No. 86-399

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

INTHEMATTER OF J.W. AND J.C., Youths inNeed ofCare.

APPEAL FROM: The District Court of the FirstJudicialDistrict, In and for the County of Lewis & Clark, The HonorableHenry Loble, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:

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,CountyAttorney, Helena,Montana CarolynClemens,Deputy County Attorney, Helena Nicholas Jacques, (Children),Helena,Montana

Submitted on Briefs: Jan. 29, 1987 Decided: May 11, 1987
Filed: 

## MAY

## 111987Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.

The natural mother of J.W. and J.C. appeals orders of the FirstJudicial 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 ofHuman Services. We affirm. The naturalmother, 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

onDecember 18, 1984. Lewis and Clark County Office ofHuman Services (LCCOHS) received a referral concerning the birth. Themother stated she was unaware ofher 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. Thepetitionwas grantedby the District CourtMay 10, 1985. J.C. and J.W. were placed in foster care, with J.C. subsequently being allowed to spend the summerwith his natural father inArizona. 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,onbehalf 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. Referrantnoted 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 familyapartment on two consecutive days. Referrant said

[the mother] attributed the fires to someonewho she said had broken into her apartment,but [themother] 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 sinceOctober 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 [themother] and sawboth children,who seemed tobe okay. [The mother] spoke very slowly and the housewas stuffy and dark. [Themother] 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. [Themother] opened the door for about two minutes, would not allow the social worker in, and said she and her children were sick and were stayinghome. 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 washeld December 3,1985. Following hearing, theDistrict 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 fromArizona 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 issueand set hearing forMay 15, 1986. At the hearing on March 20, 1986, testimony was heard from the psychologist and social workers involved with the
case,themother, and the fostermother 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 themother would be incapableat times of caring for her children. The socialworkers 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 treatmentplan. Themother indicated that shewould not take medication if prescribed forher,did not believe she needed counseling, and on one occasion refused to speak with a psychologistwho wasbrought 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 thehearing onMay 30, 1986,testimonywas heard from the children's pediatrician and the socialworker working on the mother's case at that time. The pediatrician testified that J.W. has asthma and respiratory problems which are aggravatedby 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 treatmentplan, and ordered LCCOHS to inform thecourt of its recommendation as to placement of the children upon themother's completion of the treatmentplan. The mother appeals and raises the following issues: 1) Whether the District Court erred in denying the motions tovacate? 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 themother would not permit anyone to enter her home to investigate. Pursuant to § 41-3-402,MCA, the county attorneymay file a petition for investigative authority and protective services "in cases where it appears that ayouth is abused or neglected or is in dangerofbeing abused orneglected." 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 noapparent 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) socialworkers' reports that themother would not answer thedoor to speakwith them. Section 41-3-102,MCA,provides inpart:

(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 omissionsofhisparent or other person responsible forhiswelfare. (3) "Harm to a child's health or welfare" means the harm that occurs whenever the parent or other person responsible for the child'swelfare:

(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 supportingprobable cause that thephysical andmental 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 thesematters are sufficient facts to warrant the granting of temporary investigativeauthority.The November 15, 1985, District Court order granted LCCOHS the right to place theyouths in foster care ifdeemed necessary for their protection. The mother contends the District Court improperly delegated its authority to remove the children from the home to LCCOHS. We disagreewith this contentionand find the court order tobe within the scopeof S; 41-3-403, MCA. Pursuant to this section, the court may grant "such relief as may be required for the immediate protection of theyouth." 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 toplace 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 exerciseof 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 theplacement 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. Themother points out that the 1985amendment 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 authorityand 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 filedunder 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 requiredby 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 investigativeauthority 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

asbeing in excess of its jurisdiction. We find no error by the DistrictCourt. 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 inArizona following receipt of a favorable home study from Arizona officials. Themother 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 DistrictCourt granted temporary custody to SRSwith 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 interestof theyouth. 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 Courtdetermination. Prior to the proceedings at issue herein, the mother experienced a psychotic break in May, 1985, and was hospitalized for psychiatric care. The childrenwere 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 capableofproperly caring forher 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 olderyouth,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. Themother 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 smokeon a regularbasis. Themother claims J.C. haspoor 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% daysduring a schoolyearwhile atKessler School. In the fallof 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 himplaying in theyard. 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 attendancetobe aproper focus of inquiry in the LCCOHS investigation. The record is clear the mother is responsible for educationalneglect of J.C. An abused or neglected child is a child whose normal physical or mental health orwelfare isharmed 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. 'swelfare is in danger due to the mother's emotional and mental condition and J.C. hasmissed extensive schoolingdue to his mother. Themedical evidence is that themother'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 theirmother. We find no abuse of discretion or
errors of lawby theDistrictCourt. TheDistrict Court is affirmed.

We Concur: h /