No. 13704 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF RICKY MOYER a/k/a 

STEWART MOYER, KENNY PIOYER, STEVE MOYER 

AND SHANNON MOYER, Youths in Need of Care. 

Appeal from: District Court of the Thirteenth Judicial 

District 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Vernard C. Anderson, Jr. argued, Billings, Montana 

For Respondent: 

Harold F. Hanser, County Attorney, Billings 

Montana 

Charles Bradley, argued, Deputy County Attorney, 

Billings, Montana 

Richard Webber argued, Helena, Montana 

Submitted: June 22, 1977 

Filed: &-L 2 6 19ff 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

This is an appeal from an order of the district court, 

Yellowstone County, awarding permanent custody of appellant's 

four minor children to the Child Welfare Services Division, 

Department of Public Welfare, State of Montana. 

Appellant, Ethel Rebecca Moyer, is the mother of Ricky 

Moyer, also known as Ricky Stewart, Kenny, Steve and Shannon 

Moyer. On December 31, 1975, the Yellowstone county attorney 

filed in the district court a petition for temporary investigative authority and protective services on behalf of the Moyer 

children, pursuant to section 10-1311, R.C.M. 1947. The county 

attorney supported the petition with an affidavit and with a 

report to the court which had been prepared by the Yellowstone 

County Department of Public Welfare, and which was submitted to 

the district court in accordance with section 10-1311. The report to the court listed the police records of Ricky and Kenny 

Moyer, complaints from their school authorities regarding emotional problems of Ricky, Kenny, and Steve, and allegations by 

the welfare department that appellant failed to provide adequate 

discipline and supervision of the children. The district court, 

on January 5, 1976, issued an order for temporary custody of the 

Moyer children, requiring appellant to cooperate with an investigation into the youths' home situation and giving temporary custody of the youths during the pendency of the action to the Yellowstone County Department of Welfare. 

On March 11, 1976, the Yellowstone county attorney filed 

a petition pursuant to section 10-1310 (10) (d) , R.C.M. 1947, requesting the district court to grant permanent legal custody of 

the Moyer children to the Child Welfare Services Division. The 

county attorney in his petition alleged that the Moyer children 

were neglected and abused youths in need of care, within the 
meaning of section 10-1301, R.C.M. 1947, and set 

forth certain general assertions in support of his allegations. 

Because the whereabouts of the putative fathers of the 

Moyer children were unknown, the district court authorized 

service of process by publication pursuant to Rule 4(d), M.R. 

Civ.P. None of the putative fathers appeared at the April 16, 

1976 custody hearing and none appeals the decision of the district court. 

At the nonjury hearing to determine permanent legal 

custody of the children, eight witnesses testified for respondent Child Welfare Services Division and six witnesses testified 

for appellant Ethel Rebecca Moyer. Based on the testimony at 

the hearing, the district judge on May 13, 1976 issued findings 

of fact and conclusions of law. The court concluded that the 

Moyer children were youths in need of care within the meaning 

of section 10-1301, R.C.M. 1947, and ordered that their permanent 

custody, including the right to consent to their adoption, be 

awarded to the Child Welfare Services Division. 

Appellant raises the following issues in her appeal: 

1. Is it legally impermissible for a county attorney to 

file a prehearing "report to the court" in support of a section 

10-1310, R.C.M. 1947, petition for permanent legal custody of 

dependant and neglected children? 

2. Was the evidence presented at the custody hearing 

sufficient to support the judge's decision to award permanent 

custody of the Moyer children to the Child Welfare Services 

Division? 

Appellant contends that the county attorney's report to 

the court was inadmissible in a permanent custody action under 

section 10-1310, R.C.M. 1947. Section 10-1310 neither requires 

nor prohibits the filing of a prehearing report to the court. 
The district court record in this case, however, contains only 

one report to the court, a report which the county attorney 

filed in support of his December 31, 1975 petition for temporary 

investigative authority and protective services. Section 10- 

1311(3), R.C.M. 1947 specifically authorizes the filing of a 

welfare department report in support of a temporary investigative 

authority and protective services petition. We need not, therefore, decide whether it would have been proper for a county 

attorney to file a prehearing report in support of a section 

10-1310 petition for permanent custody. 

Appellant next contends that the evidence presented at 

the custody hearing does not support the district judge's finding that the Moyer children were dependent and neglected within 

the meaning of 10-1301, R.C.M. 1947, or his decision to award 

permanent legal custody to the Child Welfare Services Division. 

Appellant claims that the aforementioned report to the court 

contained hearsay statements which were prejudicial to appellant 

and which strongly influenced the judge in his custody decision. 

It is true that a judge violates due process requirements if he 

bases his child custody order on statements in a welfare department report without requiring the authors of the report to testify at a hearing and be subject to cross-examination. In re 

Appeal in Maricopa Cty., Juv. Action No. J-75482, 111 ~riz 588, 

536 P.2d 197; C.B. v. People in Interest of J.T.B., 30 ~olo.~pp. 

269, 493 P.2d 691; In re Baum, 8 Wash.App. 337, 506 ~.2d 323. 

In a civil case, such as the one at bar, which is tried before 

the court without a jury, there is a presumption that the trial 

judge has disregarded all inadmissible evidence in reaching his 

decision. OfSullivan v. Simpson, 123 Mont. 314, 212 P.2d 435; 

Healy v. First Nat. Bank, 108 Font. 180, 89 P.2d 555, There is 

nothing in the record and appellant has cited nothing to this 

Court to rebut this presumption or show that the district judge 
based his decision on any evidence other than that presented 

by the witnesses who testified at the permanent custody hearing. We must, therefore, examine the record to determine if 

there is sufficient evidence to support the district judge's 

permanent custody order. 

Appellant claims that absent the report to the court, 

there was insufficient evidence to sustain the district court's 

findings. Appellant asserts that the district court's custody 

judgment must be reversed in light of this court's recent decision in In re Declaring Swan Children Youths in Need of Care, 

Mont . - P.2d , 34 St.Rep. 390 (1977). The facts 

which demanded reversal in Swan are not present in this case. 

In Swan we held that hearsay evidence was inadmissible 

in a custody hearing. We reversed the decision of the district 

court in Swan because the record established that the judge's 

decision to award custody of appellant's three minor children 

to the Montana Department of Social and Rehabilitative Services 

(SRS) was based mainly on hearsay evidence. " * * *the record 

is replete with oral and written hearsay evidence, admitted over 

proper objection." Swan, 34 St.Rep. 392. The only evidence 

which SRS submitted in Swan was written reports prepared by SRS 

and other state agencies, a written medical report, and the testimony of two SRS employees. The reports contained written hearsay and the testimony oral hearsay, none of which fell under 

the exceptions to the hearsay rule. Without the inadmissible 

hearsay evidence, there was insufficient evidence in Swan to 

sustain the district judge's permanent custody order. 

The facts in the case at bar are markedly different from 

the facts in Swan. Whereas in Swan the record indicated that 

" * * * certain written reports * * * were considered by the 

court in its decision", (34 St-Rep. 391) ,there is nothing in the 
record in this case to indicate that the district judge considered the welfare department report in his permanent custody 

decision. While the testimony at the custody hearing in Swan 

consisted solely of largely hearsay statements of two SRS 

employees, the district court in the instant case heard testimony from a clinical psychiatrist, a police officer, school 

nurse, school principal, school attendance officer, teacher and 

social worker, all of whom had had personal contact with either 

the Moyer children, the appellanttor both. In addition, the 

court heard testimony from appellant herself and from friends 

and neighbors of appellant. The district court in this case had 

the opportunity to examine the statements and judge the credibility of all the witnesses before making a decision as to custody. 

This Court will not reverse the child custody decision 

of a trial judge in the absence of a clear showing of abuse of 

discretion. In re Declaring Burgdorf and Berry,Dependent and 

Neglected Children, Mont . , 551 P.2d 656, 33 St.Rep. 605 

(1976); In re Declaring Bessette Children Youths in Need of Care, 

Mont . , 551 P.2d 653, 33 St.Rep. 600 (1976). The district 

court must exercise its discretion in child custody cases 

to further the welfare and best interests of the children. In 

re Declaring Henderson a Dependent and Neglected Child, 168 

Mont. 329, 542 P.2d 1204, 32 St-Rep. 1154; In re Declaring Olson 

Children Dependent and Neglected Children, 164 Mont. 431, 524 

P.2d 779. Did the district court's decision further the children's 

best interests and satisfy the statutory requirements of Title 

10, Chapter 13, R.C.M. 1947? 

Section 10-1314 (1) (b) (i) , R.C.M. 1947 authorizes a 

district judge to transfer custody of abused or neglected youths 

to SRS. Section 10-1301 (2) (a) , R.C.M. 1947 defines abuse or 
neglect as the " * * * commission or omission of any act or 

acts which materially affect the normal physical or emotional 

development of a youth * * *". The testimony at the custody 

hearing produced ample evidence to support both the district 

judge's finding that the children were abused and neglected 

while in the custody of their mother, and his judgment that 

it would be in the children's best interests to transfer their 

legal custody to Child Welfare Services, a division of SRS. 

A clinical psychologist testified that he had tested the two 

oldest children and had found them to have learning disabilities 

and behavior problems which he concluded were caused by inadequate home care and supervision. A police officer listed the 

numerous times that he had apprehended one of the children 

on juvenile offenses. The officer also testified that he once 

had discovered one of the children burning lighter fluid on 

the living room floor of the family home and was informed by 

appellant that she had given her son permission to play with 

the fluid. The school nurse testified that on numerous occasions 

the children had come to school with serious injuries and that 

they were often inadequately dressed for the time of year. 

When the school nurse visited the Moyer home, she noticed that 

the house had a strong smell of vomit, that there were dog feces 

on the floor, that the two youngest children were very dirty, 

and that appellant had a very difficult time controlling or 

disciplining her children. 

Other witnesses testified that the three school aged 

children often roamed the city streets unsupervised late at 

night, often came to school hungry and sleepy, and were ofttimes unwilling to associate or play with their classmates. 

In addition, various witnesses testified as to appellant's 

admissions that she often did not know where her children were, 
and that she was unable to discipline them. Finally, a social 

worker testified appellant had failed to follow the recommendations of public agencies which had worked with her, and that 

when the children had been temporarily taken from appellant and 

placed in a receiving home, they had progressed well emotionally. 

We do not dispute the assertions of appellant and the 

neighbors who testified in her behalf that appellant loves her 

children. It is clear from the record, however, that appellant 

is unwilling or unable to provide the care necessary for the 

physical and emotional well-being of her children. The testimony at the custody hearing supports the district judge's finding that the children were abused and neglected youths in need 

of care within the meaning of section 10-1301, R.C.M. 1947, and 

his judgment, pursuant to section 10-1314(1) (b) (i), R.C.M. 1947, 

transferring permanent legal custody of the children to SRS. 

The judgment of the district court is affirmed. 

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We concur: IChief Justice i 

L) --- ........................... Justices