No. 88-614 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MATTER OF 

R.T.L.P., Youth in Need of Care. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G Barz, Presiding Judge. 

COUNSEL OF RECORD: 

For Appellant: 

Sally M. Johnson, Billings, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Harold Hanser, County Attorney; Greg Mullowney, Deputy, 

Billings, Montana 

Damon Gannett; Olsen, Christensen & Gannett, Billings, 

Montana 

Carnil-le Ventrell; Davidson & Poppler, Billings, Montana 

Submitted on Briefs: May 25, 1989 I _ 

P-- Decided: August 11, 1989 ) 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a ruling of the District Court of 

the Thirteenth Judicial District, Yellowstone County, granting long-term custody of R.T.L.P. to his natural grandmother 

and her husband. Mother appeals. We affirm. 

The issues presented for our review are: 

1. Did the District Court err in determining that 

R.T.L.P. was a "youth in need of care?" 

2. Is the granting of long-term custody until age 18 

the equivalent of a termination of parental 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. 's mother 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 the maternal grandmother and her husband. 

Upon their arrival, the grandmother immediately noticed 

that the 2 month old baby appeared very sick and that the 

infant had a burn on her body. Grandmother made an appointment with a doctor and both the grandmother and the mother 

took the baby to the doctor on August 17, 1984. The baby was 

diagnosed as a "failure to 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. On August 20 the 

infant was flown to Salt Lake City, Utah for further medical 

care, but the infant died on August 31, 1984. While the 

cause of death was listed as septicemia with meningitis, 

reports from both the Missoula doctors and the Salt Lake City 

doctors revealed that the infant was in a very weakened 

physical condition. 

The grandmother testified that for the few days in which 

she observed the mother care for the child, the mother was 

feeding the infant diluted 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 his mother resided with the maternal grandparents from August 1984 until 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 this 
and R.T.L.P. left with his mother and her friend. When the 

child was not returned, the grandparents contacted the police. The State of Montana obtained temporary investigative 

authority, and it was determined that mother and her boyfriend had taken R.T.L.P. to California, where they were 

residing with the boyfriend's parents. On November 7, 1986, 

pursuant to an order granting the State of Montana temporary 

custody of R.T.L.P., the child was returned to Montana. 

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 a motion 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 the District Court err in determining R.T.L.P. to be 

a youth in need of care? 

In reviewing a custody order by the Dist-rict Court we 

have previously stated: 

[Tlhis 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. 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. (Ci-tation ommitted. ) 
Matter of C.G. (Mont. 1988), 747 P.2d 1369, 1371, 45 St.Rep. 

63, 66. 

Before the State may become involved in the custody of a 

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 other person responsible for his welfare." In the present 

case the District Court determined that R.T.L.P. was a youth 

in need of care, in that he had been "physically abused, 

emotionally abused and emotionally neglected." Our review of 

the record reveals ample evidence to support this finding. 

The mother voluntarily left R.T.L.P. in the care of her 

mother and stepfather for two years. 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. to California because they wanted to get married 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 youth had nightmares 

and was fearful of being taken from his grandparents again. 

When R.T.L.P. was returned to Montana, the mother and 

her boyfriend also returned and were married. 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 abdominal pain. 

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 stress disorder 

and dependent personality disorder. 

The social worker saw mother and R.T.L.P. for a year and 

a half, from October 1986 to April 1988. His testimony 

emphasized that the child has shown a lack of ability to bond 

with his mother, but that there is a strong bond with the 

grandmother. He stated that irreparable damage had been done 

in regard to R.T.L.P.'s ability to bond with his mother. He 

testified that the youth was emotionally healthy at the time 

of the hearing, but that this was a result of being in the 

grandparents' care. He expressed serious concern about 

R.T.L.P.'s physical and emotional welfare should he be placed 

in the custody of mother 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 infant daughter who died. In 1984 she first 

reported that at a women's shelter in Wisconsin another 

mother had put Crisco on the baby and left her laying in the 

sun. At the custody hearing mother testified that her former 

husband and his friends had broken into the women's shelter, 

tied her to a chair, and gang raped her. She stated they had 

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 child was 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 in urging that an initial finding of 

abuse, neglect or dependency is the "jurisdictional prerequisite 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 therefore a youth in need of care. 

For four years mother's actions were marked by indifference to and neglect of her parental responsibilities. She 

did not assume the physical care of her son, and was insensitive to her son's emotional needs. Additionally, the District Court gave serious consideration to the circumstances 
surrounding 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 substantial potential for 

harm to R.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 are not persuasive. 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 District Court. 

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 grandparents have 

the right to make decisions regarding the youth's medical, 

educational, and legal needs. Further, the order states that 

the mother's visitation rights shall be 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 in pertinent part: 
If a youth is found to be abused, neglected or 

dependent under 41-3-404, the court after the 

dispositional hearing may 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 

receive and care for the youth; 

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 to divest the child and the parents 

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 "when 
parental rights are terminated, the natural parent no longer 

has - any rights over the child. This includes visitation 

rights. " 

This Court has previously acknowledged the difference in 

an order granting long-term custody until 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 of Matter of A.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 of A.H. we concluded that the district court had 

terminated parental rights to one child because the statutory 

factors of § 41-3-609, MCA, were met. 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 is not the equivalent of a termination of parental rights, and that different statutory 

criteria apply to each disposition. 

An award of long-term custody does 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 it would 

be appropriate to restore custody to her. 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 terminated we hold that 

a grant of long-term custody is not the equivalent of a 

termination of parental rights. 

I11 

Is mother 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 not present. 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 is premised on an 

incorrect assumption. 

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), 217 Mont. 99, 103, 703 P.2d 846, 

848, citing Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 

102 S.Ct. 1388, 71 L.Ed.2d 599. In Matter of R.B. we stated 

that a termination of parental rights must be protected by 

"fundamentally fair procedures, " and that the court must 

address each statutory requirement of 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 of 
counsel 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: