No. 13615 INTHE SUPREME COURT OF THE STATE OF MONTANA

JERRY WAYNE GORE, RHONDA GAIL GORE, and FVILLIAM ROY GORE, 11, Youths inNeed of Care.

Appeal from: District Court of the Eighth Judicial District, Honorable R. D. McPhillips, Judge presiding. Counsel of Record: For Appellant: Howard F. Strause argued, Great Falls, Montana For Respondent: J. Fred Bourdeau, County Attorney, Great Falls,

Montana Carroll Blend, Deputy County Attorney, argued,

Great Falls, Montana Thomas Mahan argued, Helena, Montana



### ~c.1 b6 Filed:

## , Submitted: September 12, 1977 Decided: 

## OCT26

## 19TI

./. ClerkMr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This is an appeal by the natural parents of three minor children from a judgment of the district court,Cascade County, the Honorable R. D. McPhillips presiding. Permanentcustody of the children with the right to consent to adoptionwas awarded to the Department of Social & Rehabilitation Services (SRS)of the State ofMontana. The stipulationof factspresented to the district court

on July 8, 1976,provides a summaryof the case: 1. In July, 1974,while the fatherwas stationed at GlasgowAir Force Base, Glasgow,Montana, a socialworker was contacted in regard to the hospitalizedmother. 2. On September 2, 1974,themother gave birth to their third child. In late September and early October, the baby was treated by physicians in Glasgowand Great Falls forpyloric stenosisand hydrocephalism. 3. On October 18, 1974, the district court of the seventeenth judicialdistrict, Judge Thomas Dignan presiding, found the two older children to be dependent and neglected and ordered the award of temporary custody to SRS,pending filing of a petition forpermanent transfer of custody. 4. On October 28, 1974,SRSpetitioned the district court for a declaration of dependency and neglectof the two older children and the award of permanent custody to SRS. The hearing

on the petitionwas held on December 13, 1974. On the sameday the judge issued an order stating: (a) that the fatherwas to be transferred on January 6, 1975,to Malmstron Air Force Base, Great Falls, Montana; (b)that the childrenwere dependent and neglected and awarded custody to SRS until the fatherwas transferred to Malmstrom; (c)that the parents obtain day care services for the children for at least six months; (d)that the parents obtaincounseling from the Mental Health Center ormilitary facilities in Great Falls;and (e)that the parents cooperatewith SRS in Cascade County in regard to the children's care,health and welfare. 5. On December 11, 1975,a Cascade County social workerpetitioned the district court for custody of the three children and a declaration of dependency and neglect. 6. On January 26, 1976,a hearing was held on the petition. An order followed on January 29, 1976, stating: (a) that the father's duties prevented him from caring for and controlling the children; (b)that the mother had had a nervous breakdown and was unable to care for and control the childrenwithout strain upon her and them; (c)that the parents have shown deep love and affection for the childrenwhich the children reciprocated; (d) that the children are dependent and neglected and awarded custody to SRS until further hearing; (e) that the two older children are to be evaluated by a competentmental health professional; (f)that the parents obtain counseling;and (g)that SRSmake recommendations of the means and ways by which the children could be returned to their parents and work with the parents to that end. 

### 7. OnApril 

### 7, 1976, the parents petitioned for the return of the children to their custody. On June 2, 1976, SRS petitioned for permanent custody and authority to assent to adoption of the children. A hearing was held July 11, 1976,on the petition declaring the children youths in need of care. At that hearing fivewitnesses testified for the SRS and six witnesses testified for the parents. Based on the testimony at the hearing, and the stipulated facts, the district court issued findingsof fact and conclusions of law onAugust 4, 1976. The district court concluded that the children were dependent and neglected childrenand granted the petition awarding permanent custody, including the right to consent to adoption to SRS. From this judgment the parents appeal. Two issues are raised on appeal: 1. Did the district court abuse its discretionwhen it granted SRS's petition for permanent custody and authority to consent to adoption? 2. Were the natural parents of the children denied their right to due process when their childrenwere removed without a petition for custody being filedwithin 48 hours of such

remova1? The attention of this Court is first focused on the district court order of December 13, 1974. Apparently, evidence existed to justify declaring the children dependentand neglected and to award custody to SRS. Custody of the childrenwas returned to the parents on the condition that they complywith the order of December 13, 1974. Just one year later,a Cascade County social worker againpetitioned the district court for custody of their children. Following extensive hearings, the district court, Cascade County, awarded permanent custody to SRS. The end result of the judicial proceedings finds two differentdistrict court judges declaring the children to be dependent and neglected. This Court ismindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonablepresumptions as to the correctness of the determination by the district courtwill be made. Foss v. Leifer, Mont

# . , 550 p.2d 1309, 33 St.Rep. 528 (1976). Due to thispresumption of correctness, the district court's findingswill not be disturbed unless there is amistake of law or a finding of fact not supported by credible evidence thatwould amount to a clear abuse of discretion. Solie

### v. Solie,

# - Mont.

# - , 561 P.2d 443, 34 St.Rep. 142 (1977).Theparents did not dispute the 1974 findings,nor the prerequisites required of them to regain custody of their children. The record shows that the parents were either unable,

or unwilling, to comply with the 1974 court order. While the parents were ordered to obtainmental counseling,the records reveal that the mother received no counseling and that the father attended only one counseling session atMalmstrom Air Force Base. Counsel for the parents argues that the parents were not financially able to obtain counseling. No evidence is found demonstrating the parents' efforts to obtain assistance or reduced counseling rates due to their financial status. The parents' unwillingness to obtain counselingwas again repeated following the court order of January 29, 1976. This order, for the second time, required the parents to obtain counseling. The record gives testimony of fourmental health professionals. Dr. Jones, a clinical psychologist, testified that the fatherwas resentful and defiant. While being tested,he voiced distaste for having to undertake the tests. Themother cancelled her appointment either because she could not orwould not come to see the doctor. At a later date, Dr. Jones had to fit the mother into his schedule. The fatherwas able to bring the mother in at that time on account of her being in the right frame of mind. Dr. Haire, a clinical psychologist, testified that the father was not tested because he was sobitter. The doctor could not testwithout absolutely insisting,and this he did not want to do. Themother was not seenby Dr. Haire since she refused to

come in. Mr. Hiber, a mental health professional, reported doing

a court ordered evaluation of both parents. While the parents expressed interest in continuing treatmentwith Mr. Hiber, they did not embark 

### on a counseling program following

### Mr. ~iber's report. Mr. Hiber was also unaware of any participation by theparents in any ongoing treatmentprogram. The fourth mental health professional, Dr. Shubat,did not interviewnor test the parents. The 1974 order required the parents to cooperatewith SRS in Cascade County. Testimony of a Cascade County social worker reveals that the 2arentsplaced their children in 

### a day

care center as required. The father frequently visited the SRS office to discuss the situation. Themother also came at times, but during discussion of whatwas expected of the parents, she walked out. The parents were given information and telephone numbers of the mental health clinic. No efforts to obtain counseling were knownby SRS. During a hearing in July, 1976, testimony

was given that the fatherhad become violent in the SRS office. The father did not physically injure anyone, but he did threaten to do so and slammed chairs against the wall. No purpose would be served by a further extended discussionof the evidence before this Court. In 1974 the district courtplaced a burden on the parents to comply with the court order to regain custody of their children. Theparents failed to show that they complied. OnAugust 4, 1976,the district court, after hearing oral testimony and consideringmedical reports, made as a finding of fact that the parents had enotional problems requiring professional assistance and though ordered to obtain assistance,they had failed to acquire suchhelp. The parents had the burden to show that the district court's finding in 1976 was not supported by credible evidence and amounted to a clear abuse of discretion. Thiswas not done. Two times the parents

were ordered to obtainmental counseling, but nowhere is there evidence that any counselingwas obtained nor any ongoing program taken. This Court will nothold the childrenhostage for thegood behavior of the parents. Theparents were ordered to obtain help but refused to seek this help, even after 21 months of proceedings before the courts. The parents were ordered twice to comply,but finally inAugust, 1976, the district court ruled that time had run out and itwould not be in the children's best interest to allow the parents to continue to raise them, The children's rights also merit considerationby this Court. The childrenwere adjudged dependent and neglected twice. This finding is the jurisdictional prerequisite for any court ordered transfer of custody. In the Matter of ~eclaring Heather Marie Fish a Dependentand Neglected Child, Mont

# . -1 - P.2d 

## , 34 St.Rep. 1080 (1977). Once there is a showing of dependency or abuse or neglectby the naturalparents as defined by section 10-1301,R.C.M. 1947, the "bestinterests of the child" test is the appropriate basis for determining custody. In re Guardianship of Doney, Mont

