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, Judge presiding. 

Counsel of Record: 

For Appellant: 

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 2 0 lgtg 

Filed: i\u C '. 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, State of Montana, in and for the County 

of Yellowstone, the Honorable Robert H. Wilson presiding. 

The case was tried on the petition of the Department of 

Social and Rehabilitation Services of the State of Montana 

(SRS) to have L.F.G. declared to be a youth in need of care 

and to have his permanent care, custody and control awarded 

to the State of Montana, with authority to consent to adoption. The Yellowstone County attorney's office appeared and 

participated as counsel for SRS. The natural parents were 

present at the hearing and were represented by counsel, and 

a previously appointed guardian ad litem for the youth 

appeared and participated in the hearing as the representative of the child. 

Upon completion of the hearing, the matter was 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 in accordance 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. At the time of the hearing, the natural parents and 

the child resided in Yellowstone County, Montana. 

The social worker in the case, Martha Everett, had her 

first contact with the mother on September 19, 1977, when 

she and her mother contacted the local SRS office to learn 

the procedures relative to the relinquishment of the mother's 
then unborn child. The mother indicated to Everett during 

their initial contact 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. At birth, the baby weighed 

four pounds and eleven ounces. He was normal in all respects, except that his birth weight was light for a fullterm infant. 

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 in having 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. At the time of 

placement in foster care, the mother indicated that "she 

didn't feel that she was 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 

in her foster home. 

The baby remained in the Smith foster home from October 

5, 1977, until April 10, 1978. During that six-month period, 

the mother made 38 visits to the foster home to visit her 

child. The purpose of the mother's visits with her child in 

the foster home was to allow her visitation, to observe her 

with the child, and to attempt to teach her the skills she 

would need to care 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 in the Smith home. 
The mother showed some improvement in her apparent 

ability to care for the child during the period of January 

to March 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 cry more than usual when he was around his 

mother, and the mother appeared to be confused and uncertain 

about what to do with the child in general. 

Mrs. Smith never observed any physical contact or 

interaction between the child and his father during the 

initial period of foster care in her home. 

The baby was returned to his natural parents on April 

10, 1978. Prior to that return, Martha Everett had made 

arrangements for the provision of many support services to 

assist the mother in her care of the child. Homemakers from 

SRS and a public health nurse made regular and frequent 

visits to the child and his parents. Despite these efforts 

made to upgrade the mother's child-caring skills, she failed 

to learn the things that she was taught concerning her care 

of the child. There was also an absence of physical contact and play between the child and his mother. The public 

health nurse also observed 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 situation with his natural parents began to 

deteriorate. According to the homemakers and public health 

nurses who were in the home, the mother became more distant 

and less cooperative. Finally, on May 18, 1978, based upon 

the observations of the service providers and the recommendation of a psychiatrist, Dr. Van Dyke, the child was removed 

from the home of his natural parents and returned to the 
Smith foster home. At the time of the child's return to the 

foster home, his head was dirty, his body was dirty, and his 

"little penis was filthy." He was subsequently observed 

apparently having nightmares and waking up crying and shaking. 

Evidence concerning the mother's psychological condition 

was presented at the hearing. The mother had been evaluated 

in November 1977 by Dr. Ned Tranel and again on March 21, 

1978. Dr. Tranel diagnosed the mother as having two major 

psychological disorders. The first is technically classified as schizophrenic reaction, 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 to a situation in which the mother was the primary 

caretaker for the child. 

The issues presented on appeal are: 

1. Was the evidence presented at the custody hearing 

sufficient to support the finding of the District Court that 

L.F.G. was a youth in need of care within the meaning of 

section 41-3-102, MCA? 

2. Did the District Court err in terminating the 

parental rights of R.G., the father, based upon the evidence 

presented? 

3. Was L.F.G. a youth in need of care? 

The function of a reviewing court in a case such as 

this one has been well defined in prior 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 to one in the 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 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. Foss v. Leafer, 

Mont. 550 P.2d 1309, 33 St.Rep. 528 

(1976). 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 . . ." 570 P.2d at 1112, 34 St.Rep. 

at 1181-1182. 

The rule in Montana is that before the ruling of the 

District Court can be overturned, it must be shown that the 

District Court clearly abused its discretion. 

For the District Court to find that L.F.G. was a youth 

in need of care, it had to find that he was dependent or 

suffering from abuse or neglect. 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 act or 

acts which materially affect the normal physical or emotional 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 to be nonaccidental and to materially affect the normal development of the 

youth. 

"(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." 

Appellants contend that under the facts of this case, 

there was a clear abuse of discretion on the part of the 

District Court in the entry of its findings. 

Appellants argue that the Montana legislature has 

declared the policy of this state for abused and neglected 

children in section 41-3-101(1), MCA, which provides: 
"(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; 

"(b) compel in proper cases the parent or guardian 

of a youth to perform the moral and legal duty 

owed to the youth; 

"(c) achieve these purposes in a family environment whenever possible; and 

"(d) preserve the unity and welfare of the family 

whenever possible." 

Where a child has allegedly been abused or neglected by 

his natural parents, the State has a clear duty to protect 

the interests of the child by means of a judicial hearing to 

determine whether the youth is in fact abused or neglected. 

The importance of the nature and scope of this judicial 

proceeding has previously been addressed by this Court in a 

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 are more 

extreme than that of depriving a natural parent 

of the custody of his children. For this reason, the legislature carefully enunciated the 

procedures the state must follow and the findings which the court must make before custody of 

a child may legally be taken from his natural 

parent. 

"This careful protection of parental rights is 

not merely a matter of legislative grace, but 

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

551 (1972) ." 

The provisions mandated by the Montana legislature 

relative to required procedure and findings by the District 

Court in cases of alleged abuse or neglect are set forth in 

several pertinent statutes. Section 41-3-404, MCA, provides 

in pertinent 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, as far as possible, the cause thereof. " 

(Emphasis supplied.) 

Section 41-3-406, MCA, then clearly states in part: 

"(1) If a youth is found to be abused, neglected, 

or dependent, the court may enter its judgment 

making any of the following dispositions to 

protect the welfare of the youth: 

"(b) Transfer legal custody to any of the following: 

" (i) Department of Social and Rehabilitation 

Services. " 

Appellants argue that these statutes make it clear that 

a finding of abuse, neglect, or dependency is the jurisdictional prerequisite to any 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 this Court has its application in the resolution of the 

question of custody. Gore, 570 P.2d at 1114, 34 St.Rep. at 

1184; Doney, 570 P.2d at 578, 34 St.Rep. at 1110. Thus, 

before the District Court may consider what the "best 

interests of the child" may in fact be, the court must have 

found that the child in question was in fact abused or 

neglected pursuant to statutory definition in section 41-3- 

102(2), MCA. This element cannot be satisfied by a mere 

recitation of the District Court that it finds the child in 

question to be abused or neglected; the evidence submitted 

to the court must clearly support such a finding. 
With this standard in mind, 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 family was 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), 170 Mont. 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 fact well 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. Justice Murphy 

in a 1972 termination of parental rights case from New York. 

While we do not wish to disagree with our Irish brother in 

New York, we find that relying on a minority view in making 

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 Court Act, 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 

fault with 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 Interest of 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), 

169 Mont. 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. [Citations omitted.]" 

Dr. Tranel testified that because 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 is masked 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, it was 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 that of 

the mother. 

We find there is sufficient credible evidence to support the decision of the District Court that the child was a 

youth in need of care. Therefore, there has been no abuse 

of discretion. In removing the child permanently from the 

natural parents, the District Court was acting in the best 

interests of the child as it was bound to do. 

The District Court in this case had the opportunity to 

view the testimony of J.C.G., and was justified in finding 

that the child was a youth in need of care. It is in the 

best interests of the child that he not be returned to the 

natural parents but placed for adoption. The attorney for 

the youth supports the position of the District Court and 

the State on this issue. 

Appellants next contend that in the trial of this 

matter R.G., the natural father, played an insignificant 

role in the evidence presented to the court regarding the 

capacity and capabilities of R.G. and J.C.G. as parents. 

This proceeding focused primarily on allegations of mental 

incapabilities on the part of the mother. ~uring the proceedings, the father was mentioned only in passing on 

several occasions, and at no time during the proceedings was 

there any substantial effort made to inquire into his capabilities as a parent. Appellants contend that this lack of 

discussion requires a close examination of the validity of 

the termination proceedings in light of a recent decision 

made after the entry of judgment in the case here. In the 
Matter of T.E.R. (1979), supra. In that case, the Court 

directed itself to exactly this issue for what was apparently the first time, 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. to SRS with 

authority to consent to her adoption. In addition to the rights as a couple, parents may 

have individual rights with respect to their 

children. The record in the instant case reveals that the mother's rights were afforded 

no more than superficial consideration. Therefore, the order of the youth court is vacated 

to the extent that it applies to T.E.R. 's 

mother, and the case is remanded to the youth 

court for further proceedings to determine the 

future status of the mother's parental rights." 

In the Matter of T.E.R., 590 P.2d at 1121, 36 

St.Rep. at 281. 

Appellants argue that in light of this decision and the 

inadequate consideration of the father's rights as a parent 

herein, this matter should be reversed and remanded, if for 

no other reason than this inadequate consideration prior to 

parental termination. 

The State and 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 

at the hearing, and had a court appointed attorney to represent his interests. Dr. Tranel testified that, in his 

opinion, the father would not be able to provide enough 

influence to offset the marked deprivation described above, 

nor in fact, would anyone be able to do so. In addition, 

testimony showed that the father made no effort to assist 

the mother in learning to become 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 the mother in learning parenting skills and was, in 
fact, a distraction. The father did not testify at the 

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 to termination and that the 

District Court's decision to terminate them is supported by 

credible evidence. 

The findings of fact and conclusions of law of the 

trial court and the judgment of the trial court is affirmed. 

We concur: 

%44?w* 

Chief Justice