NO. 81-472 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

INTHE MATTER OF M.M. 

## , Youth inNeed of Care.

Appeal from: DistrictCourt of theFourth Judicial District, In and fortheCounty 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 TerryA. Wallace, Missoula, )lantana (ForR. M.) For Guardian Ad Litem: John Riddiough, Missoula, Montana

Filed: /

### L 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 thatM.M. was a youth in need of care and awarded her father permanent custody with specified visitation rights granted her mother. Themother 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, themother 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 eventuallydivorceproceedings were filed. The mother continued the counseling program for approximately six months and periodic reports were made to

### the court by a socialworker and two clinicalpsychologists. In themeantime, 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 ofM.M. and dismissal of thepetitions 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 onMarch 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 socialworker. Diane Haddon testified in substance that during some eighteen sessions of counseling themother 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 abusivebehavior by themother 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 themother's custody, themother 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 familyhistory 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 inhis relationship to themother, 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 

### abetter 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 theparents 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 toCarolLaCasse. At the hearing on July 13, the following persons testified: the mother and her stepfather, the father and hismother, socialworkers Linda Walrath and Carol LaCasse, and CassandraKay 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 firstvisit things went quite well. On the second visit, the mother exhibited a lot of physical discipline toward M.M., slappingher hands sixtoeighttimes, spanking her, threateningher with theback of her hand, rollingup a newspaper and hitting her hands, getting into a power struggle with M.M., and exercising inconsistent discipline. ThiscausedM.M. toflinchbefore thediscipline. LaCasse testified that themother was the onlyparent with any potential for abusing M.M. and that the fatner exhibitedproper behavior toward M.M., offeringher 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 sincehe was the betterparent. Linda Walrath, the social worker who had recommended thatcustody be given tothemother attheMarch 31hearing, testified that shewould change her prior recommendation if the mother lost her support system or behaved inappropriatelytoward M.M.The father'sneighbor for severalyears, Cassandra Kay Schmill

## , testified that the father had done babysitting for her for sixyears sinceher childrenwere infants. She had observed him being affectionate and providing guidance, disciplineand stimulationtothem. On July 20 the DistrictCourt entered extensive findings of fact, conclusions of law and an order. It granted permanent custody of M.M. tothe father, ordered the father toenroll inaparent skillstrainingprogram and counseling

as deemed necessary by SRS, provided that SRS would retain investigative authority over M.M. with progress reports to the courtevery sixmonths, retained continuingjurisdiction inthecourt, provided thatany custodyorder inthedivorce proceedings would notbe inconsistent with itsorder inthis 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 custodybe awarded toher. The guardian ad litem, the father and SRS have filed briefs supporting the findings of fact, conclusions of law and order of theDistrict Court. The statute relied upon by the mother provides in pertinentpart: "(2) It 

### is the policy of this state to provide for the protection of childrenwhose health and welfare 

### are or may be adversely affectedand further threatened by the conduct of those responsible for their careandprotection. 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 lifewherever appropriate." Section41-3-101(2), MCA. The mother argues (1)that the state failed to make out a prima facie case, (2) that there

### was simplynot sufficient credible evidence to support the custody award tothe child's father, and (3)that theweight of theevidence supports a custody award toher. 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), 173Mont. 421, 425, 567 P.2d 1388, 1390. The District Court's order awarding custody of children is clothedwith thepresumption of correctness. In re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110, 1112, citingFossv. Leifer (1976), 170Mont. 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 disturbtheDistrictCourt's decision. Inre Gore, supra; In theMatter 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 ofproving an abuse of discretion. In Re Gore, 174 Mont. at 326, 570 P.2d at1113. The uncontradicted evidence shows thattheparents relinquished custody of the child toSRS attheoutsetbecause the mother 

### was venting her frustrations on the child by screaming ather, shaking her criband 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 situationwhere custodywas originallyawarded 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 sufficientlyto 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 illnessmay entitlea parent to regain custody and are so factually dissimilar from the present caseas tobe inapposite. Substantial evidence supports the District Court'sfinding 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 tenmonths, she stillexhibited a tendency toabuse M.M. The uncontradicted evidence shows no potential for abuse inthe father and no historyof abuse inhisfamily. Insum, allthatappellant has done 

### is argue and quote

some testimony thatwould support an award of M.M.'s custody toher. This is insufficient to establish an abuse of discretionby theDistrictCourt inits findings. We further hold that the District Court made no error of law. The mother argues that the District Court should have dismissed thisproceeding and determined custody inthe collateraldivorceproceedings. Not so. "Where a childhas allegedly been abused or neglected by his natural parent, the 

### state has a clear uuty toprotect the childby means of

a judicial hearing todeterminewhether 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 inthiscase, the courtproceeds to

a dispositional hearing to determine custody of the child. Section41-3-406, MCA. The remaining contentions of the mother involve the sufficiency of the evidence tosupport 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. TheDistrict Court in its findings recognized a potential for future childabuse inthemother, found no suchpotentialin the father, and determined that it was in the child's best interest toaward custody tothe 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, conclusionsand order awarding custodytothe father. Given the alternativeof awarding the custody to themother whose behavior had adversely affected the child and who posed a threat of continued abuse vis-a-vis a more stablenonabusive father, the court awarded custody to the latter. In so doing, theDistrictCourtdid not abuse itsdiscretion. Wehave examined allthenuances and variationsof the mother's contentions including the authorities cited inher brief and findthem tobe without merit. Affirmed.

We concur:

vn cs

,

# /SXL~L,~~ Justices I'