NO. 81-472 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN THE MATTER OF M.M. , 

Youth in Need of Care. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

John S. Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Ann C. German, U of M School of Law, Missoula, 

Montana 

For Petitioner/Kespondent, State: 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Russell E. Cater, Dept. of S.R.S, Helena, Montana 

Terry A. Wallace, Missoula, )lantana (For R. M.) 

For Guardian Ad Litem: 

John Riddiough, Missoula, Montana 

Filed: 

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Submitted on Briefs: April 8, 1982 

Decided: September 9, 1982 
Mr. Chief Juscice Prank I. Haswell delivered the Opinion of 

the Court. 

Following a series of hearings in a child abuse and 

neglect proceeding, the District Court of Missoula County 

determined that M.M. was a youth in need of care and awarded 

her father permanent custody with specified visitation 

rights granted her mother. The mother appeals. We affirm. 

M.M. is the only child of the marriage. She was 

sixteen-months-old at the time of the District Court's order 

from which this appeal is taken. Following the birth of 

M.M. a stressful marital situation for the mother developed 

caused primarily by the couple's deteriorating financial 

situation and their inability to communicate effectively 

with one another. As a result, the mother began to take out 

her irritation on M.M. by yelling and screaming at her, 

shaking her crib and walker, and slapping her. The father 

did not say or do anything to ease the situation. 

On August 29, 1988, the mother went to the Department 

of Social and Rehabilitation Services in Missoula to seek 

help in caring for the infant. M.M. was placed in foster 

care with the consent of her mother and father. The mother 

was placed in a counseling program at the Western Montana 

Regional Community Health Center. On September 8, 1980, the 

Missoula County attorney filed a petition for temporary 

investigative authority and protective services. The 

District Court granted the petition and appointed a guardian 

ad litem for P4.M. 

Shortly thereafter the parents separated and eventually divorce proceedings were filed. 

The mother continued the counseling program for 

approximately six months and periodic reports were made to 
the court by a social worker and two clinical psychologists. 

In the meantime, both the mother and father filed motions to 

dismiss the state's temporary investigative authority 

because a custody hearing was pending in the collateral 

divorce proceedings. On March 6, 1981, the parents, the 

guardian ad litem, the Department of Social and Rehabilitation Services and the attorneys for all parties stipulated 

in writing that the motions of the parents for temporary 

custody of M.M. and dismissal of the petitions for temporary 

investigative authority were withdrawn, that M.M. was a 

youth in need of care, that M.M. would remain in foster care 

pending the dispositional hearing, and that a dispositional 

hearing would be held on March 31, 1981. 

On March 31 the hearing commenced and four witnesses 

testified: Linda Walrath, a social worker for SRS; Dr. Dean 

Biesemeyer, a clinical psychologist; Dr. H. A. Walters, a 

clinical psychologist; and Diane Haddon, a psychiatric 

social worker. 

Diane Haddon testified in substance that during some 

eighteen sessions of counseling the mother had gained significantly in her ability to respond to M.M. Is needs, had 

become more confident and relaxed with M.M. and in her 

mothering abilities, and had increased her ability to handle 

stress to the point where the witness no longer saw a risk 

of abusive behavior by the mother toward M.M. 

Dr. Biesemeyer stated that in his opinion the mother 

had made progress in handling her personal problems but had 

not resolved them. He testified that the mother's problems 

were emotional upset and turmoil that gets out of control 

under stress to the point where she can no longer be respon- 
sible to the child. Dr. Biesemeyer testified in substance 

that if W.M. were placed in the mother's custody, the mother 

would require a strong supportive home environment with her 

parents or stepparents, attendance at parenting classes, 

monitoring by SRS, and continuing psychotherapy. He stated 

that among other things, the mother's problems are related 

to a family history of abuse. 

Ur . Biesemeyer testified that the father 's problems 

involved an apparent inability to meet the emotional and 

aesthetic needs of M.M., a passive attitude in his relationship to the mother, and perhaps a low IQ. 

Dr. Walters' testimony and opinions concerning the 

mother paralleled those of Dr. Biesemeyer. He did not 

conduct an examination or evaluation of the father. 

Linda Walrath testified that the mother demonstrated 

appropriate behavior toward M.M. during her home visits and 

that both parents cared for M.M. and used appropriate discipline toward M.M. She recommended that the mother receive 

custody of M.M. and that the father receive liberal visitation rights. The basis of this recommendation was that the 

mother recognized her problem, sought help at the risk of 

losing the child, participated in the counseling sessions 

and tried to implement the recommendations in order to 

become a better mother, while the father failed to recognize 

that a problem existed and remained passive. 

The hearing was continued on April 15. At that time 

the court heard testimony from the mother, her mother, and 

social workers Miriam Morgan and Diane Haddon. The hearing 

was again continued to July 13. 

In the meantime the visitation schedule of each of the 
parents with M.M. was modified, foster care was eliminated 

in favor of M.M. staying alternately with each parent for 

four-day periods under SRS supervision, and the social 

worker assigned to the case was changed from Linda Walrath 

to Carol LaCasse. 

At the hearing on July 13, the following persons 

testified: the mother and her stepfather, the father and 

his mother, social workers Linda Walrath and Carol LaCasse, 

and Cassandra Kay Schmill, a neighbor. 

Carol LaCasse conducted home visits with the mother 

and M.M. on June 26, July 2 and July 9. She testified that 

on the first visit things went quite well. On the second 

visit, the mother exhibited a lot of physical discipline 

toward M.M., slapping her hands six to eight times, spanking 

her, threatening her with the back of her hand, rolling up a 

newspaper and hitting her hands, getting into a power 

struggle with M.M., and exercising inconsistent discipline. 

This caused M.M. to flinch before the discipline. 

LaCasse testified that the mother was the only parent 

with any potential for abusing M.M. and that the fatner 

exhibited proper behavior toward M.M., offering her stimulation, guidance and appropriate discipline. She did not 

believe the father had any potential for abusing M.M. She 

recommended that custody be awarded the father since he was 

the better parent. 

Linda Walrath, the social worker who had recommended 

that custody be given to the mother at the March 31 hearing, 

testified that she would change her prior recommendation if 

the mother lost her support system or behaved inappropriately toward M.M. 
The father's neighbor for several years, Cassandra Kay 

Schmill , testified that the father had done babysitting for 

her for six years since her children were infants. She had 

observed him being affectionate and providing guidance, 

discipline and stimulation to them. 

On July 20 the District Court entered extensive findings of fact, conclusions of law and an order. It granted 

permanent custody of M.M. to the father, ordered the father 

to enroll in a parent skills training program and counseling 

as deemed necessary by SRS, provided that SRS would retain 

investigative authority over M.M. with progress reports to 

the court every six months, retained continuing jurisdiction 

in the court, provided that any custody order in the divorce 

proceedings would not be inconsistent with its order in this 

proceeding, provided a detailed visitation schedule for the 

mother, and provided for modification by agreement of the 

parties. The mother appeals. 

The mother assigns the following issue for review on 

appeal: Did the District Court abuse its discretion in 

denying her custody of M.M. in violation of section 41-3- 

101, MCA? She contends that the findings of fact, conclusions of law and order of the District Court are not supported by substantial evidence and that the best interests 

of M.M. require custody be awarded to her. 

The guardian ad litem, the father and SRS have filed 

briefs supporting the findings of fact, conclusions of law 

and order of the District Court. 

The statute relied upon by the mother provides in 

pertinent part: 

"(2) It is the policy of this state to 

provide for the protection of children 
whose health and welfare are or may be 

adversely affected and further threatened 

by the conduct of those responsible for 

their care and protection. It is intended 

that the mandatory reporting of such 

cases by professional people and other 

community members to the appropriate 

authority will cause the protective services of the state to seek to prevent 

further abuses, protect and enhance the 

welfare of these children, and preserve 

family life wherever appropriate." Section 41-3-101(2), MCA. 

The mother argues (1) that the state failed to make 

out a prima facie case, (2) that there was simply not sufficient credible evidence to support the custody award to the 

child's father, and (3) that the weight of the evidence supports a custody award to her. 

We hold the District Court did not abuse its discretion and its findings, conclusions and order are supported 

by substantial evidence. The test for abuse of judicial 

discretion is whether the court acted arbitrarily without 

the employment of conscientious judgment or exceeded the 

bounds of reason. Marriage of Berthiame (1977), 173 Mont. 

