KO. 81-536 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN THE MATTER OF DECLARING 

K.V. and K.A., Youth in need of care. 

Appeal from: District Court of the Eighteenth Judicial Distr,ict, 

In and for the County sf Gallatin, The Honorable 

Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

A. Michael Salvayni, Bozeman, Montana 

For Respondent: 

Donald E. White, County Attorney, Bozeman, 

Montana, 

Submitted on Briefs: May 20, 1982 

Decided: August 23, 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

This is an appeal from an Eighteenth Judicial 

District Court order declaring KA to be a youth in need of 

care and granting Gallatin County Social and Rehabilitation 

Services (SRS) permanent custody of KA with the right to 

consent to adoption. 

The issue presented on appeal is whether the District 

Court abused its discretion by terminating the parental 

rights of appellant and awarding permanent custody to SRS. 

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 

reveals clear and convincing evidence to prove that KA is a 

neglected child and it is in his best 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 its dispositional 

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. 

In March 1978 SRS received a telephone call from the Bozeman 

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 

intervention was 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 she was late in paying her rent, the apartment was 

maintained in a filthy condition, and she had permitted the 

children to throw broken furniture out the apartment 
windows. 

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 

1980 petition. 

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 1980 petition, with the additional 

allegation that appellant had since failed to cooperate with 

SRS in establishing required parental skills programs. 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 were dismal. A brief summary of 

the testimony elicited during the June hearing will suffice 

to show that the State met its burden and that the District 

Court acted within its proper scope of discretion in 

terminating appellant's rights. 

Gala Goodwin, a social worker involved with appellant 
and her children since July 1978, testified that in her 

regular visits with the family over the last three years she 

observed persistently deplorable conditions in several of 

appellant's residences. She presented the court with photographs of appellant's most recent former residence. The 

photographs were taken shortly before appellant was evicted 

from the apartment and 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 1978 because of the filthy condition of her 

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, strewn with cat feces and 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 rock back and forth with his 

arms about him or shake uncontrollably. She said he never 

spoke during any of her visits with appellant and that he 

was lethargic and very dirty. Ms. Bersanti said that KA was 
always dirty, clad in the same set of clothes and barefoot, 

and that he often told her he was hungry and she would then 

give him something to eat. 

Ms. Goodwin further testified as to the change in 

KA's condition after he was placed in foster care. She said 

KA "is now bright and alert and chatters all the 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 is a very normal type boy." 

The psychologist who evaluated appellant in February 

1981 diagnosed her as paranoid schizophrenic, "suffering 

from a severe emotional disturbance, that was 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 his professional opinion 

appellant lacked the ongoing capacity to provide long-term 

care for KA. He said his prognosis for returning KA to 

appellant in the future was poor and that KA would likely 

start manifesting autistic behavior again if appellant 

regained custody of 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 at the time of termination. While such a showing might be appropriate if SRS had 

only recently begun to work with the family, in a situation 

where the parent has been assisted and monitored by SRS over 

a period of years and the family environment has not yet 
stabilized 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 circumscription of the evidence that the District Court 

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-plus years has not 

been successful and (2) appellant's current mental condition 

is such that it is unlikely she will be able to care for 

KA's needs within a reasonable period 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. 

Af f irmed. 

We concur: