NO. 84-66 

IN THE SUPREME COUXT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF B. L. 0. , Youth in Need of Care. 

APPEAL FROM: ~istrict Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald J. Louden, Missoula, Montana 

Terry Wallace, Missbula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert F.W. Smith, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

John Riddiough, Missoula, Montana 

Submitted on Briefs: June 28, 1984 

Decided: October 31, 1984 

Filed: OCT 3 1 1984 

----.-- 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The mother of B.L.O. appeals an order of the Fergus 

County District Court declaring B.L.O. to be a youth in need 

of care. She also appeals an order of the Missoula County 

District Court granting temporary legal custody of the child 

to the Department of Social and Rehabilitation Services 

(SRS). Both orders are affirmed. 

The mother raises three procedural issues and two 

substantive evidentiary issues. First, she contends that she 

did not have a fair opportunity to appear and show cause why 

her child should not be adjudged a youth in need of care. 

Second, she contends that neither trial. court had 

jurisdiction of the child because the natural father was 

never served with notice of these proceedings. Third, she 

argues that the failure of the Missoula County Welfare 

Department to prepare a financial status report on her 

renders the trial court proceedings invalid. Fourth, she 

contends that the evidence does not support the trial court's 

findings that her child is a youth in need of care. Fifth, 

and finally, she alleges that the Missoula County trial court 

disregarded the statutory preference for preserving family 

unity and a-bused its discretion by granting temporary custody 

of her child to the SRS. 

The child was born in June 1977, in Fergus County, 

Montana. The mother and the natural father separated before 

the child's birth because of spou.sa1 abuse, and the father 

has not maintained any contact with his child. 

When the child was about three years old, Fergus County 

officials became concerned over the child's age-inappropriate 
behavior. A Child Protective Team was assembled and sought 

the mother's aid in evaluating the child. When she refused 

to cooperate, Fergus County officials had her personally 

served in Fergus County with a summons and petition for 

change in legal custody. The summons and petition ordered 

the mother to appear and show cause why her child should not 

be adjudged a youth in need of care, and why the State of 

Montana should not he granted temporary legal custody of him. 

Before the hearing, the mother and the child fled the state, 

eventually reaching North Carolina. The court heard the 

matter in their absence, and based on the testimony of a 

psychiatrist and a local social worker, the child was 

declared a youth in need of care and temporary custody was 

granted to the SRS. The dispositional order was never 

enforced because of the chil-d's absence from the state. 

About two years later, the SRS discovered that the mother and 

child were in Missoul.a, Montana, and on the basis of the 

Fergus County order, and acting under section 41-3-301, MCA, 

placed the child in emergency protective custody. The 

Missoula County Attorney's Office then filed a petition under 

section 41-5-204, MCA, to transfer venue of the action from 

Fergus County to Missoula County, and to require the mother 

to appear and show cause why temporary custody should not be 

continued in the SRS. 

The Missoula County trial court held several evidentiary 

hearings and substantial testimony was introduced concerning 

the current status of the child as an abused or neglected 

youth, and the various dispositional treatment plans 

proposed. The mother had several witnesses testify on her 

behalf, and her counsel extensively cross-examined the 

State's witnesses. The testimony revealed that the child, 
who was five years old at the time, was mentally functioning 

at about the level of a one year old. All witnesses seemed 

to agree that in light of the severity of the child's problem 

and his advancing age, immediate treatment was urgently 

needed. 

By an order filed December 6, 1982, the Missoula court 

ruled that the Fergus County order effectively determined the 

child. to be a youth in need of care. Nonetheless, the trial 

court went on to find separate and apart from the Fergus 

County order, that the child was still a youth in need of 

care and the mother was a direct and indirect cause of the 

harm. The Missoula court then granted temporary custody of 

the child to the State of Montana, and ordered the child be 

placed in the Colorado Christian Home, in Denver, Colorado, 

for 60 days to allow for evaluation and treatment. 

About four months later, the court held another 

dispositional hearing and the health and welfare officials 

submitted definite treatment plans for both the child and the 

mother. The court determined that no treatment facility was 

available in Montana that would meet the child's needs and it 

adopted the treatment plan proposed for the child by the 

Colorado Christian Home. The trial court also adopted the 

treatment plan submitted by the State of Montana for the 

mother. The Missoula court held that compliance with both 

treatment plans was in the best. interest of the child. 

Temporary legal custody was retained by the SRS and the child 

was enrolled in the Colorado Christian Home treatment 

facility. 

The mother first claims that she was not given a fair 

opportunity to appear and show cause why her child should not 

be declared a youth in n.eed of care. However, she had two 
opportunities. The first occurred in Fergus County when the 

mother was properly served with notice of the hearing. She 

could have contested the adjudication of her child as a youth 

in need of care at that time, but she chose to flee with the 

child instead. The Fergus County hearing held in their 

absence was proper, and the order entered by that trial court 

was valid. Nonetheless, the mother had a second opportunity 

when the Missoula County trial court held a hearing to 

determine the current status of the child, and to make a 

disposjtional ruling. The mother presented several witnesses 

on her behalf and her counsel extensively cross-examined the 

State's witnesses. We have no doubt that the mother had a 

fair opportunity at each of these hearings to contest the 

adjudication of her child as a youth in need of care. 

Second, the mother contends that the trial court 

proceedings in both counties were invalid because the natural 

father was not served with notice of the action. But the 

mother has no standing to contest the failure to serve the 

natural father, as she has shown no personal interest 

adversely affected. Further, the father has not been in 

contact with the child since birth, and the mother admits 

that most probably the Fergus County and Missoula County 

officials did not know where the Father was. 

Third, the mother contends that the failure of the 

Missoula County Welfare Department to prepare and submit a 

financial status report on her as set forth in section 

41-3-1123, MCA, renders the trial court proceedings invalid. 

The record discloses that the mother failed to object to this 

alleged error at the trial court level, and she therefore is 

precluded from raising this issue on appeal. But more 

important, the failure to file a report could not affect the 
validity of the proceedings. The report's purpose is only to 

aid the trial court in determining the financia! ability of 

the parents to contribute to costs incurred as the result of 

placing their child j.n a treatment facility. The record 

demonstrates that the mother has never been asked to 

contribute to the costs of treating either her child or 

herself. Clearl-y, failing to file the report could not 

affect the validity of the proceedings and is at most 

harmless error. 

Fourth, the mother contends that the evidence does not 

support the trial court's findings that her child is a youth 

in need of care. She argues the trial court's findings are 

incorrect because at most the nature and cause of her chjld's 

problems could not be determined. However, section 41-3-101, 

et seq., MCA, do not require a determination of the exact 

nature and cause of a child's problems before reaching a 

proper decisi.on. As we discussed in the first contention, 

the mother failed to appear at the Fergus County hearing, and 

that court's determination that her child was a youth in need 

of care is valid and binding. Nonetheless, the Missoula 

County hearing demonstrates the trial court's thorough and 

intense examination of all factors presented. The trial 

court's findings in Fergus County and in Missoula County, 

were supported by substantial credible evidence. 

Fifth and finally, the mother contends that the Missoula 

County trial court disregarded the statutory preference for 

preserving family unity and abused its discretion by granting 

temporary custody of her child to the SRS. The record 

demonstrates that the Missoula court carefully considered all 

proposed t.reatment plans that would allow the mother and 

child to stay together in Montana. However, the trial court 
found that no treatment facilities were available in Montana 

that could adequately deal with the child's severe problems. 

The trial court also found that the mother was not only 

incapab1.e of providing her child with the specialized 

treatment that he required, but that the mother was at least 

partially responsible for his condition. Further, the 

treatment plan adopted by the trial court for the mother 

states that its first two goals are to assist the mother in 

working to regain physical custody of her child, and to aid 

her in establishing herself as a person capable of providing 

the quality and type of care that her child requires. The 

trial court's actions have fully satisfied the statutory 

requirements. 

The orders of the Fergus County and Missoula County 

We Concur: 

- Chief Justice