No. 79-41 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN THE MATTER OF T. J. D., 

### J. L. D. and R. J. W.

Appeal from: The District Court 

### of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding. Counsel of Record: For Appellant: Stacey and Nye, Billings, Montana Damon Gannett, ( Guardian), Billings, Montana For Respondent: Harold F. Hanser, County Attorney, Billings, Montana

Filed: Submitted on Briefs: June 5, 1980 Decided: 

### G-LLD+& /2,

### )9W e

### Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

This is a consolidated appeal from the order of the Yellowstone County District Court which terminated the parental rights to three children. The mother of all three children appeals from the order terminating her parental rights to each of the children. The father (fatherto only the infant son) appeals from an order terminating his parental rights to the infant son. The hearing in relation to the State's petition to terminate the mother's parental rights to each of the three children,was held on May 2, 1979, and a final order of termination was entered on May 24, 1979, terminating the mother's parental rights. A hearing in relation to the State's petition to terminate the father's parental rights to the infant son was held on July 6, 1979 and a final order of termination was entered on July 16, 1979. Because at least two of the issues raised are common to both final orders of termination, the appeals have been consolidated. The mother and father raise several issues. Both the mother and father contend that therewas a lack of clear and convincing evidence to justify the final orders of termination. Matter of J.L.B. (1979),

### -Mont

# . - 

## , 594 P.2d 1127, 1136, 36 St.Rep. 896, 908,held that the proof must be clear and convincing to justify a final order of parental termination that a child is,within themeaning of section 41-3-102(2)(b), MCA (1978),abused or neglected. The State met its burden here. The second issue raised is the contention that it was error to bring out at the May 2 

### and July 6 hearing, that the father had a prior felony conviction--armed robbery. Both the mother and father contend that this was impeachment by prior conviction of a felony which is directly prohibited by Rule -2-609, Mont.R.Evid. Wedetermine, however, that the evidence

was properly admitted. The third issue concerns the custody of the infant son and the mother and father's contention that the trial court erred innot granting the father's motion to order the State toconduct a home study of the father's parents todetermine their suitability tobe custodians of the infant son. This motion was made atthe conclusion of the July 6 hearing, and itwas, under the circumstances here, properly denied. Finally, both parents contend that the Indian Child Welfare Act of 1978, 25 U.S.C. 81901, et seq., (19781, was ineffect atthe 

### time, and that by virtue of the mother's motion (themother is a member of the Chippewa Cree Tribe), theproceeding should have been transferred tothe jurisdiction of the Chippewa CreeTribe of North Dakota, or minimally, that theproceedings should have been halted so that the Tribe could be notified of the State court proceedings. Wedetermine, however, that theproceeding against the mother and the father, had been commenced before the effective date of theAct, and therefore that the Act, by its own 

### terms, does not apply. Allthree children

### were born tothe mother while she

was unmarried. Each apparently has a different father. At the 

### timeof the hearing, themother was twenty-one years old and unmarried. The oldest child, a daughter, was sixyears old; the second child, a son, was four years old; and the youngest child, a son, was eightmonths old atthe timeof the hearing. The alleged fathers of the firsttwo children could not be reached forpersonal service and therefore servicewasmade by publication. After their failure to appear their defaultswere duly entered. The father of the infant son, however, appeared afterpersonal service, and he admitted atthe May 2 hearing thathe was the father of the mother s third child. -3-

### Themother has several personal problems affecting her ability to care for her children. In June 1978,while pregnant with her third child, she plead guilty to a charge of prostitution. She is addicted to alcohol and Talwin. The effects of alcohol are well known. Talwin is a pain reliever which causes euphoria, drowsiness, and in some cases hailucinations. The mother attempted withdrawal from these drugs on a previous occasion,but left the clinic after only a twentyfour hour residency. Expert testimony forecasts that to prevent the mother from lapsing into deepening addiction, in-patient treatment is required for approximately six months. Expert testimony at themother's hearing also established that she is devoid of parenting skills and lacks the psychological skill to care for her children. At the time of his hearing, the father was living in his aunt's home with the mother and two other adults. He is not regularly employed, but earns some income by occasionally driving cab and working at the fairgrounds. He has three other children, apparently adopted during a previous marriage, but he does not support them. The father admitted at the hearing that he could not care for the child. The father has lived with themother off and on for a period of three years. After the child's birth he visited themother and child three or four times a week, and apparently provided some support for the child. He admitted his own inability to care for the child, but testified that he believed the mother's care of the infant child to be adequate. It was at the end of his own hearing on July 6, 

