No. 81-478 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN THE MATTER OF M.F., J.F., 

and R.W., YOUTH IN NEED OF CARE. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Diane Barz, Judge presidinq. 

Counsel of Record: 

For Appellant: 

Gary E. Wilcox, Billings, Montana 

For Respondent: 

Ilarold F. Hanser, County Attorney, Billings, Montana 

Olsen, Christensen & Gannett, Billings, Montana 

Damon Gannett, Billings, Montana 

Submitted on briefs: September 30, 1982 

Decided: November 24, 1982 

Filed: wok & 4 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

On December 4, 1980, the Department of Social and 

Rehabilitation Services petitioned the District Court of the 

Thirteenth Judicial District, in and for the County of 

Yellowstone, for permanent custody of J.F., M.F., and R.W. and 

for termination of all parental rights. After hearings on 

December 29, 1980, April LO, 1981, and April 15, 1981, the 

District Court granted the petition. Final judgment was entered 

August 4, 1981, and the natural mother appeals. 

Petitioner is the natural mother of J.F., M.F., and R.W. 

Each of the children have a different natural father. J.F. was 

born April 11, 1967, in Billings, Montana. M.F. was born May 11, 

1970, in Billings, Montana. R.W. was born December 9, 1974, in 

Farmington , New Mexico. 

The Department of Social and Rehabilitation Services (SRS) 

first had contact with the natural mother in 1967. Especially 

during the time period from 1976 through 1981, SRS received 

numerous complaints alleging abuse and neglect of the three 

children. Incidents of physical abuse were sporadic and 

generally involved one of the mother's four husbands, or many 

boyfriends. In October, 1976, Ron Cooper, the mother's then husband, threw R.W. against a wall. R.W., who was then only twentytwo months old, suffered a broken leg as a result of the 

incident. In November, 1976, M.F., then six years old, arrived 

at school with a swollen upper lip. M.F. told her teacher that 

her mother had struck her with a switch. In the fall of 1979, 

M.F. Is teacher observed bruises on M.F. 's leg and fingermarks on 

her arm. M.F. told her teacher that "the man" who was living 

with her mother at the time had kicked her and grabbed her arm. 

In January, 1980, M.F. missed one day of school. The next day 

M.F. told her school principal that Cyrus Watson had struck her 

and that she suffered cracked ribs as a result of the blow. 

Watson was living with the mother at the time. 
A public health nurse, Lil Anderson, had several contacts 

with the children. In 1976, Lil Anderson made her first visit to 

the family home. She found the home to be quite dirty and noted 

that there was little or no food in the home. Ms. Anderson gave 

the mother instructions regarding nutrition, cleanliness, and 

appropriate dress for the children. When Ms. Anderson worked 

with the family on a regular basis, the house conditions would 

improve. When she didn't see the family for a period of about 

one month she noticed the children's care would deteriorate. 

Several complaints during the f ive-year period concerned the 

children's general health and well-being. In June, 1978, a 

social worker found J.F. standing on Rimrock Road at 11:30 p.m. 

He had been reported standing there for three and one-half hours. 

J.F. stated that he had left his mother's home because his 

mother's then husband had upset him. 

In 1979, M.F. came into contact with Kathy Rumph, a school 

teacher at Newrnan Elementary School. At Newman, M.F. was placed 

in a program called the resource room. To qualify for placement 

in the resource room a student must be at least one year behind 

in normal grade level performance. Ms. Rumph testified M.F. 

showed signs of severe emotional disturbance. M.F. was defensive 

and remained isolated from the other children. She was unable to 

play with other children and at times would talk "baby talk." 

While at Newrnan, M.F. Is appearance was generally unkept. Her 

clothes were generally dirty and ill-f itting . On several occasions she came to school with inappropriate dress for the weather 

conditions. M.F. had a physical problem causing her to wet the 

bed at night and would sometimes come to school after having wet 

the bed and had not bathed or showered in the morning. M.F. told 

Ms. Rumph that she was occasionally left alone for entire 

weekends without food to eat. Ms. Rumph and M.F.'s classroom 

teacher arranged to feed M .F. breakfast everyday when she arrived 

at school. After M.F. was fed a good breakfast her academic perf ormance would improve markedly. 
In December 1979, the family moved to an area just outside 

of Billings known as Lockwood. Sherry Lithander , the principal 

of Lockwood School, had considerable contact with M.F. and J.F. 

Ms. Lithander testified M.F. was placed in a program similar to 

the program at Newman School. Special arrangements were made to 

feed M.F. every morning. Ms. Lithander testified M.F. of ten came 

to school with dirty and improper clothing. M.F. had problems in 

the classroom and tended to fantasize. Again, M.F. was placed in 

a special learning program to compensate for her academic def iciencies. 

In April 1979, M.F. was placed in foster care. The school 

personnel recognized a substantial improvement in M.F. Is physical 

and emotional well-being. M.F. was well-dressed and well-fed and 

began to feel better about herself. She became better accepted 

by her classmates. In May 1979, M.F. was returned to her mother 

and her improvement subsided. 

Susan Betz also had contact with M.F. at Lockwood School 

beginning in December 1979. Ms. Betz conducted numerous tests 

with M.F. The test results showed M.F. exhibited some learning 

disability. Ms. Betz found M.F. to be two to two and one-half 

years behind her academic age level. M.F. showed a certain 

evasiveness which attributed to her performance at school and her 

lack of friends. 

In August, 1980, M.F. and R.W. were again placed in foster 

care. Both Ms. Lithander and Ms. Betz noticed considerable 

improvement in M.F. 's behavior and appearance during the 1980-81 

school year. Ms. Lithander also had contact with R.W. during the 

1980-81 school year when R.W. was enrolled in kindergarten. R.W. 

showed signs of slow development and suffered from environmental 

and cultural deprivation which was attributed to her home 

environment during her pre-school years. 

Collette Melia, a neighbor of the family at Lockwood, 

testified about the children's home conditions. She testified 

that on several occasions she fed R.W. because the child would 
ask her for food. On one occasion Mrs. Melia observed R.W. outside the family's trailer at approximately 8:15 a.m. trying to 

get in. Although the morning temperature was very cold, R.W. was 

wearing only a light jacket. R.W. was crying but no one would 

open the door for R.W. to enter the house. 

On one occasion in August 1979, the mother left the three 

children sJ-eeping in the trailer. A roast which was left cooking 

in the oven caught fire and neighbors had to remove the three 

children. 

On August 8, 1980, M.F. and R.W. were placed in foster care 

with Kaye Nelson. Mrs. Nelson testified about the girls1 condition when they first arrived at her house. Mrs. Nelson stated 

the girls seemed desperate for love and affection and would cling 

on anyone who would allow it. When the girls arrived they were 

both very hungry and R.W. was very skinny. The two lacked table 

manners and would hide food in their rooms. M.F. had a very low 

self-esteem. Although R.W. could talk, M.F. usually had to 

translate for R.W. when she spoke. At the time of the hearing 

both girls showed excellent overall improvement. R.W. was better 

able to communicate and had a normal appetite. M.F. Is feelings 

about school and herself had undergone a drastic change. The 

children had made friends and were getting along quite well at 

school. While the girls were in foster care they had sporadic 

home visits with their mother. The visits did not show signs of 

any improving relationship between the mother and the two girls. 

During some home visits the mother would leave the girls with 

J .F. to babysit when she had other plans. 

Judy Robinson, a social worker, testified about her contact 

with the children. After January 1979, to the time of the foster 

care placement, the Welfare Department received twenty-one 

complaints about the children's care from eight to ten different 

people. 

