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, 1979 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

A mother brings this appeal from the conclusions and 

judgment of the District Court, 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 to consent to her 

adoption. The mother contends first that 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 to her. Second she contends that the 

appropriate standard of proof to be applied to the 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 in removing the 

child permanently from her mother because that decision was 

not supported by even a preponderance of the evidence. We 

affirm the decision of the District Court. 

The child was born on May 16, 1975, when her mother was 

seventeen years old. Her parents were not married at the 

time of her birth, nor have they ever been married. They 

did live together on a fairly regular basis from shortly 

after the child's birth until December 1977. 

In her fifth month of pregnancy the mother was referred 

to a Public Health Service nurse, Mary XcCall, by a high 

school counselor. From that time on the mother and child 

have been frequently visited by a variety of health and 

welfare officials offering assistance and instruction in 

child care. 

Mary McCall testified that she met with the mother and 

arranged to have a social worker assigned to her. she 
further arranged for the mother to meet with an eligibility 

technician to provide assistance in receiving Iledicaid money 

for prenatal care and arranged an appointment with a physician to provide her with that care. She also referred the 

mother to the W.I.C. program, a federal nutritional program 

for women, infants, and children, for prenatal nutritional 

assistance. A senior student social worker from the University of Montana, Tricia Williams, made weekly visits to the 

mother from December 1974 until the child was born. 

The mother was later referred to the "At-Risk Program" 

of the Missoula City-County Health Department, which attempts 

to identify mothers and children that will be at risk for 

potential health problems due to prenatal or delivery complications. According to Mary McCall, the mother was referred 

to the program because she was under eighteen, had not had 

prenatal care for the first five months of her pregnancy, 

was unable to read or write, had suffered a kidney infection 

and anemia during her pregnancy, and was unmarried. 

As a result of this referral, Mary XcCall regularly 

visited the mother at her mother's home during the summer of 

1975 and learned of the baby's problem of staying awake and 

crying most of the time. In McCall's judgment, the problem 

was caused by the infant's diet. Her mother had put cereal 

in her formula, which McCall concluded was probably constipating the baby because she was too young to handle solid 

food. McCall also found the mother to be depressed and 

anxious from lack of sleep. She assisted her with the 

preparation of formula for her baby, demonstrating each step 

rather than leaving written instructions because the mother 

was unable to read. 
14cCall also helped the mother with an application for a 

low-income housing project in Missoula when she indicated a 

desire for independence from her home. The mother obtained 

the low-income housing and lived in her own apartment in the 

fall of 1975. Another senior student from the University 

made a total of 22 visits with the mother that fall to 

assist with care for her child. During that time, PllcCall 

received a referral from the W.I.C. program requesting 

nutritional counseling for the mother, and visited her once 

again. The mother had been feeding the child soda pop 

rather than juice, telling McCall that juice 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 the mother made no effort to pick up her daughter when 

she cried, and that the baby appeared irritable. PlcCall was 

told by the apartment manager that the baby had been crying 

all night, but the mother denied that claim when asked by 

McCall. 

McCall also had several visits with the baby's father, 

who was occasionally with the mother during her visits. He 

told McCall that he hoped to marry the mother sometime, but 

never had definite plans. He told her that he had failed 

one armed services test but was hoping to take another so 

that he could enter the military and then marry the mother. 

The marriage always appeared to be contingent upon the 

father's ability to obtain a stable job and home, but those 

conditions never materialized. 

McCall concluded from her association with the mother 

that she was not retaining the basic child care information 

given her: 
"When I would visit her, I usually reiterated 

the same kinds of things about nutritional 

instructions, the need for a regular physician 

for [the baby], the need for immunizations to 

protect [the baby] from preventable childhood 

diseases and many times when I would visit her, 

this material seemed to be new as if she had 

never heard it before. She indicated to me 

that she was not retaining this information 

that I had been giving her." 

In April 1976 the parents brought the baby to Dr. Kit 

Johnson, a pediatrician, following their attempts to give 

the baby a "green dish soap" enema. According to the parents, the baby had suffered constipation for three days 

prior to the 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 contact with the mother 

and child after February 1976 when they moved from her 

geographical jurisdiction. However, she continued to have 

some contact. On August 24, 1976, the mother appeared in an 

alley behind the Missoula County Health and Welfare Building 

as McCall returned from a home visit. She had the baby with 

her and told Piccall that she was going to have 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 she was 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 

to make 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 in 
temporary 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 discussion with Peterson, Grossman, and 

McCall, the mother agreed to placement for her child and 

herself with a family in Clinton, I:Iontana, where the mother 

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 as parenting models, helping the 

mother to understand her responsibilities. 