421, 425, 567 P.2d 1388, 1390. The District Court's order 

awarding custody of children is clothed with the presumption 

of correctness. In re Gore (1977), 174 Mont. 321, 325, 570 

P.2d 1110, 1112, citing Foss v. Leifer (1976), 170 Mont. 97, 

550 P.2d 1309. It is only where the District Court's 

findings of fact are not supported by substantial evidence 

or a mistake of law exists that we will find an abuse of 

discretion and disturb the District Court's decision. In re 

Gore, supra; In the Matter of L.F.G. (1979), Mont . - I 

598 P.2d 1125, 1128, 36 St.Rep. 1547, 1550; Matter of C.M.S. 

(1979) I Mont. - , 609 P.2d 240, 243, 36 St.Rep. 2004, 

2008. The appellant, here the mother, has the burden of 
proving an abuse of discretion. In Re Gore, 174 Mont. at 

326, 570 P.2d at 1113. 

The uncontradicted evidence shows that the parents relinquished custody of the child to SRS at the outset because 

the mother was venting her frustrations on the child by 

screaming at her, shaking her crib and walker, and slapping 

her. She feared she would further abuse the child and 

needed help to relieve her stress and preven,t further mistreatment. Both she and the father stipulated in writing 

that M.M. was a youth in need of care. On July 2, 1980, 

further mistreatment of the child by the mother occurred. 

By that time the child had developed a flinching reflex to 

the mother's discipline. This constitutes substantial evidence that M.M. was a youth in need of care as the District 

Court found . 

The cases cited by appellant for the proposition that 

the mother's potential for abuse of the child should not be 

the basis for depriving her of custody are not in point. 

Estell v. Estell (1975), 167 Mont. 247, 537 P.2d 1082, 

involved a situation where custody was originally awarded to 

the paternal grandmother because neither parent could 

provide adequate care for the children. When conditions 

changed, custody was awarded the mother. Here conditions 

did not change sufficiently to award custody to the mother. 

f i'ngeq 

Sinclair v. Sinclair (Okla. 1964), 392 P.2d 758, and Frrgem 2-A - 

v. (1968), 251 Ore. 458, 446 P.2d 185, simply hold 

that recovery from a mental illness may entitle a parent to 

regain custody and are so factually dissimilar from the 

present case as to be inapposite. 

Substantial evidence supports the District Court's 
finding of a continuing potential for abuse by the mother. 

The evidence shows continuing stress in handling parental 

responsibilities, lack of a support system after her mother 

and stepfather moved out of the state, and a family history 

of abuse. After SRS efforts to help her with her problems 

for some ten months, she still exhibited a tendency to abuse 

M.M. The uncontradicted evidence shows no potential for 

abuse in the father and no history of abuse in his family. 

In sum, all that appellant has done is argue and quote 

some testimony that would support an award of M.M.'s custody 

to her. This is insufficient to establish an abuse of discretion by the District Court in its findings. 

We further hold that the District Court made no error 

of law. The mother argues that the District Court should 

have dismissed this proceeding and determined custody in the 

collateral divorce proceedings. Not so. "Where a child has 

allegedly been abused or neglected by his natural parent, 

the state has a clear uuty to protect the child by means of 

a judicial hearing to determine whether the child is in fact 

abused or neglected." In the Matter of Doney (1977), 174 

Mont. 282, 285, 570 P.2d 575, 577. Once that determination 

has been made, as it has in this case, the court proceeds to 

a dispositional hearing to determine custody of the child. 

Section 41-3-406, MCA. 

The remaining contentions of the mother involve the 

sufficiency of the evidence to support the award of custody 

to the father rather than her. The standard to be applied 

in determining custody is the best interest of the child. 

In re Gore, 174 Mont. at 329, 570 P.2d at 1114; Matter of 

Fish (1977), 174 Mont. 201, 206, 569 P.2d 924, 927. The 
District Court in its findings recognized a potential for 

future child abuse in the mother, found no such potential in 

the father, and determined that it was in the child's best 

interest to award custody to the father. This conforms to 

the policy of the state "to provide for the protection of 

children whose health and welfare are or may be adversely 

affected and further threatened by the conduct of those 

responsible for their care and protection." Section 41-3- 

101(2), MCA. 

The testimony of Carol LaCasse, Dr. Biesemeyer, and 

Dr. Walters previously summarized in this opinion 

constitutes substantial evidence supporting the findings, 

conclusions and order awarding custody to the father. Given 

the alternative of awarding the custody to the mother whose 

behavior had adversely affected the child and who posed a 

threat of continued abuse vis-a-vis a more stable nonabusive 

father, the court awarded custody to the latter. In so 

doing, the District Court did not abuse its discretion. 

We have examined all the nuances and variations of the 

mother's contentions including the authorities cited in her 

brief and find them to be without merit. 

Affirmed. 

We concur: 

vn cs 

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Justices I'