text:
    RAYMOND G. BECKY and MARGE BECKY, individually and in behalf of their son ROBERT BECKY, and ROBERT BECKY, as a Petitioner himself, Petitioners and Appellants, v. BUTTE-SILVER BOW SCHOOL DISTRICT NO. 1, ROBERT MILLER, and DAN PETERS, individually and in their capacities as officers of Butte-Silver Bow School District No. 1, Respondents and Respondents.
    No. 95-307.
    Submitted on Briefs October 26, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1154.
    906 P.2d 193.
    274 Mont. 131.

      For Appellant: Alan F. Blakley, Attorney at Law, Missoula.
    For Respondent: Patrick M. Sullivan, Poore, Roth & Robinson, Butte.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Ray and Marge Becky, individually, and on behalf of their son, Robert, filed a petition for a writ of mandate with the District Court for the Second Judicial District in Silver Bow County in which they sought an order directing Butte-Silver Bow School District No. 1 to provide them with documents related to denial of Robert’s membership in the National Honor Society. The District Court issued an alternative writ of mandate and scheduled a show cause hearing. After the hearing, the District Court denied the Beckys’ petition and quashed the alternative writ of mandate. The Beckys appeal the District Court’s order. We affirm the order and judgment of the District Court.

The issue on appeal is:

Did the District Court err when it denied the Beckys’ petition for a writ of mandate?

FACTUAL BACKGROUND

Robert Becky is a graduate of Butte High School. During his senior year of high school (1994-1995), he became a candidate for membership in the National Honor Society by virtue of his grade point average.

The National Honor Society is an honorary organization sponsored by the National Association of Secondary School Principals to recognize outstanding high school students. It is a nonmandatory organization in which students are selected for membership by high school faculty who voluntarily evaluate the students based on their academic achievements, leadership abilities, character, and service to their school.

Students with grade point averages of 3.3 or above, out of a possible 4.0, are eligible to become members of the National Honor Society. The names of those students who qualify academically are submitted to the participating faculty, who rate the applicants in the nonacademic categories of character, leadership, and service to the school. The teacher evaluations are submitted to a faculty council, which combines the numerical faculty evaluations for each student to arrive at a National Honor Society grade point average. The council then combines the National Honor Society grade point average with the student’s academic grade point average, and offers membership to those students who meet the National Honor Society requirements.

The participation of Butte High’s students and faculty in the National Honor Society is voluntary, and the school’s principal does not consider these activities to be official business of the school. The National Honor Society’s faculty evaluation process is done anonymously and confidentially, and the evaluation forms are not maintained by the school. In fact, there are no records kept by the school that pertain to the National Honor Society or that indicate whether a student is a member of that organization.

Robert Becky’s name was submitted to the faculty of Butte High School for potential membership in the National Honor Society during his senior year. However, four of the teachers who rated Robert gave him low enough scores that he did not meet the organization’s combined requirements. Therefore, he was not selected for membership in the National Honor Society.

When Robert was not selected, his father, Ray, scheduled a meeting with Butte High School Principal Dan Peters. During the meeting, Mr. Peters explained the selection process to Ray and told him that several teachers had rated Robert low in certain categories. Mr. Peters did not release the names of those teachers.

On May 1, 1995, Ray called Mr. Peters and demanded that he release the names of the faculty members who rated his son low on the Honor Society evaluations. Mr. Peters refused to comply with the request. Also on May 1, the Beckys’ attorney sent a letter to Robert Miller, Superintendent of Schools for the Butte-Silver Bow School District, in which he requested that all documents related to Robert’s candidacy for the National Honor Society be released, including the names of the teachers who rated Robert and their ratings.

On May 4, 1995, the Beckys filed this action in which they requested the District Court to order the School District to provide “each and every record documenting voting for or against Robert’s membership in the National Honor Society and including a list of teacher voting and the vote given by each teacher as well as the written procedures for voting.”

On May 9, 1995, the School District mailed Robert’s student records to the Beckys’ attorney. Those records included all documents maintained by the school and subject to inspection pursuant to School District policy. The records did not, however, include the National Honor Society evaluation documents or the names of the faculty members who rated Robert.

On May 10, 1995, the School District filed a motion to quash the alternative writ of mandate which had been issued. On May 11,1995, a show cause hearing was held, and on June 1, 1995, the District Court issued a memorandum and order in which it denied the Beckys’ application for a permanent writ of mandate, quashed the alternative writ of mandate, and dismissed the proceeding.

DISCUSSION

Did the District Court err when it denied the Beckys’ petition for a writ of mandate?

The grant or denial of a writ of mandate is a matter of legal interpretation for a district court which we will review to determine if it is correct. Phillips v. City of Livingston (1994), 268 Mont. 156, 161, 885 P.2d 528, 531. A two-part standard applies to the issuance of a writ of mandate. State ex rel. Chisholm, v. District Court (1986), 224 Mont. 441, 443, 731 P.2d 324, 325. The writ is available where the party who applies for it is entitled to the performance of a clear legal duty by the party against whom the writ is sought. If there is a clear legal duty, the district court must grant a writ of mandate if there is no available speedy and adequate remedy in the ordinary course of law. Section 27-26-102, MCA. See also State ex rel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d 495, 497.

In this case, the Beckys petitioned the District Court for a writ of mandate on the basis of Montana’s constitutional “right to know” provision which provides:

No person shall be deprived of the right to examine documents ... of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Mont. Const, art. II, § 9 (emphasis added).

The Beckys asserted that all records or documents kept by the School District constitute public records pursuant to § 2-6-401(2), MCA, and are thus subject to examination as provided by Article II, Section 9, of the Montana Constitution.

The District Court based its order denying the Beckys’ application for writ of mandate on an Alabama case which was initiated by the parent of a student who had been denied admission to an honorary society and who sought to have his daughter admitted to that society. The parent in that case filed his claim pursuant to the Civil Rights Act, 42 U.S.C. § 1983, and the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g. Moore v. Hynche (Ala. 1991), 761 F. Supp. 112. The Moore court held that the appellant had no private cause of action under FERPA, 20 U.S.C. § 1232g, and that there was no property interest in membership in an honorary society.

Although the District Court concluded that Moore is “on all fours with the facts of the case at bar,” we find Moore inapposite. In this case, the Beckys did not file their petition on the basis of any federal statute, and they did not claim that Robert had a property interest in membership in the National Honor Society. The Beckys merely claimed access to the National Honor Society records pursuant to the “right to know” provision of the Montana Constitution. Therefore, without addressing the merits of the District Court’s conclusion, we hold that the proper basis for evaluating the Beckys’ petition for writ of mandate is Article II, Section 9, of the Montana Constitution. This Court will, however, uphold a district court’s decision, if correct, even though its reason for that decision may have been incorrect. Norman v. City of Whitefish (1993), 258 Mont. 26, 30, 852 P.2d 533, 535; District No. 55 v. Musselshell County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253.

Any review of Article II, Section 9, of the Montana Constitution necessarily involves a three-step process. First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are “documents of public bodies” subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether the demand of individual privacy clearly exceeds the merits of public disclosure.

Article II, Section 9, of the Montana Constitution applies to local government. Associated Press v. State (1991), 250 Mont. 299, 302, 820 P.2d 421, 422 (citing V Mont. Const. Conv. Trans. 1670-71 (1972)). Section 2-6-401, MCA, includes “school district” within its definition of‘local government.” Accordingly, the provisions of Article II, Section 9, apply to the School District. Therefore, since the School District is a public body for the purposes of the “right to know” provision, we must determine whether the National Honor Society documents at issue constitute public documents for purposes of public inspection.

We first note that the Montana Constitution does not define “documents ... of... public bodies” and that the issue of what constitutes such documents has not previously been addressed by this Court. What constitutes a “public writing” has, however, been addressed by the Montana Legislature. See §§ 2-6-101, -102. See also § 2-6-401(2), MCA, which defines “public records.” Although the Montana Constitution is the supreme law of the state and preempts contrary statutes or rules, Associated Press v. Board of Pub. Educ. (1991), 246 Mont. 386, 804 P.2d 376, this Court may look beyond the Constitution’s specific language to interpret a constitutional provision when an existing state statute is relevant to, and does not conflict with, the constitutional provision. Since we determine that §§ 2-6-101 and -102, MCA, pertaining to the right to inspection of public writings , are relevant to our determination and do not conflict with Article II, Section 9, of the Montana Constitution when applied to the facts in this case, we will consider the statutes in our evaluation of whether the National Honor Society records are “documents of public bodies” pursuant to the Montana Constitution.

Section 2-6-101, MCA, defines “public writings”:

(1)Writings are of two kinds:

(a) public; and

(b) private.

(2) Public writings are:

(a) the written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and executive, whether of this state, of the United States, of a sister state, or of a foreign country;

(b) public records, kept in this state, of private writings, except as provided in 22-1-1103 and 22-3-807.

(3) Public writings are divided into four classes:

(a) laws;

(b) judicial records;

(c) other official documents;

(d) public records, kept in this state, of private writings.

(4) All other writings are private.

Section 2-6-102(1), MCA, provides that “[e]very citizen has a right to inspect and take a copy of any public writings of this state ....”

The documents sought by the Beckys relatingto Robert’s denial of membership in the National Honor Society do not fit into any of the categories of public writings or documents described by § 2-6-101, MCA, and thus, are not subject to inspection as provided in § 2-6-102, MCA. The result would be the same pursuant to § 2-6-401, MCA, which defines “public records” in the context of local governments, including school districts. The National Honor Society documents are generated by an independent nongovernmental organization for the purpose of determining membership in that organization. The documents do not record an act or acts of the School District. They do not contain information regarding school matters or the duties of School District employees. Any teachers who participate in the National Honor Society selection process and who submit evaluations to the National Honor Society do so voluntarily, and are not acting in their capacities as employees of the School District. Furthermore, any private documents generated by the National Honor Society which relate to its membership selection are not maintained by the School District. In fact, the School District maintains no records for or pertaining to the National Honor Society and has no record indicating whether a student is even a member of that organization.

Accordingly, the documents contain no information which would make them “documents of public bodies,” as set forth in the Montana Constitution. Although “documents of public bodies” is not defined in the Montana Constitution, it must reasonably be held to mean documents generated or maintained by a public body which are somehow related to the function and duties of that body. Since the National Honor Society documents are neither created by nor maintained by the Butte-Silver Bow School District, and since the documents are not related to the function and duties of the School District, we hold that the School District had no clear legal duty to produce the documents for the Beckys’ inspection. Since the documents are not public documents for purposes of Article II, Section 9, of the Montana Constitution, we need not proceed to the third step of balancing the public’s right to know with the right of privacy. See e.g. Montana Health Care Ass’n v. Board of Directors of the State Compensation Mut. Ins. Fund (1993), 256 Mont. 146, 845 P.2d 113.

Because we find that the National Honor Society documents are not “documents of public bodies” as set forth in Article II, Section 9, of the Montana Constitution, we conclude that the District Court’s order which denied the Beckys’ writ of mandate was correct. We affirm the order and judgment of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and LEAPHART concur.

      . We note that § 10.55.2002(1), ARM, lists the specific documents that must be maintained by the School District:
      Each school shall keep a permanent file of students’ records, which shall include the name and address of the student, his/her parent or guardian, birth date, academic work completed, level of achievement (grades, standardized achievement tests), immunization records ... and attendance data.
      The School District did satisfy its clear legal duty of providing these records to the Beckys.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TRACY RAY CRAIG, Defendant and Appellant.
    No. 94-606.
    Submitted on Briefs September 28, 1995.
    Rehearing Denied December 14, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1158.
    906 P.2d 683.
    274 Mont. 140.

      For Appellant: William F. Hooks, Esq., Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Mieheal Wellenstein, Ass’t Attorney General Helena; Robert M. McCarthy, Silver Bow County Attorney, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Tracy Ray Craig (Craig) appeals from a jury verdict in the District Court for the Third Judicial District, Silver Bow County, convicting him of robbery. We affirm.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion in denying Craig’s request for new counsel?

2. Did the District Court deny Craig his constitutional right to the assistance of counsel by refusing to substitute court-appointed counsel and thereby giving Craig the option of proceeding to trial with court-appointed counsel or appearing pro se?

3. Did the District Court deny Craig his right to represent himself by permitting “standby” counsel to become involved in the defense?

4. Did the District Court err in instructing the jury as to “admissions” and “confessions?”

On June 15, 1994, the State charged Craig with the robbery of the Ralph and Rose Formal Wear Shop in Butte, Montana. At the time of the robbery, Craig was on parole and was a resident of the Butte Pre-Release Center. Public Defender Pat McGee (McGee) was appointed to represent Craig. At his arraignment, Craig pled not guilty and the court set the trial for September 6,1994; the court later rescheduled the trial for October 18, 1994. On September 26, Craig filed a motion to remove McGee as bis counsel. In his motion, Craig stated:

Said motion is based upon all of the files, records and proceedings herein, and more particularly upon the grounds that such representation of the Defendant by Mr. Pat McGee constitutes a distinct violation of the Defendant’s protected rights to have effective assistance of Counsel for his defense, and presents a conflict of interest prejudicial to the Defendant’s entire case.

The District Court denied Craig’s motion for substitution of counsel and offered the following explanation for its ruling:

Based on the pleadings and the record, the Court finds that the Defendant has failed to allege any facts in support of his motion that would entitle him to the requested relief. Section 46-13-101(4), MCA, requires the moving party to “state with particularity the grounds for the motion” and to provide a statement of the “relevant facts upon which the motion is being made.” Defendant’s vague allegation that continued representation of him by the public defender “constitutes a distinct violation of the Defendant’s protected rights” is insufficient to show any facts in support of his request for substitution of counsel.

After the court denied Craig’s motion, McGee informed the court that Craig refused to discuss his defense with him. As a result, the court conducted a hearing to give Craig the opportunity to explain on the record why his public defender should be replaced. At the hearing, Craig stated that there was “no communication between me and my public defender.” Additionally, Craig recited a litany of problems he had with McGee including: McGee refused to move for either discovery or change of venue; McGee failed to interview a witness and failed to suppress evidence; McGee advised him to enter a plea agreement; and, McGee had seen him only one time.

The deputy county attorney responded to Craig’s allegations, as did McGee. Subsequently, the District Court found that McGee was providing effective assistance and denied Craig’s motion to substitute counsel. The court stated:

As with any other defendant, you are entitled to hire any attorney you wish. Since you’re obviously indigent, the Court appointed Mr. McGee for you. You do have the right in that circumstance for a court-appointed counsel, but you do not have the right to choose your own attorney. So I’m just telling you now that you also have the right to represent yourself for your trial date.

Mr. McGee is going to stay on your case. I’m going to deny your motion to replace him with any other public defender. It’s too late, among other things. I don’t think there’s been any ineffectiveness on his part in preparing this case for trial. Nevertheless, he’ll be here in court the morning of the trial, and if you don’t want to use him, that’s fine. You go ahead and represent yourself or bring another attorney. If you want to make some arrangements otherwise, that’s open for you. We’re not going to change anything. The trial is going to go on as scheduled. Mr. McGee is going to be here as scheduled, and you’re going to be here as scheduled. If you have a defense, we’d like to hear it from you that day.

Craig was given a copy of his file and trial began as scheduled. The first day of trial, before voir dire and in the presence of the prospective jurors, Craig told the court he was having problems with McGee acting as counsel. In response, the court asked him “do you intend to try the case yourself? You’re entitled to do that.” Craig replied: “I can’t, Your Honor. I’m not a lawyer.” The following colloquy took place concerning Craig’s right to counsel:

THE COURT: You have a lawyer appointed for you. You don’t have a lawyer of your choice when you’re indigent, but we do appoint an experienced attorney for you. We’ve done that. Your attorney, Mr. McGee, has worked on this case since its inception. He’s submitted, by the way, instructions as to the law of this case as I’ve requested all attorneys to do. He’s going to be here in court, and we’re going to proceed with this matter, and he’s there for you to seek counsel from. You can ask for his help any time you wish, or you can remain mute if you wish. I don’t care what you do. But you’re here in court for a trial, and we’re going to go ahead with this trial.
THE DEFENDANT: Like I said, Your Honor, we had that meeting on Friday. I told you there was no communication between me and this lawyer.
THE COURT: This is the lawyer you got from the Court, from the county. This is the lawyer we’re paying for you. He’s on retainer for the year. You asked for change of counsel last week. That’s too late to be asking for changes of counsel. But you, at any time, could hire your own attorney. I told you that. You can also act as your own attorney. In the meanwhile, this is your court-appointed attorney. You can use him if you wish. He’s going to be here through the remainder of this trial. He’ll be subject to your need for assistance if and so you do need assistance.

During voir dire, the court explained to Craig that he could examine the jurors or defer to McGee. The court suggested that, unless he objected, Craig should let McGee conduct the voir dire. Craig responded: “I can’t pick them. I don’t know nothing about them. ... I haven’t been in this town long enough. There’s nothing I can do, you know.” The court replied: “Mr. Craig, that’s why we’ve appointed one of the public defenders on your behalf.” The court then directed McGee to conduct voir dire and he did so.

After conducting voir dire, McGee advised Craig that he was entitled to six peremptory challenges. Craig responded: “I can’t pick them,” refused to accept McGee’s offers of assistance, and waived his peremptory challenges.

After the prosecutor gave his opening statement and it was Craig’s opportunity to do so, the court told Craig that he could make his opening statement, waive it, have McGee give it, or he could reserve his opening statement until the end of the State’s case-in-chief. Craig responded: “Well, as far as I’m concerned, Pat McGee is not my attorney. He gave up that Friday.” The following discussion then took place:

THE COURT: He’s still an attorney here from the Court’s viewpoint. You can use him any time you wish. You can change your thinking on that.
THE DEFENDANT: I’m not an attorney, so I guess there won’t be no defense.
THE COURT: Well, what does that mean? Do you want Mr. McGee to make an attempt here to make a statement?
THE DEFENDANT: That means there would be no defense.
THE COURT: I didn’t hear that.
THE DEFENDANT: I’m not a lawyer, so I can’t defend myself, so there would be no defense.
THE COURT: Mr. McGee, do you want to make a statement now?
MR. McGEE: Your Honor, I’m under limited disability given the circumstances of what went on. I’ll reserve any opinion.

The court found that Craig reserved his opening statement.

During its case-in-chief, the State called seven witnesses and offered twelve exhibits. Neither Craig nor McGee cross-examined any witnesses nor objected to any exhibits. When the court asked Craig if he wished to cross-examine witnesses, Craig’s response was silence, “no,” or “I can’t, I’m not a lawyer.” When the court asked McGee if he wished to cross-examine the State’s first witness, McGee responded: “Again, he relates that I’m not his attorney. So I guess there will be no cross-examination, Your Honor.”

McGee participated in the settlement of jury instructions. During settlement of instructions but prior to the conclusion of the State’s case-in-chief, the court instructed Craig concerning his right to present evidence on his behalf and his right to testify.

THE COURT: So you make your own decision, and you can either tell the Court at the appropriate time or have Mr. McGee tell me that you do or do not wish to testify. If you wish to call any other witness, you may do so. That’s going to happen after the plaintiff rests his case in chief. So if you have nothing to put on, for instance, that will be the end of the case, and we’ll submit the case to the jury by me reading the instructions and sending the jury out to deliberate. Okay.

After the State rested its case, the court again explained to Craig his rights to testify, present witnesses on his behalf, and reminded him of his right to make an opening statement. At that point, the following dialogue ensued:

THE DEFENDANT: All right. For the record I’d like to state that I’m not able to present a defense because I’m not represented by a lawyer, and I’m not a lawyer so, you know, without a defense I move for a mistrial. And that’s all I got to say.
THE COURT: I’ll consider that a motion for a mistrial. Do you want - to say why?
THE DEFENDANT: Hmm?
THE COURT: Do you want to explain why you think you should have a mistrial?
THE DEFENDANT: No defense.
THE COURT: Whose fault is that?
THE DEFENDANT: I don’t know.
THE COURT: Do you wish to add anything, Mr. Canty, or should I make a ruling?
MR. CANTY: You can rule, Your Honor.
THE COURT: You’ve got nothing to base that upon, Mr. Craig. Your counsel has been court appointed. He’s been here with you. He’s worked on this case prior. He’s consulted with you on numerous occasions. He’s submitted instructions on your behalf. He’s been here in case you needed his assistance. You didn’t indicate at any time that you wanted help from him. I don’t feel that’s his problem nor Mr. Canty’s problem nor my problem. That was your call.
THE DEFENDANT: I motioned for it.
THE COURT: Now for you to say you want a mistrial because you feel you didn’t have an attorney does not have any merit to it. That motion is denied. Now, do you wish to add anything else, present any other defense?
THE DEFENDANT: No.

As the parties settled the remaining instructions, McGee objected to an instruction offered by the State concerning admissions or confessions made by Craig. The court gave the instruction over McGee’s objection. Craig declined to give a closing statement; the jury subsequently found him guilty of robbery.

On November 7, Craig filed,pro se, a Motion for Substitute Counsel to File For a New Trial. Pursuant to § 46-8-104, MCA, Craig asked the court to appoint new counsel “for the purposes of preparing and filing a motion for a new trial on his behalf and to represent him throughout these criminal proceedings which remain pending in the above-entitled action.” During the hearing on the motion, the court told Craig that he could not switch attorneys whenever he wanted to, and denied the motion. The court proceeded to hold a sentencing hearing and impose judgment.

This case presents a predicament in that Craig did not request to proceed pro se, did not expressly waive his right to counsel, and yet failed to cooperate with his court-appointed attorney. Apparently, Craig’s intent was to manipulate and to frustrate the criminal proceedings. The fact that Craig did not seek to proceed pro se, did not expressly waive his right to counsel, and did not cooperate with his court-appointed attorney, raises a number of issues.

1. Did the District Court abuse its discretion in denying Craig’s request for new counsel?

The question of whether the District Court abused its discretion in denying Craig’s motion for new counsel is pivotal to the determination of the rest of Craig’s claims. The Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee the fundamental right to assistance of counsel. State v. Langford (1994), 267 Mont. 95, 99, 882 P.2d 490, 492, cert. denied, _U.S. 115 S.Ct. 1128, 130 L.Ed.2d 1090 (1995). Since Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, an indigent defendant in a state criminal prosecution is entitled to representation by appointed counsel at public expense. State v. Pepperling (1978), 177 Mont. 464, 472, 582 P.2d 341, 345; State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d. 779, 781. The indigent’s right to counsel includes the right to have “effective assistance” of counsel. Pepperling, 582 P.2d at 345 (quoting State v. McElveen (1975), 168 Mont. 500, 503, 544 P.2d 820, 821).

If appointed counsel renders effective assistance, the defendant may not demand his appointed counsel’s dismissal or substitution, nor may the defendant demand that certain counsel be appointed. Pepperling, 582 P.2d at 346. In other words, the right to assistance of counsel does not grant defendants the right to counsel of their choice. State v. Colt (1992), 255 Mont. 399, 404, 843 P.2d 747, 750. It is well settled in Montana that when appointed counsel is rendering effective assistance, “the defendant has the choice of (1) continuing with counsel so appointed, or (2) having his counsel dismissed and proceeding on defendant’s own, pro se.” Pepperling, 582 P.2d at 346, see also State v. Lange (1987), 226 Mont. 9, 13, 733 P.2d 846, 849; Enright, 758 P.2d at 781-82; State v. Zackuse (1991), 250 Mont. 385, 386, 833 P.2d 142.

Nonetheless, if a defendant presents a seemingly substantial complaint about effective assistance of counsel, the district court should conduct a hearing to determine the validity of defendant’s request for substitution of counsel. Enright, 758 P.2d at 782. Subsequently, upon a proper showing that failure to replace appointed counsel would substantially impair or deny the right to assistance of counsel, the district court should substitute appointed counsel. State v. Long (1983), 206 Mont. 40, 44, 669 P.2d 1068, 1071; Enright, 758 P.2d at 782.

It is within the discretion of the district court to consider requests to appoint new counsel and the court’s determination will be sustained absent an abuse of discretion. State v. Morrison (1993), 257 Mont. 282, 284, 848 P.2d 514, 516; Long, 669 P.2d at 1071.

In Enright, we held that the district court’s failure to consider Enright’s “seemingly substantial complaints” regarding the effectiveness of counsel was reversible error. Enright, 758 P.2d at 782. If a district court does not address a defendant’s complaints regarding effectiveness of counsel, the court may place a defendant in the untenable position of choosing between proceeding with ineffective counsel or proceeding pro se: “Such a set of options is in essence no choice at all .’’Enright, 758 P.2d at 782. In the instant case, the District Court did not place Craig in such a position.

Craig’s first attempt to remove McGee as counsel was properly denied by the court. In response to Craig’s motion to remove McGee as counsel, the court found that Craig had failed to allege any facts in support of his motion that would entitle him to relief, as required by § 46-13-101(4), MCA. Since Craig’s motion failed to raise a seemingly substantial complaint about McGee’s performance, no hearing on the motion was required.

Subsequently, McGee informed the court that Craig refused to cooperate in his defense and the court conducted a hearing to give Craig the opportunity to present his request for substitution of counsel. In support of his position, Craig stated that there was “no communication between me and my public defender.” In addition, he alleged that: McGee refused to move for either discovery or change of venue; McGee failed to interview a witness and failed to suppress evidence; McGee advised him to enter a plea agreement; and, McGee had seen him only one time.

In a similar situation where a defendant refused to cooperate and communicate with his appointed counsel and later claimed he had been denied assistance of counsel, we held that “[1] ack of communication between defendant and defense counsel is not of itself basis for reversal on grounds of ineffective assistance of counsel.” Long, 669 P.2d at 1072. In cases where the defendant refuses to cooperate in his own defense, we apply the general rule that “a party who participates in or contributes to an error cannot complain of it.” Long, 669 P.2d at 1072 (quoting State v. Lopez (1980), 185 Mont. 187, 193, 605 P.2d 178, 181). Thus, a defendant who refuses to cooperate in his own defense cannot complain of ineffective assistance of counsel. State v. Strand-berg (1986), 223 Mont. 132, 136, 724 P.2d 710, 713; Long, 669 P.2d at 1072; State v. Miller (1977), 173 Mont. 453, 457, 568 P.2d 130, 132-33.

At the substitution of counsel hearing, the deputy county attorney and McGee responded to Craig’s allegations. Regarding Craig’s assertion that McGee should move to suppress evidence, specifically a jacket seized from Craig’s room at the Butte Pre-Release Center, the deputy county attorney explained that as a prison inmate and resident of the Pre-Release Center, Craig did not have an expectation of privacy to prevent a search. Additionally, Craig signed a document consenting to searches as a provision of his discharge to the Pre-Release Center. McGee had told Craig that filing a motion to suppress the admission of the jacket would be frivolous and would be rejected by the court.

As to the witness Craig believed should be interviewed on his behalf, McGee pointed out that she had already given a statement to the police department which included the facts that Craig felt were important. Regarding discovery, the deputy county attorney responded that pursuant to the State’s open file policy, McGee had been given the entire investigative file. Regarding McGee’s visits with Craig, McGee testified that he had met with Craig at the county jail and also for an extensive visit at the State Prison. McGee stated that he discussed with Craig everything in his file and went over the strong and weak points of the case including the physical evidence.

Craig’s other allegations were likewise explained and countered by the deputy county attorney and McGee, resulting in the District Court’s finding that McGee was providing effective assistance of counsel. Considering the court’s inquiry into Craig’s claims of ineffective counsel and Craig’s lack of cooperation with counsel, we hold that the District Court did not abuse its discretion and, therefore, was correct in refusing to substitute counsel.

2. Did the District Court deny Craig his constitutional right to the assistance of counsel by refusing to substitute his court-appointed attorney and thereby giving Craig the option of proceeding to trial with court-appointed counsel or appearing pro sel

When the District Court correctly denied Craig’s request to substitute appointed counsel, Craig was left with the choice of: (1) continuing with appointed counsel, or (2) having his counsel dismissed and proceeding on his own,pro se. Pepperling, 582 P.2d at 346; State v. Lange (1987), 226 Mont. 9, 13, 733 P.2d 846, 849; Enright, 758 P.2d 781-82. He chose neither.

The Sixth Amendment of the United States Constitution has been interpreted to include a defendant’s right to represent himself, pro se. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. Article II, Section 24 of the Montana Constitution also provides defendants the right to proceed pro se. Colt, 843 P.2d at 749; Langford, 882 P.2d at 492. Pursuant to § 46-8-102, MCA, a defendant may waive the right to counsel when the court ascertains that the waiver is made knowingly, voluntarily, and intelligently. In Langford, we specifically adopted the additional criterion that the request to represent oneself must be unequivocal. Langford, 882 P.2d at 492.

In the instant case, we agree with Craig that he did not unequivocally request permission to proceed pro se. Craig requested a change of counsel, which was correctly denied. We decline to adopt the State’s position that Craig’s rejection of McGee’s representation constituted an unequivocal request to proceed pro se and a valid waiver of his right to counsel. Craig’s situation does not meet the unequivocal request standard established by Langford, 882 P.2d 490.

Craig seeks to fault the District Court for failing to advise him of the dangers inherent in proceeding without counsel. This argument is disingenuous. Obviously any such advice would have made no difference to Craig’s state of mind or the outcome of the proceeding since Craig made it abundantly clear that he was not opting to proceed pro se. Rather, his ploy was to circumvent the court’s adverse ruling on his motion to remove McGee and force appointment of new counsel. Craig did not seek permission to proceed pro se. He consistently and repeatedly reiterated that he was not qualified to conduct voir dire, cross-examine witnesses or present a defense and, in fact, he was not representing himself. His candid admissions of his own shortcomings relative to experienced counsel suggest that he was well aware of the advantages of representation by counsel. Thus, despite any inadequacies in the District Court’s inquiry, Craig understood the importance of counsel and the dangers and disadvantages of proceeding without counsel or refusing to cooperate with court-appointed counsel. United States v. Sandles (7th Cir. 1994), 23 F.3d 1121, 1128.

The court did not leave Craig without counsel. On the contrary, it clearly insisted on leaving McGee in as counsel. The District Court continually referred to McGee as Craig’s court-appointed attorney: “This is your court-appointed attorney. You can use him if you wish.”

A defendant may waive his right to counsel altogether. Faretta, 422 U.S. 806, 95 S.Ct. 2525. Accordingly, “at some point a criminal defendant can be deemed to have waived to a certain extent his constitutional right to effective assistance by virtue of his unreasonable refusal to communicate with his attorney.” Thomas v. Wainwright (11th Cir. 1985), 767 F.2d 738, 743, cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). The Thomas court stated that a “persistent unreasonable demand for dismissal of counsel [is] the functional equivalent of a knowing and voluntary waiver of counsel.” Thomas, 767 F.2d at 743 (citing United States v. Moore (5th Cir. 1983), 706 F.2d 538, 540, cert. denied, 464 U.S. 859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983)). In Thomas, the Eleventh Circuit found that Thomas had unreasonably chosen to remain silent and had refused to communicate with his counsel or the court, yet this behavior did not establish that his attorney failed to provide reasonably effective assistance of counsel. Thomas, 767 F.2d at 744.

In the present case, Craig was provided with counsel. With a clear understanding of the dangers of proceeding without counsel, Craig, instead of cooperating with his appointed counsel, chose to present no defense. Craig’s choice to present no defense, like Thomas’ choice to remain silent, effectively waived any right to more effective counsel than was possible under the circumstances. Thomas, 767 F.2d at 743. All the court can do is appoint competent counsel. Whether that counsel is effective depends to a great extent upon whether the defendant cooperates with counsel. If the defendant chooses to hamstring the counsel through lack of cooperation, the counsel’s effectiveness will, of course, be compromised accordingly.

In refusing to cooperate with his appointed counsel and, at the same time insisting that he was not asking to proceed pro se, Craig was attempting to force the appointment of new counsel. This Court cannot countenance such dilatory and manipulative tactics at the expense of the efficient administration of justice. In United States v. Kelm (9th Cir. 1987), 827 F.2d 1319, defendant Kelm refused to accept an appointed attorney and also refused to waive his right to counsel, saying that he wished to hire counsel of his own choosing. Despite Kelm’s failure to appear at hearings concerning his right to counsel, the court granted three continuances in order for him to obtain counsel. The court refused to grant any further continuances and, as a result, Kelm was left without counsel at trial. Kelm argued that the court failed to advise him regarding his right to counsel and that any waiver of that right was therefore not knowing and intelligent. The Ninth Circuit held that, reading the record as a whole, it was fair to conclude that Kelm understood the dangers and disadvantages of self-representation. “He knew he was entitled to counsel, yet the record establishes that he elected to defend himself with his ‘eyes open ’’’Kelm, 827 F.2d at 1322. The court noted that cotuts must be wary against the “right to counsel” being used as a ploy to gain time or effect delay. Kelm, 827 F.2d at 1322 (citing United States v. Lustig (9th Cir. 1977), 555 F.2d 737, 744, cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978)). The Ninth Circuit concluded that Kelm was manipulating his constitutional right to counsel in an effort to effect delay and that this tactic resulted in a waiver of his right to counsel of his choice.

Where a defendant’s conduct is “dilatory and hinders the efficient administration of justice,” a court may deny a continuance even if it results in the defendant’s being unrepresented at trial. United States v. Leavitt (9th Cir. 1979), 608 F.2d 1290, 1293. Like Kelm, Craig manipulated his right to counsel in an effort to force appointment of new counsel despite the existence of no seemingly substantial basis for such a replacement.

Craig contends that he was not manipulative because he did not seek appointment of a particular counsel and did not seek continuances or delays. However, Craig’s tactic of asserting his right to counsel while rejecting McGee presented the court with a Hobson’s choice: either you give me counsel to my liking, or I will refuse to cooperate with the court-appointed counsel and then argue denial of my Sixth Amendment rights. The court provided Craig with competent counsel. The fact that McGee’s effectiveness as counsel was compromised by Craig’s lack of cooperation was Craig’s own doing. Long, 669 P.2d at 1072.

Craig’s decision to reject McGee’s assistance did not, as the State argues, leave him only one option — to proceed pro se. Instead, he chose to neither cooperate with his court-appointed counsel, nor to present any defense. The inevitable result of his “no defense” strategy was a one-sided, prosecutorial presentation to the jury. We hold that the District Court did not deny Craig his constitutional right to effective assistance of counsel.

3. Did the District Court deny Craig his right to represent himself by permitting “standby” counsel to become involved in the defense?

Craig alleges that by allowing McGee to participate in the trial as standby counsel, the District Court destroyed “the jury’s perception that the defendant is representing himself.” McKaskle v. Wiggins (1984), 465 U.S. 168, 177, 104 S.Ct. 944, 951, 79 L.Ed.2d 122. This claim fails because we have held that Craig did not unequivocally assert his right to represent himself. Throughout the trial, neither the court, the prosecutor, McGee himself, nor Craig ever referred to McGee as standby counsel. Instead he was referred to by the court and the prosecutor as Craig’s attorney. McGee performed an extensive voir dire resulting in one juror excusing herself because she was not sure she could be fair to Craig. Even after voir dire and the State’s opening statement, when Craig stated McGee was not his attorney as far as he was concerned, the court continued to view McGee as the attorney available for Craig’s defense.

The option of proceeding pro se was left open to Craig throughout the trial. However, Craig did not seek permission to proceed pro se. Thus, the jury did not have the perception that Craig was representing himself. After the State’s opening statement, McGee’s participation in the trial was very limited due to Craig’s non-cooperation. This may have left the jury confused as to why Craig would choose to block his attorney’s assistance, but at no point were the jurors led to believe by the court, Craig, McGee, or the State that Craig was proceeding pro se.

Outside the presence of the jury, Judge Sullivan, the prosecutor, and McGee, with Craig present, settled the jury instructions. Throughout this procedure Craig did not participate nor did he object to McGee’s participation. Judge Sullivan continually consulted with McGee but acknowledged that McGee’s participation was limited by Craig’s wishes. Judge Sullivan stated: “He’s calling the shots.” This did not signify that Craig was proceeding pro se, but that, as for all clients, Craig determined his own defense. Craig did not assert his right to proceed pro se and he did not object to McGee’s limited participation in the trial. Furthermore, Craig does not suggest that McGee’s participation in any way conflicted with his “actual control over the case he chooses to present to the jury.” McKaskle, 465 U.S. at 178, 104 S.Ct. at 951. Since the jury was never given the impression that Craig was proceeding pro se, it cannot be said that McGee’s participation “destroyed the jury’s perception that the defendant is representing himself.” McKaskle, 465 U.S. at 177, 104 S.Ct. at 950. Accordingly, we hold that the District Court did not deny Craig’s right to represent himself.

In sum, our holding in this case is narrowly tailored to the unique situation Craig presents. By not cooperating with his court-appointed attorney and not proceeding pro se, Craig attempted to manipulate the court into appointing new counsel. However, as the District Court found, McGee did provide effective assistance of counsel. It was only Craig’s noncooperation that compromised McGee’s representation. Although Craig’s tactics resulted in a self-defeating and unwise defense, we cannot countenance manipulation of the Sixth Amendment in order to sabotage the criminal justice system.

4. Did the District Court err in instructing the jury as to “admissions” and “confessions?”

Craig asserts that the District Court improperly instructed the jury on admissions and confessions by giving Jury Instruction No. 7. Jury Instruction No. 7 states:

A statement made by a defendant other than at this trial may be an admission or a confession.

A confession, as applied in criminal law, is a statement by a person made after the offense was committed that he committed or participated in the commission of a crime. An admission is a statement made by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. A conviction cannot be based on an admission or confession alone.

The circumstances under which the statement was made may be considered in determining its credibility or weight. You are the exclusive judges as to whether an admission or a confession was made by the defendant, and if so, whether such statement is true in whole or in part. If you should find that any such statement is entirely untrue, you must reject it. If you find it is true in part, you may consider that part which you find to be true.

Evidence of an oral admission or oral confession of the defendant should be viewed with caution.

Craig alleges that he made neither a confession, nor an admission. Craig’s statements in question were made to Detective Green after the robbery. When questioned by Detective Green about the robbery, Craig stated: “I want it to be known that I did not have a gun.” He also told Detective Green that he could not “make it” in the outside world.

In State v. Thompson, we stated: “An ‘admission’ is defined as an avowal or acknowledgement of a fact or of circumstances from which, together with other facts, guilt may be inferred.... An admission does not acknowledge guilt; rather, it tends to establish guilt.” State v. Thompson (1993), 263 Mont. 17, 25, 865 P.2d 1125, 1130 (citing State v. Goltz (1982), 197 Mont. 361, 369, 642 P.2d 1079, 1084 (other citations omitted)). Thompson argued that the court erred in characterizing statements he made at his omnibus hearing as admissions and erred in charging the jury with the same instruction that was used in the present case. This Court concluded that Thompson’s statement was inconsistent with his theory of innocence and that the district court was correct in instructing the jury on possible admissions.

In the present case, the District Court correctly presented the jury with the instruction concerning admissions and confessions. Although Craig questions whether his statements were admissions or confessions, the jury may have construed them as inconsistent with innocence and thus treated them as admissions. Accordingly, the court properly apprised the jury of the difference between an admission and a confession; instructed the jury that a conviction cannot be based on an admission or confession alone; informed the jury that it alone was to determine if an admission had been made; and advised the jury that an admission should be viewed with caution. This instruction was to Craig’s benefit. It ensured that the jury did not overvalue Craig’s statements. This Court will uphold a district court if the instructions given, viewed as a whole, fully and fairly instruct the jury on the law applicable to the case. Thompson, 865 P.2d at 1131 (citing State v. Lundblade (1981), 191 Mont. 526, 529, 625 P.2d 545, 548). The instruction given by the District Court is a correct statement of the law, therefore, we hold that the District Court did not err in instructing the jury on the law applicable to admissions.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, ERDMANN and TRIEWEILER concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, ex rel. CELIA COBBS, Relator and Appellant, v. MONTANA DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Respondent and Respondent.
    No. 95-184.
    Submitted on Briefs August 24, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1166.
    906 P.2d 204.
    274 Mont. 157.

      For Appellant: Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell.
    For Respondent: Cary B. Lund, Legal Counsel, Department of Public Health and Human Services, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Celia Cobbs, filed an application in the District Court for the Nineteenth Judicial District in Lincoln County for a Writ of Mandate that would have directed the Department of Social and Rehabilitation Services (SRS) to disburse funds from the Industrial Accident Rehabilitation (IAR) Account for her rehabilitation expenses, as authorized by the Department of Labor. The District Court concluded that SRS had no clear duty to disburse the funds, and that Cobbs’ exclusive remedy was provided by law. Therefore, the court denied her application. Cobbs appeals from the order and judgment of the District Court. We reverse.

The issue on appeal is:

Does the State Department of Social and Rehabilitation Services owe a clear legal duty to distribute funds from the Industrial Accident Rehabilitation Account when the Montana Department of Labor authorizes the distribution pursuant to § 39-71-2001, MCA (1993)?

FACTUAL BACKGROUND

Celia Cobbs is an injured worker entitled to workers’ compensation benefits. She is unable to return to her former job because of a work-related injury. She had a dispute with her employer’s insurer over her right to rehabilitation benefits and filed a petition in the Workers’ Compensation Court to resolve that dispute. After a trial, she settled her claim by agreeing upon a rehabilitation plan with her employer’s insurer. The plan called for payment from the IAR Account in the amount of $680.75 for tuition and fees, together with $250.00 per semester for books and materials during a two-year course of study at Flathead Valley Community College. The State Department of Labor, Employment Relations Division, and the Workers’ Compensation Court approved the plan.

On January 13, 1994, the Department of Labor wrote to SRS and authorized the expenditure of funds from the IAR Account for the tuition, books, and materials described in the rehabilitation plan. The authorization specified that it was for expenditure of funds and that Cobbs was not seeking rehabilitation services. SRS, however, refused to disburse funds from the IAR Account based on its conclusion that Cobbs did not qualify for that Department’s rehabilitation services.

Cobbs then applied to the District Court in Lincoln County for a peremptory Writ of Mandate to compel the Department of Social and Rehabilitation Services to distribute funds pursuant to her rehabilitation plan. Cobbs contended in District Court that the IAR Account was established exclusively for workers’ compensation claimants and that while the funds may be used to provide rehabilitation services through SRS pursuant to § 39-71-1003, MCA, the funds could also be used pursuant to § 39-71-2001(l)(d), MCA (1993), when the Department of Labor authorizes use of the funds for expenses related to a private rehabilitation plan.

The District Court concluded that the IAR Account is statutorily dedicated to payment for rehabilitation services for injured workers provided by the State of Montana’s vocational rehabilitation program, and that because Cobbs was not a client of that program she was prohibited from receiving funds from the Account. The District Corut also held that § 39-71-1003, MCA, provides that § 53-7-106, MCA, is Cobbs’ exclusive remedy for denial of SRS services.

On appeal, Cobbs points out that she did not seek rehabilitation services or payments pursuant to § 39-71-1003, MCA. She agrees that she does not qualify for those services, but contends that she is entitled to rehabilitation expenses which are related to her privately developed plan pursuant to § 39-71-2001(l)(d), MCA (1993).

DISCUSSION

Does the State Department of Social and Rehabilitation Services owe a clear legal duty to distribute funds from the Industrial Accident Rehabilitation Account when the Montana Department of Labor authorizes the distribution pursuant to § 39-71-2001, MCA (1993)?

The issuance or denial of a writ of mandate is a matter of legal interpretation which we will review to determine whether the district court’s legal interpretation is correct. Phillips v. City of Livingston (1994), 268 Mont. 156, 161, 885 P.2d 528, 531. A two-part standard applies to the issuance of a writ of mandate. State ex rel. Chisholm v. District Court (1986), 224 Mont. 441, 443, 731 P.2d 324, 325. The writ is available when the party who requests it is entitled to the performance of a clear legal duty by the party against whom the writ is sought, and where no speedy and adequate remedy in the ordinary course of law is available. Section 27-26-102, MCA; see State ex rel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d 495, 497.

A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it.

Chisholm, 731 P.2d at 325.

On appeal, Cobbs contends that the District Court’s denial of her application was incorrect on both grounds. First, Cobbs contends that SRS has a clear legal duty to disburse the funds from the IAR Account. Second, Cobbs asserts that the SRS appeal process pursuant to § 53-7-106, MCA, is inapplicable because she did not seek SRS services.

Cobbs contends that SRS has a clear legal duty to disburse funds pursuant to § 39-71-2001, MCA (1993), which authorizes privately developed rehabilitation plans, and therefore, that the District Court abused its discretion when it failed to find a clear legal duty on the part of SRS and denied the writ. SRS asserts that application for SRS services pursuant to § 39-71-1003, MCA, is the only route to the IAR funds, and therefore, that all recipients of IAR Account monies must independently be eligible clients of SRS rehabilitation programs. We conclude that SRS’s position, which was adopted by the District Court, is inconsistent with statutory law.

The SRS is statutorily required to provide “vocational rehabilitation” and “vocational rehabilitation services” pursuant to the Federal Rehabilitation Act of 1973.29 U.S.C. §§ 701-796. These services must be provided to anyone who qualifies pursuant to SRS criteria found at § 53-7-105, MCA. Vocational rehabilitation must also be provided by workers’ compensation insurers to claimants who, by virtue of a work-related injury, are “physically unable to work at the job the worker held at the time of injury.” Section 39-71-2001(l)(b), MCA (1993). This is a different standard than the standard by which eligibility for SRS services is determined.

The IAR Account is provided for at § 39-71-1004, MCA. It is funded by self-insured employers, Plan II insurers, and the Department of Labor. Its purpose is to pay rehabilitation expenses of injured workers. Subsection (4) specifically provides that “[n]o part of the funds ... shall be used in payment of administrative expenses of the department or department of social and rehabilitation services.” Section 39-71-1004(4), MCA (1993). When we construe a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The Court is to effectuate the intent of the Legislature, and if the Legislature’s intent can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply any other means of interpretation. Clarke v. Massey (1995), [271 Mont. 412], 897 P.2d 1085, 1088, (citing Tongue River Elec. Co-op. v. Montana Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864).

Section 39-71-2001(1)(b), MCA (1993), provides that an injured worker who “is physically unable to work at the job the worker held at the time of the injury” is eligible for rehabilitation benefits. The Legislature enacted § 39-71-2001, MCA, in 1991 when it amended the Workers’ Compensation Act by passing HB 837 which, among other changes, enacted Title 39, Chapter 71, Part 20, “Rehabilitation Benefits.” Section -2001(l)(d) of the newly enacted part further provides that:

(1) An injured worker is eligible for rehabilitation benefits if:

(d) a rehabilitation plan between the injured worker and the insurer is filed with the department [of Labor and Industry]. If the plan calls for the expenditure of funds under 39-71-1004 [the Industrial Accident Rehabilitation Account], the department shall authorize the department of social and rehabilitation services to use the funds.

Section 39-71-2001(l)(d), MCA (1993) (emphasis added).

This statute explicitly provides for the development of a rehabilitation plan which may call for “the expenditure of funds” from the LAR Account. Section 39-71-2001(1)(d), MCA (1993), also specifically directs that the “department shall authorize” the use of the funds for the rehabilitation plan.

SRS’s argument to the contrary assumes that only its agency can provide rehabilitation services to injured workers. However, the plain language of § 39-71-1014, MCA, indicates that vocational services, including the development of a formal rehabilitation plan, may be delivered exclusively by a private rehabilitation provider. For example, that statute provides:

(1) Rehabilitation services are required for disabled workers and may be initiated by:

(a)an insurer by designating a rehabilitation provider and notifying the department;

(2) Rehabilitation services provided under this part [of the Workers’ Compensation Act] must be delivered:

(a) through a rehabilitation counselor certified by the board of rehabilitation certification;

(b) by a vocational rehabilitation counselor employed by the department of social and rehabilitation services; or

(c) by both.

Section 39-71-1014, MCA (emphasis added).

The plain language of § 39-71-1014, MCA, allows workers’ compensation claimants to receive vocational rehabilitation from certified private rehabilitation providers instead of, or in addition to, SRS services. Moreover, rehabilitation provider is defined as:

[A] rehabilitation counselor certified by the board for rehabilitation certification and designated by the insurer to the department or a department of social and rehabilitation services counselor when a worker has been certified by the department of social and rehabilitation services under 39-71-1003.

Section 39-71-1011(5), MCA (1993) (emphasis added).

A “rehabilitation counselor certified by the board for rehabilitation certification” is not necessarily an SRS counselor, but may be a private counselor. See § 39-71-1011(1), MCA (defining board of rehabilitation certification).

Thus, the plain language of §§ 39-71-1011(5) and -1014, MCA, establishes that an injured worker may receive vocational rehabilitation solely from a private provider, without using SRS counselors. Furthermore, there is no requirement that injured workers seek services from SRS — although vocational services may be provided to injured workers’ compensation claimants by SRS. Therefore, §§ -1011(5), -1014, and -2001, when read together, require the conclusion that funds from the IAR Account are available for rehabilitation expenses when a “rehabilitation plan” has been developed by the insurer, claimant, and rehabilitation provider and filed with the Department of Labor, not just when SRS “services” are provided. Privately developed rehabilitation plans, as authorized by § 39-71-2001, MCA (1993), would be rendered meaningless and impossible if this Court was to interpret § 39-71-2001, MCA (1993), in a way that gave SRS a right to deny benefits to workers based on criteria other than those listed in the Workers’ Compensation Act. If approval was required, whether or not the insurer and the claimant agreed to a “rehabilitation plan,” the expenses could not be paid unless the claimant also developed a rehabilitation plan as a client of SRS. The filing of the rehabilitation plan with the Department of Labor would be a useless exercise if the worker was required to reapply for services as an SRS client and develop a new rehabilitation plan through SRS’s rehabilitation “services.” Moreover, the Department of Labor’s “authorization” of the expenditure of funds from the IAR Account would have no meaning if, regardless of such authority, the claimant was still required to apply for rehabilitation services through SRS. Finally, the IAR Account would serve no function for workers’ compensation employers, insurers, and claimants if it was solely utilized for clients of SRS.

The Legislature does not perform useless acts. Kish v. Montana State Prison (1973), 161 Mont. 297, 301, 505 P.2d 891, 893. Therefore, we conclude that § 39-71-2001, MCA (1993), does afford independent access to the IAR Account for payment of expenses related to a worker’s rehabilitation plan developed by the insurer, claimant, and private rehabilitation provider and filed with the Department of Labor. This access is in addition to, and independent from, the payment of expenses pursuant to § 39-71-1003, MCA. Furthermore, the Department of Labor’s authorization, pursuant to § 39-71-2001, MCA (1993), creates a clear legal duty on the part of SRS to disburse those funds.

We conclude that Cobbs also meets the second requirement for a writ of mandate because no speedy and adequate remedy in the ordinary course of law was available to her.

The District Court concluded that Cobbs had a remedy in the ordinary course of law based on the language of § 39-71-1003(2), MCA, which provides:

The appeal process provided for in 53-7-106 is the exclusive remedy for an injured worker aggrieved in the receipt of vocational rehabilitation services provided by the department of social and rehabilitation services.

However, § 39-71-1003, MCA, pertains only to relief for a party actually applying for services which are provided by SRS.

Entitlement to rehabilitation benefits sought pursuant to § 39-71-2001, MCA (1993), is determined by the worker, the insurer, the private “rehabilitation provider,” the Department of Labor and, in the event of a dispute, the workers’ compensation mediator and the Workers’ Compensation Court. The procedures related to the denial of SRS services simply do not apply. Therefore, § 53-7-106, MCA, does not preclude the proper issuance of a writ of mandate in the instant case.

For these reasons, we reverse the District Court’s order which denied Cobbs’ application for a writ of mandate, and remand to the District Court for entry of the appropriate writ consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE, JUSTICE ERDMANN JUSTICE GRAY, JUSTICE NELSON,

text:
    IN THE MATTER OF INQUIRY INTO M.M., A.D., and L.D., Youths in Need of Care.
    No. 95-011.
    Submitted on Briefs October 19, 1995.
    Rehearing Denied December 14, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1170.
    906 P.2d 675.
    274 Mont. 166.

      For Appellant: Torger S. Oaas, Attorney at Law, Lewistown.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena; Thomas P. Meissner, County Attorney, Lewistown; Jon A. Oldenburg, Attorney at Law, Lewistown.
   CHIEF JUSTICE TURNAGE,

delivered the Opinion of the Court.

P.D., the mother of M.M., A.D. and L.D., appeals the decision of the Tenth Judicial District Court, Fergus County, terminating her parental rights. We affirm.

P.D. raises the following issues on appeal:

1. Did the District Court commit reversible error by admitting hearsay testimony of P.D.’s minor children?

2. Did the District Court err in affording undue weight to the testimony of Gwen Glidewell?

3. Did the District Court err in refusing to grant P.D. a continuance in order to produce a rebuttal witness to Gwen Glidewell?

4. Did the District Court err in terminating P.D.’s parental rights absent the existence of a court-approved treatment plan?

P.D.’s three daughters, M.M., A.D. and L.D., were born out of wedlock to three different fathers between January 1987 and July 1990. P.D. has neither sought nor received child support from any of the fathers. The father of M.M. filed a relinquishment of his parental rights. The fathers of A.D. and L.D. were served by publication, failed to respond, and a default judgment terminated their parental rights.

On February 1,1993, the Fergus County Attorney, on behalf of the Department of Family Services (DFS, now part of the Department of Public Health and Human Services, or DPHHS), filed a petition in the Tenth Judicial District Court for temporary investigative authority and protective services for M.M., A.D. and L.D. The petition was in response to allegations of abuse and neglect of M.M., A.D. and L.D. Following a hearing, the District Court granted DFS’s petition on February 16, 1993.

On May 3, 1993, the Fergus County Attorney filed a petition for the termination of P.D.’s parental rights and also for DFS to be granted permanent legal custody of M.M., A.D. and L.D. Following the June 20 through 21 hearing, the District Court terminated RD.’s parental rights and granted DFS permanent custody of M.M., A.D. and L.D. RD. appeals the termination of her parental rights. Other facts, as relevant to the disposition of the following issues, will be set forth as necessary below.

Issue 1

Did the District Court commit reversible error by admitting hearsay testimony of P.D.’s minor children?

We review district court evidentiary rulings to determine if the court abused its discretion. Mason v. Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712. We will not reverse evidentiary rulings absent a manifest abuse of discretion. Mason, 842 P.2d at 712. Additionally, “a reversal cannot be predicated upon an error in admission of evidence, where the evidence in question was not of such a character to have affected the result.” Mason, 842 P.2d at 712 (quoting Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 834).

Section 41-3-609, MCA (1993), sets forth the criteria for termination of parental rights:

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[.] [Emphasis added.]

Pursuant to §§ 41-3-102(17), 41-3-102(2) and 41-3-102(5), MCA (1993), the term “youth in need of care” includes a child whose health or welfare is harmed or threatened harm by acts or omissions of a person responsible for the child’s welfare. Section 41-3-102(8), MCA (1993), defines “harm to a child’s health or welfare” as:

the harm that occurs whenever the parent or other person responsible for the child’s welfare:

(a) inflicts or allows to be inflicted upon the child physical or mental injury;

(b) commits or allows to be committed sexual abuse or exploitation',

(c) causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or offered financial or other reasonable means to do so[.] [Emphasis added.] RD. argues that the District Court terminated her parental rights because it found that she had allowed her children to be sexually abused or exploited. While P.D. admits that her daughters were sexually abused by at least two of her male acquaintances, she insists that she did not know of the sexual abuses at the times they occurred. She claims that implicit in the term “allow” is the idea that she had some knowledge that the abuse occurred and yet did nothing to prevent it. She finally argues that the prosecution’s only evidence that she knew that the sexual abuse occurred was the hearsay testimony of a therapist repeating statements made to her by P.D.’s daughters. P.D. maintains that the hearsay statements of her daughters do not satisfy any of the exceptions to or exclusions from the hearsay rule and therefore should not have been admitted at trial.

We disagree with P.D.’s argument. First, P.D. presents no authority for her assertion that the phrase “allows to be committed sexual abuse or exploitation” requires actual knowledge that the acts have been committed. Section 41-3-102(5)(b), MCA (1993), explicitly states that abuse and neglect “include harm or threatened harm to a child’s health or welfare by the acts or omissions of a person responsible for the child’s welfare.” [Emphasis added.] This Court has previously held that acts or omissions of a parent or guardian are sufficient to satisfy the requirement of abuse and neglect. See In the Matter of C.A.R. and P.J.R., Youths in Need of Care (1984), 214 Mont. 174, 184, 693 P.2d 1214, 1220.

Second, while the District Court found that P.D. knew of her daughters’ sexual abuse, the court specifically stated that her knowledge of the abuse was irrelevant to its ultimate determination. The court found that “even if she did not know of the abuse, she failed to notice what was occurring and repeatedly left the children with persons who were not competent or safe caretakers.” Such a finding is supported by the evidence presented at trial and satisfies the requirements of § 41-3-102(5)(b), MCA (1993).

Finally, P.D. does not challenge the court’s finding that she failed to detect the abuse and left her children with inappropriate supervision. Regardless of P.D.’s knowledge of her daughters’ sexual abuse, there is sufficient evidence to support a finding that M.M., A.D. and L.D. are youths in need of care. The disputed hearsay evidence goes only to establish P.D.’s knowledge of the sexual abuse of her children. Because the District Court found that M.M., A.D. and L.D. were youths in need of care regardless of P.D.’s knowledge of the sexual abuse, any error by the court in admitting the challenged evidence was harmless. Mason, 842 P.2d at 712.

Issue 2

Did the District Court err in affording undue weight to the testimony of Gwen Glidewell?

Glidewell lived with P.D. and her children for a short period of time. Glidewell testified about P.D.’s lifestyle while they lived together. Glidewell’s testimony described P.D.’s friends, acquaintances, social habits and living arrangements.

P.D. argues that the District Court gave Glidewell’s testimony undue weight. P.D. claims that on cross-examination, Glidewell was exposed as an incredible witness who had a motive to testify falsely against her.

In nonjury trials, the credibility of a witness and the weight which his or her testimony should be afforded is left to the sound discretion of the district court. Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. In this case, the District Court was in the best position to hear all of the evidence presented and weigh conflicting testimony. After hearing Glidewell’s testimony, as well as the other witnesses’ testimony, the court determined that Glidewell was a credible witness. It is not the role of this Court to reweigh the evidence and substitute our judgment for that of the District Court under such circumstances.

We conclude that the District Court did not abuse its discretion in finding Glidewell to be a credible, reliable witness.

Issue 3

Did the District Court err in refusing to grant P.D. a continuance in order to produce a rebuttal witness to Gwen Glidewell?

At the close of trial, P.D.’s attorney requested a continuance in order to prepare additional testimony to discredit Gwen Glidewell. Particularly, P.D.’s counsel wished to call Gwen Glidewell’s mother, Cindy Glidewell, to testify as to Gwen’s reputation for truth and honesty.

We review discretionary trial court rulings such as motions for continuances to determine if the court abused its discretion. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. In this case, P.D. had already presented testimony from one witness which tended to impeach Gwen Glidewell’s reputation for truth and honesty. The court determined that P.D.’s trial counsel was given sufficient notice of Gwen Glidewell’s testimony and that additional impeachment testimony was unnecessary. We conclude that the District Court did not abuse its discretion in denying P.D.’s trial counsel’s motion for a continuance.

Issue 4

Did the District Court err in terminating P.D.’s parental rights absent the existence of a court-approved treatment plan?

Section 41-3-609, MCA (1993), states, in relevant part:

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[.] [Emphasis added.]

In this case, DFS prepared and executed a treatment plan; however, P.D. refused to sign the plan. The treatment plan was filed with the District Court, but was never officially signed by the District Judge.

While the District Court never approved the treatment plan, all parties involved apparently proceeded under the assumption that there was a court-approved treatment plan in place. In a Request for Status Report on Service Treatment Agreement, P.D.’s counsel stated:

2. It is the understanding of your Petitioner that a service treatment agreement was presented to [P.D.] in that she has either the original or a copy of such document. And apparently a duplicate original of the agreement was signed by the DFS, [P.D.], and later approved by the Court.

3. [P.D.] believes that she has successfully completed nearly all of the requirements of the service treatment agreement. [Emphasis added.]

P.D. and her counsel clearly believed that a court-approved treatment plan was in place and that she was required to comply with the terms of this treatment plan. A review of the record reveals that P.D. failed to complete the requirements of the treatment plan which she believed governed these proceedings.

P.D. now argues on appeal that the court cannot terminate her parental rights because it did not first approve a treatment plan. P.D. claims that without a court-approved treatment plan in place, her parental rights cannot be terminated under any circumstances.

This Court has consistently interpreted abuse and neglect statutes to protect the best interest of the children. “In matters involving abused and neglected children we have consistently held that a district court may protect the children’s best interest despite procedural error.” In the Matter of F.H., J.K. and B.K., Youths in Need of Care (1994), 266 Mont. 36, 39, 878 P.2d 890, 892.

We have upheld the termination of parental rights absent a court-approved treatment plan. In the Matter of the Custody and Parental Rights of M.D., a/k/al M.S., a Youth in Need of Care (1993), 262 Mont. 183, 864 P.2d 783. In that case, the parent was incarcerated, refused to complete the recommended sexual offender program and refused to sign the proposed treatment plan. In the Matter of the Custody of M.D., 864 P.2d at 786. We held that court approval of the treatment plan was not necessary due to the parent’s incarceration and noncompliance with the treatment recommendations. In the Matter of the Custody of M.D., 864 P.2d at 786-87.

While P.D. was not incarcerated, she refused to sign the treatment plan and refused to fulfill the requirements contained therein. In light of our decision in In the Matter of the Custody of M.D., and the facts and circumstances of this case, we conclude that the absence of formal court approval of the treatment plan is not a bar to terminating P.D.’s parental rights.

We note, for future termination proceedings, that a court-approved treatment plan should be in place in every case except as specifically provided in § 41-3-609(4), MCA. To clarify any confusion caused by our previous opinions, we observe that § 41-3-609, MCA, does not require that the parent sign the treatment plan in order for the court to approve such a plan. Section 41-3-609, MCA, allows court approval of a treatment plan with or without the parent’s signature. We also reiterate our warning to DPHHS to abide by the strict statutory requirements in termination proceedings or risk grave harm to the very children whom they seek to protect. See In the Matter of F.H., 878 P.2d at 890.

We affirm the decision of the District Court.

JUSTICES ERDMANN, HUNT and TRIEWEILER concur.

JUSTICE ERDMANN

specially concurring.

While I have joined the majority opinion, it was with some reluctance. Justice Gray, in her dissent, reviews the statutory requirements of § 41-3-609(l)(c), MCA, and the obvious fact that those requirements were not met in this case since there was no court approved treatment plan. In determining that this error does not warrant reversal, the majority relies on In the Matter of F.H. (1994), 266 Mont. 36, 878 P.2d 890, in which this Court held that a district court may protect the children’s best interests despite procedural errors. Justice Gray dissented in In the Matter of F.H. on the same basis that she does here, noting that repeated “signals” from this Court had gone unheeded by DFS (now DFHHS). I share those concerns.

The Legislature has established certain procedures that must be followed in terminating parental rights. Although the Legislature did not adopt an exception allowing district courts to disregard procedural requirements if the best interests of the children are involved, this Court has done so. The existence of this Court-created exception to the statutory requirements has the effect of tolerating if not condoning improper procedures.

I have joined with the majority only because the actions taken by DFS in this case occurred prior to the issuance of In the Matter of F.H. on July 12, 1994. DFS did not have the benefit of reviewing the cautions contained in Justice Gray’s dissent and Justice Nelson’s concurring opinion in that case prior to filing the petition in this matter.

The difficulty in this area, and no doubt the reason for the creation of the exception in In the Matter of F.H., is that the very children DFHHS is charged to protect are endangered when these cases are reversed or remanded. With the continuation of this judicially-created exception, however, there is little incentive for DFHHS to comply with the statutory requirements.

DFHHS should heed the warning contained in both the majority and dissenting opinions or risk reversal on the basis of procedural errors in the future.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion because I will not be a party to the Court’s continued refusal to require DFS (now DPHHS) to comply with clear legislative mandates. I would reverse the District Court’s termination of P.D.’s parental rights without a court-approved treatment plan because the law permits no other result in this case.

The dispositive issue in this case is simple and to the point. It requires only that we apply the plain language of § 41-3-609(l)(c), MCA, to the record before us. Neither this Court’s refusal to address the statute in discussing issue 4, regarding the absence of a court-approved treatment plan, nor the Court’s repeated efforts to misdirect attention away from clear and mandatory statutory language alter the requirement of a court-approved treatment plan contained in the statute.

Section 41-3-609(l)(c), MCA, authorizes a court to terminate parental rights upon a finding that 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. [Emphasis added.]

A straightforward reading of the statute can result only in a conclusion that the threshold mandate of the remaining criteria in § 41-3-609(1)(c)(i) and (ii), MCA, is the existence of a court-approved appropriate treatment plan. Unless and until such a plan exists, the “no compliance/not successful” and “unlikely to change” criteria never come into play. The legislature’s intent and the rationale underlying that intent are clear: a parent’s conduct in successfully complying can be measured only against an appropriate treatment plan that has been approved by the court.

In this case, the record is equally clear. No appropriate treatment plan approved by the District Court exists. Thus, the law permits only one valid legal conclusion by this Court: that the District Court erred in terminating PD.’s parental rights. In concluding otherwise, this Court violates the statutory responsibility imposed on it by § 1-2-101, MCA, by judicially deleting from § 41-3-609(l)(c), MCA, the requirement of a court-approved plan clearly contained therein. In doing so, of course, the Court intrudes into and directly contravenes the legislature’s constitutional authority.

In charting such a course, the Court presents a number of “red herrings,” apparently hoping to draw the reader’s attention away from what the law so clearly requires. First, the Court notes that RD. refused to sign the plan. The problem with this statement is that the statute does not require that the parent do so. Next, the Court observes that the plan was filed with the District Court, but not “officially signed” by that court. By means of this observation, the Court attempts to suggest that the District Court’s “official signing” of the plan is a mere ministerial act and is all that § 41-3-609(l)(c)(i),. MCA, requires or contemplates. Nothing could be farther from the truth.

The legislature’s mandate that the treatment plan filed by DFS be approved by a court is neither ministerial nor nonsubstantive. The legislature recognized throughout the statutes regarding termination of parental rights that, while DFS is the state agency in which initial decisions regarding the protection of children is vested, DFS cannot be permitted to act in these important areas without court involvement. Thus, the treatment plan promulgated by DFS — whether or not agreed to by the parent(s) involved — must be reviewed by a court to determine whether it is appropriate; if so, it must be affirmatively approved by the court. The statutory requirement is a clear statement of legislative intent that the court’s role is not to merely “rubber stamp” agency decision-making by “officially signing” DFS’treatment plan; the court’s role is to ensure that the agency is not given unbridled discretion in areas as important as terminating the most fundamental relationship in the world — that of parent and child.

But this Court does not stop with these two efforts to detract attention from its failure to apply clear statutory language. It goes on at some length to point out that, during some phases of the proceedings, all parties operated under the mistaken belief that a court-approved treatment plan existed and that P.D. “failed to complete the requirements of the treatment plan which she believed governed these proceedings.” These matters are irrelevant here.

What this Court fails to point out is that this case does not involve the parties’ “belief’ regarding existence of a court-approved plan throughout the proceedings in the District Court. In such a case, the parent would have waived any right to later challenge the outcome on that basis; if raised in this Court, we would not address the issue because it had not been preserved in the District Court and would not be properly before us. In fact, the record in this case is clear that RD. did object to the absence of a court-approved treatment plan in the District Court.

Nor is the fact that P.D. failed to complete the requirements of the treatment plan she believed existed during earlier phases of the District Court proceedings pertinent here. As a matter of law, no statutorily-required court-approved treatment plan existed against which her conduct could be measured as to compliance and success.

Finally, by citing to In the Matter of F.H., J.K. and B.K. and In the Matter of the Custody of M.D., the Court seems to herald and celebrate its now nearly two-decade old refusal to apply the law as enacted by the legislature and its concomitant permission to DFS to ignore the law. While it is true that the Court ends its opinion with a tepid shaking of its collective finger at DFS via a “reiteration” of a longstanding “warning” to DFS — and, perhaps, to the district courts of Montana — neither the agency nor attorneys nor district courts are likely to take this “warning” any more seriously than they have taken the previous warnings. And why should they? With the addition of every opinion from this Court in which an agency of the State of Montana is allowed to avoid legal mandates, it becomes harder and harder for the Court to break away from this ill-chosen and insupportable path, because in every “next case” agency lawyers will argue that it is not fair that clear legal requirements should finally be applied as written in their case. And so the Court continues to allow a state agency to blithely ignore the law with impunity.

It is important to look back at the cases in which this Court has “warned” DFS and its predecessor agency that it must comply with legal mandates. As early as 1977, this Court “strongly condemned” DFS’ disregard of the law. In re Gore (1977), 174 Mont. 321, 329, 570 P.2d 1110, 1115. In that case, SRS (DFS’ predecessor agency with regard to protecting children) ignored a legislatively-imposed 48-hour filing requirement for an emergency protective services petition after removing children from a home. We noted that SRS had removed the children under the guise of the law and that it had a duty to “strictly adhere to the requirements of that same law.” In re Gore, 570 P.2d at 1115.

Seventeen years later, in one of the cases to which the Court cites in its opinion here, we said we “sound a stem warning to DFS to strictly follow the statutory procedure in future cases or we will, in no uncertain terms, punish its conduct...” Matter of F.H. (1994), 266 Mont. 36, 40, 878 P.2d 890, 893. One can hardly say that DFS has heeded our strong condemnation and stern warning! Of at least equal importance, one can hardly say that in this case the Court is, “in no uncertain terms,” punishing DFS’ continued refusal to comply with the very law under which it operates! I dissented strongly in Matter of F.H. for the same reasons I dissent here: the Court’s actions in these regards are not permitted as a matter of law and serve only to encourage DFS — and others — to ignore both the law and this Court.

Finally, the Court’s reliance on Matter of Custody of M.D., is misplaced. In that case, as in this one, no court-approved treatment plan existed. The incarcerated parent argued that his parental rights could not be terminated. We disagreed, because § 41-3-609(4)(b), MCA, provides that a court-approved treatment plan is not required if the court finds that “the parent is incarcerated for more than 1 year and such treatment plan is not practical considering the incarceration [.]” Matter of Custody of M.D. (1993), 262 Mont. 183, 186, 864 P.2d 783, 786.

In Matter of Custody of M.D., a specific statutory exception to the court-approved treatment plan existed and was properly applied to the facts of record. Here, P.D. was not incarcerated. As a result, neither Matter of Custody of M.D. nor the statutory exception upon which we relied there applies to the present case.

I share the Court’s concern about the children of Montana. Indeed, there is room for concern about returning P.D.’s children to her pending a District Court proceeding in which DFS is required to follow the law. The appropriate resolution of this case is not for this Court to continue to countenance the violation of the law by DFS. The appropriate resolution is to reverse the District Court and order that the status quo regarding the children be maintained pending further proceedings during which legal mandates are met. I would remand for the filing by DFS (now DPHHS), within 30 days, of an appropriate treatment plan for the District Court’s timely consideration and for such other procedures and proceedings as the law requires thereafter.

JUSTICE LEAPHART joins in the foregoing dissent of JUSTICE GRAY.

JUSTICE NELSON,

dissenting.

I join Justice Gray in her dissent. She was correct in dissenting in Matter of F.H., and she is correct in her analysis and dissent here. While agreeing with her dissent in Matter of F.H., I nevertheless signed the Court’s opinion in the hope — misplaced, as it turns out— that, perhaps, a further warning to DFS (DPHHS) would suffice. It has not; and, for me, at least, this case is the straw that broke the camel’s back.

While Justice Erdmann points out that Matter of F.H. was issued subsequently to DPHHS’ actions here, nevertheless the District Court’s Findings of Fact and Conclusions of Law were entered over two months after our opinion in that case. Accordingly, DPHHS’ failure to comply with § 41-3-609(l)(c), MCA, could have and should have been addressed at that point in time by denying the petition to terminate P.D.’s parental rights and, instead, requiring compliance with the statute.