In October 1976, the mother and her child returned to 

Missoula to live with the father. He had obtained a job and 

a trailer house, but soon lost the job due to excessive 

drinking. Through the fall months the mother missed several 

W.I.C. appointments at which she was to receive high protein 

foods. She did, however, receive in-home assistance from 

Beatrice Fournier, a home attendant for the Nissoula County 

Welfare Department. Fournier helped the mother plan menus 

and, realizing her inability to read, brought her pictures 

of food groups to aid in her planning. She testified, 

however, that the mother failed to comprehend the need for a 

balanced diet and that the instructions were not getting 

through to her. 

In November 1976 Arlene Grossinan took the child to Dr. 

Johnson to examine a stomach rash. Dr. Johnson concluded 
that the rash was not significant but diagnosed an infection 

in both of the baby's ears. He prescribed an antibiotic, 

but Arlene Grossman discovered that the mother failed to 

give her daughter the prescribed amount at the appropriate 

times. Nor did the mother return to Dr. Johnson in two 

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. At that time she exhibited physical and 

emotional signs which Dr. Johnson concluded required foster 

placement: 

". . . at this time the 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 living with [the father] , stated [the child] had a cold and not feeding 

well for the last month . . . The abdomen was 

slightly distended, the ears, the right was 

slightly dull indicating that maybe some residual infection . . . I thought at this 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 lost weight since the previous November. 

In February 1977 Dr. Johnson again examined the child 

when her temporary foster mother, Marlene Donnelly, brought 

her to him. The ear infection had not yet cleared up but 

otherwise her physical condition appeared normal. Mrs. 

Donnelly described to him, however, that the child had a 

strong tendency to scavenge for food, especially to eat out 

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 the mother'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 District Court granted the petition on January 

19, 1977, authorizing the Department of Social and Rehabilitation Services to take temporary custody of the child. 

During the next several weeks SRS continued to assist the 

parents in learning parenting skills, but with results 

similar to those experienced earlier. 

In particular, Carol LaCasse sought parenting training 

for the mother. She placed the child in the home of an 

experienced foster mother, Marilyn Fernelius, who served as 

a parenting model for the mother during January 1977. The 

mother visited Mrs. Fernelius on weekdays and discussed and 

planned menus with her. Mrs. Fernelius also instructed the 

mother in disciplining her daughter but testified that the 

mother was incapable of controlling the baby, that in effect 

the child controlled her mother. Mrs. Fernelius testified 

that she observed the same attraction to garbage which 

Marlene Donnelly later reported to Dr. Johnson. ~fter 

several weeks Marilyn Fernelius requested that the child be 

placed elsewhere because she was already providing foster 

care for a teenage girl who required a great deal of her 

time. Within a few weeks the child was placed in the foster 

care of Mrs. Sadie Milward where she remained until the time 

of the hearing on the petition to grant permanent custody to 

SRS. While the child stayed with the Milwards, the parents 
visited their daughter and took her with them at times 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, all concluded 

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 the mother, concluded that he could find 

no particular characteristics which would absolutely prevent 

her from being an adequate parent. He testified that many 

people with relatively low levels of intelligence are adequate parents. 

A pediatrician, Dr. Daniel Harper, saw the mother and 

child on several occasions as Dr. Johnson's successor after 

the child had been placed in temporary SRS custody. He 

testified that following the temporary custody order the 

child while in the presence of her mother seemed more 

"bonded" to her foster mother than to her 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 child was of normal short stature. 

Following the hearing on the petition for permanent 

custody, the District Court issued its findings, conclusions 
and judgment. The court found that the mother's limited 

education and other learning disabilities and the father's 

excessive drinking had resulted in "improper parenting" and 

had "subjected the minor child to physical 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 to place the child in foster care 

primarily because of a lack of and need for emotional development; that foster placement had resulted in "great improvement" in her development; that the best interests of the 

child would not be served by returning her to one or both 

parents because the natural mother "appears incompetent to 

face and handle the problems presented to parents by children in their advancing years"; and that the child's best 

interests could only be met by her adoption "into a home 

where the parents have demonstrated their ability" to raise 

and guide a "child with problems." 

The court concluded first that the child was neglected 

and second that her best interests and future welfare could 

only be served by granting permanent adoptive custody to the 

Department of Social and Rehabilitation Services. ~ased 

upon these findings and conclusions, the court granted 

custody to SRS with authority to consent to her adoption. 

Constitutionality -- of the Neglect Statute As - Applied 

The mother's first contention 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 that because section 10- 

1301(2), which defines "abuse" and "neglect", fails to state 
any specific harms to a child which might justify termination of parental rights, it is subject to overly-broad 

interpretation and arbitrary application. She contends that 

in this case the child is not suffering any particular harm 

which requires state intervention into family life but that 

the State merely perceives that the child would be better 

off in some home other than her natural mother's. This, she 

asserts, is an 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 to conceive 

and to raise one's children have been deemed 

'essential,' Meyer v. Nebraska, 262 U.S. 390, 

399 (1923), 'basic civil rights of man,' Skinner 

v. Oklahoma, 316 U.S. 535, 541 (1942), and 

'[rlights far more 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 

in the parents, whose primary function and freedom include preparation for obligations the 

state can neither supply nor hinder.' Prince 

v. Massachusetts, 321 U.S. 158, 166 (1944). The 

integrity of the family unit has found protection in the Due Process Clause of the Fourteenth 

Amendment, Meyer v. Nebraska, supra, at 399, the 

Equal Protection Clause of the Fourteen Amendment, Skinner v. Oklahoma, supra, at 541, and 

the Ninth Amendment, Griswold v. Connecticut, 

381 U.S. 479, 496 (1965) (Goldberg, J., concurring) . " 

The mother contends that section 10-1301(2) will inadequately protect these constitutional interests if it is 

interpreted to authorize 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 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." 

Since a finding of "abuse or neglect" however gives the 

District Court jurisdiction to terminate parental rights, 

Guardianship of Doney, 570 P.2d at 577, 34 St.Rep. at 1110, 

the meaning applied to it is the parent's only safeguard 

against unjustified intrusion into the family unit. 

To illustrate her contention, the mother contrasts the 

relatively unspecific terms contained in section 10-1301(2) 

with the more precise standards proposed by the Institute of 

Judicial Administration-American Bar Association Joint 

Commission on Juvenile Justice Standards in its Standards 

Relating to Abuse and Neglect (Tentative Draft 1977) (IJA/ABA 

standards). The IJA/ABA proposals are based upon a "strong 

presumption for parental autonomy in child rearing," and 

limit "coercive intervention" to protect children "only 

where the child is suffering or there is a substantial 

likelihood that the child will suffer, serious harm." 

IJA/ABA Standards 1.1 and 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 substantial risk that the child will imminently suffer, physical harm causing disfigurement, 

impairment of bodily functioning, or other 

serious physical injury as a result of conditions created by his/her parents or by the 

failure of the parents to adequately supervise 

or protect him/her; 

"A child is suffering serious emotional damage, 

evidenced by severe anxiety, depression, or 

withdrawal, or untoward aggressive behavior 

toward self or others, and the child's parents 

are not willing to provide treatment for him/ 

her. " IJA/ABA Standards 2.1 (B) and (C) . 

The rationale behind these standards is particularly 

important to the mother'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 to place this very 

young child in foster homes partially because 

of the child's physical needs but mostly because the emotional development of the child 

was so lacking that the only chance for the 

child to have a reasonable future was to place 

the child in a home able to provide for its 

physical and emotional needs." (Emphasis added.) 

As the mother points out, vague abuse and neglect 

statutes often result in arbitrary application when the 

parents involved in the alleged neglect are poor 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, 27 
Stan.~.~ev. 985 (1975) (Wald I) ; Areen, Intervention Between 

Parent and Child: A Reappraisal of the State's Role in Child 

~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 to the present 

one in which 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 at 1020-21; Areen at 888; Dembitz, Welfare Home 

Visits: Child versus Parents, 57 A.B.A.J. 871 (1971). 

Parents in this category are sometimes described as "marginal" people: " . . . they are continually at the borderline of being able to sustain themselves--economically, 

emotionally, and mentally." Wald I at 1021. As Beatrice 

Fournier described the mother in this case, "Well, I think 

[the mother] is going to have a hard enough time to take 

care of herself." 

A parent's ability to care for himself or herself 

naturally affects his or her ability to provide 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, left unattended, 

dangerously malnourished, or overtly rejected, they may 

receive little love, attention, stimulation, or emotional 

involvement." Wald I at 1021. 

The United States Supreme Court has recently observed 

that middle-class social workers tend to favor long term 

foster placement for children of such families, "thus reflecting a bias that treats the natural parents' poverty and 

lifestyle as prejudicial to the 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, in Children and Decent People 24, 

25-29 (A. Schorr ed. 1974)). Yet, the mother contends 

poverty and its various attendant lifestyles must not be 

equated with neglect absent some showing of actual or imminent harm to the child. See Wald I at 1001-02; Wald I1 at 

649-50; Areen at 925-28, 930-32. 

This Court has held that the State may not terminate a 

parent's right to raise his or her own child "merely because 

a district judge or a state agency might feel that a nonparent has more financial resources or pursues a 'preferable' lifestyle." Guardianship of Doney, 570 P.2d at 578, 

34 St.Rep. at 1110. Beyond that principle, however, it is 

more difficult to say what is the minimum 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 to evaluate 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 in the area most relevant to this case, "emotional" 

neglect: 

"A 'neglected' child is one whose physical or 

emotional health is significantly impaired, or 

is in danger of being significantly impaired, 

as a result of the action or inaction of his 

parent, guardian, or primary caretaker." Areen 

at 933. 
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 aggressive behavior." The reason, which is of obvious importance 

here, is a lack of adequate consensus among child behavior 

experts as to what behavior symptoms indicate emotional 

deprivation. Areen at 933. 

A totally different approach is found in the Model 

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 to consider the 

parent's fitness directly rather than look for specific 

evidence of harm to the child. Section 12(1)(a), for example, 

requires the court to consider the "emotional illness, 

mental illness or mental deficiency of -- the parent, of such 

duration or nature as to render the parent unlikely to care 

for the ongoing physical, mental and emotional needs of the 

child." (Ehnphasis added. ) 

In a preface to the MSTPR, 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 in recent years." 

27 Juv.Just. at 3. Yet as judges, they continue, they have 

been able to "test these theoretical fermentations against 

the realities of their day-to-day practice." 27 Juv.Just. at 

3-4. 

The Council of Juvenile and Family Court Judges has responded more directly to the IJA/ABA proposed standards, 
concluding that they offer entirely inadequate protection to 

children: 

"This lengthy volume needs drastic revision in 

that it totally disregards the rights of a 

child to be protected and safe in his home environment. These standards greatly limit the 

process by which a neglected or abused child 

may be protected through the juvenile justice 

system. There is an attempt by the authors to 

restrict the interference of society in the 

upbringing of children. While this is obviously a worthwhile goal, there needs to be 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 at 9 (1978). 

Thus, the IJA/ABA tentative draft proposals which the 

mother relies on lack not only a consensus of support among 

child behavior experts, Areen at 933, but are considered 

inadequate by the National Council of Juvenile and Family 

Court Judges. While it is not 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 is not the only constitutional approach. The 

proceedings in this case need not be measured against the 

IJA/ABA model and rejected on constitutional due process 

grounds if they fail to meet its strict standards. See, 

State v. 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 to permit termination of 

parental rights merely because the courts or the concerned 

social welfare agency disapprove of the parents' lifestyles. 

See, Guardianship of Doney, 570 P.2d at 578, 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 is broad 

enough to include emotional deprivation, inadequate nutrition, and extreme and prolonged uncleanliness of the child 
under the definition of 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), 168 Mont. 329, 

332, 542 P.2d 1204, 1205-06. 

In the present case the District Court's finding of 

poor emotional development of the child was based on the 

testimony of several qualified witnesses. The record does 

not show that the mother deliberately refused to provide 

emotional support for her daughter. Rather, the social 

welfare workers who attempted to help her testified that the 

mother was simply incapable of caring for her daughter, 

physically as well as emotionally. Thus, this case involves 

not so much a legal due process problem of notice to the 

mother of what behavior was expected of her or what she 

could do to have her daughter returned to her, but rather a 

human problem of a mother's inability to understand her 

child's needs and to realistically provide for them. 

