Archive | February, 2015

In the Matter of IT

In the Matter of IT, 2015 MT 43 (Feb. 17, 2015) (Wheat, J.) (4-0, aff’d)

Issue: (1) Whether the district court abused its discretion when it terminated Mother’s parental rights; (2) whether the district court erred by considering hearsay evidence; and (3) whether there are equitable grounds upon which relief from the district court’s order should be granted.

Short Answer: (1) No; (2) no; and (3) no.

Affirmed

Facts: Mother’s parental rights to three of her four children were terminated in February 2013; the fourth child was born soon thereafter. Mother admits to using drugs, and the baby was placed in neonatal intensive are for drug withdrawal shortly after birth. DPHHS petitioned for emergency protective services for the newborn, which was granted, and the baby was placed in foster care.…

State v. Levanger

State v. Levanger, 2015 MT 83 (Feb. 11, 2015) (McGrath, C.J.) (5-0, aff’d)

Issue: Whether lower court abused its discretion when it denied Levanger’s motion to exclude Intoxilyzer 8000 breath test results.

Short Answer: No.

Affirmed

Facts: Levanger was arrested for DUI and transported to county jail for breathalyzer test at 8:40 a.m. Approximately five minutes into the drive, officer stopped vehicle and checked Levanger’s mouth for substances. Intoxilyzer 8000 recommends subject refrain from oral ingestion of anything 20 minutes before test. Levanger had chewing tobacco, which officer asked him to spit out. Officer then asked Levanger to open his mouth and lift his tongue, but did not physically check Levanger’s mouth.

At 9:11 a.m., Levanger’s breath sample on Intoxilyzer 8000 indicated a BAC of .126.…

In the Matter of HT

In the Matter of HT, 2015 MT 41 (Feb. 10, 2015) (Baker, J.) (5-0, aff’d and rev’d) 

Issue: (1) Whether the termination of Mother’s parental rights must be reversed because the district court failed to hold an adjudicatory hearing that complied with § 42-3-437, MCA; and (2) whether the district court’s failure to follow statutory procedural requirements subject to the Indian Child Welfare Act (ICWA) requires reversal.

Short Answer: (1) No; (2) yes. The Court reverses and remands for entry of a new order on the termination of Mother’s parental rights using the proper standard.

Affirmed in part, reversed and remanded in part

Facts: Montana DPHHS petitioned for emergency protective services for 7-year-old HT in October 2012 on the basis of domestic violence between Mother and her boyfriend as well as Mother’s drug use.…

In the Matter of BOT

In the Matter of BOT, 2015 MT 40 (Feb. 10, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: Whether substantial evidence supported the district court’s conclusion that BOT’s mental disorder rendered him unable to provide for his own basic needs.

Short Answer: Yes.

Affirmed

Facts: After being found on the ground at a bus station on a cold, rainy night in December 2013, BOT was admitted to the hospital. He was found to suffer from diabetes, hypertension, and hyperkalemia, and was observed to be uncooperative with the hospital staff. The social worker who conducted BOT’s mental health evaluation learned that BOT was a mental health center client, and that his condition was deteriorating because he would not take his medications.…

State v. Betterman

State v. Betterman, 2015 MT 39 (Feb. 10, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: Whether Betterman was denied due process by virtue of the delay between conviction and sentencing.

Short Answer: No, overruling State v. Mooney.

Affirmed

Facts: Betterman was sentenced for family member assault in March 2012, and remanded to the Butte-Silver Bow detention center for arraignment on bail jumping charges. In December 2012, the district court scheduled sentencing for January 17, 2013. On that day, Betterman moved to dismiss, alleging a speedy-trial violation based on the delay in his sentencing. No hearing was held, and the district court issued an order denying the motion on April 29, 2013.

On May 6, Betterman filed an affidavit setting forth several facts, including that he had spent at least 442 days in jail for partner of family member assault and would be eligible for conditional release if he was an inmate with DOC, that he was suffering from the delay, and was not receiving medical attention for physical ailments.…

A.M. Welles, Inc. v. Montana Materials, Inc.

A.M. Welles, Inc. v. Montana Materials, Inc., 2015 MT 38 (Feb. 10, 2015) (Baker, J.) (5-0, rev’d)

Issue: (1) Whether the district court properly denied summary judgment to Welles, and (2) whether the district court abused its discretion in dismissing the state’s action against Liberty Mutual for failure to prosecute.

Short Answer: (1) No. The judgment is reversed with instructions to enter judgment for Welles. (2) Yes.

Reversed and remanded

Facts: The state contracted with Welles to complete a highway paving project near Ennis in 2000. Welles subcontracted with Montana Materials, Inc., RSJ, Inc., and GLJ, Inc. (“Jensen”). The state and Welles insured the job through Liberty Mutual Fire Insurance Co. On Sept. 30, 2000, Jensen applied oil and blotter to the road.…

Bailey v. Montana Dept. of Health & Human Services

Bailey v. Montana Dept. of Health & Human Svcs., 2015 MT 37 (Feb. 10, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: Whether an administrative rule excluding from Medicaid coverage all invasive procedures undertaken for the purpose of weight reduction, including gastric bypass, is unreasonable and contrary to federal law.

Short Answer: No.

Affirmed

Facts: Bailey is a 51-year-old mother. She is about 5’3” and 445 pounds, and is considered morbidly obese. She qualifies for Montana Medicaid because she is legally blind. In 1990 Bailey was in a car that was hit by a train, causing long-term injuries to her ribs, knees, and back. In 2000, she broke both legs in a fall, and had pins and screws put into her legs.…

Planned Parenthood of Montana v. State

Planned Parenthood of Montana v. State, 2015 MT 31 (Feb. 3, 2015) (Shea, J.; Cotter, J., dissenting) (4-1, rev’d)

Issue: Whether issue preclusion prevents the state from defending the constitutionality of two laws that require the involvement of a minor’s parent before the minor may obtain an abortion.

Short Answer: No, because the constitutional issues raised by the 2011 and 2013 parental-notification statutes are not identical to the constitutional issues raised by the 1995 statute and resolved in Wicklund v. State.

Reversed and remanded

Facts: Planned Parenthood of Montana filed suit challenging the constitutionality of (1) a 2011 law requiring parental notification before a minor may obtain an abortion, and (2) a 2013 law requiring parental consent before a minor may obtain an abortion.…

Bennett v. Hill

Bennett v. Hill, 2015 MT 30 (Feb. 3, 2015) (Wheat, J.) (5-0, rev’d)

Issue: (1) Whether the district court properly granted summary judgment to defendants on whether the wall was a spite fence; (2) whether the district court properly granted summary judgment to defendants on whether the wall was a nuisance; (3) whether the wall violated the subdivision restrictions; and (4) whether the district court properly awarded attorneys’ fees to defendants.

Short Answer: (1) No; (2) no; (3) genuine issues of material fact preclude summary judgment and (4) attorneys’ fees are reversed because defendants are no longer the prevailing party.

Reversed and remanded

Facts: Plaintiffs own lots in the Lake Hills Subdivision. Defendant Lake Hills Golf, LLC, also owns a lot in the subdivision, which is adjacent to plaintiffs’ properties.…

Weibert v. Weibert

Weibert v. Weibert, 2015 MT 29 (Feb. 3, 2015) (McGrath, C.J.) (5-0, aff’d)

Issue: Whether the district court erred in ordering Jim to pay Crissy’s attorney’s fees.

Short Answer: No.

Affirmed

Facts: Jim and Crissy divorced in February 2012. They have one minor child, BW, who is autistic. After a 2011 hearing on Crissy’s proposed relocation to Washington, the district court concluded it was in BW’s best interest to continue living with Crissy. Crissy moved to Washington and has lived there since.

The parties stipulated to a new visitation schedule, which also required Crissy to follow the recommendations of a doctor who had evaluated BW, Dr. Simon-Thomas.

Jim moved to modify the parenting plan in September 2012 to grant him primary custody, claiming Crissy was not following Dr.…