Dr. Robert E. Tompkins performed a psychological evaluation 

of the mother in February 1981. The results of the tests indi- 
cated the mother possessed personality traits that would interfere with her ability to provide a stable environment for the 

children. Dr. Tompkins found the mother had limited intellect 

and demonstrated poor judgment. Dr. Tompkins testified the 

mother was likely to respond to her needs first and those of the 

children later. Dr. Tompkins testified given the mother's personality and problems, counseling would not be beneficial . Dr. 

Tompkins further testified it was unlikely the mother would ever 

change to provide a stable environment for the children. 

On April 30, 1980, SRS filed a petition for temporary 

investigative authority relative to J.F., M.F. and R.W. in the 

District Court of the Thirteenth Judicial District. On December 

4, 1980, SRS filed a petition for permanent custody and authority 

to assent to adoption of the children. Hearings were held on 

December 29, 1980, April 10, 1981, and April 15, 1981. The 

District Court entered findings of fact and conclusions of law on 

July 2, 1981. Judgment was entered on August 4, 1981. The 

District Court declared J.F, M.F. and R.W. to be youths in need 

of care and ordered the parental rights of the natural mother 

terminated. The District Court further ordered permanent custody 

of the youths be awarded to SRS with consent to adoption. J.F. 

was ordered to be placed in the care of the natural mother. The 

mother appeals. 

The issues raised on appeal are as follows: 

1. Whether the District Court erred in failing to appoint 

counsel for the mother at the time of the application for temporary investigative authority. 

2. Whether the attaching of a "report to the court" to the 

petition for permanent custody and authority to assent to adoption constitutes reversible error. 

The mother argues the District Court should have appointed 

counsel to represent her at the time SRS filed the temporary 

investigative authority (TIA). She claims the period from the 

issuance of the TIA to the filing of the petition for permanent 
custody is used largely to compile evidence to support termination of the parent's rights. Thus, the mother contends the 

assistance of counsel is essential to insure due process. 

In Lassiter v. Department of Social Services (1981), 452 U.S. 

18, 68 L.Ed.2d 640, 101 S.Ct. 2153, the United States Supreme 

Court granted certiorari to consider a natural mother's claim 

that appointment of counsel is essential at the termination 

stage. The United States Supreme Court stated : 

"In sum, the Court's precedents speak with one 

voice about what ' fundamental fairness' has 

meant when the Court has considered the right 

to appointed counsel, and we thus draw from 

them the presumption that an indigent litigant 

has a right to appointed counsel only when, if 

he loses , he may be deprived of his physical 

liberty. It is against this presumption that 

all the other elements in the due process 

decision must be measured. 

"The case of Mathews v. Eldridge, 424 U.S. 

319, 335, propounds three elements to be 

evaluated in deciding what due process 

requires, viz., the private interests at 

stake, the government's interest, and the risk 

that the procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set their 

net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is 

unsuccessful, may lose his personal freedom." 

452 U.S. at 26. 

In -- 

Lassiter, the United States Supreme Court held the trial -- 

court did not err by failing to appoint counsel for a natural 

mother in a termination proceeding where the mother did not 

appear at the initial custody hearing and did not even speak to 

her retained lawyer after being notified of the termination 

hearing. The United States Supreme Court held, given the facts 

before them in this particular case, the three Eldridge factors 

did not overcome the presumption against the right to appointed 

counsel, and that due process did not therefore require the 

appointment of counsel. 

This Court agrees with the United States Supreme Court's 

holding in Lassiter, supra, and has held that the same rationale 

should be applied in determining whether appointment of counsel 

is necessary at the TIA stage as well as the termination stage. 
In, Matter of M.D.Y.R. (1978), 177 Mont. 521, 582 P.2d 758, a 

natural mother claimed the lack of appointed counsel at a temporary custody hearing deprived her of due process. This Court 

held: 

"It is contended on behalf of the mother that 

in this case, at the hearing for temporary 

legal custody, it should have been mandatory 

that the court appoint counsel to represent 

the mother. The statute, (sect ion 

10-1310(12), R.C.M. 1947, now codified as section 41-3-401(12), MCA), however, is not 

couched in mandatory language, and statutorily 

at least we must say that the matter of 

appointment of counsel, whether for temporary 

or permanent legal custodyr is left to the 

discretion of the court." 582 P.2d at 764. 

Section 41-3-401(12), MCA, states, " [tlhe court may at any 

time on its own motion or the motion of any party appoint a 

guardian ad litem for the youth or counsel for any indigent 

party. I' Thus, as we stated in - M.D.Y.R. . -- the language is discretionary and appointment of counsel is not mandated in every case. 

As the United States Supreme Court held in Lassiter, supra, there 

is a presumption against the right to appointed counsel and only 

if the three Eldridge - factors overcome this presumption will due 

process require appointment of counsel. The three factors : private interests, government's interest and risk of erroneous decisions do not overcome the presumption in the present case. The 

private interests are the parent's desires and rights to the 

custody of her natural born children and the children's right to 

live a bountiful life free of abuse and neglect. The government 

has interests in the welfare of the children and the rights of 

the parents as well as an interest in an accurate and just decision. Lastly, we must consider the risk that a parent will be 

erroneously stripped of their parental rights because they were 

not represented by counsel. The United States Supreme Court 

weighed the three factors in - Lassiter -- .- -- stating: 

"If, in a given case, the parent's interests 

were at their strongest, the State's interests 

were at their weakest, and the risks of error 

were at their peak, it could not be said that 

the Eldridge factors did not overcome the presumpflonagainst the right to appointed counsel, and that due process did not therefore 
require the appointment of counsel." 452 U.S. 

at 31. 

In the present case, although the parent's interests are 

strong, the State's interest is not weak nor were the risks of 

error at a peak. The State has a great interest in a just and 

accurate decision for all parties concerned and the risk of error 

is unsubstantiated. The mother claims that the TIA stage to the 

termination stage is simply for the compilation of evidence and 

that assistance of counsel is therefore essential. However, 

counsel was appointed for the mother on December 8, 1980. The 

hearings on the petition for permanent custody were held on 

December 29, 1980, April 10, 1981 and April 15, 1981. We feel 

the appointment of counsel prior to these hearings did accommodate the mother's right to due process. We cannot compare this 

situation to that of a criminal proceeding where a defendant 

requires effective counsel to advise him of his constitutional 

rights at the pretrial stage. Here, there was no investigation 

by the SRS which would be altered by the entrance of legal counsel. In addition, the mother did not raise sufficiency of the 

evidence as an issue on appeal. If there was a specific evidentiary problem with the SRS investigation, it seems the mother 

would have raised it, although she did not. Thus, we hold the 

mother was not deprived of her right to due process of law. 

The mother further argues the submission of a social worker's 

"report to the court" along with the petition for permanent 

custody is reversible error. The section governing abuse, 

neglect and dependency petitions neither requires nor prohibits 

attaching a social worker's report along with the petition. See 

section 41-3-401, MCA. Thus, we must look at the facts of each 

case to determine whether such a report will constitute reversible error. 

In Matter of Moyer (1977), 173 Mont. 208, 567 P.2d 47, this 

Court did not rule specifically on whether a prehearing report in 

support of a petition for permanent custody is error. However, 

we did state: 
"It is true that a judge violates due process 

requirements if he bases his child custody 

order on statements in a welfare department 

report without requiring the authors of the 

report to testify at a hearing and be subject 

to cross-examination [citations omitted ] . In 

a civil case, such as the one at bar, which is 

tried before the court without a jury, there 

is a presumption that the trial judge has 

disregarded all inadmissible evidence in 

reaching his decision. OtSullivan v. Simpson, 

123 Mont. 314, 212 P.2d 435; Healy v. First 

National Bank, 108 Mont. 180, 89 P.2d 555." 

567 P.2d at 49. 

The possibility for error would be great where a trial court 

relied on reports not supported by examination at a custody 

hearing. However, here the report in question was authored by 

Judy Robinson, a social worker, who did testify at the hearing. 

Her testimony at the hearing was essentially what was contained 

in the report. The mother did have ample opportunity to crossexamine Judy Robinson and point out any hearsay statements or 

defects in the report at the hearing. As stated above, there is 

a presumption that the trial court has disregarded all inadmissible material in making its decision. Here, the mother has 

cited nothing to rebut this presumption. 

The mother argues the report contains events which are too 

remote in time to be of probative value. In Matter of K.V. and 

K.A. (1982), - .- - - --- Mont . P .2d -- , 39 St.Rep. 1582; 

this Court ruled on this exact argument stating: 

"Appellant believes that it was improper for 

the District Court to base its termination 

decision on events which occurred before KA 

was adjudicated to be a youth in need of care. 

Appellant would require a showing by the State 

that the circumstances and conditions which 

predated the adjudication continued to exist 

at the time of termination. While such a 

showing might be appropriate if SRS had only 

recently begun to work with the family, in a 

situation where the parent has been assisted 

and monitored by SRS over a period of years 

and the family environment has not yet stabilized and perhaps even deteriorated, to 

require more would beg for experimentation at 

the expense of the child's best interest." 39 

St.Rep. at 1585. 

Here, SRS has had contact with the family since 1967. We 

cannot say that any of the evidence contained in the report was 

too remote to be of probative value and thus inadmissible at the 
custody hearing. 

We feel compelled to mention that although the mother has 

relied heavily on Matter of Swan (1977)t 173 Mont. 311, 567 P.2d 

898, the facts of this case are quite different from -- Swan. In 

Swan, SRS filed several written reports with the petition for .-.- 

permanent custody. The authors of the reports did not testify at 

the custody hearing. In fact, the entire proceeding was peppered 

with hearsay evidence which was also allowed as testimony at the 

hearing. For that reason this Court reversed. However, in the 

present case the author of the report did testify at the hearing 

and the mother was allowed to cross-examine. We find no error in 

the submission of the report when the petition was filed given 

these circumstances. 

We also find it necessary to comment upon a discrepancy in 

the trial court's final custody order. The relevant sections of 

the order state: 

"3. IT IS HEREBY ORDERED that the parental 

rights of [C.W.], natural mother of the abovenamed youths [M.F. J.F. and R.W.] , are terminated. 

"5. IT IS HEREBY ORDERED that the permanent 

care, custody and control of the above-named 

youths be awarded to the Department of Social 

and Rehabilitation Services of the State of 

Montana, and a representative of the 

Department of Social and Rehabilitation 

Services be authorized to appear in any Court 

where adoption proceedings are pending concerning [M.F.] and [R.W.] and assent to adopt ion. 

"6. IT IS HEREBY ORDERED that [J.F.] be 

placed with [C.W. 1 ." 

The effect of this order as to J.F. is to terminate the parental 

rights of the natural mother, place legal custody in the SRS yet 

give physical custody to the natural mother. While after a 

finding of abuse and neglect at a dispositional hearing the trial 

court may allow the parents to retain physical custody of the 

b) children pursuant to section 41-3-406h(a), MCA. , once parental 

rights are terminated physical custody by the natural parents is 

no longer an alternative. Section 41-3-611, MCA, states : 

"Effect -- of decree (1) An order for the term- -- 
ination of the parent-child legal relationship 

divests the child and the parents of all legal 

rights, powers , immunities, duties, and obligations with respect to each other as provided 

in title 40, chapter 6, part 2, except the 

right of the inherit from the parent." 

Here, it appears the lower court only intended to terminate 

the parental rights of M.F. and R.W. and we remand to the lower 

court for an appropriate order. 

Judgment is af f irmed in part and remanded to enter a proper 

final custody order. 

We concur: