No. 86-399 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN THE MATTER OF 

J.W. AND J.C., 

Youths in Need of Care. 

APPEAL FROM: The District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

Mike McGrath, County Attorney, Helena, Montana 

Carolyn Clemens, Deputy County Attorney, Helena 

Nicholas Jacques, (Children), Helena, Montana 

Submitted on Briefs: Jan. 29, 1987 

Decided: May 11, 1987 

Filed : MAY 11 1987 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

The natural mother of J.W. and J.C. appeals orders of 

the First Judicial District Court, County of Lewis and Clark, 

finding J.W. and J.C. to be youths in need of care and 

granting temporary custody to the Lewis and Clark County 

Office of Human Services. We affirm. 

The natural mother, B. W. (hereinafter "mother") has two 

children, J.C. and J.W. J.C., currently twelve, was born of 

a prior marriage of the mother. J.W. was delivered at home 

on December 18, 1984. Lewis and Clark County Office of Human 

Services (LCCOHS) received a referral concerning the birth. 

The mother stated she was unaware of her pregnancy. 

On February 4, 1985, LCCOHS received a report that J.C. 

had extensive unexcused absences from school. On May 1, 

1985, the mother was hospitalized for psychiatric care. The 

deputy county attorney filed a petition on behalf of LCCOHS 

requesting temporary investigative authority and protective 

services. The petition was granted by the District Court May 

10, 1985. J.C. and J.W. were placed in foster care, with 

J.C. subsequently being allowed to spend the summer with his 

natural father in Arizona. 

Both children were returned to the mother and LCCOHS 

terminated its involvement with the family in September, 

1985, as it appeared the mother had successfully completed 

psychiatric treatment. 

Following further reports concerning the children's 

welfare, a supplemental petition for temporary investigative 

authority and protective services was filed November 15, 

1985, on behalf of LCCOHS. A report attached to the petition 

listed the following LCCOHS referrals concerning the 

children: 
10-10-85: Educational neglect - extensive absences 

from school. Referrant noted that [J.C.] 

has attended many different schools in 

Helena and has a history of lengthy 

unexcused absences. 

10-25-85: Concerns about [the mother's] emotional 

condition and ability to care for her 

children, [J.C.'s] nonattendance at 

school, and fires in the family apartment 

on two consecutive days. Referrant said 

[the mother] attributed the fires to 

someone who she said had broken into her 

apartment, but [the mother] had been home 

both days. 

10-28-85: Continued educational neglect of [J.C.]. 

Neighbors have seen him outside playing. 

10-29-85: Concern expressed about [the mother's] 

emotional state and about [J.C. ' s] not 

being in school since October 2. 

11-01-85: Continued educational neglect of [J.C.!. 

Social worker Paul Heath made several attempts to 

visit the family but no one came to the door until 

11-07-85. He was admitted briefly by [the mother] 

and saw both children, who seemed to be okay. [The 

mother] spoke very slowly and the house was stuffy 

and dark. [The mother] insisted that the social 

worker leave right away. Later on 11-07-85 social 

worker Laura Taffs attempted to visit to explore 

the recent concerns. [The mother] opened the door 

for about two minutes, would not allow the social 

worker in, and said she and her children were sick 

and were staying home. She then shut the door and 

would not respond to further knocking. 

The District Court entered its order November 15, 1985, 

granting LCCOHS temporary investigative authority and the 

right to place the children in foster care if deemed 

necessary for their protection. Pursuant to the order, 

LCCOHS investigated the matter and placed the children in 

foster care. A show cause hearing concerning the order was 
held December 3, 1985. Following hearing, the District Court 

entered its order dated December 6, 1985, placing temporary 

custody with the Department of Social and Rehabilitation 

Services (SRS) and declaring the children to be youths in 

need of care. The order further required LCCOHS to develop a 

treatment plan and recommended J.W. be placed in foster care 

and J.C. be placed with his father if a favorable home study 

was received from Arizona officials. 

Pursuant to the mother's request for a hearing the 

District Court held a hearing on March 20, 1986. At the 

hearing, counsel for the mother questioned whether the 

District Court orders of November 15, 1985, and December 6, 

1985, were a proper exercise of the court's jurisdiction. 

The district judge set a briefing schedule concerning the 

issue and set hearing for May 15, 1986. 

At the hearing on March 20, 1986, testimony was heard 

from the psychologist and social workers involved with the 

case, the mother, and the foster mother of J.W. Dr. Leonard, 

a psychologist who examined the mother, testified that the 

mother had a borderline personality and most likely was 

schizophrenic when under stress. Dr. Leonard found the 

mother denied her problems and tended to reject counseling. 

Dr. Leonard concluded that without treatment the mother would 

be incapable at times of caring for her children. 

