### IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF INQUIRY INTO 

### J.L.B. YOUTH IN NEED OF CARE.

Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Klaus Sitte argued, Legal Services, Missoula, Montana For Respondent: Robert L. 

### Deschamps, 111, County Attorney, Missoula

Montana Karen Townsend, Deputy County Attorney, argued,

Missoula, Montana Suzann Weiland, Deputy County Attorney, argued,

Missoula, Montana Dennis Lind argued, Missoula, Montana Mary 

### B. Troland appeared, Assistant Attorney General,

Helena, Montana David Scott, SRS appeared, Helena, Montana

Submitted: February 1, 1979Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. A mother brings this appeal from the conclusions and judgment of the DistrictCourt, Fourth Judicial District, which declared her daughter a neglected child, and granted permanent custody over the child to the Department of Social and Rehabilitation Services with authority toconsent toher adoption. The mother contends firstthat section 10-1301(2) (a) and (b), R.C.M. 1947, now section 41-3-102(2) (a) and (b) MCA, defining "abuse" and "neglect" 

### were unconstitutionally vague as applied toher. Second she contends that the appropriate standard of proof tobe applied tothe State in

a termination of parental rights proceeding 

### is the "clear and convincing" standard, rather than the "preponderance of evidence" standard. The mother's third contention 

### is that the District Court abused 

### its discretion inremoving the child permanently from her mother because thatdecision 

### was not supported by even a preponderance of the evidence. We affirm the decision of the DistrictCourt. The child was born on May 16, 1975, when her mother 

### was seventeen years old. Her parents 

### were not married atthe 

### timeof her birth, nor have they ever been married. They did live together on a fairlyregular basis from shortly after the child's birth until December 1977. In her fifthmonth of pregnancy the mother was referred toa Public Health Service nurse, Mary XcCall, by a high school counselor. From that 

### timeon the mother and child have been frequently visited by a variety of health and welfare officialsoffering assistance and instruction in child care. Mary McCall testified that she

### metwith the mother and arranged tohave a socialworker assigned toher. shefurther arranged for the mother to

### meetwith an eligibility technician toprovide assistance inreceiving Iledicaid money for prenatal care and arranged an appointment with a physician toprovide her with that care. She alsoreferred the mother to theW.I.C. program, a federal nutritional program forwomen, infants, and children, forprenatal nutritional assistance. A senior student socialworker from the Universityof Montana, Tricia Williams, made weekly visits to the mother from December 1974 until the childwas born. The mother was later referred to the "At-Risk Program" of theMissoula City-County Health Department, which attempts to identifymothers and children that

### willbe atrisk for potential health problems due toprenatal or delivery complications. According toMary McCall, themother was referred tothe program because she was under eighteen, had not had prenatal care for the firstfivemonths of her pregnancy,



### was unable toread or

### write, had suffered a kidney infection and anemia during her pregnancy, and was unmarried. As a resultof thisreferral, Mary XcCall regularly visited themother ather mother's home during the summer of 1975 and learned of the baby's problem of staying awake and crying most of the 

### time. InMcCall's judgment, the problem

was caused by the infant's diet. Hermother had put cereal inher formula, which McCall concluded was probably constipating the baby because she

### was too young tohandle solid food. McCall also found the mother tobe depressed and anxious from lack of sleep. She assisted her with the preparation of formula forher baby, demonstrating each step rather than leaving written instructions because themother

was unable toread.14cCall also helped themother with an application for a low-income housing project inMissoula when she indicated a desire for independence from her home. The mother obtained the low-income housing and lived inher own apartment inthe fallof 1975. Another senior student from theUniversity made a total of 22 visitswith themother that fallto assistwith care for her child. During that 

### time, PllcCall received a referral from the W.I.C. program requesting nutritional counseling for themother, and visited her once again. The mother had been feeding the child soda pop rather than juice, telling McCall thatjuice gave the baby diarrhea. McCall testified that the mother's apartment was messy, with empty beer cans lying around, sacks of garbage

on the floor and dirty dishes in the sink. She also noted that themother made no effort topick up her daughter when she cried, and that thebaby appeared irritable. PlcCall was told by the apartment manager that the baby had been crying allnight, but themother denied that claimwhen asked by McCall. McCall alsohad several visits with the baby's father, who was occasionally with themother during her visits. He told McCall that he hoped tomarry themother sometime, but

never had definiteplans. He told her that he had failed

one armed services 

### test but was hoping totake another so that he could enter the military and then marry themother. The marriage always appeared tobe contingent upon the father's ability toobtain a stablejob and home, but those conditions never materialized. McCall concluded from her associationwith themother that she was not retaining thebasic child care information given her:"When I would visither, I usually reiterated the same kinds of things about nutritional instructions, the need for a regular physician for [thebaby], the need for immunizations to protect [thebaby] from preventable childhood diseases and many 

### timeswhen I would visither, thismaterial seemed tobe new as if she had never heard 

### it before. She indicated to

### me that shewas not retaining this information that I had been giving her." InApril 1976 the parents brought the baby to Dr. Kit Johnson, a pediatrician, following their attempts togive the baby 

### a "green dish soap" enema. According tothe parents, the baby had suffered constipation for three days prior tothe attempted enema. Dr. Johnson testified that the baby appeared "acutely ill" and "screamed of pain." He had her admitted to a hospital where she stayed overnight. Mary McCall had little formal contactwith themother and child after February 1976 when they moved from her geographical jurisdiction. However, she continued tohave

some contact. On August 

### 24, 1976, themother appeared inan alleybehind theMissoula County Health and Welfare Building

asMcCall returned from a home visit. She had the baby with her and told Piccall that she was going tohave a nervous breakdown; that she and the father had had a fight; that she needed a babysitter for her daughter for two weeks; that she had no money or food for the baby; that the father was drinking heavily; that she was angered by the baby's continuous crying; and that she was afraid shewas going to hurt the child. The baby was unwashed and carried a bottle of spoiled, curdled milk. McCall took them into the Department of Social Services tomake 

### care arrangements for mother and daughter. With two social welfare workers there, Gwen Peterson and Arlene Grossman, McCall agreed that the baby should be placed intemporary foster care until her mother was again able to take care of her. The mother went along with this decision, and the child was temporarily placed. The following day, however, the mother reappeared, demanded her child's return, and accused the welfare staff of stealing her daughter. After some discussionwith Peterson, Grossman, and McCall, the mother agreed toplacement for her child and herself with a family inClinton, I:Iontana, where themother herself had once been a foster child. She 

### later signed a stipulation stating the 

### terms of that agreement, which became the basis of a temporary custody order signed by 

### District Court Judge E. Gardner Brownlee on September 3, 1976. The Baker family, with whom mother and daughter 

### were to stay, agreed to serve asparenting models, helping the mother tounderstand her responsibilities. In October 1976, the mother and her child returned to Missoula tolivewith the father. He had obtained a job and

a trailer house, but soon lostthe job due to excessive drinking. Through the fallmonths themother missed several W.I.C. appointments atwhich she was toreceive high protein foods. She did, however, receive in-home assistance from Beatrice Fournier, 

### a home attendant for theNissoula County Welfare Department. Fournier helped themother plan menus and, realizing her inability toread, brought her pictures of food groups to aid inher planning. She testified, however, that themother failed tocomprehend the need for a balanced diet and that the instructions

### were not getting through toher. InNovember 1976 Arlene Grossinan took the child toDr. Johnson to examine a stomach rash. Dr. Johnson concludedthat the rash was not significant but diagnosed an infection inboth of the baby's ears. He prescribed an antibiotic, butArlene Grossman discovered that the mother failed to give her daughter the prescribed amount atthe appropriate 

### times. Nor did themother return toDr. Johnson intwo weeks for a checkup on the child's ears as she had been instructed. On January 18, 1977, the child had another appointment with Dr. Johnson. Atthat time she exhibited physical and emotional signs which Dr. Johnson concluded required foster placement: 

# ".



# . . atthis 

### timethe child was very restless and irritable and she was biting on her mother as her mother put 

### it. She appeared thin, slightly swollen abdomen, her mother stated that she had had inadequate food for the last month because of insufficient amount of money, stated she was not livingwith [thefather]

## , stated [the child] had a cold and not feeding well for the 

### lastmonth 

# . . . The abdomen was slightly distended, the ears, the rightwas slightly dull indicating thatmaybe some residual infection 

# .. . I thought atthis time the child was maybe suffering from malnutrition and maternal inadequacy, unable to cope with the child." Dr. Johnson further testified that his examination showed that the child had lostweight since the previous November. InFebruary 1977 Dr. Johnson again examined the child when her temporary foster mother, Marlene Donnelly, brought her tohim. The 

### ear infection had not yet cleared up but otherwise her physical condition appeared normal. Mrs. Donnelly described tohim, however, that the child had a strong tendency to scavenge for food, especially toeatout of household garbage. Dr. Johnson testified that such a tendency bears a high correlation to food deprivation. He reported his findings to the Missoula County Welfare Depart-ment and testified later that the child did not receive adequate parental care. Based upon themother's and daughter's past record of difficulties, and Dr. Johnson's recommendations, Carol LaCasse, a Missoula County social worker, filed a petition for temporary investigative authority and protective 

### services. The DistrictCourt granted the petition on January 19, 1977, authorizing the Department of Social and Rehabilitation Services totake temporary custody of the child. During the next several weeks SRS continued to assistthe parents in learning parenting skills, but with results similar to those experienced earlier. 

### Inparticular, Carol LaCasse sought parenting training for the mother. She placed the child inthe home of an experienced fostermother, Marilyn Fernelius, who served as

a parenting model for themother during January 1977. The mother visited

### Mrs. Fernelius on weekdays and discussed and planned menus with her. Mrs. Fernelius also instructed the mother indisciplining her daughter but testified that the mother was incapable of controlling the baby, that ineffect the child controlled her mother. Mrs. Fernelius testified that she observed the same attraction togarbage which Marlene Donnelly later reported to Dr. Johnson. ~fter several weeks Marilyn Fernelius requested that the childbe placed elsewhere because she was already providing foster

care for a teenage girlwho required a great deal of her 

### time. Within a few weeks the childwas placed in the foster

care of Mrs. SadieMilward where she remained until the 

### time of the hearing on thepetition togrant permanent custody to SRS. While the child stayed with the Milwards, the parents

### visited their daughter and took her with them attimes but returning her the same day. The record, however, does not reflect that either natural parent was provided with further parental training services during this time. Following the child's temporary removal the child and parents had psychological examinations by three psychologists, Dr. 

### Richard Ball, Dr. 

### Herman Walters and Dr. 

### William Stratford. Drs. Ball

### and Walters, who examined the parents, and Dr. 

### Stratford, who examined the child, allconcluded that SRS should seek permanent adoptive custody because of the general inadequacy of the parents, the parents' apparent inability to change, and because of the child's special needs. On the other hand, a 

### psychiatrist, Dr. 

### Yoel Hoell, who also examined themother, concluded that he could find

no particular characteristicswhich would absolutely prevent her from being an adequate parent. He testified thatmany people with relatively low levels of intelligence are adequate parents. A 

### pediatrician, Dr. 

### Daniel Harper, saw the mother and child on several occasions asDr. 

### Johnson's successor after the child had been placed intemporary SRS custody. He 

### testified that following the temporary custody order the child while inthe presence of her mother seemed more "bonded" toher foster mother than toher natural mother, and that the child did not look to her own mother as an "orientating" or "guiding" force. Dr. 

### Harper also testified that Dr. 

### Johnson's concerns about growth deficiencies 

### were probably not a source of great concern, since it 

### was later clear that the childwas of normal short stature. Following the hearing on the petition for permanent custody, the DistrictCourt issued its findings, conclusionsand judgment. The court found that themother's limited education and other learning disabilities and the father's excessive drinking had resulted in "improper parenting" and had "subjected theminor child tophysical and emotional neglect as

### well 

### as other evidence of improper training." It found further that the parents 

### were unable or unwilling to provide the necessary training and guidance for their child; that SRS was required toplace the child infoster care primarily because of a lack of and need for emotional development; that foster placement had resulted in "great improvement" inher development; that the best interests of the child would not be served by returning her toone or both parents because the natural mother "appears incompetent to face and handle theproblems presented toparents by children intheir advancing years"; and that the child's best interests could only be 

### metby her adoption "into a home where the parents have demonstrated their ability" toraise and guide a "child with problems." The court concluded firstthat the child was neglected and second thather best interests and future welfare could only be served by granting permanent adoptive custody tothe Department of Social and Rehabilitation Services. ~ased upon these findings and conclusions, the court granted custody toSRS with authority to consent toher adoption.

Constitutionality 

### -- of the Neglect StatuteAs -Applied The mother's firstcontention is that section 10- 1301(2)(a) and (b)

## , R.C.M. 1947, now section 41-3-102 (2)(a) and (b) MCA, was unconstitutionally applied to terminate her parental rights. Her argument is thatbecause section 10- 1301(2),which defines "abuse" and "neglect", fails to stateany specific harms to a child which might justify termination of parental rights, 

### it 

### is subject tooverly-broad interpretation and arbitrary application. She contends that inthis case the child 

### isnot suffering any particular harm which requires 

### state intervention into family lifebut that the Statemerely perceives that the child would be better off in some home other than her natural mother's. This, she 

### asserts, 

### isan inadequate justification for termination of her parental rights. This Court has recognized that family integrity is a constitutionally protected interest. Guardianship of Doney (1977)I Mont. 

## , 570 P.2d 575, 577, 34 St.Rep. 1107, 1110. As the United States Supreme Court held in Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct.

"The Court has frequently emphasized the 

### importance of the family. The rights toconceive and toraise one's children have been deemed 'essential,' Meyer v. Nebraska, 262 U.S. 390, 399 (1923), 'basic civilrights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and '[rlights farmore precious 

# . . . than property rights,' May v. Anderson, 345 U.S. 528, 533 (1953). 'It 

### is cardinal with us that the custody, care and nurture of the child reside first intheparents, whose primary function and freedom include preparation for obligations the statecan neither supply nor hinder.' Prince v. Massachusetts, 321U.S. 158, 166 (1944). The integrity of the family unit has found protection intheDue Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at399, the Equal Protection Clause of the Fourteen Amendment, Skinner v. Oklahoma, supra, at541, and theNinth Amendment, Griswold v. Connecticut, 381U.S. 479, 496 (1965) (Goldberg, J., concurring)

# ." The mother contends that section 10-1301(2) 

### willinadequately protect these constitutional interests if it is interpreted toauthorize a termination of her rights as a parent in this case. The statute itself merely defines "abuse" or "neglect":(2) 'Abuse' or 'neglect' means: "(a)the commission or omission of any actor actswhich materially affect the normal physical or emotional development of a youth. Any excessivephysical injury, sexual assault, or failure to thrive, taking into account the age and medi

### cal history of the youth, shallbe presumed to be nonaccidental and to 'materially affect' the normal development of the youth. "(b) the commission or omission of any 

### act or actsby any person inthe status of parent, guardian, or custodian who thereby and by reason of physical ormental incapacity or other cause refuses or, with state and private aid and assistance 

