No. 88-614

INTHE SUPREMECOURT OF THE STATEOF MONTANA
1989

INRE THEMATTER OF R.T.L.P., Youth inNeed of Care.

APPEAL FROM: District Court of the Thirteenth Judicial District, Inand for the County of Yellowstone, The Honorable Diane G Barz,PresidingJudge.

COUNSELOF RECORD:

ForAppellant: SallyM. Johnson, Billings,Montana

For Respondent:
Hon. Marc Racicot,Attorney General, Helena,Montana DorothyMcCarter,Asst. Atty. General,Helena Harold Hanser, County Attorney; GregMullowney, Deputy, Billings, Montana DamonGannett; Olsen, Christensen & Gannett, Billings, Montana Carnil-leVentrell; Davidson & Poppler, Billings,Montana

Submitted on Briefs: May 25, 1989

I_ P-- Decided: August 11,1989

)

### Mr. JusticeFred J. 

### Weber delivered the Opinion of the Court.

This is an appeal froma ruling of the DistrictCourt ofthe Thirteenth Judicial District, Yellowstone County, granting long-term custody of R.T.L.P. to his natural grandmother and herhusband. Mother appeals. We affirm. The issues presented forour revieware: 1. 

### Did the District Court err in determining that R.T.L.P. was a "youth inneed of care?" 2. 

### Is the granting of long-term custody until age 18 the equivalentof a termination ofparental rights,requiring that the statutory factors of termination be established? 3. 

### Was the mother constitutionally entitled to effective assistance of counsel? R.T.L.P. was born in Montana on February 5, 1983. The family moved to Wisconsin where they resided until 1984. In 1984 R.T.L.P. 'smother and father separated and the state of Wisconsin began an investigation into the family situation. In violation of a Wisconsin court order, mother moved to Missoula, Montana on August 15, 1984,with R.T.L.P. and his baby sister. At that time R.T.L.P. was seventeen months old and the sister was two months old. Mother claims she left Wisconsin because she was afraid of physical harm from her husband. Upon arrival in Montana, mother and her children moved in with thematernal grandmother and herhusband. Upon their arrival, the grandmother immediately noticed that the 2 

### month old baby appeared very sick and that the infant had a burn onher body. Grandmothermade an appointment with a doctor and both the grandmother and the mother took thebaby to thedoctor onAugust 17, 1984. Thebabywas diagnosed as a "failureto thrive"baby and a letter from the doctor began by stating: "To Whom it May Concern: This child suffered from severe malnutrition." Efforts to feed

### the infant resulted in a perforated bowel. OnAugust 20 

### the infantwas flown to Salt Lake City,Utah for furthermedical
care, but the infant died on August 31, 1984. While the

cause of death was listed as septicemia with meningitis, reports fromboth theMissoula doctors and the Salt Lake City doctors revealed that the infant was in a very weakened physical condition. Thegrandmothertestified that for the fewdays inwhich she observed the mother care for the child, the mother was feeding the infantdiluted formula,and also that she allowed the infant to cry all night rather than feeding her. She testified that the mother never held or cuddled the baby. After the funeral of the baby sister, R.T.L.P. spent five weeks with an aunt who lived in Idaho. Mother made no contact with R.T.L.P. during this time. The state of Wisconsin continued its involvement with the family, culminating in an award of temporary custody of R.T.L.P. to the grandmother. Mother agreed to this custody arrangement. R.T.L.P. and hismother resided with the maternalgrandparents fromAugust 1984until October 1986. During this time the grandparents took care of R.T.L.P. Mother would occasionally leave the home for periods of up to 4 to 6 

### weeks at a time, and during these absences she maintained little or no contact with her son. When the grandparents moved to Billings mother and R.T.L.P. moved with them. In May 1986,mother moved out of the grandparents'home and moved in with a man whom she later married. R.T.L.P. remained with his grandparents who assumed his total care. After this,mother visited her son only every 10 

### days to two weeks. In October of 1986,mother and her boyfriend asked the grandparents if they could pick up R.T.L.P. and take him out to get pizza that evening. The grandparents agreed to thisand R.T.L.P. left with his mother and her friend. When the child was not returned, the grandparents contacted the police. The State ofMontana obtained temporary investigative authority, and it was determined that mother and her boyfriend had taken R.T.L.P. to California, where they were residingwith the boyfriend's parents. On November 7, 1986, pursuant to an order granting the State ofMontana temporary custody ofR.T.L.P., the childwas returned toMontana. A guardian ad litem was appointed for R.T.L.P., and on December 

### 4, 1986, a hearing was held in Montana to determine the custody of R.T.L.P. At the close of the hearing, the court ordered that R.T.L.P. be placed in the temporary custody of Social Rehabilitation Services (SRS) for six months. R.T.L.P. resided with foster parents in their home. Temporary custody was extended twice and in April of 1988 the grandparents made amotion to obtain custody of R.L.T.P. As

a result of the hearing on this motion, held May 31 and June 

### 1, 1988, the court granted long-term custody of R.T.L.P. until age 18 to the natural grandmother and her husband. Mother appeals. We affirm.

Did theDistrictCourt err in determining R.T.L.P. to be

ayouth inneed of care? In reviewing a custody order by the Dist-rictCourt we have previously stated:

[Tlhis Court is mindful that the primary duty of deciding theproper custody of children is the task of the district court. As a result,all reasonable presumptions as to the correctness of the determinationby the district courtwill bemade. Due to this presumption of correctness, the district court's findingswill notbe disturbedunless there is a mistake of law or a finding of fact not supported by credible evidence thatwould amount to a clear abuse of discretion. (Ci-tationommitted.)

### Matter of C.G. (Mont. 1988), 747 P.2d 1369, 1371, 45 St.Rep. 63,66. 

### Before the Statemay become involved in the custody ofa youth, the youth must be adjudicated a "youth in need of care",which,pursuant to 

### 5 41-3-102(11), means a youth who is "dependent,abused or neglected." An abused or neglected child is further defined in 

### 5 41-3-102(2) as "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." In thepresent case the District Court determined that R.T.L.P. was a youth in need of care, in that he had been "physically abused, emotionallyabused and emotionallyneglected." Our review of the record reveals ample evidence to support this finding. Themother voluntarily leftR.T.L.P. in the care ofher mother and stepfather for twoyears. During this time, the grandmother assumed responsibility for the child's physical and emotional needs. The evidence showed that mother often left home for days and weeks, without maintaining contact with him. R.T.L.P. called the grandmother "Mamma," and he 

### called his mother by her given name. In fact, grandmother testified that at times the mother directed her son not to call her "Mamma," telling him that the grandmother was his "Mamma.I' 

### The mother and her boyfriend testified that they took R.T.L.P. toCalifornia because theywanted togetmarried and "be a family." However, the testimony elicited from them on cross-examination showed that they never considered the impact of that decision on R.T.L.P. Reports from social workers showed that after this event the youthhad nightmares and was fearful of being taken from his grandparents again. When R.T.L.P. was returned to Montana, the mother and herboyfriend also returned andweremarried. Neither became

### employed. Mother then began a Service Treatment Program through SRS designed to help her with parenting abilities. Although she was somewhat cooperative in this plan, she missed many appointments. During this time she and her new husband had visits with R.T.L.P. two times per week. After several of these visits. R.T.L.P. was returned to the grandparents with indications of physical abuse, including a 

### swollen mouth, swollen lip, black eye, chipped tooth, and back and abdominalpain. The court heard testimony from a licensed clinical psychologist. The psychologist determined that mother was capable of parenting. However, he also noted that he only

saw her twelve times during a period of two and one half months, and based his evaluation solely on mother's statements to him. He acknowledged that he might change his evaluation if her statements were incorrect. He diagnosed two disorders in the mother: post-traumatic stressdisorder and dependentpersonality disorder. The socialworker saw mother and R.T.L.P. for ayear and

a half, from October 1986 

### to April 1988. 

### His testimony emphasized that the childhas showna lack of ability tobond with his mother, but that there is a strong bond with the grandmother. He stated that irreparabledamagehad been done in regard to R.T.L.P.'s ability to bond with his mother. He testified that the youthwas emotionally healthy at the time of the hearing, but that thiswas a result of being in the grandparents' care. He expressed serious concern about R.T.L.P.'s physical and emotional welfare shouldhebe placed in the custody ofmother and her new husband. His recornmendation was that R.T.L.P. remain in the grandparents' care. The District Court found that mother was unstable and totally lacked credibility. The record supports this finding. Mother gave two different stories as to the origin of

### the burn on the infantdaughter who died. In 1984 she first reported that at a women's shelter in Wisconsin another mother had put Crisco on the baby and lefther laying in the

sun. At the custody hearing mother testified that her former husband and his friendshad broken into thewomen's shelter, tied her toa chair,and gang rapedher. She stated theyhad put Crisco on the infant and put her under a heat lamp, resulting in the infant's burn. Mother's sister testified that for many years mother had accused various people, including family members, of sexual abuse. She stated that none of these allegations had ever been proven to be true. She also testified to personal knowledge of mother's past drug abuse, including the use of cocaine and heroine during her pregnancies. She testified that she had seen mother chase R.T.L.P. 

### with a vacuum hose,

even though the childwas terrified of loud noises. Mother contends that the District Court merely considered the child's best interests in awarding custody, and did not first establish that R.T.L.P. 

### was a youth in need of

care. Mother is correct inurging that an initial findingof abuse,neglectordependency is the "jurisdictionalprerequisite for any court ordered transfer of custody," and only after this showing has been made is the best interests test relevant. Matter of M.G.M. (1982), 201 Mont. 400, 407, 654 P.2d 994, 998. However, our review of the record reveals ample evidence to support the District Court's finding that R.T.L.P. 

### was physically abused, emotionally abused, neglected,and thereforeayouth in need of care. For fouryears mother's actionsweremarked by indifference to and neglect of her parental responsibilities. She did not assume thephysical care ofher son,andwas insensitive to her son's emotional needs. Additionally, the District Court gave serious consideration to the circumstancessurrounding the death of R.T.L.P.'s infant sister, which strongly suggested mother's neglect of that child also. These facts are certainly relevant to mother's ability to parent. The record demonstrates that mother has not been an adequate parent and that there is substantialpotential for harm toR.T.L.P. should he be placed in mother's care. While mother states that she would provide a good home at this point, her past actions and her present instability and lack of credibility arenotpersuasive. R.T.L.P. does not need to wait longer for mother to improve her parenting skills. Matter of C.A.R. (1984), 214 Mont. 174, 188, 693 P.2d 1214, 1222. We conclude that R.T.L.P. is a youth in need of care whose best interests are served by remaining in the custody of the grandparents. We therefore affirm the DistrictCourt. 11 Is the granting of long-term custody until age 18 the equivalent of a termination of parental rights, requiring that the statutory factors of parental termination be met? The court's order awarded custody of R.T.L.P. to his grandparents until he reaches age 18. The grandparentshave the right to make decisions regarding the youth's medical, educational,and legalneeds. Further,the order states that themother's visitation rights shallbe restricted and supervised. Mother is allowed visitation only twice a month for one hour at the Montana Department of Family Services. Mother contends that this equates with parental termination and that therefore the factors of fj 41-3-609, MCA, must be fulfilled. The court granted long-term custody pursuant to 

### B 41-3-406,MCA,which states inpertinentpart:If a youth is found to be abused, neglected or dependent under 41-3-404, the court after the dispositionalhearingmay enter its judgment making any of the following dispositions to protect the welfare of the youth:

(3) transfer legal custody to any of the following: (c) a relative or other individual who, after study by a social service agency designated by the court, is found by the court to be qualified to receiveand care for theyouth; Under this statute it is only necessary that the child be a "youth in need of care," defined in 41-3-102(11), MCA,

as a youth who is "abused, neglected,or dependent.

### " Termination of the parent child relationship requires much more stringent criteria. The relevant statute, $ 41-3-609, MCA, lists three requirements which must be established before parental rights may be terminated. Those requirements are 1) that the child is an adjudicated youth in need of care, 2) a court approved treatment plan has not been complied with or been successful, and 3) the conduct or condition causing the problem cannot be rectified within a reasonable time. Subsection (2) of that statute enumerates several factors for guidance in the determination of the third requirement. The effect of a decree terminating the parent-child relationship is explained in 41-3-611, MCA, which states that the decree operates todivest the child and theparents of "all legal rights, powers, immunities,duties, and obligations with respect to each other. 

# . 

# ." Only the child's right to inherit is excepted from this. The effect of termination of parental rights was explained in Matter of V.B. (Mont. 1987), 744 P.2d 1248, 1250, 44 St.Rep. 1838, 1841. In that case we stated that "whenparental rights are terminated, the natural parent no longer has 

### - any rights over the child. This includes visitation rights.

### " This Court haspreviously acknowledged thedifference in

an order granting long-term custodyuntil age 18 and an order terminating parental rights. We recognized the distinct nature of each disposition and the differences in statutory requirements in the case ofMatter ofA.H., (Mont. 1989), 769 P.2d 1245, 46 St.Rep. 395. That case affirmed the termination of parental rights as to one child and the granting of long-term custody until age 18 as to the other two children. In Matter ofA.H. we concluded that the district court had terminated parental rights to one child because the statutory factors of § 41-3-609,MCA, weremet. We also concluded that the other two children were appropriately put in long-term custody until age 18 because they were determined to be "youths in need of care,"pursuant to § 41-3-404,MCA. Thus this Court implicitly recognized that the granting of longterm custody until age 18 isnot the equivalent of a termination of parental rights, and that different statutory criteria apply to each disposition. An award of long-term custodydoes not totally terminate the rights of the natural parent. In the present case, although mother's visitation rights are restricted, she may still visit her child, and may possibly petition for less restricted visitation in the future. Additionally, mother may at some point in the future petition the District Court to regain custody of R.T.L.P. While the record demonstrates

a grievous incapacity to parent, it is conceivable that mother could develop as a parent to the point where itwould be appropriate to restore custody toher. Possibly there are other factors which could alter the effect of the long-term custody decree. Mother's rights as the parent of R.L.T.P.have not been terminated by the award of long term custody until age 18. The award of custody until the child's age of majority gives stability to the child's future and prevents repeated litigation over custody. The proper inquiry is whether parental rights have actually been terminated. Because parental rights have not been terminatedwehold that

a grant of long-term custody is not the equivalent of a termination of parental rights. I11 Ismother entitled to effective assistance of counsel at

a hearing which granted long-term custody of her son to his grandparents? Mother alleges that her legal representation at the custody hearing was less than effective, citing certain evidence which her attorney did notpresent. Mother contends that she was entitled to effective assistance of counsel at the hearing which determined the custody of her child, R.T.L.P. This contention fails because it ispremised on an incorrectassumption. Mother urges that the parent-child relationship is a fundamental liberty interest entitled to constitutional protection. The cases cited in support of this argument however, involved a termination of parental rights. See, e.g., Matter of R.B. (1985),217Mont. 99,103, 703 P.2d 846, 848, citing Santoskyv. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599. InMatter ofR.B. we stated that a termination of parental rights must be protected by "fundamentally fair procedures," and that the court must addresseach statutory requirementof termination. Matter of R.B., 703 P.2d at 848. In the present case, the procedure followed by the court was fundamentally fair as far as this party is concerned. We find no authority for mother's contention that a parent is entitled to effective assistance ofcounsel in a termination proceeding. Furthermore, as we concluded in Issue I, the present case is not a termination because it does not involve the severing of a parent-child relationship. Therefore, we need not address mother's contentions regarding effective assistance of counsel. Affirmed.

We Concur: