### No. 81-523 IPJ 

### THE SUJ?REME COURT OF THE STATEOF MONTANA 1982



### INTHEMATTER OFM.G.M., YOUTH INNEED OP

### CARE.

Appeal from: DistrictCourtof theThirteenth~udicial District, Inand for theCounty of Yellowstone Honorable CharlesLuedke, Judqepresiding. Counsel of Record: ForAppellant: Patten and Renz, Billings, Montana JeffreyRenz argued, Billings, Montana ForRespondent: Olsen,Christensenand Gannett,Billinqs,Montana DamonGannett arqued, Billings, Montana Harold F. 

### Hanser,CountyAttorney,Billinqs,Montana StephenRowinski arqued,DeputyCountyAttorney,

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 ThirteenthJudicialDistrict, Yellowstone County, terminating his parental rights. The child, M.G.M., 

### was born out of wedlock on June 10, 1972. She lived solelywith 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 contactwith the child exceptby recommendation of mental health worker and psychiatric nurse, Mary Honaker

# . The District Court also ordered appellant to undergo a psychological evaluation. In July 1980, appellant 

### was allowed to meet with his child for the first time. Two one-hour sessions were held under the supervisionof 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 determinepaternity and to determinewhether appellant'sparental rights shouldbe terminated under theprovisionsof theUniform Parentage Act specifically section40-6-130, 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 toassent to adoption. Over objections by appellant, the District Court consolidated the proceedings brought by the guardian and theSRS. On November 14, 1980, pursuant to section40-6-111, MCA, the District Court declared that appellant was the natural fatherof M.G.M. A 

### series of hearings

### were then held. Nearly allof 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 onlythrough 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 'atrisk' 

### to develop themental illnessof 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 inthe fieldof 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 longestperiod of 

### close associationwith a woman hasbeen sevenmonths. "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 thepsychiatric nurse, Mary Honaker, who has had past contact with Frank inthe course of working with M.G.M. and M.G.M. Ismother over the years sinceprior 

### to M.G.M. 'sbirth. "12. Frank has alsobeen diagnosed ashaving a schizotypal personality disorder by Dr. StephenWagner, anotherclinicalpsychologist. This is a conditionwhich is said 

### to make him less than ideal asa parent, butnot 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 laterdetermination as tocustody.

"15. Efforts at accomplishing visitation between Frank and M.G.M. 

### were recentlymade, 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 realitytesting

# . Asa consequence, visitation efforts

### were terminated. "16. That on thebasisof the totalityof 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%ata minimum, in theview 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 futureagainsther normal development. 

### "17. Under the circumstances existing, it would be detrimental to the best interestsof M.G.M. 

### to defer a final decisionwith respect to her custody pending the implementation of further visits with Frank as an evidencegathering measure, since the adaptive charac

### teristics 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 clearlyadvisesthatthe process of attempting Eurther trial visitationwould in itself be a destructiveone fromM.G.M. Isstandpoint. 

### "18. Under the circumstances existing

## , it would alsobe detrimental 

### to the best interest of M.G.M. to be placed in the permanent custodyof Frank." The District Court then concluded as 

### a matter of 

### law that it would be inM.G.M. 'sbest interest

### to place her inthe custodyof SRS, and that appellant's parental rights be terminated. Appellant has raised the following issues forreview: (1) Whether the District Court erred by applying the "best interestsof the child" test insection40-6-130(1), MCA, instead of the "abuse and neglect" standards in sections 41-3-401, MCA, 

### etseq.? (2) Whether there is 

### clear and convincing evidence 

### to support either the "best interestsof 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 inpart: "If the court finds it would not be in the bestinterestsof the child

### tograntcustodyto theputative father, the court shall terminate hisrights tothe 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 terminatinaherriahts 

### to the childor

- - if the child otherwisebecomes the subject

## cf

-- --- ---- .--- 

## - -- - an adoption proceeding, the agency person 

### to -- ----- whom the child has- been 

### or 

### is to berelinquished 

### or the mother 

### or person having custody of the child shall filea 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 shallhold 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 custodyon 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, section40-6-128, MCA, didnot 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 filea petition for determination of a putative father's rights. The District Court erred by consolidating the guardian's petition with thatof 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), 174Mont. 282, 570 P.2d 575; In 

### re the Matter of J.L.B. (1979), 182Mont. 100, 594 P.2d 1127; and Stanleyv. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31L.Ed.2d 551. These constitutionally protected parental interests inthe 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, 31L.Ed.2d at 559. Further, this Court has held that a finding of abuse, neglect, 

### or dependency 

### "is the jurisdictional prerequisite forany court ordered transfer of custody."

. In 

### re Gore (1977), 174 Mont. 321, 570 P.2d 1110, 1113. Onlyaftera showing of dependency, abuse, orneglect, is the "best interests of the child" test the appropriate basis for determining custody. SeeDoney, supra; Gore, supra; Henderson v.

--A -- Henderson (1977), 173Mont. 429, 568 P.2d 177; and In the Matter of the Guardianship of Aschenbrenner (1979), 182Mont. 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 otherperson responsible forhiswelfare. "(3) 'Harm to a child's health 

### or welfare' means the harm thatoccurs 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 corporalpunishment;

"(5) 'Threatened harm' means imminent riskof harm.



### "(8) 'Mental injury' means an identifiable and substantial impairment of the childIs 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 orvisited with appellant. We therefore remand this

### case for furtherfindings.On remand, the opinion of the psychiatric nurse that appellant is suffering from schizophrenia should not be admitted without furtherfoundation. Weagree that the determination of a person as an expert is within the discretion of the trial court, and can be set asideonlyupon 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.