No. 80-454 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN THE MATTER OF 

J. L. F. and H. A. F. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Iionorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Peterson Law Offices, Billings, Montana 

For Respondent : 

Harold Hanser, County Attorney, Billings, Montana 

Olsen, Christensen & Gannett, Billings, Montana 

Submitted on Briefs: February 25, 1981 

Decided : APR 6 - ~aa 

- - 6'" 7 

Filed : WPR c - l$M 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal arises from a custodial hearing held in 

the Yellowstone County District Court, the Honorable Diane 

G. Barz presiding. The case was tried on the petition of 

the State Department of Social and Rehabilitation Services 

(SRS) to have JLF and HAF declared youths in need of care 

and to have their permanent care, custody and control 

awarded to the State of Montana with authority to consent to 

their adoption. The natural mother was present at the 

hearing and represented by counsel. The putative father of 

JLF predeceased the hearing, and the putative father of HAF 

was served with legal notice of the proceeding but failed to 

appear. Following the hearing on the petition, the District 

Court granted the relief requested by SRS and entered 

judgment accordingly. The natural mother now appeals. 

JLF, a boy, was born on January 7, 1974. At that 

time, his mother, the appellant, was sixteen years of age, 

unmarried and living with her mother. JLF and appellant 

remained in her mother's house for approximately six months 

before moving into their own apartment. Appellant's 

independent living arrangement, however, was only temporary, 

and she soon moved back with her mother. This pattern 

continued for the next few years--appellant moving in and 

out of her mother's house, changing her residence on 

numerous occasions. During this period, appellant of ten 

called upon her mother to provide babysitting services, in 

addition to placing JLF with her for extended periods of 

time . 

In May 1977 appellant suffered a nervous breakdown 

and was admitted to the psychiatric ward of the Deaconess 
Hospital in Billings, Montana. Appellant was hospitalized 

for six weeks after which she was released to a local mental 

health group home for eight additional weeks. As a result 

of the breakdown, a verbal agreement was reached with SRS 

whereby appellant allowed JLF to stay with his maternal 

grandmother until it was determined that appellant could 

adequately provide for his care. 

Appellant was rehospitalized due to her mental health 

in October 1977 and again in November 1978; thus, JLF 

continued to remain primarily in the care of his 

grandmother. Appellant was again hospitalized for mental 

health reasons in August 1979, after becoming pregnant with 

the infant HAF. 

HAF was born February 5, 1980. Because SRS was 

concerned over appellant's ability to care for a newborn 

baby, temporary investigative authority was applied for and 

granted on February 6, 1980. The infant HAF was placed in a 

foster home upon her release from the hospital. 

JLF, now six years of age, continued to reside with 

his grandmother. In March 1980, however, appellant demanded 

that he be returned to her custody. Not having any type of 

legal custody or control at the time, the SRS caseworker 

returned JLF to his mother's home on a supervised basis. 

In April 1980 SRS filed the petition to have JLF and 

HAF declared youths in need of care. A hearing on the 

petition was held in July 1980. During this time JLF 

remained under the care of appellant on a continued 

supervised basis. The petition was eventually granted, and 

judgment was entered on September 24, 1980, awarding the 

permanent care, custody and control of the children to the 
State of Montana. 

The sole issue presented on appeal is whether the 

District Court abused its discretion by terminating the 

parental rights of appellant and awarding the permanent 

care, custody and control of JLF and HAF to the Department 

of Social and Rehabilitation Services. 

This Court has held that the burden of proof in a 

termination of parental rights action is upon the State to 

prove by clear and convincing evidence that the children at 

issue are abused or neglected. See Matter of JLB (1979), 

Mont. , 594 P.2d 1127, 36 St.Rep. 896. This Court, 

however, has also stated that the primary duty of deciding 

the proper custody of a child rests with the District Court. 

All reasonable presumptions concerning the correctness of 

that court's determination will be made, and the decision 

will not be disturbed on appeal unless it is shown that the 

District Court clearly abused its discretion. Matter of LFG 

(197911 Mont . , 598 P.2d 1125, 36 St.Rep. 1547; In 

re Gore (1977), 174 Mont. 321, 570 P.2d 1110. 

Here, the District Court found that JLF and HAF were 

youths in need of care and terminated the parental rights of 

appellant. The District Court based this determination on a 

finding that the children were neglected and abused. 

In support of the District Court's findings, 

considerable evidence was presented, including the 

following: 

Dr. Marian F. Martin, a clinical psychologist who has 

been treating JLF, testified that when the child was placed 

in the custody of appellant in March 1980 he began to show 

signs of emotional deterioration. Dr. Martin observed that 
a past problem with encopresis had increased and that JLF 

had become fidgety, distractible, sullen and withdrawn. She 

also observed that JLF was not kept clean and had a strong 

odor due to the encopresis. Dr. Martin, although she had 

limited contact with appellant, further testified that since 

appellant was failing to provide for the emotional and 

physical needs of JLF, she would also be unable to meet the 

needs of her newborn baby, HAF. 

Dr. Ned Tranel, a clinical psychologist who held 

three different sessions with appellant between January 1980 

and February 1980, testified that appellant was diagnosed as 

a pseudo neurotic schizophrenic and that, although her 

condition may eventually stabilize, it was not likely that 

any improvements could be made. Dr. Tranel was also of the 

opinion that appellant was suffering from minimal brain 

disfunction due to drug abuses and, as a result of her 

overall condition, she would not be able to accurately 

comprehend or respond to the needs of her children. 

It should be noted that appellant attacks the 

credibility of Dr. Tranel by pointing out that in February 

1980 he indicated that appellant might be capable of raising 

one, but not both, of her children. Dr. Tranel testified, 

however, that he was merely speculating about the 

possibility of appellant raising both children and that at 

the time he still had considerable misgivings about her 

ability to raise even one child, although it was worth a 

try. 

Alice Nickoloff, the county social worker assigned to 

work with the family, concurred with Dr. Martin's 

observations of JLF's deterioration. Nickoloff also 
attested to appellant's inability to provide for the 

physical and emotional needs of her children. In 

particular, she noted a disinterest by appellant in getting 

out of bed to prepare JLF's meals, to clean him or to get 

him off to school. She was also of the opinion, although 

not recalling any specific incident bad enough to remove the 

child on the spot, that JLF was being neglected, if not 

abused. 

The children's maternal grandmother testified that 

she had observed appellant engage in physically abusive 

behavior towards JLF on several different occasions. 

Examples of such behavior included the excessive striking of 

the child with a belt and a board, as well as pulling his 

hair and biting him as methods of imposing discipline. The 

grandmother further testified that appellant failed to 

properly feed, clothe and supervise the child. 

Section 41-3-102, MCA, defines abused or neglected as 

follows: 

"(2) An 'abused or neglected child' means a 

child whose normal physical or mental health 

or welfare is harmed or threatened with harm 

by the acts or omissions of his parent or 

other person responsible for his welfare. 

"(3) 'Harm to a child's health or welfare' 

means the harm that occurs whenever the 

parent or other person responsible for the 

child's welfare: 

"(a) inflicts or allows to be inflicted upon 

the child physical or mental injury, 

including injuries sustained as a result of 

excessive corporal punishment; 

"(b) . . . 

"(c) causes failure to thrive or otherwise 

fails to supply the child with adequate food 

or fails to supply clothing, shelter, 

education, or health care, though financially 

able to do so or offered financial or other 

reasonable means to do so; 
"(8) 'Mental injury' means an identifiable 

and substantial impairment of the child's 

intellectual or psychological functioning." 

Based upon examination of the offered evidence, in 

relation to the declared policy of this State to promote 

normal childhood development and to provide for the 

protection of children whose health and welfare are, or may 

be, adversely affected by the conduct of those responsible 

for their care, the District Court found JLF and HAF abused 

or neglected as those terms are defined above. Upon 

reviewing the record, this Court now finds there is 

substantial credible evidence to support the District 

Court's conclusion, and, thus, a clear abuse of discretion 

has not been established. 

The judgment of the District ~ourf~is affirmed. 2' 

i C " 

Justice