No. 13217
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1976
I N THE MATTER O DECLARING
F
REBECCA L N BURGDORF and
YN
KELLY RAY BERRY, Dependent
and Neglected C h i l d r e n .
Appeal from: D i s t r i c t Court o f t h e F o u r t h J u d i c i a l D i s t r i c t ,
Honorable Edward D u s s a u l t , Judge p r e s i d i n g .
Counsel o f Record:
For Appellant :
S a d l e r and B a l y e a t , Missoula, Montana
H. John3- a r g u e d , Missoula , Montana
.ei2X/paL
F o r Respondent:
Robert L. Dechamps 111, County A t t o r n e y , Missoula,
Montana
Lon J. Dale, Deputy County A t t o r n e y , a r g u e d ,
Missoula, Montana
Susan Weiland, Deputy County A t t o r n e y a p p e a r e d ,
Missoula, Montana
Thomas Mahan a r g u e d , Helena, Montana
Submitted: June 4, 1976
Decided :
a 3 0 1976
d
Filed :
m; 3 G 1n76
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal by the natural mother of two minor children
from a judgment of the district court, Missoula County, the Hon.
Edward T. Dussault presiding. Permanent custody of the children
with the right to consent to adoption was awarded to the Depart-
ment of Social and Rehabilitation Services of the state of Montana.
Shortly after moving to Missoula in February 1974,
appellant mother contacted the Missoula County Department of Public
Welfare for assistance. Following an investigation, a petition
was filed in May 1974, requesting the Department of Social and
Rehabilitation Services be awarded temporary custody of the two
minor children. This petition was granted by the district court for
a period of 90 days.
In September 1974, another petition was filed seeking an
order extending the period of temporary custody another 90 days
and compelling appellant to submit to physical and psychological
examinations. This petition was granted in October 1974.
A third petition was filed in February 1975, requesting
permanent custody of the children be placed in the Department of
Social and Rehabilitation Services. This petition was heard in
July 1975, by the district court sitting without a jury. Upon
setting forth findings of fact and conclusions of law, the district
court entered judgment awarding permanent custody to the Department
of Social and Rehabilitation Services. From this judgment the
mother appeals.
Three issues are presented for review:
(1) Is section 10-1301(2) (a) and (b) , R.C.M. 1947, vague
and overbroad in violation of the United States and Montana Con-
stitutions?
-2-
(2) Were the constitutional rights of appellant and the
children protected during the neglect proceedings?
(3) Were the best interests of the children served by
removing them from appellant?
As stated by this Court in State ex rel. Lane v. District
Court of the Fourth Judicial District, Mont . , 535 P.2d
"The presumption of validity attends every legislative
enactment and the burden of proving invalidity of a
statute rests upon one attacking the statute.I I
A statute will be declared constitutional unless a clear
violation of fundamental law is shown, No11 v. City of Bozeman,
166 Mont. 504, 534 P.2d 880, 32 St.Rep. 415, 417.
Section 10-1301(2) (a) and (b) , states:
"(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 pre-
sumptive of 'material affect' and nonaccidental; or
( ) The commission or omission of any act or acts
"b
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 his physical, moral and emotional well-being."
This Court recognizes the general rule that statutes imposing
civil burdens must be clear and explicit. State ex rel. State Board
of Education v. Nagle, 100 Mont. 86, 90, 45 P.2d 1041. Appellant
urges no specific objection to section 10-1301(2), R.C.M. 1947, but
concludes it is unconstitutionally vague. We disagree. We find the
section is not ambiguous or uncertain under the facts of this case,
as to the conduct or the standards it prescribes.
Appellant's second issue contends that she or her children
were denied due process of law because no hearing was held prior to
or immediately after the removal of the children from appellant's
custody. Hearing on the first petition for temporary custody
was held on June 18, 1974. The record fails to show exactly when
the children were physically taken from appellant's custody.
However, it does indicate this occurred prior to May 10, 1974,
when the petition was filed. There is nothing in the record to
explain why the hearing was delayed for over one month. Nor is
there a showing of any prejudice to appellant or the children as
a result of the delay. The record does not show appellant requested
an earlier hearing. On the other hand, the record does show appel-
lant was represented by counsel throughout the proceedings, and a
guardian ad litem was appointed prior to the final hearing for
permanent custody to represent the children. Appellant received
notice and had an opportunity to be heard on both petitions for
temporary custody as well as the petition for permanent custody.
From these facts, we find no violation of due process rights.
Appellant's third issue argues the district court erred in
granting custody of the children to the Department of Social and
Rehabilitation Services rather than first exploring other means
of helping the family which would have a less drastic impact on
appellant's custodial rights. While we apprecia-tethe importance
of the parent's custodial rights, the welfare of the children, not
the parent, is the primary consideration. A child's best interests
are not always served by retaining custody in the natural parent.
Matter of Declaring Jones and Peterson Child.,Etc., .
Mont . - --,
539 P.2d 1193, 32 St.Rep. 910.
Here t h e d i s t r i c t c o u r t e n t e r e d t h e s e f i n d i n g s of f a c t :
"V. That i n A p r i l and May of 1974, K e l l y Ray Berry
was n e g l e c t e d a s d e s i g n a t e d i n Sec. 10-1301(b), R.C.M.
1947, and t h i s n e g l e c t was caused by h i s m o t h e r ' s r e f u s a l
o r i n a b i l i t y t o follow professional advice i n seeking t h e
n e c e s s a r y medical t r e a t m e n t f o r h i s w e l l - b e i n g .
"X. That B e a t r i c e (Burgdorf) (Berry) N w i s unable e
t o provide t h e n e c e s s a r y long term guidance, and h a s
been u n w i l l i n g t o s e e k t h e n e c e s s a r y p r o f e s s i o n a l
t r e a t m e n t t o p r o v i d e f o r t h e s p e c i a l c a r e and t r e a t m e n t
of Rebecca Lynn Burgdorf ."
The d i s t r i c t c o u r t i s charged by s e c t i o n 10-1314, R.C.M.
1947, t o p r o t e c t t h e w e l f a r e of t h e c h i l d r e n . S p e c i f i c r e l i e f i s
w i t h i n t h e d i s c r e t i o n of t h e d i s t r i c t c o u r t . Its decision w i l l
not be d i s t u r b e d on a p p e a l u n l e s s t h e r e h a s been a m a n i f e s t abuse
of d i s c r e t i o n . I n r e C o r n e l i u s e n , 159 Mont. 6 , 9 , 494 P.2d 908.
The d i s t r i c t c o u r t h e a r d a l l of t h e evidence and i s s u e d f i n d i n g s
of f a c t showing t h e c h i l d r e n t o be n e g l e c t e d and a p p e l l a n t e i t h e r
u n w i l l i n g o r unable t o c a r e f o r them. A p p e l l a n t had two 90 day
p e r i o d s w i t h i n which t o u t i l i z e t h e h e l p o f f e r e d t o h e r b u t f a i l e d
t o do s o .
A p p e l l a n t d i r e c t s our a t t e n t i o n t o M a t t e r of F i s h e r , ---
Mon t . -- 7 545 P.2d 654, 33 St.Rep. 183, where we r e v e r s e d t h e
judgment of t h e d i s t r i c t c o u r t t h a t t h e c h i l d r e n be taken from t h e i r
n a t u r a l mother. W found from a s t u d y of t h e complete r e c o r d t h a t
e
t h e r e was i n s u f f i c i e n t evidence t o s u p p o r t t h e d i s t r i c t c o u r t ' s
f i n d i n g of f a c t t h a t t h e c h i l d r e n were "youth i n need of c a r e " a s
d e f i n e d i n s e c t i o n 10-1301, R.C.M. 1947.
W d i s t i n g u i s h F,-- h e. r
e is from t h e p r e s e n t c a s e . Here, we do
n o t have a complete r e c o r d . A p p e l l a n t , w i t h a d v i c e of c o u n s e l ,
waived t h e presence of a c o u r t r e p o r t e r . Thus, we have no t r a n s -
c r i p t of t h e proceedings i n t h e d i s t r i c t c o u r t . The r e c o r d we do
have s u p p o r t s t h e d i s t r i c t c o u r t ' s f i n d i n g s of f a c t a s t o a p p e l l a n t ' s
medical problems and t h e need t o p l a c e custody o f t h e s e c h i l d r e n
i n t h e Department of S o c i a l and R e h a b i l i t a t i o n S e r v i c e s .
Appellant a l s o r a i s e s s e v e r a l i s s u e s concerning s t a n d a r d
of proof and s u f f i c i e n c y of t h e evidence. A s we have no t r a n s c r i p t ,
we do n o t c o n s i d e r t h o s e i s s u e s .
For o t h e r c a s e c i t a t i o n s on t h e b e s t i n t e r e s t s and w e l f a r e
of c h i l d r e n , s e e 13247, I n t h e Matter of Declaring George E r n e s t
B e s s e t t e , J r . , and J e a n Paul B e s s e t t e , Youths i n Need of Care v.
Lynn Marie B e s s e t t e , decided today.
Judgment i s a f f i r m e d .
Justice a
W Concur:
e /