NO. 84-66 INTHE SUPREME COUXT OF THE STATE OF MONTANA 1984

INTHE MATTER OF B.L.0.

### , Youth inNeed of Care.

APPEAL FROM: ~istrict Court of the Fourth Judicial District, In and forthe County of Missoula, The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Donald J. Louden, Missoula, Montana TerryWallace, 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

## 11984

----.-- ClerkMr. 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 substantiveevidentiary issues. First, she contends that she did not have a fair opportunity to appear and show causewhy 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 evidencedoesnot support the trial court's findings that her child is a youth in need of care. Fifth, and finally, she alleges that theMissoula County trial court disregarded the statutory preference for preserving family unity and a-busedits discretionby granting temporary custody of her child to the SRS. The child was born in June 1977, in Fergus County, Montana. Themother and the natural father separated before the child's birth because of spou.sa1 abuse, and the father has notmaintained any contact with his child. When the child was about three years old, Fergus County officialsbecame concerned over the child's age-inappropriatebehavior. 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 causewhy her child should not be adjudged a youth in need of care, and why the State of Montana should nothe 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 SRSdiscovered 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 CountyAttorney's Office then filed 

### apetition 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 causewhy temporary custody should not be continued in the SRS. TheMissoula County trial courtheld 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 FergusCounty 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 60days to allow for evaluationand treatment. About four months later, the court held another dispositional hearing and the health and welfare officials submitted definite treatmentplans for both the child and the mother. The court determined that no treatment facilitywas available inMontana 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 custodywas 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 showcause why her child should not be declared a youth 

### in n.eedof care. However, she had twoopportunities. The first occurred in Fergus Countywhen the mother was properly served with notice of the hearing. She couldhave contested the adjudicationofher child as ayouth in need of care at that time,but she chose to fleewith the child instead. The Fergus County hearing held in their absencewas proper, and the order entered by that trial court

was valid. Nonetheless, themother 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 disposjtionalruling. Themother presented severalwitnesses

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 adjudicationofher child as ayouth inneed of care. Second, the mother contends that the trial court proceedings inboth counties were invalidbecause thenatural 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 officialsdid not knowwhere the Fatherwas. 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 courtproceedings invalid. The recorddiscloses that themother 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 thevalidity of theproceedings. The report's purpose isonly to aid the trial court in determining the financia! abilityof the parents tocontribute tocosts incurred astheresult 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 trialcourt's findings thather child isa youth inneed of care. She argues the trialcourt's findings are incorrectbecause atmost thenature and cause of her chjld's problems couldnotbe determined. However, section41-3-101, 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, themother failedtoappear attheFergus County hearing, and thatcourt's determination thather childwas a youth inneed 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 supportedby substantialcredibleevidence. Fifthand finally, themother contends thattheMissoula County trial court disregarded the statutory preference for preserving familyunityand abused itsdiscretionby granting temporary custody of her child to the SRS. The record demonstrates thattheMissoula courtcarefullyconsideredall proposed t.reatment plans that would allow the mother and child tostaytogether inMontana. However, thetrialcourtfound that no treatment facilities were available inMontana that could adequately deal with the child's severeproblems. 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