The social workers testified that the visits between the 

mother and J.C. and J.W. conducted at LCCOHS had not gone 

well. The mother argued excessively with J.C. and was 

generally inattentive to J.W.'s needs. Two of the social 

workers testified that the mother had refused to sign the 

treatment plan. The mother indicated that she would not take 

medication if prescribed for her, did not believe she needed 

counseling, and on one occasion refused to speak with a 

psychologist who was brought to her home. 
The District Court entered its order May 28, 1986, 

denying the mother's motion to vacate the November 15, 1985, 

and December 6, 1985, orders of the court. However, the 

District Court did strike the portion of the December 6, 

1985, order finding the children to be youths in need of 

care. Prior to the May 28, 1986, District Court order the 

county attorney filed a petition on April 29, 1986, 

requesting that the children be declared youths in need of 

care. A hearing relating to the petition was held May 30, 

1986. 

At the hearing on May 30, 1986, testimony was heard from 

the children's pediatrician and the social worker working on 

the mother's case at that time. The pediatrician testified 

that J.W. has asthma and respiratory problems which are 

aggravated by cigarette smoke. Additionally, he stated there 

were no medical reasons for J.C.'s extensive absences from 

school. The social worker testified that the mother 

continued to smoke in J.W.'s presence even though aware 

smoking aggravated J.W.'s asthma. The social worker further 

testified that the mother continued to deny that she needed 

therapy and refused to be involved with the family focus 

program which would have assisted the mother in caring for 

her children. 

On June 20, 1986, the District Court entered its order 

declaring the children to be youths in need of care, and 

granting continued temporary custody with SRS until a 

dispositional hearing could be held. A dispositional hearing 

was held July 28, 1986, and subsequently the District Court 

entered its order relating to disposition August 22, 1986. 

The court granted continued temporary custody with SRS and 

recommended that J.C. remain with his natural father in 

Arizona and J.W. remain in foster care. The court approved 

the proposed treatment plan, and ordered LCCOHS to inform the 
court of its recommendation as to placement of the children 

upon the mother's completion of the treatment plan. 

The mother appeals and raises the following issues: 

1) Whether the District Court erred in denying the 

motions to vacate? 

2) Whether the District Court erred in declaring the 

children to be youths in need of care and in its subsequent 

dispositional order? 

The mother contends the November 15, 1985, District 

Court order should have been vacated for the following 

reasons : 1) the petition for temporary investigative 

authority was not supported by probable cause that the 

children were in danger of being abused or neglected; 2) the 

petition did not request immediate removal of the children 

from the home; and 3) section 41-3-403, MCA, does not 

authorize immediate removal of the children from the home 

without a prior hearing. We find no merit to these 

contentions. 

The supplemental petition dated November 15, 1985, was 

filed pursuant to 41-3-402 and -3, MCA. The county 

attorney chose to file the petition under those statutes 

because LCCOHS could not actually determine whether the 

children were in danger of being abused or neglected. Such 

determination could not be made because the mother would not 

permit anyone to enter her home to investigate. Pursuant to 

§ 41-3-402, MCA, the county attorney may file a petition for 

investigative authority and protective services "in cases 

where it appears that a youth is abused or neglected or is in 

danger of being abused or neglected." 

The LCCOHS report accompanying the petition established 

probable cause to investigate the possibility of abuse or 

neglect of the children. The report included: 1) numerous 

referrals concerning J.C.'s absence from school for no 
apparent reason; 2) concerns from neighbors about the 

mother's emotional condition and ability to care for her 

children; 3) reports of fires in the family apartment on two 

consecutive days; 4) the mother's recent hospitalization for 

psychiatric care and placement of the children in foster care 

at that time; and 5) social workers' reports that the mother 

would not answer the door to speak with them. 

Section 41-3-102, MCA, provides in part: 

(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: 

(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; 

We find substantial evidence in the LCCOHS report 

supporting probable cause that the physical and mental health 

of J.W. and J.C. was in danger. The mother ' s previous 

history of psychiatric problems, the fires in the family 

home, J.C.'s extensive absences from school, and the 

inability of social workers to investigate these matters are 

sufficient facts to warrant the granting of temporary 

investigative authority. 
The November 15, 1985, District Court order granted 

LCCOHS the right to place the youths in foster care if deemed 

necessary for their protection. The mother contends the 

District Court improperly delegated its authority to remove 

the children from the home to LCCOHS. We disagree with this 

contention and find the court order to be within the scope of 

S; 41-3-403, MCA. Pursuant to this section, the court may 

grant "such relief as may be required for the immediate 

protection of the youth." 

LCCOHS was in a difficult position in this case because 

the mother would not cooperate with its investigative 

efforts. We find that portion of the court order granting 

LCCOHS the right to place the youths in foster care if deemed 

necessary for their protection was proper under the 

circumstances. 

The mother contends she was entitled to a show cause 

hearing before the removal of her children. The District 

Court order stated that the mother shall immediately comply 

with the order - or appear before the court to show cause why 

she should not be required to comply. The order was in 

compliance with 5 41-3-403, MCA. There is no requirement in 

S; 41-3-403, MCA, that a show cause hearing be held prior to 

removal of youths pursuant to this section. We find the 

November 15, 1985, District Court order to be lawful and a 

proper exercise of the court's discretion. 

The mother next contends that the December 6, 1985, 

District Court order should be vacated for failure to comply 

with S; 41-3-404, MCA, and S; 41-3-406, MCA. Further, the 

mother contends that the placement of J.C. with his father in 

Arizona was not in compliance with 5 41-3-406(3) (c), MCA. 

The mother argues that the filing of a petition for 

investigative authority under S; 41-3-402, MCA, must also 

include a petition drawn pursuant to 5 41-3-401, MCA. The 
mother points out that the 1985 amendment to 5 41-3-401, MCA, 

eliminated 41-3-401(13), MCA, which provided: "This 

section does not apply to a petition for temporary 

investigative authority and protective services." The mother 

claims the legislature clearly intended to consolidate 

petitions to have youths declared in need of care and 

petitions for temporary investigative authority. We find no 

legislative history to support this contention, nor is there 

any language in either section providing a petition filed 

pursuant to 5 41-3-402, MCA, must be accompanied with a 

petition filed under 5 41-3-401, MCA. 

The mother seeks to have the December 6, 1985, order 

vacated for lack of an adjudicatory hearing pursuant to 

$5 41-3-404, MCA, and a dispositional hearing pursuant to 

S 41-3-406, MCA. In denying the motion to vacate, the 

District Court found the proceedings to be under §§ 41-3-402 

and -3, MCA, and a show cause hearing was properly held 

within 20 days as required by B 41-3-403, MCA. 

We agree with the District Court that a show cause 

hearing is the only hearing required when a petition for 

temporary investigative authority is filed under § 41-3-402, 

MCA. The District Court did strike its finding that the 

youths were in need of care from the December 6, 1985, order 

as being in excess of its jurisdiction. We find no error by 

the District Court. 

In its December 6, 1985, order the District Court 

granted temporary custody of J.C. and J.W. to SRS with a 

recommendation that J.C. be placed with his father in Arizona 

following receipt of a favorable home study from Arizona 

officials. The mother contends this portion of the order is 

in violation of 5 41-3-406(3)(c), MCA. We disagree. Section 

41-3-406, MCA, relates to transfer of legal custody following 

the adjudicatory and dispositional hearings. The District 
Court granted temporary custody to SRS with a recommendation 

that J.C. be temporarily placed with his father in Arizona. 

We find this to be within the court's authority under 

5 41-3-403, MCA, which permits temporary disposition in the 

best interest of the youth. 

The next issue is whether the District Court erred in 

declaring J.W. and J.C. youths in need of care in its June 

20, 1986, order. We find substantial credible evidence in 

the record supporting the District Court determination. 

Prior to the proceedings at issue herein, the mother 

experienced a psychotic break in May, 1985, and was 

hospitalized for psychiatric care. The children were placed 

in temporary foster care at that time. Contrary to the 

mother's assertions this evidence is relevant and was 

properly admitted. Events from the recent past relating to 

the mother's mental condition are clearly relevant in 

determining whether she is capable of properly caring for her 

children. The medical testimony reveals that the mother is 

presently in need of counseling and likely should be 

receiving medication. The record also indicates the mother 

has refused to accept medical treatment for the most part. 

The older youth, J.C., told social workers that he looks 

after J.W. during periods when his mother is acting 

irrationally. J.C. worries about J.W.'s safety when left 

alone with the mother. The mother leaves cigarettes burning 

and forgets to turn off the stove. J.W. has a problem with 

respiratory illness which is aggravated by cigarette smoke. 

The mother is aware of this, but continues to smoke in the 

presence of J.W. J.F7. will likely need frequent medical 

attention if exposed to smoke on a regular basis. 

The mother claims J.C. has poor school attendance due to 

sickness. J.C.'s pediatrician disputed this claim stating 

that J.C. was a normal, healthy child. J.C. missed 73% days 
during a school year while at Kessler School. In the fall of 

1985, J.C. missed 33 consecutive school days while a student 

at Bryant School. J.C. informed his counselor that he was 

bored staying at home and rarely felt sick. Neighbors 

frequently saw him playing in the yard. 

The mother asserts that poor school attendance is not 

educational neglect as defined in § 41-3-102, MCA, and is a 

matter for school authorities, not LCCOHS. We find J.C.'s 

poor school attendance to be a proper focus of inquiry in the 

LCCOHS investigation. The record is clear the mother is 

responsible for educational neglect of J.C. 

An abused or neglected child is a child whose normal 

physical or mental health or welfare is harmed or threatened 

with harm by the acts or omissions of his parent. Section 

41-3-102 (2) , MCA. In this case, it is clear J.W. 's welfare 

is in danger due to the mother's emotional and mental 

condition and J.C. has missed extensive schooling due to his 

mother. The medical evidence is that the mother's ability to 

care for J.W. and J.C. is questionable but that with therapy 

and medication the mother's problems are treatable. The 

treatment plan approved by the District Court provides for 

counseling and interaction between the mother and her 

children with the ultimate goal of returning custody of the 

children to their mother. We find no abuse of discretion or 

errors of law by the District Court. 

The District Court is affirmed. 

We Concur: 

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