No. 81-523 

IPJ THE SUJ?REME COURT OF THE STATE OF MONTANA 

1982 

IN THE MATTER OF M.G.M., 

YOUTH IN NEED OP CARE. 

Appeal from: District Court of the Thirteenth ~udicial District, 

In and for the County of Yellowstone 

Honorable Charles Luedke, Judqe presiding. 

Counsel of Record: 

For Appellant: 

Patten and Renz, Billings, Montana 

Jeffrey Renz argued, Billings, Montana 

For Respondent: 

Olsen, Christensen and Gannett, Billinqs, Montana 

Damon Gannett arqued, Billings, Montana 

Harold F. Hanser, County Attorney, Billinqs, Montana 

Stephen Rowinski arqued, Deputy County Attorney, 

Billings, Montana 

Submitted: September 17, 1982 

Decided: December 9, 1982 

Clerk- 
I. ~ustice Frank B. Morrison. Jr., delivered the Opinion of the 

Court. 

Frank Fitzgerald, the natural father of the child, M.G.M., 

appeals from a judgment issued by the District Court of the 

Thirteenth Judicial District, Yellowstone County, terminating his 

parental rights. 

The child, M.G.M., was born out of wedlock on June 10, 1972. 

She lived solely with her mother until 1979, when the Department 

of Social and Rehabilitation Services (SRS) placed her in a 

foster home. In April 1980, the mother's parental rights were 

terminated. 

When appellant discovered the proceedings to terminate the 

mother's parental rights, he filed an acknowledgement of pa ternity of the child and sought unsuccessfully to intervene in the 

proceedings. 

On May 28, 1980, SRS filed a petition for temporary investigative authority and protective services, claiming that M.G.M. 

was in danger of being abused and neglected by the appellant. 

The District Court granted the petition. Appellant was not 

allowed contact with the child except by recommendation of mental 

health worker and psychiatric nurse, Mary Honaker . The District 

Court also ordered appellant to undergo a psychological evaluat ion. 

In July 1980, appellant was allowed to meet with his child 

for the first time. Two one-hour sessions were held under the 

supervision of Mary Honaker . The meetings were then discontinued 

because the child appeared upset and frightened by her father. 

On September 11, 1980, the guardian ad litem for the child 

filed a petition to determine paternity and to determine whether 

appellant's parental rights should be terminated under the provisions of the Uniform Parentage Act specifically section 40-6-130, 

MCA. On September 23, 1980, SRS filed a petition under section 

41-3-401, MCA, asking that M.G.M. be declared dependent and 

neglected, and requesting permanent custody and authority to 
assent to adoption. Over objections by appellant, the District 

Court consolidated the proceedings brought by the guardian and 

the SRS. 

On November 14, 1980, pursuant to section 40-6-111, MCA, the 

District Court declared that appellant was the natural father of 

M.G.M. 

A series of hearings were then held. Nearly all of the evidence at these hearings pertained to the mental health of the 

child and her father. 

Based on the testimony at the hearings, the District Court 

made the following significant findings of fact: 

"5. That the natural mother of M.G.M. was 

diagnosed as an undifferentiated schizophrenic, and that M.G.M. spent the first five 

years of her life living in her custody. 

During that time, M.G.M. failed to develop 

normally as a child, and exhibited some of the 

characteristics found in schizophrenia. She 

also suffered from a failure to develop 

self-identity, having adapted to a rolereversal with her mother. During such five 

years, Frank [appellant] was rejected by the 

mother in all contacts; and M.G.M. knew him 

only through the mother's revulsion to him and 

her identification of him as the 'kook. ' 

"6. That there is a statistically-established 

relationship between schizophrenia in parents 

and consequent development of schizophrenia in 

children, based upon genetic and environmental 

factors. 

"7. That because of M.G.M. Is genetic 

background, as well as the environment in 

which she lived for the first five years of 

her life, she is 'at risk' to develop the mental illness of schizophrenia. 

"8. M.G.M., in addition, is a very intelligent and particularly sensitive, fragile and 

chameleon-like young lady, for whom it is 

extremely important to provide a strong , stable adult female role model in order that 

she may develop normally from a girl into a 

young woman. 

"9. Frank is skilled in the field of electronics and is regularly employed with a good 

work record. He gets along with his fellow 

employees and is financially sound. He is a 

law-abiding citizen. He has never been 

married, and the longest period of close association with a woman has been seven months. 

"10. That Frank has a medical history which 

includes a diagnosis by the Veterans 

Administration in 1963, as: 
" ' . . . schizophrenic reaction, undifferentiated type, in a good partial remission, 

manifested by some blunting of emotions, 

restricted interests, mentally competent 1 ... 

"for which he receives a 70% disability pension. 

"11. That Frank has also been diagnosed as a 

schizophrenic by Dr. Ned Tranel a clinical 

psychologist, as of July 3Oth, 1980. That 

conclusion is echoed by the psychiatric nurse, 

Mary Honaker, who has had past contact with 

Frank in the course of working with M.G.M. and 

M.G.M. Is mother over the years since prior to 

M.G.M. 's birth. 

"12. Frank has also been diagnosed as having 

a schizotypal personality disorder by Dr. 

Stephen Wagner, another clinical psychologist. 

This is a condition which is said to make him 

less than ideal as a parent, but not to render 

him completely inadequate making possible a 

trial period of closely monitored visitation 

between Frank and M.G.M. as an evidencegathering device for a later determination as 

to custody. 

"15. Efforts at accomplishing visitation between Frank and M.G.M. were recently made, and 

two meetings did occur. The results were 

described as a Ismothering' by Frank of 

M.G.M., with an adverse effect upon M.G.M. in 

the form of extreme fright, a five-pound 

weight loss, stress, and a regression in 

reality testing . As a consequence, visitation 

efforts were terminated. 

"16. That on the basis of the totality of the 

psychiatric and psychological examinations 

conducted of Frank, together with the other 

evidence adduced, it is clear that placing 

custody of M.G.M. with Frank would increase 

the risk of her becoming mentally ill by a 

probability greater than 50% at a minimum, in 

the view of one witness, and to an almost certainty in the view of others. Because of the 

demonstrated adaptive characteristics of 

M.G.M., it is clear that a placement of her 

with Frank will clearly result in a loss of 

her own identity and development, and tip the 

already heavily-weighted scale of M.G.M. Is 

future against her normal development. 

" 17. Under the circumstances existing, it 

would be detrimental to the best interests of 

M.G.M. to defer a final decision with respect 

to her custody pending the implementation of 

further visits with Frank as an evidencegathering measure, since the adaptive characteristics of M.G.M. would render the results 

untrustworthy and, also because of Frank's 

determination to reject any results not 

favorable to his dispositions in any and all 

events. The status of the evidence clearly 
advises that the process of attempting Eurther 

trial visitation would in itself be a destructive one from M.G.M. Is standpoint. 

" 18. Under the circumstances existing , it 

would also be detrimental to the best interest 

of M.G.M. to be placed in the permanent 

custody of Frank." 

The District Court then concluded as a matter of law that it 

would be in M.G.M. 's best interest to place her in the custody of 

SRS, and that appellant's parental rights be terminated. 

Appellant has raised the following issues for review: 

(1) Whether the District Court erred by applying the "best 

interests of the child" test in section 40-6-130(1), MCA, instead 

of the "abuse and neglect" standards in sections 41-3-401, MCA, 

et seq.? 

(2) Whether there is clear and convincing evidence to support either the "best interests of the child" test or the "abuse 

and neglect" test? 

(3) Whether psychiatric nurse, Mary Honaker, was qualified 

to give an expert opinion and diagnosis of appellant's mental 

health? 

Appellant claims that sections 40-6-128 and 40-6-130, MCA, 

should not have been applied to him, and that the District Court 

therefore erred by terminating his parental rights absent any 

findings of abuse or neglect. We agree and remand for further 

findings. 

Here, the District Court apparently applied the "best 

interests of the child" standard from section 40-6-130(1), MCA. 

Section 40-6-130 ( 1) , MCA, provides in part: 

"If the court finds it would not be in the 

best interests of the child to grant custody to 

the putative father, the court shall terminate 

his rights to the child." 

Section 40-6-128(1), MCA, describes when the "best interests 

of the child" test should be applied to a putative father: 

"If a child is born out of wedlock and the 

mother executes or proposes to execute a 

release - - terminatina her riahts to the child or 

-- 

if --- the child ---- otherwise .--- becomes - the subject -- cf - an adoption proceeding, the agency person to -- ----- whom the child has- been or is to be 
relinquished or the mother or person having 

custody of the child shall file a petition in 

the district court to terminate the parental 

rights of the father, unless the father's 

relationship to the child has been previously 

terminated or determined not to exist by the 

court. The court shall hold a hearing as soon 

as practical to determine the identity of the 

father and to determine or terminate the 

rights of the father as provided in this 

section and 40-6-129 and 40-6-130 . . ." 

( Emphasis added. ) 

The key language here is "or if the child otherwise becomes 

the subject of an adoption proceeding." Respondents claim that 

when the mother's rights were terminated, the child became subject to a "potential adoptive proceeding." Admittedly, however, 

SRS is seeking temporary custody on the grounds that M.G.M. is a 

youth in need of care and neglected or abused within the meaning 

of section 41-3-401, et seq. , MCA. As such, the provisions 

governing a "youth in need of care" proceeding must be 

controlling. 

Moreover, section 40-6-128, MCA, did not give the guardian of 

the child the right to petition for termination of the 

appellant's parental rights. Only "the agency, person to whom 

the child has been or is relinquished or the mother or the person 

having custody" may file a petition for determination of a putative father's rights. The District Court erred by consolidating 

the guardian's petition with that of SRS. 

It is well-established that absent findings of abuse or 

neglect based upon clear and convincing evidence, parental rights 

may not be terminated. Matter of Guardianship of Doney (1977), 

174 Mont. 282, 570 P.2d 575; In re the Matter of J.L.B. (1979), 

182 Mont. 100, 594 P.2d 1127; and Stanley v. Illinois (1972), 405 

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. These constitutionally 

protected parental interests in the child are not weakened by the 

fact that a child is born out of wedlock. Matter of J.L.B., 594 

P.2d at 1136, referring to Stanley v. Illinois, 405 U.S. 651-652, 

92 S.Ct. at 1213, 31 L.Ed.2d at 559. 

Further, this Court has held that a finding of abuse, 

neglect, or dependency " is the jurisdictional prerequisite for 
any court ordered transfer of custody." . In re Gore (1977), 174 

Mont. 321, 570 P.2d 1110, 1113. 

Only after a showing of dependency, abuse, or neglect, is the 

"best interests of the child" test the appropriate basis for 

determining custody. See Doney, supra; Gore, supra; Henderson v. --A -- 

Henderson (1977), 173 Mont. 429, 568 P.2d 177; and In the Matter 

of the Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 

Therefore, the District Court here was obligated to find that 

the child was a "youth in need of care" and abused or neglected 

in order to deprive appellant of custody and terminate his 

rights. Section 41-3-102, MCA, provides the applicable 

definitions : 

"(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: 

"(a) inflicts or allows to be inflicted upon 

the child physical or mental injury, including 

injuries sustained as a result of excessive 

corporal punishment; 

"(5) 'Threatened harm' means imminent risk of 

harm. 

" (8) 'Mental injury' means an identifiable 

and substantial impairment of the child Is 

intellectual or psychological functioning." 

During appellate argument, the guardian for the child 

admitted that the District Court had not made any findings that 

the child was abused or neglected by appellant. The findings 

only determined the child's best interests. More importantly, 

these findings do not provide a sufficient basis on which to 

conclude that the child would be in danger of "imminent risk of 

harm" if she lived with or visited with appellant. We therefore 

remand this case for further findings. 
On remand, the opinion of the psychiatric nurse that 

appellant is suffering from schizophrenia should not be admitted 

without further foundation. We agree that the determination of a 

person as an expert is within the discretion of the trial court, 

and can be set aside only upon abuse of discretion. Goodnough v. 

State (1982), -- - -- Mont . - - . - - - - , 647 P.2d 364, 39 St.Rep. 1170. 

Rule 702, M.R.Evid. Nevertheless, nothing in this record 

suggests that the nurse has had the training, experience, or education to diagnose schizophrenia. See Jenkins v. U.S. (1962), 

307 F.2d 637. 

The District Court judgment is reversed and remanded for 

further findings.