# . -1 

### - P.2d 

## , 34 St.Rep. (No. 13813, filed October 14, 1977); Henderson v. Henderson, Mont

# . -1 

### - P.2d 

## , 34 St.Rep. 942 (1977). The entire thrust of the child psychologist testimony

was that the children were mentally disabled. Disagreementexisted as to whether themental deficiencies were caused by organic, genetic problems or the environment the children were being raised in. Nevertheless, the record is clear that the children needed help. Dr. Shubat so states: 

### " 

### * * 

## * both children are children that are in need of special educqtion. They are also in need of special help now, today, emotionally and educationally." Section 10-1300(1), R.C.M. 1947, states that the declared policy of Montana is: "(1) to ensure that all youth are afforded an adequate physical and emotional environment to promote normal development," Abuse or neglect isdefined in section 10-1301(2), R.C.M. 1947,as:(2) 'Abuse'or 'neglect'means: "(a) The commission or omission of any act or actswhich materially affect the normal physical or emotional development of a youth, any excessivephysical injury, sexual assault or failure to thrive, taking into account the age and medical history of the youth, shall be presumptive of 'material affect' and nonaccidental; or "(b) The commission or omission of any act or acts by any person in the status of parent, guardian or custodianwho thereby and by reason of physical ormental incapacity or other cause, refuses,orwith state and private aid and assistance is unable to discharge the duties and responsibilities forproper and necessary subsistence,education,medical or any other care necessary for his physical, moral and emotionalwellbeing." Children have the right under the "best interest test" to receive normal physical and emotional development. By looking at the totality of the circumstances the courtmay determinewhat is the child's "best interest". In the case athand the parents are not capable of providing for the specialneeds of their children. The parents failed to demonstrate their desire or ability to seek help. Their children are shown to need special help for normal physical and emotional development. This Court has been called on before to decide what is the "best interest" for the childrenwhere the natural parents are involved. In In re Declaring Olson Dependent, 164 Mont. 431, 434, 524 P.2d 779 (1974)) this Court in quoting from In re Bad Yellow Hair, 162Mont. 107, 509 P.2d 9 (1973) stated: 

### "'

## * * 

## * The children's best interestand welfare,not that of the naturalmother, is the paramount consideration [citingcases]. We are mindful that ordinarily a child's interests and welfare will best be served by retaining custody in the natural parents. However, the circumstancesof the individual casemay require a different result.

## ' " See also: In the Matter of Burgdorf & Berry, Mont. 

# - ' 551 P.2d 656, 33 St.Rep. 605 (1976);Foss v. Leifer, Mont

# . IThere is ample evidence to warrant the removal of these children from their parents. The district court correctly followed the dictates of the Montana statute. As this Court stated before in Olson, 164 Mont. at 435: 

### " 

## * * * Itmay be that itwould be to the best interests of themother for her to retain these children,but certainly,based upon the evidence presented, itwould not be in the best interests of the children. This Court has repeatedly pointed out--the primary consideration is the best interestsof the children." Issuenumber two has no merit due to the particular facts of this case. The parents did not object to the late filing of the petition under section 10-1309, R.C.M. 1947,until several hearings and approximately sixmonths later. The parentswere no strangers to court proceedings and workings of SRS as a result of the prior child custody hearing. The district courtwas in the best position to weigh the evidence of the parents as to the prejudicial effect of filing the petition ten days late. Bauer v. Chaussee, Mont. 

## , 567 P.2d 448, 34 St.Rep. 778 (1977); Mont

# . Olson v. Westfork Properties, Inc., 

## , 557 P.2d 821, 33 St. Rep. 1133 (1976). While issue two is not a controlling issue, this Court strongly condemns the negligentdisregard of section 10-1309 by the SRS and county attorney. By statute, a petition shall be filed within 48 hours following the emergency removal and placing of a youth in a protective facility. SRS failed to comply in this

case. SRSwas acting under the guise of the lawwhen it removed the children. SRS therefore has a duty to strictly adhere to the requirementsof that same law. Removal of children from their parents is an area too sensitive to allow any abuse or noncompliance of the law. The extensivepublicity given this case has brought another serious matter to the attention of this Court. The namesof the parties in this action have been purposely deleted. This Court directs that in this and in future cases under section 10-1300 et. seq., all names of parties involved shall be removed to avoid publicity of the minor parties involved, in both the district and Supreme Courts

We concur: