### No. 14763 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

IN THE MATTER OF C.M.S., A DEPENDENT AND NEGLECTED CHILD.

Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Leonard J. Haxby, Butte, Montana For Respondent: 

### John G. 

### Winston, County Attorney, Butte, Montana Michael E. Wheat, Deputy County Attorney, Butte, Montana Henningsen, Purcell and Genzberger, Butte, Montana Corette, Smith, Dean, Pohlman and Allen, Butte, Montana John 

### R. Carr, Miles City, Montana

Submitted on briefs: September 20, 

### 1979 Decided: 

## Ndvi

# :1979 

# NOY * .

### -2 

### Filed:Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court.

This is 

### an appeal from a judgment finding C.M.S. a dependent and neglected child and giving permanent custody with the right toconsent toadoption to the Department of Social and Rehabilitation Services of the Stateof Montana. C.M.S., a minor child, was born inButte, Silver Bow County, Montana, on July 9, 1975. Her

### mother, atboth the time

### of conception and delivery, was confined to the State Hospital atWarm 

### Springs, Montana, having been acquitted of the charge of homicide by reason of a mental defect excluding responsibility. The name of the father is

### unknown, and this is

### reflected upon the child's birth certificate. Following the birthof the child, the mother was 

### returned to the StateHospital atWarm Springs where she has been and is still 

### confined. The child

### was placed under the protective guidance of the Butte-Silver Bow Office of the Department of Social and Rehabilitation Services. Immediately following her birth, on July 11, 

### 1975, the Department placed the child ina foster home, licensed by the State of Montana, to insure that the child should receive proper

care. The child has remained inthis same home for over 3- 

### 1/2 years atthe 

### timeof hearing, and atthispoint, over 4 

### years. The home provided for the child has four other children and is 

### the only family unit the child has ever had. During the 3-1/2 years prior to the hearing, the Department of Social and Rehabilitation Services (SRS) sought on three occasions toacquire permanent custody with the right toconsent toadoption. On each occasion, SRS's petition

was 

### objected toby the guardian of the biological mother upon the grounds that she was mentally incompetent, wasconfined attheWarm Springs State Hospital, a disability which prevented her from caring for the child. The Honorable A. B. Martin of MilesCity, Montana, made

an order following acquittal of the mother on homicide charges by reason of mental defect excluding responsibility, that

### James B. Hathaway be appointed asguardian of the person and the 

### estate of the mother, and counsel 

### was approved by that court for the guardianship. On November 23, 1976, SRS filed thispetition in the DistrictCourt of Silver Bow County for permanent custody of the child with the right to consent toher adoption. After notice was given to allconcerned parties, a 

### series of hearings were held todetermine whether SRS should be awarded the permanent custody with the right toconsent to adoption. Atthese hearings, Leonard J. Haxby appeared on behalf of themother. John R. Carr 

### was retained by the mother's guardian, 

### James Hathaway of MilesCity, torepresent the interests of the guardian inthe proceedings. 

### James E. Purcell 

### was appointed by the court as attorney for the minor child. Michael E. Wheat, assistant deputy county attorney, appeared for SRS, and Dolphy 0. Pohlman represented the foster parents. Ata hearing on December 

### 21, 1978, after allparties had been properly served and were present incourt and represented by counsel, a motion 

### was made by appellant's counsel that the court lacked proper jurisdiction over the matter. The hearing 

### was continued so that additional 

### time could be taken todetermine the restoration capacity of appellant, who 

### atthat 

### timewas making an effort tobe released from the State Hospital and restored to capacity. The court ordered that the hearing resume on February 15,

### 1979. On that date the hearing was resumed, and appellant again objected to the jurisdiction of the court. The court overruled the objection and proceeded toa finalhearing. From the evidence adduced atthe hearing, the court found thatC.M.S. was abused, dependent and neglected and granted the petition of SRS forpermanent custody of the child with the right of adoption inthe State. Two issues 

