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, STEVEMOYER AND SHANNON MOYER, Youths in Need of Care.

Appeal from: District Court of the Thirteenth Judicial District Honorable Robert Wilson, Judgepresiding. Counsel of Record: For Appellant: Vernard C. Anderson, Jr. argued, Billings, Montana ForRespondent: 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: 

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## 6 19ffMr. Chief JusticePaul G. Hatfield delivered the Opinion of the Court. This isan appeal from an order of the districtcourt, Yellowstone County, awarding permanent custody of appellant's four minor children totheChild Welfare Services Division, Department of Public Welfare, Stateof Montana. Appellant, Ethel Rebecca Moyer, is themother of Ricky Moyer, alsoknown asRicky Stewart, Kenny, Steve and Shannon Moyer. On December 31, 1975, the Yellowstone county attorney filed in the districtcourt a petition for temporary investigative authority and protective serviceson 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 tothe court which had been prepared by the Yellowstone County Department of Public Welfare, and which was submitted to the districtcourt inaccordancewith section 10-1311. The report tothe court listed the police records of Ricky and Kenny Moyer, complaints from their school authoritiesregarding emotional problems of Ricky, Kenny, and Steve, and allegationsby the welfare department that appellant failed toprovide adequate discipline and supervision of the children. The districtcourt,

on January 5, 1976, issued an order for temporary custody of the Moyer children, requiring appellant tocooperate with an investigation into theyouths' home situationand giving temporary custody of the youths during the pendency of the action tothe YellowstoneCounty 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 thedistrictcourt togrant permanent legal custody of theMoyer children tothe Child Welfare ServicesDivision. The county attorney inhis petition alleged that theMoyer children

were neglected and abused youths inneed of care, within themeaning of section 10-1301, R.C.M. 1947, and set forthcertain general assertions in support of his allegations. Because thewhereabouts of the putative fathers of the Moyer childrenwereunknown, thedistrictcourt authorized serviceof process by publication pursuant toRule 4(d),M.R. Civ.P. None of theputative fathers appeared attheApril 16, 1976 custody hearing and none appeals thedecision of thedistrictcourt. Atthe nonjury hearing todetermine permanent legal custody of the children, eight witnesses testified forrespondent Child Welfare Services Division and sixwitnesses testified for appellant Ethel Rebecca Moyer. Based on the testimony at the hearing, thedistrictjudge on May 13, 1976 issued findings of factand conclusions of law. The court concluded that the Moyer children were youths inneed of carewithin themeaning of section 10-1301, R.C.M. 1947, and ordered that their permanent custody, including the right toconsent totheir adoption, be awarded tothe Child Welfare ServicesDivision. Appellant raises the following issues inher appeal: 1. Is it legally impermissible for a county attorney to filea prehearing "report tothecourt" in support of a section 10-1310, R.C.M. 1947, petition for permanent legal custody of dependant and neglected children? 2. Wasthe evidence presented atthe custody hearing sufficient to support the judge's decision toaward permanent custody of theMoyer children tothe Child Welfare Services Division? Appellant contends that the county attorney's report to the courtwas inadmissible ina permanent custody actionunder section 10-1310, R.C.M. 1947. Section 10-1310 neither requires

nor prohibits the filingof a prehearing report tothe 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, 1975petition for temporary investigativeauthority and protective services. Section 10- 1311(3), R.C.M. 1947 specificallyauthorizes the filing of a welfare department report in support 

### of a temporary investigative authority and protective servicespetition. We need not, therefore,decidewhether 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 ServicesDivision. 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 reportwithout 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 Interestof J.T.B., 30 ~olo.~pp. 269, 493 P.2d 691; In re Baum, 8Wash.App. 337, 506 ~.2d 323. In a civil case, such as the one at bar, which is tried before the courtwithout a jury, there is a presumption that the trial judge has disregarded all inadmissible evidence in reaching his decision. OfSullivanv. Simpson, 123Mont. 314, 212 P.2d 435; Healy v. FirstNat. 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 judgebased 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 Swanwe 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 threeminor children to the Montana Department of Social and Rehabilitative Services

(SRS)was based mainly on hearsay evidence. 

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## * * *the record is repletewith oral and written hearsay evidence, admitted over proper objection." Swan, 34 St.Rep. 392. The only evidence which SRS submitted in Swanwas written reportsprepared 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 aremarkedly different from the facts in Swan. Whereas in Swan the record indicated that 

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## * * * certain written reports

## * * * were considered by the court in its decision",(34St-Rep.391),there is nothing in therecord 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 statementsof 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 appellanttorboth. In addition, the court heard testimony from appellantherself 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 interestsof 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 interestsand satisfy the statutory requirementsof 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. 1947defines abuse orneglect as the 

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## * 

## * * commission or omission of any act or acts whichmaterially 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 childrenwere abused and neglected while in the custody of theirmother, and his judgment that itwould 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 schoolwith serious injuries and that they were often inadequatelydressed 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 knowwhere her childrenwere,and that she was unable to discipline them. Finally, a social worker testified appellant had failed to follow the recommendations of public agencieswhich 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 assertionsof 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 carewithin themeaning 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. --\ /-

/ We concur: IChief Justice 

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