### No. 14688 IN THE SUPlU3ME COURT OF THE STATE OF MONTANA 1979

IN THE MATTER OF L.F

# . G.

## , Youth in Need of Care.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judgepresiding. Counsel of Record: ForAppellant: Robert L. 

### Stephens,Jr. and David Kinnard, Billings,

Montana David Kinnard argued, Billings, Montana For Respondent: Harold Hanser, County Attorney, Billings, Montana Robert Waller argued,Deputy County kttorney,

Billings, Montana Damon L. Gannett argued, Billings, Montana

Submitted: June 15, 1979 ~ecided 

## :AUG

# 20

# lgtg

Filed: 

## i\uC

# '. i,*g$$Mr. Justice John Conway Harrison delivered the Opinion of the Court.

c his appeal 

### arises from a custodial hearing held on September 29, 1978, in the 

### District Court of the Thirteenth Judicial 

### ~istrict, Stateof Montana, inand for the County of Yellowstone, the Honorable Robert H. Wilson presiding. The case was triedon the petition of the Department of Social and Rehabilitation Services of the Stateof Montana (SRS) tohave L.F.G. declared tobe a youth inneed of 

### care and tohave hispermanent care, custody and control awarded tothe Stateof Montana, with authority toconsent toadoption. The Yellowstone County attorney's office appeared and participated ascounsel for SRS. The natural parents 

### were present 

### atthe hearing and 

### were represented by counsel, and



### a previously appointed guardian ad 

### litemfor the youth appeared and participated inthe hearing asthe representativeof the child. Upon completion of the hearing, the 

### matterwas taken under advisement by the 

### trial court. It entered findings of fact, conclusions of law and order on October 16, 1978, granting the relief requested by SRS. Judgment was subsequently entered inaccordance therewith on October 17, 1978. The parents of the youth appeal. L.F.G. was born on September 29, 1977, in~illings, Montana. The natural parents of the child are J.C.G. and R.G. Atthe 

### timeof the hearing, the natural parents and the childresided inYellowstone County, Montana. The socialworker inthe case, Martha Everett, had her firstcontact with the mother on September 19, 1977, when she and her mother contacted the local SRS office to learn the procedures relative tothe relinquishment of the mother'sthen unborn child. The mother indicated toEverett during their initialcontact that she did not feel that "she

### was strong enough to take care of a baby." The child was born ten days after the mother's initial Contact with the social worker. Atbirth, the baby weighed four pounds and eleven ounces. He was normal inall

### respects, except that hisbirth weight 

### was light for a full

### terminfant. On October 3, 1977, the mother informed Everett that she had changed her mind about relinquishing the child, and that she no longer was interested inhaving the child placed adoptively. The baby was placed in a foster home on October 5, 1977, with the knowledge, understanding, and consent of the child's natural parents. Atthe time of placement in foster care, the mother indicated that "she didn't feel that shewas physically ready for taking care of the child." Mrs. Delores Smith was the foster parent who provided the primary care for the baby during his residence inher fosterhome. The baby remained inthe Smith foster home from October 

### 5, 1977, untilApril 10, 1978. During that six-month period, the mother made 38 visits to the foster home tovisither child. The purpose of themother's visitswith her child in the foster home was toallow her visitation, toobserve her with the child, and toattempt to teach her the skills she would need tocare for the child on his return to her physical custody. Mrs. Smith was present during each of the visits that the mother had with her child. During this sixmonth period of foster care, the father made one visit to

see the child inthe Smith home.The mother showed some improvement inher apparent ability to care for the child during the period of January toMarch 1978. Mrs. Smith indicated, however, that she

never really held the baby properly, and that she failed to demonstrate any affection or emotion towards the child. The baby seemed to crymore than usual when he was around his mother, and the mother appeared tobe confused and uncertain about what todo with the child ingeneral. Mrs. Smith never observed any physical contact or interaction between the child and his father during the initialperiod of foster care in her home. The baby was returned tohis natural parents on April 10, 1978. Prior to that return, Martha Everett had made arrangements for the provision of many support services to assist themother inher care of the child. Homemakers from SRS and a public health nurse made regular and frequent visits tothe child and 

### his parents. Despite these efforts made toupgrade the mother's child-caring skills, she failed tolearn the things that she was taught concerning her 

### care of the child. There was alsoan absence of physical contact and play between the child and hismother. The public health nurse alsoobserved the mother leave the baby unattended on two occasions. The mother also described the father 

### as having thrown the child into the baby crib. The child's situationwith hisnatural parents began to deteriorate. According to the homemakers and public health

nurses who were inthe home, the mother became more distant and 

### less cooperative. Finally, on May 18, 1978, based upon the observations of the serviceproviders and the recommendation of a psychiatrist, Dr. Van Dyke, the child was removed from the home of hisnatural parents and returned totheSmith foster home. Atthe 

### timeof the child's return to the foster home, hishead 

### was dirty, his body was dirty, and his 

### "littlepenis

### was filthy." He was subsequently observed apparently having nightmares and waking up crying and shaking. Evidence concerning themother's psychological condition

was presented atthe hearing. The mother had been evaluated inNovember 1977 by Dr. Ned Tranel and again on March 21, 1978. Dr. Tranel diagnosed the mother ashaving two major psychological disorders. The first

### is technically 

### classified 

### as schizophrenicreaction, chronic undifferentiated type. The second disorder was described by Dr. Tranel as being an organic brain syndrome or chronic brain syndrome. Dr. Tranel offered the opinion that the child should not be returned toa situation inwhich the mother was the primary caretaker for the child. The issuespresented on appeal are: 

### 1. Was the evidence presented atthe custody hearing sufficient to support the finding of the DistrictCourt that L.F.G. was a youth inneed of care within the meaning of section 41-3-102, MCA? 2. Did the DistrictCourt 

### err interminating the parental rights of R.G., the father, based upon the evidence presented? 3. Was L.F.G. a youth inneed of care? The function of a reviewing court ina 

### case such 

### as thisone has been welldefined inprior decisions of this Court. In Re Gore (1977), Mont. 

## , 570 P.2d 1110, 34 - St.Rep. 1179, involved an appeal from a 

### ~istrict Court determination similar toone inthe instant 

### case. In deciding that the District Court had not abused 

### its discretion when 

### it granted SRS's petition for permanent custody, this Court stated:

# ".



# . . This Court ismindful that the primary duty of deciding the proper custody of children 

### is the task of the districtcourt. As a result, allreasonable presumptions as tothe correctness of the determination by the dis

### trict court

### willbe made. Foss v. Leafer, Mont. 550 P.2d 1309, 33 St.Rep. 528 (1976). Due to thispresumption of correctness the districtcourt's findings

### willnot be disturbed unless there 

### is a mistake of 

### lawor a finding of factnot supported by credible evidence that would amount to a clear abuse of discretion

# . .

# ." 570 P.2d at1112, 34 St.Rep. at1181-1182. The rule inMontana 

### is that before the ruling of the DistrictCourt can be overturned, 

### it must be shown that the 

### District Court clearlyabused 

### its discretion. For the DistrictCourt tofind thatL.F.G. was a youth inneed of care, it had tofind thathe was dependent or suffering from abuse orneglect. Section 41-3-102(4), MCA. Section 41-3-102(2)(a) and (b),MCA, define abuse or neglect: 

### "(2) 'Abuse' or 'neglect' means: "(a)the commission or omission of any actor actswhich materially affect the normal physicaloremotional 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 presumed tobe nonaccidental and tomaterially affect the normal development of the youth. "(b) the commission or omission of any actor actsby any person inthe statusof parent, guardian, orcustodian who thereby and by reason of physical ormental incapacity or other cause refuses or, with state and private aid and assistance, 

### isunable 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." Appellants contend thatunder the facts of this case, there 

### was a 

### clear abuse of discretion on the part of the DistrictCourt inthe entry of 

### its findings. Appellants argue that the Montana legislature has declared thepolicy of this state for abused and neglected children insection 41-3-101(1), MCA, which provides:"(1) It 

### ishereby declared tobe the policy of the Stateof Montana to: "(a)insure that 

### allyouth are afforded an adequate physical and emotional environment to promote normal development; "(b)compel inproper cases the parent or guardian of a youth toperform themoral and legal duty owed to the youth; "(c)achieve these purposes ina family environment whenever possible; and "(d)preserve the unity and welfare of the family whenever possible." Where a child has allegedly been abused orneglected by his natural parents, the State has a clear duty toprotect the interests of the child by means of a judicial hearing to determine whether the youth 

### isinfact abused or neglected. The importance of the nature and scope of thisjudicial proceeding has previously been addressed by thisCourt ina recent 

### case, In the Matter of Guardianship of Doney (1977), Mont.

"There are, however, few invasions by the state into the privacy of the individual that aremore extreme than that of depriving a natural parent of the custody of his children. For this

### reason, the legislaturecarefullyenunciated the procedures the 

### statemust follow and the findings which the courtmust make before custody of a childmay legally be taken from his natural parent.

"This carefulprotection of parental rights 

### is not merely 

### a matterof legislative grace, but 

### is constitutionally required. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)

# ." The provisionsmandated by the Montana legislature relative torequired procedure and findings by the District Court incases of alleged abuse orneglect 

### are set forth in several pertinent statutes. Section 41-3-404, MCA, provides inpertinent part:"(1) In a hearing on a petition under 41-3-401, the court shall determine whether said youth 

### is 

### --- an abused, neglected, or dependent child, and - ascertain, asfar aspossible, the cause thereof. " (Emphasis supplied.) Section 41-3-406, MCA, then clearly states inpart: "(1) If a youth 

### is found tobe abused, neglected, or dependent, the courtmay enter 

### itsjudgment making any of the following dispositions to protect the welfare of the youth:

"(b)Transfer legal custody toany of the following: 

### "(i) Department of Social and Rehabilitation Services.

### " Appellants argue that these statutesmake 

### it clear that

a finding of abuse, neglect, ordependency 

### is the jurisdictional prerequisite toany court ordered transfer of custody, citing In the Matter of Fish (1977), Mont

# . I 569 P.2d 924, 927, 34 St-Rep. 1080; Gore, 570 P.2d 

### at 1113, 34 St.Rep. 

### at 1183; Doney, 570 P.2d 577, 34 St.Rep. at 1109- 10. Appellants argue 

### it is then, and only then, that the "best interests of the child" standard so

### well established by thisCourt has 

### its application inthe resolution of the question of custody. Gore, 570 P.2d at1114, 34 St.Rep. 

### at 1184; Doney, 570 P.2d at578, 34 St.Rep. at1110. Thus, before the 

### District Court may consider what the "best interests of the child" may infactbe, the courtmust have found that the child inquestion was infact abused or neglected pursuant to statutory definition in section 41-3- 102(2), MCA. This element cannot be satisfiedby a mere recitation of the DistrictCourt that it finds the child in question tobe abused or neglected; the evidence submitted tothe courtmust clearly support such a finding.

### With this standard inmind, we have reviewed the evidence presented to the District Court as it fits into the general guidelines established by this Court in recent decisions regarding abused and neglected youths. The child here was placed in the family home for a period of only five weeks. During this time, the familywas subject to the daily supervision of welfare department personnel. The public health nurse, the personnel of the welfare department, and a neighbor, all had the opportunity to observe the child in the parents' home, and all agreed that during their observations he appeared to be well-fed, well-clothed, and clean. In addition, during this period there were no signs of physical abuse, and the child appeared to have no learning disabilities or behavior problems in the home, nor was he left alone for extensive periods of time without supervision. On the basis of the above facts, appellants endeavor to distinguish the facts in this case from the facts in several

cases involving physical abuse and neglect of a child justifying the termination of parental custody. In addition, appellants endeavor to distinguish the facts in this case from the facts in several cases in which the mental condition of one or both parents was a factor considered by the court together with other environmental factors justifying the termination of parental custody. In the Matter of T.E.R. (1979), Mont

# . , 590 P.2d 1117, 36 St.Rep. 276; In the Matter of J.J.S. (1978), Mont. 

## , 577 P.2d 378, 35 St.Rep. 394; In re Moyer (1977), Mont. 

## , 567 P.2d 47, 34 St.Rep. 682; In re Matter of Bessette (1976), 170Mont. 122, 551 P.2d 653; In re Henderson (1975), 168 Mont. 329, 542 P.2d 1204.

### Appellants contend that a review of the evidence presented at the hearing presents the contrary view, i.e., that the child suffered no adverse effects from his mother's mental condition, and that he was in factwell cared for. 

### his, they claim, is the distinguishing factor from the other Montana cases previously cited. The mental condition of the mother standing alone, according to appellants, was apparently found by the District Court to be the sole basis for termination of parental rights, without a finding of the relationship between the mental condition and any alleged detriment to the child. A review of Montana case law reveals no decisions in which the mental condition of one or both parents was the sole factor considered by the court. Other jurisdictions, however, have considered this factor and some have arrived at a different conclusion than that reached by the District Court herein. Appellants cite a minority view of Mr. JusticeMurphy in a 1972 termination of parental rights case from New York. While we do not wish to disagree with our Irishbrother in New York, we find that relying on a minority view inmaking

our decision as to what the law is to be in this State, while enlightening, is not persuasive. The majority found that under the New York Family CourtAct, Section 1012(f), that the record amply supported a finding of neglect in that the child is "in eminent danger of becoming impaired." The court noted that a child living with a chronic paranoid and severely psychotic schizophrenic mother is in eminent danger of becoming physically and emotionally impaired. That is the situation the trial judge faced here, and we do not find faultwith his 

### judgment.

### Appellants go on to discuss several cases from other jurisdictions to substantiate their position on mental conditions as the sole factor in a case involving parental rights. See, In Interestof E. 

### v. J.T. (1978), Utah2d



## , 578 P.2d 831; In the Matter of Anderson (1978), 35 

## 32 0r.App. 561, 582 P.2d ; 

### In the Matter of Wyatt (1978), 34 0r.App. 793, 579 P.2d 889; In the Matter of Fisher (1976), 169Mont. 254, 545 P.2d 654; In the Matter of J.J.S., supra. As these cases discuss, one of the controlling criteria to be considered is, what are the possibilities of damage to the child? What we have before us here is a case not of possibilities, but of high probabilities, and in such a case, the child's future must be paramount. As we noted in In the Matter of J.J.S., 577 P.2d at 381, 35 St.Rep. at 397: 

# ".



# . .What is, or what is not, the best interests of the child depends upon the facts and circumstances of each case. The responsibility of deciding custody is a delicate one that is lodged in 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 under a clear abuse of discretion. [Citationsomitted.]" Dr. Tranel testified thatbecause of the mother's combination of a schizophrenic mental illness and organic brain damage, there existed a condition of material deprivation known as "mask deprivation." This condition exists where there is no emotional responsiveness to the child, but this failure to "mother" the child ismasked by the fact that the parent is physically present. He further testified that the mother would not be able to respond to the most basic emotional needs of the child because of her mental condition. Dr. Tranel stated that while it was possible that the mother's condition could be stabilized at its present level, itwas unrealistic to expect any improvement.Dr. 

### Tranel concluded that if the child was returned to the mother, he would not receive even minimally satisfactory maternal care and would be exposed to "extremely high" chances of developing a mental condition similar to thatof themother. We 

### find there is 

### sufficient credible evidence to support the decision of the District Court that the child was a youth inneed of care. Therefore, there has been no abuse of discretion. In removing the childpermanently from the natural parents, the District

### Court was 

### acting in the best interests of the child 

### as it 

### was bound todo. The DistrictCourt inthis case had the opportunity to view the testimony of J.C.G., 

### and was justified infinding that the child was a youth inneed of care. It

### is 

### in the best interests of the child thathe not be returned tothe natural parents but placed for adoption. The attorney for theyouth supports the position of the District

### Court and the Stateon this issue. Appellants next contend that inthe trialof this matter R.G., 

### the natural father, played an insignificant role inthe evidence presented tothe courtregarding the capacity and capabilities of R.G. 

### and J.C.G. 

### asparents. This proceeding focused primarily on allegations of mental incapabilitieson the part of the mother. ~uring the proceedings, the father 

### wasmentioned only inpassing on several occasions, and atno 

### timeduring the 

### proceedings was there any substantial effortmade toinquire into his capabilities as 

### a parent. Appellants contend that this lack of discussion requires a 

### close examination of the validity of the termination proceedings inlightof a recent decision made after the entry of judgment in

### the case here. In theMatter of T.E.R. (1979), supra. In that case, the Court directed itself to exactly this issue for what was apparently the firsttime, and found an inadequate consideration of the rights of the other parent: "However, a careful review of the record does not reveal that the youth court adequately considered the rights of T.E.R.'s motion in awarding permanent custody of T.E.R. toSRS with authority to consent toher adoption. In addition to the rights asa couple, parents may have individual rights with respect to their children. The record in the instant case 

### reveals that themother's rights 

### were afforded no more than superficial consideration. Therefore, the order of the youth court 

### isvacated to the extent that 

### it applies to T.E.R. 

### 's mother, and the case 

### isremanded to the youth court for further proceedings todetermine the future statusof the mother's parental rights." In the Matter of T.E.R., 590 P.2d 

### at 1121, 36 St.Rep. 

### at281. Appellants argue that in light of this decision and the inadequate consideration of the father's rights as a parent herein, thismatter should be reversed and remanded, if for

no other reason than this inadequate consideration prior to parental termination. The Stateand the attorney for the youth contend that the rights of the father 

### were considered. They argue that the father was served with notice of the hearing, was present atthe hearing, and had 

### a court appointed attorney torepresent his interests. Dr. Tranel testified that, inhis opinion, the father would not be able toprovide enough influence tooffset themarked deprivation described above,

nor infact, would anyone be able todo so. In addition, testimony showed that the fathermade no effort toassist themother inlearning tobecome a good parent. He visited the foster home only once while the mother made 38 visits. The homemaker who testified reported that the father never assisted themother inlearning parenting skills and was, in

### fact, a distraction. The father did not testify atthe hearing. The mother reported to the homemaker that the father had abused the baby by throwing him into the crib. We 

### believe the record shows that the father's rights



### were adequately considered prior totermination and that the District

### Court's decision toterminate them 

### is supported by credible evidence. The findings of factand conclusions of 

### lawof the trial court and thejudgment of the trial court 

### is affirmed.

We 

### concur: 

# %44?w*

Chief Justice