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 to consent to adoption to the Department of 

Social and Rehabilitation Services of the State of Montana. 

C.M.S., a minor child, was born in Butte, Silver Bow 

County, Montana, on July 9, 1975. Her mother, at both the 

time of conception and delivery, was confined to the State 

Hospital at Warm 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 birth of the child, the mother was returned to the State Hospital at Warm 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 in a foster home, licensed by the State of 

Montana, to insure that the child should receive proper 

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

1/2 years at the time of hearing, and at this point, 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 to acquire permanent custody with the right 

to consent to adoption. On each occasion, SRS's petition 

was objected to by the guardian of the biological mother 

upon the grounds that she was mentally incompetent, was 
confined at the Warm Springs State Hospital, a disability 

which prevented her from caring for the child. 

The Honorable A. B. Martin of Miles City, 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 as guardian 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 this petition in the 

District Court of Silver Bow County for permanent custody of 

the child with the right to consent to her adoption. After 

notice was given to all concerned parties, a series of 

hearings were held to determine whether SRS should be awarded 

the permanent custody with the right to consent to adoption. 

At these hearings, Leonard J. Haxby appeared on behalf of 

the mother. John R. Carr was retained by the mother's 

guardian, James Hathaway of Miles City, to represent the 

interests of the guardian in the 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. 

At a hearing on December 21, 1978, after all parties 

had been properly served and were present in court 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 to determine the restoration capacity of 

appellant, who at that time was making an effort to be 

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 to a final hearing. 

From the evidence adduced at the hearing, the court found 

that C.M.S. was abused, dependent and neglected and granted 

the petition of SRS for permanent custody of the child with 

the right of adoption in the 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 that C.M.S. was 

abused, dependent and neglected were supported by sufficient 

credible evidence? 

Regarding the first issue, appellant maintains that 

consent was a jurisdictional prerequisite to the proceedings 

in the instant case. Appellant argues that SRS's petition 

was, in effect, 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 child with the 

right to consent to her adoption, appellant contends that 

SRS had to obtain either her consent or that of her legal 

guardian. Without such consent, the court lacked the necessary jurisdiction to proceed. 

In answering this argument, we note first that appellant is correct in asserting that, as a general rule, 

parental consent is required for adoptions. Section 40-8- 

111, MCA. In this case, however, the consent of appellant 

or her legal guardian was not necessary for the court to 

obtain jurisdiction. The petition filed by SRS was not for 

an adoption but was for a declaration of dependency and 
neglect. Chapter 3, Title 41 of the Montana Code Annotated 

provides that children may be declared dependent and neglected under certain circumstances and that a petitioner 

may ask for permanent legal custody with the right to consent to adoption as relief. Parental consent is neither 

necessary to declare a child abused, dependent or neglected 

nor to grant permanent custody of the child to persons other 

than the natural parents. All that is required, rather, is 

that the court find, upon the basis of sufficient credible 

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 to overlap. While consent is required 

under some schemes, it is not required under others. Previously, we have attempted to clarify the relationships 

between the statutory schemes where others have been confused. We stated in Matter of Guardianship of Aschenbrenner 

(1979) Mont. , 597 P.2d 1156, 1164, 36 St.Rep. 

"The confusion of the District Court is understandable. We are able to identify at least 

five statutory schemes governing the termination of parental rights or the custody of 

children or both. [Citations omitted. 1 

"Nevertheless, while there is some overlap in 

these various procedures as to general subject 

matter, each is used for a distinct purpose 

and sets forth specific procedures which must 

be followed before a valid judgment or order 

may be issued." 

Here, SRS proceeded under the provisions for declaring 

a child dependent or neglected. Parental consent is not 

required under this chapter for at least 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 to be the policy of 

the state of Montana to: 

"(a) insure that all youth are afforded an 

adequate physical and emotional environment to 

promote normal development; 

" (2) It is the policy of this state to provide 

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 to require 

parental consent in dependency and neglect proceedings. 

Such proceedings by their very nature are hostile to the 

parents and against their wishes. 

Even the adoption statutes of this state except the 

general requirement of parental consent where children are 

abused, dependent and neglected. Section 40-8-111, MCA, 

provides in pertinent part: 

"(1) An adoption of a child may be decreed when 

there have been filed written consents to adoption executed by: 

" (a) both parents, if living, or the surviving 

parent of a child, provided that consent shall 

-- not be required from a father or mother: -- - 

" (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 to be maintained 

by . . . the department of social and rehabilitation services of the state of Montana for a 

period of 1 year without contributing to the 

support of said child during said period, if 

able; or 
" (vi) if it is proven to the satisfaction of 

the court that said father or mother, if able, 

has not contributed to the support of said child 

during a period of 1 year before the filing of 

a petition for adoption." (Emphasis added.) 

Here, the rights of the natural parents to due process 

of law were properly recognized. The specific procedures 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, is not now known, and has been never 

named on the child's birth certificate. Appellant, who was 

present at the hearing of the District Court, also had a 

chance to refute 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 at the 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 in finding 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 District Court to make 

findings in an abuse or neglect action, this Court has 

recognized that the District Court's findings will enjoy a 

presumption of correctness and will not be overturned unless 

unsupported by credible evidence that would amount to a 

clear abuse of discretion. In the decision of In re G., 

Youths in Need of Care (1977), Mont. , 570 P.2d 

1110, 1112, 34 St.Rep. 1179, 1181-82, we stated: 
"This Court is mindful that the primary duty of 

deciding the proper custody of the child 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. [Citations omitted. I Due to this 

presumption of correctness, the District Court 

findings will not be disturbed on appeal unless 

there is a mistake of law or finding of fact 

not supported by credible evidence that would 

amount to a clear abuse of discretion." 

At issue here is whether there was sufficient credible 

evidence to support the finding that C.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 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 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 to provide 

for his necessary physical, moral, and emotional 

well being . . ." 

We find that the District Court did not abuse its 

discretion in finding 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 or neglect," we take judicial notice of 

the order filed in this case that appellant was confined to 

the State Hospital in 1973; that she has suffered from an 

organic brain dysfunction since birth; that she experiences 

delusions; and, that her condition is diagnosed as paranoid 
schizophrenia with no hope of significant improvement in the 

foreseeable future. 

The record also discloses that appellant was present at 

the hearings held by the District Court regarding SRS's 

petition, but made no attempt to personally 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 sufficient act of omission which, by reason of physical 

and mental incapacity, renders appellant unable to discharge 

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 is possessed of a $40,000 estate and that she has 

contributed in no 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 is demanding every facet of statutory scheme 

be severely and strictly scrutinized to protect the rights 

of the natural parent. However, proceedings conducted under 

the "abuse statute" demand and provide a certain amount of 

elasticity to the court. Every case is unique and must be 

dealt with on its own merits. Absent a clear abuse of 

discretion the decision of the District Court is to be 

upheld. There is no such abuse of discretion here. 
The District Court in all such hearings has an obligation to balance the rights of the mother and the child. And 

while the appellant's rights are of great import, it is not 

an absolute right. In a recent matter from the District of 

Columbia, Matter of the Adoption of J.S.R. (D.C. 1977), 374 

A.2d 860, 863, the court held: 

"The right of a natural parent to raise one's 

child is a fundamental and essential one which 

is constitutionally protected. [Citations 

omitted.] However, it is not an absolute one. 

The state has both the right and the duty to 

protect minor children through judicial determinations of their interest. To this end the 

state has a substantial range of authority to 

protect the welfare of the child. [Citations 

omitted. 1 " 

See also Matter 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 into J.J.S., Youth in Need 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 in awarding 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), 168 Mont. 329, 342 

P.2d 1204, this Court said: 

"'What is, or what is not in the 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 district court. The judge hearing oral 

testimony in such a controversy has a superior 

advantage in determining the same, and his decision ought not to be disturbed except upon a 

clear showing of abuse of discretion.' [Citations 

omitted .I " 

While it is the function of this Court whenever possible to protect 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 relationship with 

the mother. 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 to realize is that the obligations that 

are attendant with parenthood have never in any way been 

assumed by appellant, the natural mother. 

This Court in a recent decision, In re G., supra, 570 

P.2d at 1114, 34 St.Rep. at 1179, set forth the criteria 

which will be considered in dependent and neglect cases. 

There we noted: 

"Children have a 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.'" 

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 is undergoing a normal and physical development 

within a proper family home situation, and it is in her 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 to represent the child's interests. After reviewing 

all of 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 District Court. 
The judgment of the District Court is in accord with 

its findings of fact and conclusions of law and is affirmed. 

We concur: