No. 87-379
INTHE SUPREME COURTOF THE STATEOF MONTANA
1988

INRE THEMATTER OF C.G., Youth inNeed of Care.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County of Yellowstone, TheHonorable G. Todd Baugh, DistrictJudge.
COUNSELOF RECORD:
ForAppellant: Harris & Seidler;Nancy Seidler, Billings,Montana
For Respondentz Greg S. Mullowney,Deputy CountyAttorney, Billings, Montana Olsen, Christensen & Gannett;DamonGannett, Billings, Montana SallyM. Johnson,Billings,Montana

Submitted on Briefs: Dec. 17, 1987 Decided: January 14, 1988

Filed: 

## FAN 14 

### 1988'

ClerkMr. 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 filedApril 16, 1987, 

### by the District Court of the Thirteenth Judicial District,Yellowstone County. The DistrictCourt 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 therewas not a "termination" of parental rights, only a granting of temporary custody to SRS until C.G. reaches the age of eighteen. TheDistrictCourt stated: It is not in the best interestsof [C.G.] that shenot see her parentswhile in the State's custody. It is strongly recommended by this Court that [C.G.] be placed in a long-termprivate fosterhome



# ..

# . and be allowed regular contact with both [hermother and father].
We note at the outset that themother of C.G. does not appeal the decision of the District Court, therefore, evidencepresented as to her conduct isnot directly relevant to our determination. Nonetheless, this evidence will be considered in our ascertainmentof 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 childrenand provided no support. C.G.'s fatherhas 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 intoby C.G.'s father fromApril 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 requirementswas evermet. 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 chemicaldependency assistance. He testified thathe 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 notmake contactwith 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. 'smother 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 ofboth 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 yetnever completed. Testimony presented at the District Court hearingsheld September 15, 24 and 26, 1986, showed that C.G.'s fatherhad custody of C.G. only a couple of weeks after his separation with themother in 1981. The father also testified that his currentwife had been arrested forprostitutionand therewas testimony that C.G. did not wish to spend nights with her father and new spouse because shewas sent to her roomwhile 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 ayouth 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 unableto provide a safe, appropriate, home environment for this child.
It is in [C.G.]'sbest interests that she be taken from the custody of [her mother and father], and thather temporarycare, 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 DistrictCourt and filed a supportingbrief. 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 argumentregarding termination is superfluous. The District Court set forth the powers that SRSwould 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 theparents 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 farproved unsuccessful. The policy of this state is to ensure the family unit and that interest is constitutionally guaranteed. Section41-3-101

### (1)(d)

## ,MCA; Matter of J.L.B. (1979), 182Mont. 100, 109,594 P.2d 1127, 1132. However, the right tomaintain the family unit is not absolute and although the children's best interests andwelfare generally are servedby 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 interestof C.G. would be served by temporary custody granted to SRS. We have stated: [TlhisCourt 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 findingswill notbe disturbed unless there is a mistake of law or a finding of factnot supportedby credible evidence that would amount to a clear abuse ofdiscretion.
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 childpursuant 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'shealth or welfare is defined in subsection (3) of 

### 5 41-3-102, MCA. Either subsection (3)(c)

## ,which dealswith 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