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 (father to 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 there was 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 the meaning 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. We determine, 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 in not granting the father's motion to 

order the State to conduct a home study of the father's 

parents to determine their suitability to be custodians of 

the infant son. This motion was made at the conclusion of 

the July 6 hearing, and it was, 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 in effect at the time, and that by virtue of the 

mother's motion (the mother is a member of the Chippewa Cree 

Tribe), the proceeding should have been transferred to the 

jurisdiction of the Chippewa Cree Tribe of North Dakota, or 

minimally, that the proceedings should have been halted so 

that the Tribe could be notified of the State court proceedings. 

We determine, however, that the proceeding against the 

mother and the father, had been commenced before the effective 

date of the Act, and therefore that the Act, by its own 

terms, does not apply. 

All three children were born to the mother while she 

was unmarried. Each apparently has a different father. At 

the time of the hearing, the mother was twenty-one years old 

and unmarried. The oldest child, a daughter, was six years 

old; the second child, a son, was four years old; and the 

youngest child, a son, was eight months old at the time of 

the hearing. The alleged fathers of the first two children 

could not be reached for personal service and therefore 

service was made by publication. After their failure to 

appear their defaults were duly entered. The father of the 

infant son, however, appeared after personal service, and he 

admitted at the May 2 hearing that he was the father of the 

mother s third child. 

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The mother 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 the mother'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 the mother off and on for a period of three 

years. After the child's birth he visited the mother 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 father moved 

the court to have the welfare 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 leading up to the 

State's intervention and taking temporary custody of the 

children, reveals a clear and convincing case for parental 

abuse or neglect of the three children. 

The chain of events seemed to begin in the spring of 

1977. At that time the mother moved into an apartment where 

the owners did not permit children as residents. For this 

reason the maternal grandparents took temporary care of the 

two children. The mother contacted the welfare department in 

June 1977 for help in locating a new apartment which permitted 

children. The welfare officials suggested that the grandparents 

continue to provide care until the mother moved into an 

appropriate apartment. The mother used this time period to 

indulge in her own activities. She worked in a cafe and also 

did some traveling. During the next fourteen months, she 

visited her children only occasionally. During this time period, 

she became pregnant with her third child, the infant son involved 

here. 

In August 1978, someone made a complaint to the welfare 

office concerning the boy and girl in the custody of the grandparents. On August 24, 1978 at 11:OO a.m. a social worker, a 

home attendant, and a police officer, went to the home to check 

on the children. The young boy was in the yard unsupervised. 

His black hair was gray from dirt and he smelled of urine. The 

young girl was sitting alone in an empty bathtub. Both grandparents were highly intoxicated. The grandfather was belligerant. 

Believing that the circumstances required immediate action, 

the investigating team removed the children from the apartment 

and took them to the Billings Receiving Home. Later the same 

day the children were taken to the hospital. The daughter 

complained of neck pains and had difficulty in walking. She 

had severe chills and suffered a seizure. She remained 
hospitalized until September 5, 1978. Later, the girl was 

found to be suffering from juvenile rheumatoid arthritis. 

These events prompted the officials to check into the 

welfare of the infant son who was with the mother. On August 

24, 1978, a public health nurse visited the mother's home 

to check on the infant son who was born on August 13, 1978. 

As a result of this visit, a report was made to the 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 the mother to cooperate with the welfare 

officials and to permit the social worker's entry into the 

mother's home. 

As a result of these court orders, on September 7, 1978, 

a home attendant began weekly visits to help the mother develop 

parental skills. After seven visits to the house, she concluded 

that the mother had no parenting skills and was not interested 

in developing these skills. Also, a clinical psychologist 

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 

the mother's home to check on the care of the infant. The 

baby's diapers were filthy and there were no clean diapers in 

the house. The skin on his penis and scrotum was 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 to the 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 to visit the home again to formally test the baby's development. 

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When the nurse arrived on October 17, the baby was not 

in the home. The following day Dr. Gustafson told the social 

worker that in light of all these developments, he believed 

the baby to be in danger and that she should consider removing 

him from the home. The social worker had already received 

adverse reports from the home attendant and public health nurse, 

and she knew that the mother was not attending parenting classes 

on a regular basis. On October 19, the social worker, the 

public health nurse, and a sheriff's deputy, went to the 

mother's home. Three men and a woman were present, but the 

mother was not at home. The baby was filthy, had diaper rash 

and cradle cap, and its skull was flattened on one side as a 

result of lying on the same side for an extended period of 

time. The social worker immediately removed the baby from the 

home and took him to a hospital. The baby was formally tested 

that day in the hospital; he had slow development in three of 

the four areas tested. 

As a result of these actions, the trial court extended 

the temporary investigative authority order for an additional 

ninety days. In January 1979, a guardian ad litem was appointed 

for the children. At the expiration of the ninety day 

period, the county attorney filed a petition to obtain 

permanent custody of the mother's three children. This set 

in motion the notices to the alleged fathers of the daughter 

and oldest son. Because they could not be found for personal 

service, they were served by publication and their defaults 

were duly entered when they failed to appear. The father of 

the infant son was served on May 1, 1979 and the hearing was 

scheduled to begin the following day. When the father 

appeared on May 2, he requested that an attorney be appointed 

to represent him. The court took the request under advisement, 

and decided to hold the hearing only in relation to the 

-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 reason was given for 

the rulings but argument by the State immediately preceding 

the ruling was that the Act was not in effect when 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 some nine years before, that 

he had been out of prison since 1976, and that he was still 

on parole. The mother's attorney (who was 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 

6 with relation to the petition to terminate the father's rights 

to the infant son. At the conclusion of this hearing the 

father moved 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 

children were abused or neglected within the meaning of 

section 41-3-102 (2) (b) , MCA (1978) . The remaining issues 

are whether it was 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 it was the trial court who elicited 

the information, it was 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 evidence was not only relevant but perhaps even required 

if the trial court was 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 court was 

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 "to protect the welfare 

of the youth", the trial court may transfer legal custody to 

"a relative or other individual who, 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 so moved. 

The grandfather was, 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 age was 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 grandparents would provide opportunity for 

both parents to visit the child, this arrangement would 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 he was removed from his mother, had several 

developmental deficiencies. Since his removal, however, in 

only four months 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 

court proceeding 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) she moved to dismiss or at 

-11- 
least postpone the State court proceeding because the tribe 

had not been notified of the proceedings. 25 U.S.C. S1912(a) 

provides in part that ". . . No . . . termination of parental 

rights proceeding shall be held until at least ten days 

after receipt of notice by the parent . . . and the tribe 

The controlling part of the Act insofar as this appeal 

is concerned, is 25 U.S.C. 81923, which provides as to the 

effective date of the Act: 

"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 to one hundred and 

eighty days after November 8, 1978, but shall apply 

to any subsequent proceeding in the same matter 

or subsequent proceedings affecting the custody 

or placement of the same child." 25 U.S.C. 5 

1923. 

The State filed its petition for permanent custody on 

March 1, 1979, and because the Act did not go into effect 

until May 7, 1979, it is inapplicable to the State court 

proceedings. 

The parents make the additional argument that under the 

Act, the July 6 hearing on the father's right to custody of 

the infant son was a "subsequent proceeding in the same 

matter" and thus falls within the terms of the Act. The 

definition of child-custody proceeding under the Act includes 

"any action resulting in termination of the parent-child 

relationship . . ." 25 U.S.C. §1903(1) (ii). he ~uly 6 

proceeding, however, was not a separate proceeding under the 

Act. Rather, it was a continuation of the action initiated 

by the State on February 24, 1979. This action or proceeding was not terminated until the parental rights of both 

parents had been adjudicated. It is clear, therefore, that 

the Indian Child Welfare Act did not apply to these 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