or retributive, but must be at least in part remedial.

Importantly, the Ursery Court stated that it would not apply the Halper analysis outside the context of a fixed-penalty provision, and noted that it had declined to apply Halper’s method of determining whether a penalty is remedial or punitive to Kurth because Kurth involved a tax statute and not a fixed-penalty provision. The Court also expressly limited its holding in Austin to the Excessive Fines Clause of the Eighth Amendment and declined to import the analysis of Austin into double jeopardy jurisprudence. In summary, the Court effectively narrowed Halper, Kurth, and Austin to their specific fact situations.

Turning, then, to the instant case, the District Court relied on Kurth to conclude that Schnittgen’s termination from employment constituted a disproportionately severe civil punishment arising out of the precise conduct for which he was criminally prosecuted and that the criminal charge therefore violated the Double Jeopardy Clause’s proscription against multiple punishments for the same offense. The State argues that the District Court erred in applying Kurth’s analysis to the instant case and further contends that Halper also is distinguishable from the facts before us. We agree.

In line with Reed, Payne, and Loui and the Supreme Court’s narrower interpretation of Halper, Austin, and Kurth in Ursery, we conclude that the instant case is not controlled by the latter trilogy. As pointed out above, in Halper, the Court announced

a rule for the rare case ... where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.

Halper, 490 U.S. at 449, 109 S.Ct. at 1902.

The instant case does not present the “rare case” envisioned in Halper nor does it implicate a fixed-penalty provision of a statutory scheme. Rather, this case involves an employment termination arising out of an incident wherein the employee’s alleged conduct that resulted in his termination also subjected him to criminal prosecution. On this ground, alone, Halper is factually distinguishable. In the instant case, contrary to the conclusion of the trial court, Schnittgen was not subject to a sanction “overwhelmingly disproportionate” to the damages he caused. An employment termination is not a sanction that can readily be measured as proportionate or disproportionate to the “damages caused.” It is obvious that an employee may be legitimately discharged from his employment for reasons that do not involve his having caused any “damage,” as such. Similarly, an employment termination is not normally characterized in terms of being either a “fine” or a “penalty.”

Furthermore, the instant case does not implicate the Eighth Amendment and, therefore, Austin is clearly inapplicable. Ursery, _ U.S. at _, 116 S.Ct. at 2146. Additionally, in contrast to Kurth, the instant case does not involve a tax. Even in Kurth, the Court pointedly distinguished Halper because Halper involved a civil penalty and not a tax. Therefore, the inquiry central to Kurth — whether the tax imposed was rationally related to the damages the government suffered — does not apply in the context of an employment termination.

Indeed, assuming as true for purposes of this opinion only, the factual bases for his discharge and for the criminal charges filed against him as set forth herein, Schnittgen’s termination was rationally related to the remedial purpose of permitting the Phillips County Sheriff’s Office to protect the public safety and property and to promote public confidence and trust in those officers sworn to uphold and enforce the law. That remedial purpose includes, at least, the ability of the government to ensure that its officers do not, themselves, pose a threat to the public’s safety, confidence and trust, and to property via the sort of conduct alleged here. Whether the facts recited above actually prove to be true for purposes of any further civil or criminal proceedings involving Schnittgen remains, of course, to be seen. We decide here only that a public employee may be both terminated from his employment and prosecuted criminally on the same facts without violation of the Double Jeopardy Clause.

We conclude that the facts alleged in the instant case are analogous to those in Reed, Payne, and Loui, and we, therefore, adopt similar reasoning. Schnittgen’s termination served the legitimate nonpunitive governmental objectives mentioned above. While the Halper test does not apply to the instant case, its broad principle of determining whether a civil sanction constitutes punishment by assessing the purposes that “the penalty may fairly be said to serve” provides guidance. The employment termination in the instant case did not serve the purpose of punishment but instead served the remedial purpose of protecting public safety and property and of promoting public confidence and trust in law enforcement.

Just as importantly, applying the Halper test to the instant case would work an obviously absurd result not intended by the Court. By holding that the Double Jeopardy Clause precludes the government from both discharging an employee from his employment and prosecuting him criminally for the same alleged unlawful conduct would effectively force the government to elect between two equally repugnant and insupportable courses of action. The public employer would be forced either to retain the employee in order to prosecute him or terminate him and forego requiring him to answer for his alleged criminal conduct in the courts. In effect, by committing a criminal act, the public employee would gain job security or, alternatively, immunity from prosecution. That result would not only be absurd, but the fact that a non-public employee would not have the benefit of this constitutional Catch-22 would likely implicate equal protection problems, as well.

Accordingly, we choose not to extend the protection afforded by the Double Jeopardy Clause to remedial employment termination situations where the conduct involved also subjects the employee to criminal prosecution. We, like the court in Reed, decline to “offer up the Double Jeopardy Clause as a forum-shopping tool for government employees who have violated the law.”

Schnittgen lawfully faced two proceedings based on his alleged actions on the evening of March 29,1994 — criminal prosecution and employment termination. The Double Jeopardy Clause is not implicated. Therefore, we hold that the District Court erred in its interpretation of the law. Accordingly, we reverse.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT, LEAPHART and ERDMANN concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT PAUL GOULET, Defendant and Appellant.
    No. 96-057.
    Submitted on Briefs June 27, 1996.
    Decided August 6, 1996.
    53 St.Rep. 739.
    277 Mont. 308.
    921 P.2d 1245.

      For Appellant: Lawrence A. LaFountain, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; Brant S. Light, Cascade County Attorney, Julie A. Macek, Deputy Cascade County Attorney, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Robert Paul Goulet appeals his conviction in the Eighth Judicial District Court, Cascade County, of felony escape. We affirm.

The issue on appeal is whether the District Court followed statutory requirements in imposing sentence.

While subject to official detention at the Cascade County Detention Center, Goulet climbed a wall in the recreation yard and escaped. His escape was observed by a detention officer, who warned him to stop and then pursued him on foot. Other officers joined in, following Goulet to an apartment building which they surrounded and where they found him hiding under a pile of debris under a porch. The officers took Goulet back into custody and returned him to the Detention Center.

Goulet pled guilty to felony escape. At the sentencing hearing, neither the defense nor the State offered any testimony, but counsel for both sides argued for particular sentences. The State and the presentence investigation officer both recommended a ten-year prison sentence. The defense recommended a two-year prison sentence.

The District Court imposed a sentence of ten years at the state prison, stating that the sentence was in accordance with the recommendations of the State and the probation officer who prepared the presentence investigation report. The court further stated that it had taken into account Goulet’s prior record, including his long history of contact with the legal system as a juvenile.

Did the District Court follow statutory requirements in imposing sentence?

The first statute upon which Goulet relies is § 46-18-102(3)(b), MCA, which requires that when a sentence is pronounced, the court must “clearly state for the record [its] reasons for imposing the sentence.” Goulet points out that unless the reasons for a sentence are set forth, one is left to guess at the reasons and cannot know whether the sentence was imposed in violation of due process or not. See State v. Stumpf(1980), 187 Mont. 225, 227, 609 P.2d 298, 299.

This Court has not insisted upon extensive statements of sentencing reasons under § 46-18-102(3)(b), MCA. In State v. Krantz (1990), 241 Mont. 501, 788 P.2d 298, cert. denied 498 U.S. 933, 111 S.Ct. 341, 112 L.Ed.2d 306, the Court upheld a sentence in which the district court’s stated reasons were the defendant’s criminal record, the serious nature of the offense, and the defendant’s consistent pattern of endangering other people.

In State v. Petroff (1988), 232 Mont. 20, 757 P.2d 759, the reasons stated for the sentence were the recommendations of the presentence investigation and the defendant’s prior criminal record. This Court ruled that the judgment clearly informed the defendant of the reasons underlying his sentence and that no more was required. Petroff, 757 P.2d at 761. Similarly in State v. Johnson (1986), 221 Mont. 503, 719 P.2d 1248, the Court upheld a sentence imposed for the stated reason of the defendant’s history of alcohol and driving offenses, considered along with the presentence report.

In the present case, the District Court stated both orally and in its written sentence that Goulet’s sentence was imposed at the recommendations of the prosecutor and the probation officer. The court also stated that it had taken into consideration Goulet’s prior record and long history of contact with the legal system as a juvenile. We hold that, like the reasons set forth by the sentencing courts in Johnson, Petroff, and Krantz, this statement of sentencing reasons is sufficient to comply with Stumpf and § 46-18-102(3)(b), MCA.

Goulet contends that the sentence imposed upon him may have been improperly influenced by reference at his sentencing hearing and in his presentence investigation report to the fact that, at the time of his escape, he was awaiting trial on a charge of deliberate homicide. In making this argument, Goulet relies upon State v. Herrera (1982), 197 Mont. 462, 643 P.2d 588, and State v. Olsen (1980), 189 Mont. 43, 614 P.2d 1061.

In Herrera, improper matter was brought before the sentencing court, including a seemingly constitutionally defective conviction in which Herrera was not afforded counsel, and incorrect information as to his history of offenses involving guns. This Court remanded for rehearing on sentencing, so that the correct information could be presented to the court. Herrera, 643 P.2d at 592.

In Olsen, the defendant’s “rap” sheet contained inaccurate entries, but the record contained substantial evidence that the improper information was disclosed to, and discussed with, the sentencing judge. There was ample evidence that the trial judge relied only upon convictions and facts known to be true accounts of Olsen’s criminal record. This Court affirmed the sentence. Olsen, 614 P.2d at 1066.

In this case, the pending felony charge was an important aspect of the crime of escape to which Goulet pled guilty and, as such, was properly noted at the sentencing hearing. Section 45-7-306(3)(b)(i), MCA, provides that a person convicted of the offense of escape shall be imprisoned for a term of up to ten years if he has been charged with, or convicted of, a felony and escapes from the county jail. The felony charge pending against Goulet at the time of his escape provided a basis for the District Court to impose a term of imprisonment rather than the six-month jail term which would apply if the pending charge had been a misdemeanor. It was proper for the court to be informed of the pending charge.

Nothing in the record indicates that the court improperly relied upon the pending charge in sentencing Goulet. The court was correctly informed at the sentencing hearing and in the presentence investigation report that the charge was still pending at the time of sentencing.

Goulet also urges that the court erred in sentencing him to prison because he was a nonviolent felony offender and the crime to which he pled guilty was not a crime of violence under § 46-18-104(3), MCA. Montana law requires the sentencing court to consider alternatives to incarceration when sentencing nonviolent offenders. Section 46-18-201(11), MCA. We note that Goulet’s own counsel recommended a term of imprisonment for his client at the sentencing hearing. Further, this argument was not raised before the District Court.

This Court recently addressed a similar claim of error raised for the first time on appeal, in State v. Nelson (1995), 274 Mont. 11, 906 P.2d 663. The Court held that Nelson’s failure to object to the sentence or to move for reconsideration barred him from raising on appeal the issue of consideration of alternatives to prison. Nelson, 906 P.2d at 668. The Court distinguished Nelson from two previous cases—State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997, and State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025—on the basis that Lenihan and Hatfield involved sentences that were illegal and in excess of statutory authority. Such was not the case in Nelson, and it is not the case here. Goulet’s ten-year sentence does not exceed the maximum sentence for his crime under § 45-7-306(3)(b), MCA. Absent objection before the trial court or an opportunity for that court to consider this issue, we decline to further address the issue on appeal.

Affirmed.

JUSTICES NELSON, ERDMANN, LEAPHART and TRIEWEILER concur.