No. 13615 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JERRY WAYNE GORE, RHONDA GAIL GORE, 

and FVILLIAM ROY GORE, 11, 

Youths in Need 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: OCT 26 19TI 

./. 

Clerk 
Mr. 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. Permanent custody of 

the children with the right to consent to adoption was awarded 

to the Department of Social & Rehabilitation Services (SRS) of 

the State of Montana. 

The stipulation of facts presented to the district court 

on July 8, 1976,provides a summary of the case: 

1. In July, 1974, while the father was stationed at 

Glasgow Air Force Base, Glasgow, Montana, a social worker was 

contacted in regard to the hospitalized mother. 

2. On September 2, 1974, the mother gave birth to their 

third child. In late September and early October, the baby was 

treated by physicians in Glasgow and Great Falls for pyloric 

stenosis and hydrocephalism. 

3. On October 18, 1974, the district court of the seventeenth judicial district, 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 

for permanent transfer of custody. 

4. On October 28, 1974, SRS petitioned the district 

court for a declaration of dependency and neglect of the two older 

children and the award of permanent custody to SRS. The hearing 

on the petition was held on December 13, 1974. On the same day the 

judge issued an order stating: (a) that the father was to be 

transferred on January 6, 1975, to Malmstron Air Force Base, Great 

Falls, Montana; (b) that the children were dependent and neglected 

and awarded custody to SRS until the father was transferred to 

Malmstrom; (c) that the parents obtain day care services for the 

children for at least six months; (d) that the parents obtain 
counseling from the Mental Health Center or military facilities 

in Great Falls; and (e) that the parents cooperate with SRS 

in Cascade County in regard to the children's care, health and 

welfare. 

5. On December 11, 1975, a Cascade County social 

worker petitioned 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 children without strain 

upon her and them; (c) that the parents have shown deep love and 

affection for the children which 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 competent mental health professional; (f) that 

the parents obtain counseling; and (g) that SRS make 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. On April 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 

five witnesses 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 findings of 

fact and conclusions of law on August 4, 1976. The district court 

concluded that the children were dependent and neglected children 
and 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 discretion when 

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 children were removed without a petition for custody being filed within 48 hours of such 

r emova 1 ? 

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 dependent and neglected 

and to award custody to SRS. Custody of the children was returned to the parents on the condition that they comply with the order 

of December 13, 1974. Just one year later, a Cascade County 

social worker again petitioned 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 different district court 

judges declaring the children to be dependent and neglected. This 

Court is mindful that the primary duty of deciding the proper 

custody of children is the task of the district court. As a result, 

all reasonable presumptions as to the correctness of the determination by the district court will be made. Foss v. Leifer, 

Mont . , 550 p.2d 1309, 33 St.Rep. 528 (1976). Due to this presumption of correctness, the district court's findings will not 

be disturbed unless there is a mistake of law or a finding of 

fact not supported by credible evidence that would amount to a 

clear abuse of discretion. Solie v. Solie, - Mont. - , 561 

P.2d 443, 34 St.Rep. 142 (1977). 
The parents 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 obtain mental counseling, the records 

reveal that the mother received no counseling and that the father 

attended only one counseling session at Malmstrom 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 counseling was 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 four mental health professionals. Dr. Jones, a 

clinical psychologist, testified that the father was resentful 

and defiant. While being tested, he voiced distaste for having 

to undertake the tests. The mother cancelled her appointment 

either because she could not or would not come to see the doctor. 

At a later date, Dr. Jones had to fit the mother into his schedule. 

The father was 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 so bitter. The doctor could 

not test without absolutely insisting, and this he did not want 

to do. The mother was not seen by 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 treatment with Mr. Hiber, they 

did not embark on a counseling program following Mr. ~iber's 

report. Mr. Hiber was also unaware of any participation by the 
parents in any ongoing treatment program. The fourth mental 

health professional, Dr. Shubat, did not interview nor test 

the parents. 

The 1974 order required the parents to cooperate with 

SRS in Cascade County. Testimony of a Cascade County social 

worker reveals that the 2arents placed their children in a day 

care center as required. The father frequently visited the SRS 

office to discuss the situation. The mother also came at times, 

but during discussion of what was 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 known by SRS. During a hearing in July, 1976, testimony 

was given that the father had 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 discussion of the evidence before this Court. In 1974 the district 

court placed a burden on the parents to comply with the court 

order to regain custody of their children. The parents failed 

to show that they complied. On August 4, 1976, the district court, 

after hearing oral testimony and considering medical 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 such help. 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. This was not done. Two times the parents 

were ordered to obtain mental counseling, but nowhere is there 

evidence that any counseling was obtained nor any ongoing program 

taken. 

This Court will not hold the children hostage for the 
good behavior of the parents. The parents 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 in August, 1976, the district court ruled 

that time had run out and it would not be in the children's best 

interest to allow the parents to continue to raise them, 

The children's rights also merit consideration by this 

Court. The children were 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 Dependent and Neglected Child, Mont . -1 - 

P.2d , 34 St.Rep. 1080 (1977). Once there is a showing of 

dependency or abuse or neglect by the natural parents as defined 

by section 10-1301, R.C.M. 1947, the "best interests 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. Disagreement existed as to whether the mental 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 is defined in section 10-1301(2), R.C.M. 1947, as: 
(2) 'Abuse' or 'neglect' means: 

"(a) The commission or omission of any act or 

acts which materially affect the normal physical 

or emotional development of a youth, any excessive physical 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 custodian who thereby and by reason 

of physical or mental incapacity or other cause, 

refuses, or with state and private aid and assistance is unable to discharge the duties and responsibilities for proper and necessary subsistence, education, medical or any other care necessary for his physical, moral and emotional wellbeing. " 

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 court may determine what is 

the child's "best interest". 

In the case at hand the parents are not capable of providing for the special needs 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 children where 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, 162 Mont. 107, 509 P.2d 9 (1973) stated: 

"' * * * The children's best interest and welfare, not that of the natural mother, is the 

paramount consideration [citing cases]. We are 

mindful that ordinarily a child's interests and 

welfare will best be served by retaining custody 

in the natural parents. However, the circumstances of the individual case may 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 . I 
There 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: 

" * * * It may be that it would be to the best 

interests of the mother for her to retain these 

children, but certainly, based upon the evidence 

presented, it would not be in the best interests 

of the children. This Court has repeatedly 

pointed out--the primary consideration is the 

best interests of the children." 

Issue number 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 six months later. The parents were 

no strangers to court proceedings and workings of SRS as a result 

of the prior child custody hearing. The district court was 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); 

Olson v. Westfork Properties, Inc., Mont . , 557 P.2d 821, 

33 St. Rep. 1133 (1976). 

While issue two is not a controlling issue, this Court 

strongly condemns the negligent disregard 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. SRS was acting under the guise of the law when it removed 

the children. SRS therefore has a duty to strictly adhere to the 

requirements of that same law. Removal of children from their 

parents is an area too sensitive to allow any abuse or noncompliance 

of the law. 

The extensive publicity given this case has brought 

another serious matter to the attention of this Court. The names 
of 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: