No. 87-379 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MATTER OF 

C.G., Youth in Need of Care. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, District Judge. 

COUNSEL OF RECORD: 

For Appellant: 

Harris & Seidler; Nancy Seidler, Billings, Montana 

For Respondent z 

Greg S. Mullowney, Deputy County Attorney, Billings, 

Montana 

Olsen, Christensen & Gannett; Damon Gannett, Billings, 

Montana 

Sally M. Johnson, Billings, Montana 

Submitted on Briefs: Dec. 17, 1987 

Decided : January 14, 1988 

Filed: FAN 1 4 1988' 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal of findings of fact, conclusions of 

law and order entered April 15, 1987 and judgment filed April 

16, 1987, by the District Court of the Thirteenth Judicial 

District, Yellowstone County. The District Court granted to 

the Montana Department of Social and Rehabilitation Services 

(SRS) temporary custody of C.G. until she reaches the age of 

eighteen. C.G.'s natural father, D.G., (father) appeals. 

We affirm. 

The only issue is whether the District Court erred in 

granting temporary custody to the SRS. 

The appellant in this case, the natural father of the 

child, argues the District Court erred by applying only the 

"abuse and neglect" portion of S 41-3-609, MCA, for 

termination of parental rights. He contends that there was 

not clear and convincing evidence to support the District 

Court's decision. However, the District Court's order 

clearly shows that there was not a "termination" of parental 

rights, only a granting of temporary custody to SRS until 

C.G. reaches the age of eighteen. The District Court stated: 

It is not in the best interests of [C.G.] 

that she not see her parents while in the 

State's custody. It is strongly 

recommended by this Court that [C.G.] be 

placed in a long-term private foster home . . . and be allowed regular contact with 

both [her mother and father]. 

We note at the outset that the mother of C.G. does not 

appeal the decision of the District Court, therefore, 

evidence presented as to her conduct is not directly relevant 

to our determination. Nonetheless, this evidence will be 

considered in our ascertainment of the best interests of the 

child. 
The mother and father of C.G. were never married and 

informally lived together from 1976 until 1981. C.G. was 

born March 13, 1979. Both parents have had alcohol and/or 

substance abuse problems. As a result, C.G. and her 

half-brother, R.B., the mother's son from a previous 

marriage, have spent significant amounts of time in foster 

care or with local community service organizations. A 

detailed history of the children's home environment, drafted 

by Majel Bird (Bird), a social worker for the Yellowstone 

County Human Services, shows that the children were often 

left alone for long periods of time and C.G. ' s brother was 

forced to accept many of the parental responsibilities. 

After C.G. 's father left in 1981, he maintained only minimal 

contact with the children and provided no support. 

C.G.'s father has since remarried and moved to Hayward, 

California. At the time of the hearing on termination of 

parental rights, the father was receiving workers' 

compensation payments as a result of an injury suffered on a 

job in California. A court-approved written treatment plan 

was entered into by C.G.'s father from April 15, 1983 to July 

15, 1983. This plan required the father to attend parental 

classes, visit C.G. weekly, secure clean, appropriate 

housing, attempt to procure employment, complete a 

psychological evaluation and follow any recommendations, and 

obtain and follow a chemical dependency counselor's 

recommendations. Not one of these requirements was ever met. 

Testimony was presented that C.G.'s father never kept 

appointments, did not get involved in employment training 

programs, nor did he seek or receive any psychological or 

chemical dependency assistance. He testified that he did not 

attend parenting classes. C.G.'s father stated "I just 

didn't feel right for someone to tell me how to raise my 

daughter. " Additionally, C .G. ' s father did not make contact 
with the social worker assigned to his case from December of 

1985 to September of 1986, only days prior to the District 

Court hearing. During this period of time, he also had only 

limited contact with C.G. in the form of a number of cards 

and alleged telephone calls. 

C.G. 's mother has a history of mental illness and was 

judicially committed in 1981. The mother suffers from severe 

depression and an exorbitant alcohol problem. Between 1981 

and 1986, C.G.'s mother suffered a number of relapses of both 

mental problems and alcohol abuse which resulted in neglect 

and abuse of C.G. and her brother. The two children were 

placed in a foster home numerous times, which was documented 

by the report filed by Bird. Four separate court-approved 

written treatment plans designed to assist the mother by 

stabilizing her emotional life, improving parenting skills, 

establishing a concrete home environment, and limiting her 

dependency on alcohol and drugs, were signed by the mother 

yet never completed. 

Testimony presented at the District Court hearings held 

September 15, 24 and 26, 1986, showed that C.G.'s father had 

custody of C.G. only a couple of weeks after his separation 

with the mother in 1981. The father also testified that his 

current wife had been arrested for prostitution and there was 

testimony that C.G. did not wish to spend nights with her 

father and new spouse because she was sent to her room while 

they "did business." 

The conclusions of law of the April 15, 1987 District 

Court order stated: 

[C.G.] is an abused or neglected child 

within the meaning of Section 41-3-102, 

MCA, and is a youth in need of care. Her 

normal physical and mental health or 

welfare is threatened with harm by the 

acts and omissions of [her father and 

mother]. Both parents have been unable 
to provide a safe, appropriate, home 

environment for this child. 

It is in [C.G.] 's best interests that she 

be taken from the custody of [her mother 

and father], and that her temporary care, 

custody, and control be awarded to [SRS] 

until she reaches the age of 18 years. 

Counsel for C.G.'s father argues that the District Court 

erred " [i] n applying Section 41-3-609, M.C.A., 1987, 'abuse 

and neglect' standards for termination of parental rights." 

This argument is inaccurate and appellant's claim does 

not address any issue of error by the District Court. It is 

clear from a reading of the District Court's order that no 

termination of parental rights occurred. Therefore, the 

formal process outlined in 5 41-3-609, MCA, which defines 

guidelines and criteria for termination of the legal 

child-parent relationship, need not be addressed. The 

Guardian Ad Litem appointed for C.G. advocates affirmance of 

the order of the District Court and filed a supporting brief. 

The modification of the parental rights of C.G.'s mother and 

father clearly does not terminate the parent-child legal 

relationship and therefore any argument regarding termination 

is superfluous. 

The District Court set forth the powers that SRS would 

have over C.G. allowing that agency to find appropriate 

long-term private foster care. This will give the child 

st.ability and a favorable home environment and still allow 

interaction between the parents and C.G. 

The order does not disallow the parents of C.G. from 

gaining custody of the child in the future, contingent upon 

proper compliance with a service treatment agreement which 

has so far proved unsuccessful. 

The policy of this state is to ensure the family unit 

and that interest is constitutionally guaranteed. Section 
41-3-101 (1) (d) , MCA; Matter of J.L.B. (1979), 182 Mont. 100, 

109, 594 P.2d 1127, 1132. However, the right to maintain the 

family unit is not absolute and although the children's best 

interests and welfare generally are served by maintaining the 

family unit with custody retained by the natural parents, 

" [t] he children's best interest and welfare, not that of the 

natural [parent], is the paramount consideration." In Re 

Gore (1977), 174 Mont. 321, 328, 570 P.2d 1110, 1114. he 

District Court properly determined the best interest of C.G. 

would be served by temporary custody granted to SRS. 

We have stated: 

[Tlhis Court is mindful that the primary 

duty of deciding the proper custody of 

children is the task of the district 

court. As a result, all reasonable 

presumptions as to the correctness of the 

determination by the district court will 

be made. Foss v. Leifer, 170 Mont. 97, 

550 P.2d 1309, 33 St.Rep. 528 (1976). 

Due to this presumption of correctness, 

the district court's findings will not be 

disturbed unless there is a mistake of 

law or a finding of fact not supported by 

credible evidence that would amount to a 

clear abuse of discretion. 

Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 12181 41 

There was credible evidence that C.G. was a youth in 

need of care and is an abused and neglected child pursuant to 

5 41-3-102 (2), MCA, which states: " ' [a] bused 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 . . . " Harm to a child's health or 

welfare is defined in subsection (3) of 5 41-3-102, MCA. 

Either subsection (3) (c) , which deals with failure to supply 

an adequate home environment or subsection (3)(d), dealing 
with abandonment for a period of six months, would apply in 

this case. 

The findings of fact and conclusions of law are 

supported by the evidence and testimony and the District 

Court did not err in determining the best interest of C.G. 

would be served by temporary custody being granted to SRS. 

We affirm. /' 

1 Justice 

We concur: M