No. 14438 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MATTER OF M.A.M., 

Youth in Need of Care 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Ralph Herriott argued, Billings, Montana 

For Respondent: 

Harold Hanser, County Attorney, Billings, Montana 

Robert Waller argued, Deputy County Attorney, 

Billings, Montana 

Damon Gannett argued, Billings, Montana 

Filed: SEP 25 --A 

Submitted: June 15, 1979 

Decided: SEP 26 lgZg 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The natural mother of M.A.M. (herein referred to as 

the child) appeals from a judgment of the Yellowstone 

County District Court declaring M.A.M. to be a youth in 

need of care, and awarding the permanent care, custody 

and control of her to the Department of Social and 

Rehabilitation Services (herein referred to as SRS), with 

the authority to assent to adoption. 

The mother does not contest the District Court's 

determination that the child was dependent, neglected or 

abused as defined in section 41-3-102, MCA, under the 

evidentiary standard of "clear and convincing" as adopted in, 

In The Matter of Inquiry into J.L.B., Youth in Need of Care 

(1979), Mont . , 594 P.2d 1127, 1137, 36 St.Rep. 

896, 902. Rather, she contends that once this determination 

was made, the District Court abused its discretion in 

awarding permanent care, custody and control of the child to 

the SRS, with authority to consent to the child's adoption. 

She argues that it is too harsh a remedy to permanently 

deprive her of the custody of her child, and that the better 

remedy is to return the child to her custody subject to 

close supervision by the child welfare authorities. The 

facts, however, fully support the District Court's decision. 

The child involved in this matter, is five years of 

age. On December 28, 1977, the natural mother of the 

child appeared in the office of the social worker with the 

Child Protection Unit, and reported that she had physically 

beaten her child the previous evening, December 27, 1977. 

Two social workers immediately went to a day care center 

where the child was playing in order to determine the 

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extent of her physical injuries. The social workers 

discovered that the child had fresh bruises on her back, 

shoulder, arm, rib cage, and a welt or bruise behind her 

left ear. 

The social workers brought the child to Dr. J. Patrick 

Sauer for a medical examination. Dr. Sauer determined that 

the child's bruises had been recently inflicted and caused 

by repeated strikings with a foreign object. The social 

workers, based upon Dr. Sauer's report and their own 

investigation, removed the child from the custody of the 

natural mother and arranged for foster care. The child's 

natural mother agreed to this arrangement. 

On February 14, 1978, the SRS filed a petition in 

District Court seeking a decree declaring the child to be a 

youth in need of care, with her permanent care, custody and 

control being awarded to the State of Montana, with 

authority to assent to adoption. Notice of the petition 

and of the hearing on the issue of child custody were duly 

issued to the natural mother and father. 

On April 14, 1978, the District Court held a custody 

hearing. The natural mother appeared and was represented 

by counsel. An attorney appeared on behalf of the child, 

having been appointed guardian ad litem and counsel for 

the child. SRS appeared and was represented by the 

Yellowstone County Attorney. The natural father, served 

with notice by publication, did not appear. 

On May 2, 1978, the District Court entered findings 

of fact, conclusions of law, and a decree, finding that 

the child was an abused and neglected child within the 

meaning of section 41-3-102, MCA, and was a youth in need 

of care. The court awarded the permanent care, custody 

and control of the child to SRS, and granted SRS the 

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authority to place the child for adoption. As a result 

of the District Court order, the parental rights of the 

natural mother were terminated. This appeal followed. 

Under section 41-3-102(2)(a), MCA, the commission or 

omission of any act or acts which materially affect the 

normal physical or emotional development of a youth constitutes abuse or neglect. Section 41-3-102(4), MCA, 

provides that a youth who is dependent or is suffering from 

abuse or neglect is a youth in need of care. Section 

41-3-404, MCA, requires the District Court to hold a 

hearing and determine whether the youth is an abused, 

neglected, or dependent child, and to determine the cause. 

Upon a finding that a child is dependent, neglected 

or abused, section 41-3-406(1) (b) (i), MCA, permits the 

District Court to transfer legal custody to SRS, which, 

of course, was done in this case. There was substantial 

credible evidence in the record to justify the District 

Court order permanently depriving the mother of her child. 

This Court has in previous decisions recognized that 

family integrity is a constitutionally protected interest, 

In The Matter of Inquiry into J.L.B., Youth in Need of Care 

(1979), Mont . , 594 P.2d 1127, 1136, 36 St.Rep. 

896, 902; In The Matter of The Guardianship of Doney (1977) , 

Mont. , 570 P.2d 575, 34 St.Rep. 1107, and of 

course the declaration of policy which accompanies the 

statutes governing termination places emphasis on the 

preservation of family unity whenever possible (section 41- 

3-101(1)(d), MCA). But we have also noted that family unity 

need not be preserved at the expense of the best interests 

of the child. In the Matter of Inquiry into J.J.S. Youth in 

Need of Care (1978), Mont . , 577 P.2d 378, 35 

St.Rep. 394; In Re Gore, Youths in Need of Care (1977), 

Mont . , 570 P.2d 1110, 34 St.Rep. 1179. 

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The instant case arose following the physical 

beating of the child by her natural mother on December 

27, 1977. On December 28, 1977, two social workers 

examined the child and discovered she had fresh bruises 

on her back, shoulder, arm, rib cage, and a welt or bruise 

behind her left ear. After an examination of the child, 

Dr. Sauer determined that the child's bruises had been 

recently inflicted and caused by repeated strikings with 

a foreign object. Testimony later established that the 

beating had been administered with a belt or belt buckle. 

Julie Goldberg, a social worker employed by Yellowstone County, testified that she was aware of four incidences 

of abuse that the natural mother had inflicted upon the 

child. Ms. Goldberg also testified that the child had 

been placed away from her natural mother in foster care 

on five separate occasions. Ms. Goldberg further testified 

that three of the five foster care placements were directly 

related to incidence of abuse, and the placements had taken 

place after the acts of abuse had occurred. 

Dr. Monty C. Gustafson, a clinical psychologist, 

testified that the potential for further child abuse 

by the natural mother was high. He specifically recommended 

that the child not be returned to the natural mother. David 

Pierce, a psychiatric social worker, also cautioned against 

returning the child to the natural mother. During crossexamination, he emphatically reiterated his position. 

Based on the totality of circumstances of this record, 

we cannot find an abuse of discretion in the District Court 

decision to award permanent custody of the child to SRS. 

The judgment of the District Court is affirmed. 
We Concur: 

Chief Justice /' . 

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Justices