### is unable, todischarge the duties and responsibilities forproper and necessary subsistence, education, medical, or any other care necessary for the youth's physical, moral, and emotional well-being." Since 

### a finding of "abuse or neglect" however gives the District Court jurisdiction to terminate parental rights, Guardianship of Doney, 570 P.2d at577, 34 St.Rep. at1110, themeaning applied to it 

### is the parent's only safeguard against unjustified intrusion into the family unit. To illustrateher contention, themother contrasts the relatively unspecific 

### terms contained in section 10-1301(2) with the more precise standards proposed by the Institute of JudicialAdministration-American Bar Association Joint Commission on Juvenile Justice Standards in

### its Standards Relating toAbuse and Neglect (TentativeDraft 1977) (IJA/ABA standards). The IJA/ABA proposals arebased upon a "strong presumption for parental autonomy inchild rearing," and 

### limit "coercive intervention" toprotect children "only where the child 

### is suffering or there 

### is a substantial likelihood that the child will suffer, serious harm." IJA/ABA Standards 1.1and 1.3(A). The IJA/ABA proposals seek to avoid unnecessary or unjustified intrusions into family integrity by closely defining the grounds for intervention in

### terms of specific,objective, serious harm to the child. For example, a court may order in-home supervision or remove a child from his or her parents if: "A child has suffered, or there 

### is a substantialrisk that the child

### willimminently suffer, physical harm causing disfigurement, impairment of bodily functioning, orother serious physical injury as a result of conditions created by his/her parents or by the failure of the parents toadequately supervise orprotect him/her; "A child is suffering serious emotional damage, evidenced by severe anxiety, depression, or withdrawal, oruntoward aggressive behavior toward self orothers, and the child's parents arenot willing toprovide treatment for him/ her.

### " IJA/ABA Standards 2.1(B)and (C)

# . The rationale behind these standards 

### isparticularly important to themother's position because the District Court's findings focused principally on emotional rather than physical neglect of her daughter: 

# ".

. . the Department of Social and Rehabilitation Services was required toplace thisvery young child infoster homes partially because of the child's physical needs butmostly because the emotional development of the child 

### was so lacking that the only chance for the child tohave a reasonable future was toplace the child ina home able toprovide for 

### its physical and emotional needs." (Emphasis added.) As the mother points out, vague abuse and neglect statutes often result inarbitrary application when the parents involved inthe alleged neglect arepoor and uneducated. Katz, Ambrosino, McGrath & Sawitsky, Legal Research

on Child Abuse & Neglect: Past and Future, 11 Fam.L.Q. 151, 172-75 (1977);Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Xonitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan.L.Rev. 623 (1976) (Wald 11); Wald, State Intervention on Behalf of "Neglected" Children: A Search for Xealistic Standards, 27Stan.~.~ev. 985 (1975) (Wald I); Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role inChild ~buse and Neglect Cases, 63 Ge0.L.J. 887, 917-32 (1975) (Areen)

# . It is likely however that the greatest percentage of child neglect cases involve matters similar tothe present

one inwhich the alleged neglect results not from the deliberate design of a parent, but rather from the parent's low mental or emotional capacity and low financial status. Wald I at1020-21; Areen at888; Dembitz, Welfare Home Visits: Child versus Parents, 57 A.B.A.J. 871 (1971). Parents inthis category 

### are sometimes described as "marginal" people: 

### "

# . . 

# . they are continually atthe borderlineof being able to sustain themselves--economically, emotionally, and mentally." Wald I at1021. As Beatrice Fournier described the mother in this case, "Well, I think [themother] 

### is going tohave a hard enough 

### time totake

care of herself." A parent's ability tocare for himself or herself naturally affects his orher ability toprovide 

### a stable, supportive home for a child. "Such parents may provide 

### little emotional support for their children. While the children may not be physically abused, leftunattended, dangerously malnourished, or overtly rejected, they may receive 

### little love, attention, stimulation, or emotional involvement." Wald I at1021. The United States Supreme Court has recently observed thatmiddle-class socialworkers tend to favor long 

### term foster placement for children of such families, "thus 

### reflecting a bias that 

### treats the natural parents' poverty and lifestyle asprejudicial tothe best interests of the child."Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 832, 97 S.Ct. 2094, 2105, 53 L.Ed.2d 14, 29 (citing, Rein, Nutt & 

### Weiss, Foster Family Care: Myth and Reality, inChildren and Decent People 24, 25-29 (A. Schorr ed. 1974)). Yet, themother contends poverty and itsvarious attendant lifestyles must not be equated with neglect absent some showing of actual or 

### imminent harm to the child. SeeWald I at1001-02; Wald I1 at 649-50; Areen at925-28, 930-32. This Court has held that the Statemay not terminate a parent's right toraise his or her own child "merely because

a districtjudge or a 

### state agency might feel that a nonparent has more financialresources orpursues a 'preferable' lifestyle." Guardianship of Doney, 570 P.2d at578, 34 St.Rep. 

### at 1110. Beyond thatprinciple, however, 

### it is

more difficultto say what is theminimum constitutionally acceptable standard for such an extreme intervention into family integrity. The IJA/ABA standards, which remain in tentative draft form, might provide a policy measure by which toevaluate the adequacy of section 10-1301(2), but they represent only one proposal. Other proposals are equally available for our consideration. Areen for example, has proposed a standard for neglect which 

### is deliberately 

### less specific than the proposed IJA/ABA standards, especially inthe areamost relevant to this case, "emotional" neglect: "A 'neglected' child isone whose physical or emotional health is significantly impaired, or 

### is indanger of being significantly impaired, asa result of the action or inaction of his parent, guardian, orprimary caretaker." Areen at933.While this standard, like the IJA/ABA proposal, focuses the attention of the court on the "condition of the child rather than on parental fault," it deliberately avoids listing specific evidences of emotional damage such as "severe anxiety," "depression," "withdrawal," and "untoward aggressivebehavior." The reason, which 

### is of obvious importance here, 

### is a lack of adequate consensus among child behavior experts astowhat behavior symptoms indicate emotional deprivation. Areen at933. A totallydifferent approach 

### is found intheModel Statute for Termination of Parental Rights (MSTPR), prepared by the Neglected Children Committee of the National Council of Juvenile and Family Court Judges. See, 27 Juv.Just. No. 4, 3, 7 (1976). The NSTPR directs the court toconsider the parent's fitnessdirectly rather than look for specific evidence of harm tothe child. Section 12(1)(a),for example, requires the court toconsider the "emotional illness, mental illness ormental deficiency of 

### -- the parent, of such duration or nature as torender the parent unlikely to care for the ongoing physical, mental and emotional needs of the child." (Ehnphasis added.) In a preface to theMSTPR, 

### its authors, judges from several states, note that they "have not been isolated from

nor unmindful of the cross currents of the behavioral 

### sciences which have preoccupied this nation inrecent years." 27 Juv.Just. at3. Yetasjudges, they continue, they have been able to "testthese theoretical fermentations against the realitiesof their day-to-day practice." 27 Juv.Just. at 3-4. The Council of Juvenile and Family Court Judges has 

### responded more directly tothe IJA/ABA proposed standards,concluding that they offer entirely inadequate protection to children: "This lengthy volume needs drasticrevision in that 

### it totally disregards the rights of a child tobe protected and safe inhis home environment. These standards greatly 

### limitthe process by which a neglected or abused child may be protected through thejuvenile justice system. There 

### is an attempt by the authors to 

### restrict the interference of society inthe upbringing of children. While this 

### isobviously a worthwhile goal, there needs tobe a balance so that youngsters can be adequately protected from the physical and mental abuse and neglect of parents." 8 Juvenile and Family Court Newsletter, No. 6 at9 (1978). Thus, the IJA/ABA tentative draftproposals which the mother 

### relies on lack not only a consensus of support among childbehavior experts, Areen at933, but are considered inadequate by the National Council of Juvenile and Family Court Judges. While it 

### isnot this Court's position to declare whether one proposal or another 

### is a better approach, 

### we can say with some confidence that the IJA/ABA proposal isnot the only constitutional approach. The proceedings inthis 

### case need not bemeasured against the IJA/ABA model and rejected on constitutional due process grounds if they failto

### meetits 

### strict standards. See, Statev. McMaster (1971), 259 Or. 291, 486 P.2d 567, 569. Our past decisions indicate that section 10-1301(2) 

### is not 

### so broadly interpreted as topermit termination of parental rights merely because the courts or the concerned socialwelfare agency disapprove of the parents' lifestyles. See, Guardianship of Doney, 570 P.2d at578, 34 St.Rep. at 1110; Matter of Fisher (1976), 169 Flont. 254, 258-59, 545 P.2d 654, 656. On the other hand, the statute isbroad enough to include emotional deprivation, inadequate nutrition, and extreme and prolonged uncleanliness of the childunder the definitionof neglect. Matter of J.J.S. (1978), Mont. I 577 P.2d 378, 380-81, 35 St.~ep. 394, 395, 397. See also, Matter of Henderson (1975), 168Mont. 329, 332, 542 P.2d 1204, 1205-06. In the present case the DistrictCourt's finding of poor emotional development of the child was based on the testimony of several qualified witnesses. The record does not show that themother deliberately refused toprovide emotional support forher daughter. Rather, the social welfare workers who attempted tohelp her testified that the mother was simply incapable of caring for her daughter, physically as

### well

### as emotionally. Thus, this case involves not somuch a legal due process problem of notice to the mother of what behavior was expected of her orwhat she could do tohave her daughter returned toher, but rather a human problem of a mother's inability tounderstand her child's needs and torealistically provide for them. We are aware that themother may have received conflicting instructions, especially regarding discipline of her child. However, an overall reading of the testimony indicates that themother's problem went beyond these apparent conflicts, for she was not even capable of understanding or retaining simple instructions inthe first place. The mother's condition, which was described tothis Court as "borderlinementally retarded," presents a special problem which courts inother states have recently considered. The New York Family Court, inGuardianship of Strausberg (1977), 92 Misc.2d 620, 400 N.Y.S.2d 1013, dealtwith the

same sort of condition as

### we face here:"A summary of the expert testimony 

# . . 

# . showed the respondent tobe 

### a borderline retarded person, who under 

### stress is easily confused inher thinking. That atthe present 

### time and inthe immediate future the respondent has 

### littleunderstanding or ca2acity toprovide the nurturance, structure and controls and fulfillother emotional needs of a developing child." 400 N.Y.S.2d at1014. The court noted particularly the impending difficulties which would confront parent and child if they 

### were reunited and expressed concern over the 

### timewhich further attempts attraining themother inchild caremethods would require: "The older the child gets themore difficult 

### it willbecome for the respondent to fulfill theparental role and provide the direction structure and other emotional needs of the child herein. The infant 

# . 

# . . should not be held in limbo for this indefinite period of 

### time for thepurposes of training the respondent in the area of child care." 400 N.Y.S.2d at1015. On this basis, the court refused toorder the child returned toher mother. However, mental deficiencies alone do not justify termination if there isno evidence that the child is in some way harmed or likely tobe harmed because of the parent's condition. In construing 

### its termination statute, theMinnesota Supreme Court made this requirement clear: 

# ".

. . we wish to stateunequivocally that mental illness inand of itself shall not be classified 

### as 'other conduct' which 

### willper

### mittermination of parental rights. Rather, ineach 

### case, the actual conduct of the parent is tobe evaluated todetermine his or her fitness tomaintain the parental relationship with the child inquestion so as to not be detrimental tothe child." In 

### re Kidd (Minn. 1978), 261 

### N.W. 2d 833, 835. See also, In re E&B (Utah 1978), 578 P.2d 831, 833-34; In re Telles (1978), Gal-App., 151Cal.Rptr. 263, 266-67; Matter of Fish Mont. 

### -In thepresent 

### case the DistrictCourt found that the childwas harmed by her mother's failure toprovide adequate emotional support, and concluded that themother was "incompetent to face and handle theproblems presented toparents by children in their advancing years." These considerations

arebeyond the

### mere "poverty" or "lifestyle" characterizations which this Court found inadequate inFisher and Doney. Here, the DistrictCourt's conclusion that the child was harmed by her home environment 

### is supported by the testimony of socialworkers, physicians, and psychologists. We conclude, therefore, that section 10-1301(2) was constitutionally applied inthis case.

Standard - of Proof The mother's second contention on appeal is that the burden of proof required of the State in

### a termination of parental rights action is the "clear and convincing" standard, and that the State failed to

### meet thatburden. No previous decision of this Court has 

### set forth this requirement, nor 

### is any particular burden mandated by statute. However, inlightof our past rulings and the interests involved in such cases, 

### we hold that the statemust show, by clear and convincing evidence, that the child 

### is neglected

or abused before parental rights may be terminated. As the foregoing analysis shows, parental interests in raising children are constitutionally protected. We note further that inthis case the protection which the mother enjoys is notweakened by the fact thather child was born out of wedlock. Stanley v. Illinois, 405 U.S. at651-52, 92 S.Ct. 

### at 1213, 31L.Ed.2d at559. The constitutional value of protecting family integrity alsohas received supportfrom a policy point of view asnoted by the authorities above. similarly, the declaration of policy which accompanies the statutes governing termination places emphasis on thepreservation of family unity "whenever possible." Section 10-1300(4), R.C.M. 1947, now section 41-3-101(1) (d) MCA. See, Matter of Fisher, 169 Mont. at258-59, 545 P.2d at656. In the past this Court has held that the required standard of proof ina termination of parental rights case 

### is "substantial credible evidence" that the child 

### is abused, neglected, ordependent. Matter of Fisher, 169 Mont. at 258, 545 P.2d at656. Yet, of those states thathave considered the issue, most have chosen between a "preponderance of the evidence" standard and the "clear and convincing" 

### test proposed by themother. See, Matter of Orzo (1975), 84 Misc.2d 482, 374 N.Y.S.2d 554, 564-65 and n. 20. While the distinction between these standards 

### is often elusive, 

### we conclude that the higher standard represented by the "clear and convincing" 

### test more adequately furthers the policy of family unity and more nearly approximates the previous approach of thisCourt than does the "preponderance of evidence" 

### test. See In 

### re Maria (U.S. Territorial Court, V.I. 1978), 5 Fam.L.Rep. 2089, 2090; In 

### re Telles, 151 Cal.Rptr. at265-66; Matter of Rosenbloom (Minn. 1978), 266 N.W.2d 888, 889-90. It is important toobserve that this 

### test does not deny children the protection they need. Wenote inparticular that the the "clear and convincing" standard of proof 

### is not

asrigorous as the "beyond reasonable doubt" standard. See, In

### re Maria, 5 Fam.L.Rep. at2090; In

### re Telles, 151 CaL.Rptr. at265; Matter of Rosenbloom, 266 N.W.2d at889.The DistrictCourt did not abuse 

### its discretion in concluding that themother was an unfit parent; rather, its conclusion 

### is supported by substantial credible evidence. The judgment granting permanent adoptive custody tothe Department of Social and Rehabilitation Services 

### is affirmed.

We concur:



## - Chief Justice



# e,,2i?LA Justices