NO. 95-142 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

IN RETHECUSTODYOF: JESSICA EVANS, aminor child. DAVEEVANS,

Respondent and Respondent.

APPEAL FROM: District court of the Twenty-first Judicial

District, In and for the County of Ravalli, The Honorable Jeffrey Langton, Judge presiding.

COUNSELOFRECORD:

For Appellant: Dave D. Evans, pro se, Miles City, Montana For Respondent: Philip J. O'Connell, Missoula, Montana

Filed: Submitted onBriefs: January 11, 1996 Decided: February 6, 1996Chief Justice J. A. Turnage delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to State Reporter Publishing Company and West Publishing Company. Dave Evans appeals achild custody decision of the Twentyfirst Judicial District Court, Ravalli County. Weaffirm. Evans claims the District Court erred by failing to adopt the recommendations in the custody evaluation by David Stube; by ignoring the evidence of child abuse, substance abuse, and violation of previous visitation orders; andby relying upon Cindy Miller's custody recommendation. Jessica Evans was born on February 11, 1993. Her parents, Dave Evans and Kim Chavez, neither married nor lived together. Since her birth, Jessica has lived with her mother. Evans has visited Jessica for several days at a time. In this action, Evans sought to have physical custody of Jessica placed with himself andhis wife, Linda. Heclaimed that Chavez has physically abused Jessica. Thecourt ordered ahomestudy andcustody evaluation, andthe parties stipulated that licensed clinical counselor David Stube would dothe evaluation. Stube recommended in writing that Chavez begranted physical custody initially, with aneventual alternating custody arrangement. Herecommended that both parents complete
2parenting training with Cindy Miller, aclinical psychologist, and

that Miller then monitor their progress. That recommendation was followed. Cindy Miller testified that she hadmet with both Chavez and Evans and hadobserved anexchange of custody. She reported that Jessica is well bonded to Chavez and less well bonded to Evans. In its findings, the court set forth the results of the custody evaluation andthe recommendations of David Stube. It then stated that it found Miller's testimony "the most insightful and credible testimony presented." The court found that Chavez had demonstrated awillingness to abide bythe visitation schedule, and that Evans had not fully utilized his visitation time. It found that Evans' allegations of abuse hadbeen investigated bylocal law enforcement and the Department of Family Services but that there
wasnorecord that either agency found anysubstance to the allegations. The court found that Evans had failed to substantiate his allegations that Chavez physically abused Jessica. It took notice of both parents' recent criminal convictions for trafficking in dangerous drugs. The court found that Jessica's best interests would beserved if she wasplaced in the joint care, custody and control of her parents, with Chavez asher primary custodian. Our standard of review is whether the findings of fact are clearly erroneous. In re Marriage of Dreesbach (1994), 265Mont. 216, 220-21, 875 P.2d 1018, 1021. Thefindings must bebased upon substantial credible evidence in the record, and the court's decision will be upheld unless a clear abuse of discretion is
3shown. In re Marriage of Zuelke (Mont. 1995),

_ P.2d _I _I

52St.Rep. 1225, 1226. Where there is conflicting evidence, this Court will not reweigh the evidence; the finder of fact (in this case, the District Court) is in the best position to resolve conflicting factual testimony. In re Marriage of Boyer (Mont. 1995),

____P.2d _I _, 52St.Rep. 1233, 1235. After reviewing the record, weconclude that the court did not
err in relying heavily onMiller's opinion andin failing to adopt in their entirety the custody recommendations in Stube's written report. Further, the claims that the court ignored the evidence of physical and substance abuse and problems with visitation are refuted bythe findings addressed to those issues. Those findings
are supported by substantial credible evidence in the record. Evans has not shown the findings to beclearly erroneous. We affirm the decision of the District Court.

Weconcur: y Chief Justice

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