KO. 81-536 INTHE SUPREME COURT OFTHE STATE OF MONTANA 1982

INTHE MATTER OF DECLARING K.V. and K.A., Youth inneed of care.

Appeal from: District Courtof theEighteenth Judicial Distr,ict, Inand for theCounty sf Gallatin, The Honorable Jack D. Shanstrom, Judgepresiding.

Counsel of Record:

ForAppellant: A. Michael Salvayni, Bozeman, Montana

For Respondent: Donald E. White, CountyAttorney, Bozeman, Montana,

Submittedon Briefs: May 20, 1982 Decided: August 23, 1982Mr. JusticeFrank B. Morrison, Jr., delivered theOpinionof theCourt. This is an appeal from an Eighteenth Judicial District Court order declaring KA tobe a youth inneed of

careand granting Gallatin County Social and Rehabilitation Services (SRS) permanent custody of KA with the right to consenttoadoption. The issuepresented on appeal iswhether theDistrict Court abused its discretion by terminating the parental rightsof appellantand awardingpermanent custodytoSRS. Appellant is the mother of two children, KV and KA. Appellant and KV's natural father are divorced and KV currently resides in California with her father under a previous court order in a collateral matter. KA's natural father is deceased. Only KA's custody is at issue on appeal.Appellant contends that the evidence submitted at trial was insufficient to justify the harsh sanction of granting permanent custody to SRS. She claims that there

was no evidence presented by SRS to show that the child's mental health had been harmed by acts or omissions of appellant. We do not find that to be the case. The record revealsclear and convincing evidence toprove thatKA is a neglected child and it is inhisbest interests that appellant's parental rights be severed. No more is required to sustain the District Court's decision. In the Matter of A.J.S. (1981), Mont. 

## , 630 P.2d 217, 38 St.Rep. 947; In the Matter of M.R.L. (1980), 

### -Mont. 

## , 608 P.2d 134, 37 St.Rep. 542; In the Matter of J.L.B. (1979), Mont

# . ,594 P.2d 1127, 36 St.Rep. 896. We affirm.At the time the District Court made itsdispositional order in this matter, appellant and her children had been involved with SRS for over three years. This was in fact the second time SRS had sought temporary investigative authority and protective services for appellant's children. InMarch 1978SRSreceived a telephone call from theBozeman Help Center reporting that appellant was disoriented and unable to care for her children. With the aid of SRS, appellant was hospitalized briefly for psychiatric treatment, and under temporary court order the children were placed in foster care for four months. When custody was returned to appellant 

### in July 1978, SRS was ordered to continue monitoring the status of the home environment and

was to provide psychiatric care for appellant and daycare for KA.The second petition for temporary investigative authority filed in October 1980 was precipitated by culmination of events that led SRS to conclude that its interventionwas less than successful. SRS received reports that KV was habitually tardy at school and that KA only intermittently attended daycare. When KV attended school, she was reported to be inadequately dressed, dirty and socially immature; the Children's Development Center forwarded similar reports regarding KA, noting particularly that KA ofttimes sat in the corner by himself, rocking back and forth with a blank look on his face. SRS also learned that appellant's eviction from her apartment was imminent because shewas late in paying her rent, the apartment was maintained in a filthy condition, and shehad permitted the children to throw broken furniture out the apartmentwindows. Although appellant now attempts to contest the District Court's July 1, 1981, conclusion that KA was a neglected child within the meaning of section 41-3-102(2), MCA, it is of some note that appellant did not resist the petition for temporary investigative authority which initially resulted in a November 14, 1980,declaration that KA was a youth in need of care. As section 41-3-102(10), MCA, defines "youth in need of care," the term includes youths who are dependent, abused or neglected. If appellant seriously believed that her acts or omissions had not or would not harm KA's physical or mental health or welfare, she should have immediately defended against SRS's October 1980petition. Additionally this Court notes that the allegations contained in the February 1981 petition seeking permanent custody are for the most part identical to the allegations contained in the October 1980petition, with the additional allegation that appellanthad since failed to cooperate with SRS in establishing required parental skillsprograms. The testimony received during the June 1981 dispositional hearing simply substantiated each allegation with clear and convincing evidence that KA was indeed neglected and that prospects for remedying such neglect by maintaining appellant's parental rights weredismal. A brief summaryof the testimony elicited during the Junehearing will suffice to show that the State met itsburden and that the District Court acted within its proper scope of discretion in terminatingappellant'srights. GalaGoodwin,a socialworker involved with appellantand her children since July 1978, testified that in her regularvisitswith the familyover the last threeyears she observed persistently deplorable conditions in several of appellant's residences. Shepresented the courtwithphotographs of appellant's most recent former residence. The photographs were taken shortly before appellant was evicted from the apartmentand temporary investigative authority was granted. The pictures showed garbage and dirt accumulation throughout the apartment, filthy bath and kitchen fixtures and appliances, a broken window, and inadequate sleeping facilities for the children. Ms. Goodwin further testified that appellant had been evicted from at least three rental units since July 1978because of the filthy condition ofher home. Sherry Bersanti, neighbor of appellant from June through October 1980, also testified as to the squalid condition of appellant's home. Ms. Bersanti stated that the apartment was filthy, strewnwith cat fecesand garbage,and smelled terrible. Ms. Bersanti said she spent two days helping appellant clean her apartment but that one month later, after appellant had been evicted and Ms. Bersanti returned to the apartment, she said she could not believe it had been cleaned earlier. Testimony regarding KA's physical and emotional condition while in appellant's custody was also provided by Ms. Goodwin and Ms. Bersanti. Ms. Goodwin stated KA was very withdrawn and would either rockback and forthwith his

arms about him or shake uncontrollably. She said he never spoke during any of her visits with appellant and that he

was lethargicand very dirty. Ms. Bersanti said that KAwasalways dirty, clad inthe same setof clothes and barefoot, and thathe often told her he was hungry and shewould then givehim something toeat. Ms. Goodwin further testified as to the change in KA's conditionafterhe was placed in fostercare. She said KA "isnow brightand alertand chattersallthe time. He's clean, he's very intelligent, he is very active, he runs, laughs, he is involved in school, he is involved with his friends, he isa verynormal typeboy." The psychologist who evaluated appellant inFebruary 1981 diagnosed her as paranoid schizophrenic, "suffering from a severe emotional disturbance, thatwas manifested by strong agitation, serious ambivalence concerning her roles

as a mother, and a person." He stated she required active outpatient therapy and that it was hisprofessional opinion appellant lacked the ongoing capacity to provide long-term care for KA. He said his prognosis for returning KA to appellant in the futurewas poor and that KA would likely start manifesting autistic behavior again if appellant regained custodyof her child. Appellant believes that it was improper for the District Court to base its termination decision on events which occurred before KA was adjudicated to be a youth in need of care. Appellant would require a showing by the State that the circumstances and conditions which predated the adjudication continued to exist atthe time of termination. While such a showing might be appropriate if SRS had only recently begun towork with the family, ina situation where theparenthas been assistedand monitored by SRS over

a period of years and the family environment has not yetstabilized and perhaps even deteriorated, to require more would beg for experimentation at the expense of the child's best interests. See, e.g. In the Matter of M.R.L., supra. Most certainly that is not what the law demanded in June 1981. Even under the new law which now prescribes the criteria that must be met before parental rights can be terminated (see section 41-3-601 et seq., MCA), there is no such circumscriptionof the evidence that theDistrictCourt may properly consider. In fact the evidence adduced here substantially conforms to that which is required under section 41-3-609(c), MCA, viz., (1)SRS'previous intervention and treatment program spanning three-plusyearshas not been successfuland (2)appellant's current mental condition is such that it is unlikely she will be able to care for KA's needs within a reasonableperiod of time. This Court will require no more of the State nor the District Court than to assure that the evidence supporting the District Court's decision is clear and convincing. Affirmed.

We concur: