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Newville v. State8/29/1994
Rehearing Denied November 17, 1994.
, 51 St.Rep. 758
Submitted March 16, 1994.
This is an appeal by the plaintiffs from a jury verdict arising out of the Eighteenth Judicial District Court, Gallatin County, in favor of plaintiffs' ward, R.M., in a negligence action concerning severe injuries inflicted upon R.M. by her foster father while in his care pending an adoption. The jury attributed negligence under § 27-1-703, MCA, Montana's comparative negligence statute, to the State of Montana Department of Family Services (30%), the foster mother (35%) and a professional counselor who had treated the foster mother and father over a period of years (35%). The foster father was not listed on the special verdict form because the District Court found his conduct was intentional and not negligent. Amici curiae Montana Defense Trial Lawyers and Montana Trial Lawyers Association also presented the Court with arguments concerning constitutional issues. We affirm in part, reverse in part and remand for a new trial.
Plaintiffs now seek a new trial solely against the State of Montana Department of Family Services (the Department), presenting the Court with numerous issues, as does the Department in its Cross-Appeal, which we have restated as follows:
I. Do the plaintiffs have standing to assert the rights of unrepresented third persons included on the verdict form?
II. Is Montana's comparative negligence statute, § 27-1-703(4), MCA, unconstitutional as amended by the 1987 legislature?
III. Did the District Court err in allowing the jury to allocate a percentage of negligence to Edna Goodwin, who settled with the plaintiffs prior to trial, when no evidence had been introduced to establish the standard of care for a professional counselor?
IV. Did the District Court err in admitting evidence concerning R.M.'s biological parents?
V. Did the District Court err in instructing the jury?
VI. Is the Department immune from tort liability for its failure to protect R.M.?
VII. Who is to be included on the special verdict form if there is a subsequent trial in this action?
The plaintiffs in this case are co-guardians ad litem for R.M., an American Indian child born to a 16-year-old mother. R.M.'s natural mother left R.M. in the custody of her grandmother prior to the age of seven months and could not be located when R.M. was subsequently removed from her grandmother's home by the police at the age of seven months. Because R.M.'s mother could not initially be found and her father was unavailable, the court appointed a guardian ad litem for her and placed her in the temporary custody of the Department.
In addition to R.M.'s birth mother being under age, she and the birth father had problems with intellectual functioning and with drug and alcohol abuse. R.M.'s birth mother had dropped out of school in the 7th grade and had an I.Q. of 69. The parental rights of both R.M.'s biological parents were terminated in Yellowstone County, giving the Department permanent custody of R.M. in October 1987.
After obtaining custody of R.M., the Department placed her in a series of foster homes. By the time she was four years old, she had been in seven foster homes, including the home of Dennis and Martha Kuipers. The Department removed R.M. from some of these homes because of allegations of physical abuse, sexual abuse, or neglect.
Although R.M. was available for adoption during the time she was being placed in foster care, she was not an easy child to place because of behavioral prob
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