We are aware that the mother may have received conflicting instructions, especially regarding discipline of 

her child. However, an overall reading of the testimony 

indicates that the mother's problem went beyond these apparent conflicts, for she was not even capable of understanding or retaining simple instructions in the first 

place. 

The mother's condition, which was described to this 

Court as "borderline mentally retarded," presents a special 

problem which courts in other states have recently considered. 

The New York Family Court, in Guardianship of Strausberg 

(1977), 92 Misc.2d 620, 400 N.Y.S.2d 1013, dealt with the 

same sort of condition as we face here: 
"A summary of the expert testimony . . . showed the respondent to be a borderline 

retarded person, who under stress is easily 

confused in her thinking. That at the present time and in the immediate future the 

respondent has little understanding or ca2acity to provide the nurturance, structure and 

controls and fulfill other emotional needs of 

a developing child." 400 N.Y.S.2d at 1014. 

The court noted particularly the impending difficulties 

which would confront parent and child if they were reunited 

and expressed concern over the time which further attempts 

at training the mother in child care methods would require: 

"The older the child gets the more difficult 

it will become for the respondent to fulfill 

the parental 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 the purposes of training the respondent in the area of child care." 400 N.Y.S.2d 

at 1015. 

On this basis, the court refused to order the child returned 

to her mother. However, mental deficiencies alone do not 

justify termination if there is no evidence that the child 

is in some way harmed or likely to be harmed because of the 

parent's condition. In construing its termination statute, 

the Minnesota Supreme Court made this requirement clear: 

". . . we wish to state unequivocally that 

mental illness in and of itself shall not be 

classified as 'other conduct' which will permit termination of parental rights. Rather, 

in each case, the actual conduct of the parent 

is to be evaluated to determine his or her 

fitness to maintain the parental relationship 

with the child in question so as to not be 

detrimental to the 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., 151 Cal.Rptr. 263, 266-67; Matter 

of Fish - Mont. 
In the present case the District Court found that the 

child was harmed by her mother's failure to provide adequate 

emotional support, and concluded that the mother was "incompetent to face and handle the problems presented to parents 

by children in their advancing years." These considerations 

are beyond the mere "poverty" or "lifestyle" characterizations which this Court found inadequate in Fisher and Doney. 

Here, the District Court's conclusion that the child was 

harmed by her home environment is supported by the testimony 

of social workers, physicians, and psychologists. We conclude, therefore, that section 10-1301 (2) was constitutionally applied in this 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 that burden. No 

previous decision of this Court has set forth this requirement, nor is any particular burden mandated by statute. 

However, in light of our past rulings and the interests 

involved in such cases, we hold that the state must 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 in this case the protection which the mother 

enjoys is not weakened by the fact that her child was born 

out of wedlock. Stanley v. Illinois, 405 U.S. at 651-52, 92 

S.Ct. at 1213, 31 L.Ed.2d at 559. The constitutional value 

of protecting family integrity also has received support 
from a policy point of view as noted by the authorities 

above. similarly, the declaration of policy which accompanies the statutes governing termination places emphasis on 

the preservation 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. at 258-59, 545 P.2d 

at 656. 

In the past this Court has held that the required 

standard of proof in a termination of parental rights case 

is "substantial credible evidence" that the child is abused, 

neglected, or dependent. Matter of Fisher, 169 Mont. at 

258, 545 P.2d at 656. Yet, of those states that have considered the issue, most have chosen between a "preponderance 

of the evidence" standard and the "clear and convincing" 

test proposed by the mother. 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 this Court 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. at 265-66; Matter of Rosenbloom (Minn. 1978), 266 

N.W.2d 888, 889-90. 

It is important to observe that this test does not deny 

children the protection they need. We note in particular 

that the the "clear and convincing" standard of proof is not 

as rigorous as the "beyond reasonable doubt" standard. See, 

In re Maria, 5 Fam.L.Rep. at 2090; In re Telles, 151 

CaL.Rptr. at 265; Matter of Rosenbloom, 266 N.W.2d at 889. 
The District Court did not abuse its discretion in 

concluding that the mother was an unfit parent; rather, its 

conclusion is supported by substantial credible evidence. 

The judgment granting permanent adoptive custody to the 

Department of Social and Rehabilitation Services is affirmed. 

We concur: 

- 

Chief Justice 

e, ,2i?LA Justices