### that the fathermoved the court to have thewelfare officials conduct a home study of his parents home to determine his father's fitness to

care for the infant son. -4-An examination of the circumstances leadingup to the State's intervention and taking temporary custody of the children, reveals a clear and convincing case forparental abuse orneglect of the three children. The chain of events seemed tobegin inthe spring of 1977. Atthat 

### timethemother moved intoan apartment where the owners did not permit children as residents. For this

reason thematernal grandparents took temporary care of the two children. The mother contacted the welfare department in June 1977 forhelp inlocating a new apartment which permitted children. The welfare officials suggested that the grandparents continue toprovide care until the mother moved into an appropriate apartment. The mother used this timeperiod to indulge inher own activities. She worked ina cafe and also did some traveling. During the next fourteenmonths, she visited her children only occasionally. During this 

### timeperiod, she became pregnant with her third child, the infant son involved here.InAugust 1978, someone made a complaint tothewelfare office concerning the boy and girlinthe custody of the grandparents. On August 24, 1978 at 11:OO a.m. a socialworker, a home attendant, and a police officer, went tothe home tocheck

on the children. The young boy was inthe yard unsupervised. Hisblack hair

### was gray from dirtand he smelled of urine. The young girlwas sittingalone in an empty bathtub. Both grandparents

### werehighly intoxicated. The grandfather was belligerant. Believing that the circumstances required immediate action, the investigating teamremoved the children from the apartment and took them tothe Billings Receiving Home. Later the same day the childrenwere taken tothehospital. The daughter complained of neck pains and had difficulty inwalking. She had severe chills and suffered a seizure. She remainedhospitalized until September 5, 1978. Later, the girlwas found tobe suffering from juvenile rheumatoid arthritis. These events prompted the officials to check intothe welfare of the infant son who was with themother. On August 24, 1978, a public health nurse visited the mother's home tocheck on the infant son who was born on August 13, 1978. As a result of this visit, a reportwas made tothe county attorney's office, and within a week the county attorney filed

a petition for a temporary investigative authority and for protective services. On September 6, 1978, the court issued

an order requiring themother tocooperate with the welfare officials and topermit the social worker's entry intothe mother's home. As a result of these court orders, on September 7, 1978,

a home attendant began weekly visits tohelp the mother develop parental skills. After seven visits to the house, she concluded that themother had no parenting skills and was not interested indeveloping these skills. Also, a clinicalpsychologist examined the mother on October 3, 1978, and determined that the mother could not place her childrens' needs above her own and that she could not provide proper nurture for the infant son. A week after this examination, a public health nurse visited themother's home to check on the care of the infant. The baby's diaperswere filthy and there

### wereno clean diapers in the house. The skin on hispenis and scrotumwas raw and excoriated. The child also had signs of poor physical development. No baby formula was available in the house and the mother fed juice tothe baby from a bottle. The nurse concluded that the mother was incapable of providing for the needs of this infant. Before leaving she made an appointment for October 17 tovisit the home again toformally test the baby's development. -6-When the nurse arrived on October 17, thebaby was not inthe home. The following day Dr. Gustafson told the social worker that inlightof allthese developments, he believed the baby tobe indanger and that she should consider removing him from the home. The socialworker had already received adverse reports from thehome attendant and public health nurse, and she knew that the mother was not attendingparenting classes

on a regular basis. On October 19, the socialworker, the public health nurse, and a sheriff's deputy, went tothe mother's home. Three men and a woman 

### werepresent, but the mother 

### was not athome. The baby was filthy, had diaper rash and cradle cap, and its skullwas flattened on one side as a result of lying on the same side for an extended period of 

### time. The socialworker immediately removed the baby from the home and took him to a hospital. The baby was formally tested that day inthehospital; he had slow development inthree of the four areas tested. As a result of these actions, the trial court extended the temporary investigative authority order foran additional ninety days. In January 1979, a guardian ad litemwas appointed for the children. Atthe expiration of the ninety day period, the county attorney filed a petition toobtain permanent custody of themother's three children. This set inmotion thenotices tothe alleged fathers of the daughter and oldest son. Because they could not be found forpersonal service, theywere served by publication and theirdefaults

were duly enteredwhen they failed toappear. The father of the infant son was served on May 1, 1979 and the hearing was scheduled tobegin the following day. When the father appeared on May 2, he requested that an attorneybe appointed torepresent him. The court took the request under advisement, and decided tohold the hearing only inrelation tothe -7-

### State's petition to terminate the mother's rights to her children. A hearing for the father in relation to the infant son,was set for a later time. Before the commencement of the May 2 hearing, the trial court ruled against the mother's motion to have the cause dismissed or transferred to the Chippewa Cree Tribe pursuant to the Indian Child Welfare Act. No reasonwas given for the rulings but argument by the State immediately preceding the ruling was that theAct was not in effectwhen the proceedings here were commenced, and thus the Act was inapplicable. At the May 2 hearing the father testified when questioned by the guardian ad litem on direct examination, that he had been convicted of armed robbery somenine years before, that he had been out of prison since 1976, and that he was still

on parole. Themother's attorney (whowas also later appointed to act as the father's attorney) objected on the grounds that one cannot be impeached for prior conviction of a felony. The State did not respond. The trial court simply observed that in proceedings such as this such evidence is admissible. We note in this respect that at the July 6 hearing, the father,under questioning by the court, and with no objection from his counsel, admitted to the felony conviction and to his present parole status. On May 24, 1979, the trial court entered a final order permanently depriving the mother of her parental rights to her three children. The trial court held a hearing on July 6with relation to the petition to terminate the father's rights to the infant son. At the conclusion of this hearing the fathermoved the court,pursuant to section 41-3-406(1)(b) 

### (iii),MCA, to have his parents' home studied to determine the suitability of his father to take care of his child. The trial court immediately denied the motion. -8-

### We have set forth the facts concerning the abuse or neglect of the children. Suffice to say that they clearly and convincingly lead to the inescapable conclusion that the childrenwere abused or neglected within the meaning of section 41-3-102(2)(b)

## ,MCA (1978)

# . The remaining issues

are whether itwas prejudicial error to admit evidence of the father's prior conviction of a felony,whether the court should have required a home study of the father's parents to determine their suitability to care for the infant son, and whether the cause should have been transferred to the Chippewa Cree Tribe of North Dakota under the Indian Child Welfare Act. Counsel for the father argues that the prior conviction of a felony should not have been admitted for any purpose and that its admission constitutes prejudicial error. He offers no argument however, as to why or how the evidence, under the circumstances of this case,was prejudicial error. Nor does he answer the argument that he waived any right to claim error by not objecting to its admission at the second hearing. Although itwas the trial court who elicited the information, itwas nonetheless the duty of counsel to object. We thus hold that he waived any right to conkplain of error. See Rule 103(a)(l),Mont.R.~vid. But even beyond

a holding of waiver,we hold that in a case of this nature, the evidencewas not only relevant but perhaps even required if the trial courtwas to get a true picture of the father's background. Section 41-3-102,MCA 

### (1978),charges the courts with determining whether or not the parents or other custodians have the ability to provide

# ".

. . care necessary for the youth's physical, moral, and emotional well-being." Clearly

### the father's background, including criminal background, is a relevant factor in reaching this determination. While a criminal background does not of course, disqualify one from having the custody of his children, and does not disqualify

one from having the appropriate parenting skills, it is a factor that should be considered in a proceeding of this nature. For example, although the crime itself may not be that relevant to the proceedings, whether or not the father had conducted himself as an exemplary parolee or was constantly on the fringes of parole violations is relevant to a proceeding of this nature. We thus hold that admission of the prior felony conviction at each hearing,was not error. The mother and father next contend that the courtwas duty bound to grant the father's motion to have a home study of the home of the father's parents in order to determine their suitability to care for the infant son. Section 41-3- 406(1),MCA, 

### provides, inter alia, that upon a determination of abuse, neglect or dependency, and "toprotect the welfare of the youth", the trial courtmay transfer legal custody to "arelative or other individualwho, after study by a social service agency designated by the court, is found by the court to be qualified to receive and care for the youth

# . . ." The statute is not mandatory,but provides only that the trial court "may"do so. Moreover, there was no evidence presented at the trial by which the trial court's discretion would have been somoved. The grandfatherwas, at the time of the hearing, aged 73. He worked in the mornings, as did his wife, who was not

### present at the hearing. This employment would have required the grandparents to furnish a babysitter. Although the grandfather testified to having raised many children, his advanced agewas a factor to consider as the court had to determine not only his present ability to raise the child but his probable ability to continue in this role. Although custody in the grandparentswould provide opportunity for both parents to visit the child, this arrangementwould not necessarily be in the best interest of the child. See In Re Gore (1977), 

### -Mont

# . - 

## , 570 P.2d 1110, 34 

### St.Rep. 1179. The infant,when hewas removed fromhis mother, had several developmental deficiencies. Since his removal, however, in only fourmonths time he showed remarkable physical and emotional improvement. The circumstances here present no compelling reason to declare that the District Court abused its discretion in not ordering a home study. As the final issue, the parents argue that this action should have been transferred to the Chippewa Cree Tribe of North Dakota by virtue of the motions made pursuant to the Indian Child Welfare Act. We determine, however, that the Act was not in effect at the time the actions here were commenced and is therefore inapplicable. 25 U.S.C. S;1911(b)provides that

# ".

.

# . In any State courtproceeding for

# . .. termination of parental rights to, an Indian child 

# .

# . . the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe 

# . 

# . .upon the petition of either parent. 

# . ." The mother not only petitioned the trial court to transfer the proceeding to the Chippewa Cree Tribe of North Dakota, of which she is a member, but also, pursuant to 25 U.S.C. 

### §1912(a) shemoved to dismiss or at -11-leastpostpone the Statecourtproceeding because the tribe had not been notified of the proceedings. 25 U.S.C. S1912(a) provides inpart that

# ".

. . No 

# .. . termination of parental rights proceeding shallbe held until atleast ten days afterreceipt of notice by theparent

# . . . and the tribe

The controllingpart of the Act insofar as this appeal is concerned, is 25 U.S.C. 81923, which provides as tothe effectivedate of theAct: "None of the provisions of this subchapter,



# .

# .. shall affect a proceeding under State law for



# . .

# . termination of parental rights 

# ...which was initiated or completed prior toone hundred and eighty days afterNovember 8, 1978, but shall apply toany subsequent proceeding in the same matter or subsequent proceedings affecting the custody orplacement of the same child." 25 U.S.C. 5 1923. The State fileditspetition forpermanent custody on March 1, 1979, and because theAct did not go into effect untilMay 7, 1979, it is inapplicable tothe State court proceedings. The parents make the additional argument that under the Act, the July 6 hearing on the father's right tocustody of the infant sonwas a "subsequent proceeding inthe same matter" and thus fallswithin the 

### termsof the Act. The definition of child-custody proceeding under theAct includes "any action resulting intermination of the parent-child relationship 

# .

# .

# ." 25 U.S.C. §1903(1)(ii).he ~uly 6 proceeding, however, was not a separateproceeding under the Act. Rather, itwas a continuation of the action initiated by the Stateon February 24, 1979. This action orproceedingwas not terminated until the parental rights of both parents had been adjudicated. It is clear, therefore, that the Indian Child Welfare Act didnot apply tothese proceedings. -12-

### We note that in this case, counsel was appointed as guardian ad litem to represent the children at the District Court hearings and on this appeal. His briefs filed with this Court forcefully argue in favor of the District Court judgments terminating the rights of the parents and giving permanent custody to the SRS. 

### The separate judgments of the District Court terminating the parental rights of the parents are affirmed.

We Concur:

Chief Justice