### are raised by appellant: (1)

### Whether the District

### Court lacked jurisdiction to hear the matter because appellant did not consent to the proceedings? 

### (2)Whether the findings of the court thatC.M.S. was abused, dependent and neglected 

### were supported by sufficient credible evidence? Regarding the firstissue, appellantmaintains that consent was a jurisdictional prerequisite to the proceedings inthe instantcase. Appellant argues that SRS's petition was, ineffect, a petition for adoption and under section 40-8-111, MCA, 

### consent is

### required for adoptions. Before the court could grant SRS custody of the childwith the right toconsent toher adoption, appellant contends that SRS had toobtain either her consent or that of her legal guardian. Without such consent, the court lacked the necessaryjurisdiction toproceed. In answering this argument, 

### we note firstthat appellant is 

### correct inasserting that, as a general rule, parental consent is

### required for adoptions. Section 40-8- 111, MCA. 

### In thiscase, however, the consent of appellant

orher legal guardian was 

### not necessary for the court to obtain jurisdiction. The petition filedby SRS was not for

an adoption butwas for a declaration of dependency and

### neglect. Chapter 3, Title

### 41

### of the Montana Code Annotated provides thatchildren may be declared dependent and neglected under certain circumstances and that a petitioner may ask forpermanent legal custody with the right toconsent to adoption as relief. Parental consent is 

### neither necessary to declare a child abused, dependent or neglected

nor tograntpermanent custody of the child topersons other than the natural parents. All

### that is

### required, rather, is 

### that the court find, upon the basis of sufficientcredible evidence, that the child is, 

### within the 

### terms of the statutory definitions, "abused, dependent, or neglected." Appellant's apparent confusion lies 

### with the number of statutory schemes available for the termination of parental rights and the fact that, to some extent, these statutory schemes may be said tooverlap. While consent is

### required under some schemes, it 

### is

### not required under others. Pre

### viously, 

### we have attempted toclarify the relationships between the statutory schemes where others have been confused. We 

### stated inMatter of Guardianship of Aschenbrenner (1979) Mont. 

## , 597 P.2d 1156, 1164, 36 

### St.Rep.

"The confusion of the DistrictCourt is

### understandable. We 

### areable to identify atleast five statutory schemes governing the termination of parental rights or the custody of children orboth. [Citations omitted.

### 1 "Nevertheless, while there is 

### some overlap in these various procedures as togeneral subject matter, each is

### used for a distinctpurpose and sets 

### forth specificprocedures which must be 

### followed before a 

### valid judgment or order may be issued." Here, SRS 

### proceeded under the provisions for declaring

a 

### child dependent orneglected. Parental consent is

### not required under this chapter for 

### atleast two reasons.First, requiring consent could conceivably defeat the policy and the purposes of protecting abused, dependent, and neglected children: "(1) It 

### is hereby declared tobe the policy of the stateof Montana to: "(a) insure that allyouth are afforded an adequatephysical and emotional environment to promote normal development;



### "(2) It 

### is the policy of this state toprovide for the protection of children whose health and welfare 

### are adversely affected and further threatened by the conduct of those responsible for their care and protection 

# . .." Section 41-3-101, MCA. Second, it 

### is, strictly speaking, illogical torequire parental consent independency and neglect proceedings. Such proceedings by their very nature arehostile to the parents and against their wishes. Even the adoption statutes of this stateexcept the general requirement of parental consent where children 

### are abused, dependent and neglected. Section 40-8-111, MCA, provides inpertinent part: "(1)An adoption of 

### a child may be decreed when there have been filedwritten consents toadoption executed by: 

### "(a) both parents, if living, or the surviving parent of a child, provided that consent shall not be required from a father ormother: -- -- 

### -
"(iii) who has been judicially deprived of the custody of the child on account of cruelty or neglect toward the child; 

### "(iv) who has 

# . .

# . willfully abandoned such child; 

### "(v) who has caused the child tobe maintained by 

# .. . the department of social and rehabilitation services of the stateof Montana for 

### a period of 1year without contributing to the support of said child during said period, if able; or

### "(vi) if 

### it 

### isproven to the satisfaction of the court that said father ormother, if able, has not contributed to the support of said child during a period of 1year before the filingof a petition for adoption." (Emphasis added.) Here, the rights of the natural parents todue process of law 

### were properly recognized. The specificprocedures in section 41-3-401, MCA, 

### were complied with. Proper notice

was given to appellant and her guardian. The father of the child

### was not known, 

### isnot now known, and has been never named on the child's birth certificate. Appellant, who was present atthe hearing of the 

### District Court, alsohad a chance torefute the allegations, but she chose not to take advantage of the opportunity. The only testimony presented

on her behalf 

### was by her home economics teacher atthe State Hospital regarding her ability in the classroom. We find that the consent of appellant

### or that of her legal guardian was not necessary for the court to obtain jurisdiction in the instant case. Turning to the second issue, appellant argues that the District Court abused 

### its discretion infinding that C.M.S.



### was abused, dependent and neglected because the findings



### were not supported by sufficient credible evidence. In addressing the duty of a DistrictCourt tomake findings inan abuse orneglect action, this Court has recognized that the DistrictCourt's findings 

### willenjoy a presumption of correctness and 

### willnot be overturned unless unsupported by credible evidence that would amount to a clear abuse of discretion. In the decision of In 

### re G., Youths inNeed of Care (1977), Mont. 

## , 570 P.2d 1110, 1112, 34 St.Rep. 1179, 1181-82, 

### we stated:

### "This Court 

### ismindful that the primary duty of deciding the proper custody of the child is 

### the task of the DistrictCourt. As 

### a result, all reasonable presumptions as to the correctness of the determination by the DistrictCourt will 

### be made. [Citationsomitted.

### I Due to this presumption of correctness, the DistrictCourt findings

### willnot be disturbed on appeal unless there 

### is a mistake of law or finding of fact not supported by credible evidence thatwould amount to a clear 

### abuse of discretion." At

### issuehere 

### iswhether there was sufficientcredible evidence to support the finding thatC.M.S. was "abused, dependent and neglected." Those 

### terms are defined under section 41-3-102, MCA: 

### "(2) 'Abuse' or 'neglect' means:



### "(b) the commission or omission of any actor actsby any person inthe status of parent, guardian, or custodian who thereby and by reason of physical ormental incapacity or other cause refuses, or, with state and private aid and assistance, is

### unable todischarge the duties and responsibilities for proper and necessary subsistence, education, medical, or any other care necessary for the youth's physical, moral and emotional well being. "(3) 'Dependent youth' means a youth who is 

### abandoned, dependent upon the public for support, destitute, without parents or guardian or under the care and supervision of a suitable adult, or who has no proper guidance toprovide for his necessary physical, moral, and emotional 

### wellbeing 

# . 

# . ."

We 

### find that the DistrictCourt did not abuse its 

### discretion infinding that C.M.S. was 

### "abused, dependent and neglected" and that there was sufficient credible evidence to support the findings of the court. With respect to the finding of "abuse orneglect," we 

### take judicial notice of the order filed inthiscase that appellantwas 

### confined to the StateHospital in 1973; that she has suffered from an organic brain dysfunction since birth; that she experiences delusions; and, that her condition is

### diagnosed as 

### paranoidschizophrenia with no hope of significant improvement inthe foreseeable future. The record alsodiscloses that appellant

### was present 

### at the hearings held by the District Court regarding SRS's petition, butmade no attempt topersonally testify as to her parental fitness. The only testimony presented on behalf of appellant regarding her parental fitness

### was that of 

### a home economics teacher from the State Hospital who testified that appellant had successfully completed 

### a home economics course, one aspect of which 

### was child development. We believe that, under the statute, appellant's confinement 

### is

a sufficientactof omission which, by reason of physical and mental incapacity, renders appellant unable todischarge the duties and responsibilities necessary for the child's well-being. With respect to the District Court's finding that C.M.S. 

### was a dependent youth, the record discloses that appellant 

### ispossessed of a $40,000 estate and that she has contributed inno substantial way to the support of C.M.S. Rather, the support which has been given has been provided by SRS and the foster parents. Finally, the record indicates that appellant, because of her mental condition, could not provide proper guidance for C.M.S.'s necessary physical, moral and emotional well-being. Appellant 

### isdemanding every facet of statutory scheme be severely and strictly scrutinized toprotect the rights of the natural parent. However, proceedings conducted under the "abuse statute" demand and provide a certain amount of elasticity tothe court. Every case isunique and must be dealtwith on 

### its own 

### merits. Absent 

### a clear abuse of discretion the decision of the District Court 

### is tobe upheld. There isno such abuse of discretion here.The DistrictCourt inall such hearings has an obligation tobalance the rights of the mother and the child. And while the appellant's rights 

### are of great import, 

### it isnot

an absolute right. In a recent

### matter from the Districtof Columbia, Matter of theAdoption of J.S.R. (D.C. 1977), 374 A.2d 860, 863, the court held: "The right of 

### a natural parent toraise one's child 

### is

### a fundamental and essential one which 

### is constitutionally protected. [Citations omitted.] However, 

### it isnot an absolute one. The statehas both the right and the duty to protect minor children through judicial determinations of their interest. To this end the statehas a substantial range of authority to protect the welfare of the child. [Citations omitted.

### 1

### " See alsoMatter of Guardianship of Doney (1977), Mon

### t

# .

, 570 P.2d 575, 577, 34 St.Rep. 1107, 1110; Matter of Guardianship of Aschenbrenner (1979), Mon

### t

# . , 597 P.2d 1156, 1160, 36 St.Rep. 1282, 1284; Boyer v. Boyer (Ohio

This Court recently faced a similar contention. In the Matter of Inquiry intoJ.J.S., Youth inNeed of Care (1978), Mont. 

## , 577 P.2d 378, 381, 35 St.Rep. 394, 397, the Court held: "We find no abuse of discretion by the District Court inawarding permanent custody to SRS. In determining the custody issue, the best interests of the child 

### is the paramount concern. In the Matter of Henderson (1975), 168Mont. 329, 342 P.2d 1204, thisCourt said: "'What is, orwhat 

### isnot inthe best interest of the child depends upon the facts and circumstances of each case. The responsibility of deciding custody is a delicate one which is lodged with the districtcourt. The judge hearing oral testimony in such a controversy has a superior advantage indetermining the 

### same, and his decision ought not tobe disturbed except upon a clear showing of abuse of discretion.' [Citations omitted

### .I" While 

### it 

### is the function of this Court whenever possible toprotect the unity of the family under section 41-3-101, MCA, this 

### is not a factor in this cause. Here the child has never had 

### a viable parent-child relationshipwith themother. In fact, the child has never seen or been associated with her natural mother. She knows but one family--her foster home. It is the only family relationship the child has. Indeed, her foster parents have willingly undertaken the obligations of raising this child, and what appellant neglects torealize 

### is that the obligations that

are attendantwith parenthood have never in any way been assumed by appellant, the natural mother. This Court ina recent decision, In 

### re G., supra, 570 P.2d 

### at 1114, 34 St.Rep. 

### at 1179, 

### set forth the criteria which 

### willbe considered independent and neglect cases. There we noted: "Children have 

### a right under the 'best interest 

### test' toreceive normal physical and emotional development. By looking atthe totalityof the circumstances, the courtmay determine what 

### is the child's 'best interest.'" Viewing all the testimony presented, one relevant fact emerges: The child 

### is an essential part of a family. She has developed an emotional and physical trust for her foster parents. The relationship that she has with her "brothers and sisters" can only be developed in

### a loving environment. This child isundergoing a normal and physical development within a proper family home situation, and 

### it 

### is inher best interest that she remains in same. The court recognized that there

### were competing rights between the child and the mother here. The court appointed counsel torepresent the child's interests. After reviewing allof the facts and evidence, there can be but one conclusion--the best interests of C.M.S. can only be served by affirming the judgment of the DistrictCourt.

### The judgment of the District Court is in accord with its findings of fact and conclusions of law and is affirmed.

We concur: