No, 13247
I N THE SUPREME COTRT O THE STATE OF M N A A
F OTN
1976
I N THE MATTER O DECLARING
F
GEORGE ERNEST BESSETTE, J R . ,
and J E A N PAUL BESSETTE, Youths
i n Need of Care.
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
Honorable Robert Sykes, Judge p r e s i d i n g .
Counsel of Record :
For Appellant :
Robert J. Campbell argued, Missoula, Montana
For Respondent:
P a t r i c k M e S p r i n g e r , County A t t o r n e y , K a l i s p e l l ,
Montana
Randy Schwickert argued, Deputy County A t t o r n e y ,
K a l i s p e l l , Montana
Thomas H. Mahan argued, Helena, Montana
Submitted: J u n e 4 , 1976
Dec ided : 3 0 1976
Filed : Jw 3 0 1976
M r . J u s t i c e Gene B . Daly d e l i v e r e d t h e Opinion of t h e Court.
T h i s i s an a p p e a l by t h e mother of two minor c h i l d r e n
from an o r d e r of t h e d i s t r i c t c o u r t , F l a t h e a d County, t h e Hon.
Robert C. Sykes p r e s i d i n g , d e c l a r i n g t h e c h i l d r e n t o be abused and
n e g l e c t e d and awarding permanent custody t o t h e S t a t e Department
o f 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 w i t h t h e r i g h t t o g r a n t
adopt i o n .
On J a n u a r y 7, 1975, George E r n e s t B e s s e t t e , J r . , age 3 and
Jean Paul B e s s e t t e , age 2 , t h e minor sons of Lynn Marie B e s s e t t e
were v o l u n t a r i l y placed i n t h e custody of t h e F l a t h e a d County
Department of P u b l i c Welfare. P r i o r t o t h i s t i m e , t h e two c h i l d r e n
were i n t h e i r mother's c a r e . Subsequently on February 5 , 1975,
t h e c h i l d r e n were r e t u r n e d t o t h e i r mother. On May 28, 1975, t h e
c h i l d r e n were a g a i n placed i n f o s t e r c a r e by t h e F l a t h e a d County
Welfare Department w i t h 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 p e t i t i o n i n g t h e d i s t r i c t c o u r t on May 30, 1975, t o g r a n t
temporary c u s t o d y of t h e c h i l d r e n . The d i s t r i c t c o u r t awarded
temporary custody t o t h e Department on J u l y 1 0 , 1975, w i t h a h e a r i n g
s e t f o r September 9 , 1975.
O September 2, 1975, t h e Department f i l e d a p e t i t i o n f o r
n
permanent custody w i t h t h e r i g h t t o g r a n t a d o p t i o n . A s a r e s u l t of
t h i s p e t i t i o n , t h e September 9 , 1975 h e a r i n g was v a c a t e d and a new
h e a r i n g s e t f o r October 30, 1975. S e r v i c e was made on t h e mother,
b u t t h e d i v o r c e d f a t h e r , George B e s s e t t e , S r . , had l e f t t h e s t a t e
h i s whereabouts unknown, and was t h e r e f o r e served by p u b l i c a t i o n .
H e d i d n o t appear t o c o n t e s t t h e p e t i t i o n .
At the September 9, 1975, hearing a written report to the
court by social worker Gloria Brinkman, dated August 13, 1975,
was entered into evidence and stipulated by the mother's attorney
as accurately reflecting the events to August 13, 1975. That re-
port revealed the following pertinent facts: At the time the two
minor children were voluntarily placed in custody, they were dirty,
ill-clothed, and medically observed to be suffering from malnutri-
tion and environmental retardation. Upon being returned to their
mother's care, the Welfare Department made various attempts to help
the mother improve the children's living conditions. However a
citizen complaint subsequently brought the children to the Welfare
Department's attention again. This time one of the boys was found
to be suffering from two black eyes, numerous scratches near the
eyes, a lump on the back of his head, and bruises on his back.
Dr. Wilder who examined both boys at this time, concluded one boy
had been abused and both had been neglected.
Upon examining the evidence and hearing testimony from the
mother, her father, a former employer of the mother, and Gloria.
Brinkman, the social worker assigned to this particular case, the
district court entered its order granting the petition for permanent
custody and authority to assent to adoption.
From that order the mother appeals.
The sole issue presented for review is whether there was
sufficient evidence for the district court to remove the children
from their mother under the provisions of section 10-1301, R.C.M.
Section 10-1301 defines youth in need of care:
" (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 presumptive of 'material effect' and nonaccidental; or
- 3 -
( ) The commission or omission of any act or
"b
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
other care necessary for his physical, moral, and
emotional well-being.
"3
() 'Dependent youth' means a youth who is abandoned,
dependent upon the public for support, and who is
destitute or is without parents or guardian or under
the care and supervision of a suitable adult or who has
no proper guidance to provide for his necessary physical,
moral and emotional well-being. A child may be considered
dependent and legal custody transferred to a licensed
agency if the parent or parents voluntarily relinquish
custody of said child.
I
' ( ) 'Youth in need of care' means a youth who is
4
dependent or is suffering from abuse or neglect within
the meaning of this act ."
The mother apparently concedes she had abused and neglected
her children but contends her attitude toward them has changed
dramatically for the better. In support of this contention, she
relies on the August 13 report to the court by social worker Gloria
Brinkman which was admitted into evidence. In that report Gloria
Brinkman stated:
"Mrs. Bessette appears to have improved her own personal
hygiene habits since the boys were placed. She has kept
her job as a baby-sitter. Visits with the boys have been
regular, and she has been increasingly cooperative regarding
keeping appointments with me * * *.I1
Examination of the record reveals that while the mother's
contention may have been true as of the date of the report, sub-
sequent events point to a different conclusion. On August 14, 1975,
one day after Gloria Brinkman's report, the mother was provided
visitation privileges with one of her sons. When the social worker,
Gloria Brinkman, picked the boy up a mere six hours later, in Mrs.
b rink man's words, he was "* * * absolutely filthy* * * sticky * * *
and *** smelled like he had filled his diaper * ** and * * * had
lost one shoe ** *.Ir
In addition, evidence at the hearing indicated subsequent
to the August report, appellant mother worked for a carnival,
traveling from town to town and later worked in Las Vegas "as
an errandgirl at $300.00 a week for a wealthy, elderly lady.",
thus seeing little of her children or the counseling which the
Welfare Department could have provided. Finally, the summarized
thoughts of Gloria Brinkman, the social worker in charge of the
case, are of special significance. When asked on direct examina-
tion whether she thought appellant's attitude toward her children
had improved, this exchange took place:
"A. No, to me the things that have occurred since
August have only supported my original decision.
"Q. What events are you speaking of? A. I am
talking of infrequency of visits, the way Johnny
looked after that visit, how hungry the two boys were
after that last visit, Lynn's pattern of this in-
stability that seems to have continued, her unwilling-
ness to work with us and we seem to have no way to
help her that I have been able to find.
"Q. So you see nothing that has changed that would
tend to want you to change your recommendation? A.
That is correct . I t
The record clearly reflects an established and continuing
pattern of abuse and neglect. This Court,has said on numerous
occasions that the primary consideration in awarding custody is
the best interests and welfare of the children. In the Matter of
Fisher, Youth in Need of Care v. Gloria Fisher, Mont . ,
545 P.2d 654, 33 St.Rep. 183; In the Matter of Henderson, Mont .
, 542 P.2d 1204, 32 St.Rep. 1154; In the Matter of Olson,
I : 164 Mont. 431, 524 P.2d 779. The importance of placing
the determination of the best interests of the child in the informed
discretion of the district court was noted in In the Matter of
Henderson, wherein we quoted with approval from In the Matter of
Adoption of B i e r y , 164 Mont. 353, 356, 522 P.2d 1377:
"What i s , o r what i s n o t i n t h e b e s t i n t e r e s t s of
t h e c h i l d depends upon t h e f a c t s and c i r c u m s t a n c e s
of each c a s e . The r e s p o n s i b i l i t y of d e c i d i n g c u s t o d y
i s a d e l i c a t e one which i s lodged w i t h t h e d i s t r i c t
c o u r t . The judge h e a r i n g o r a l testimony i n such a
c o n t r o v e r s y h a s a s u p e r i o r advantage i n determining t h e
same, and h i s d e c i s i o n ought n o t t o be d i s t u r b e d e x c e p t
upon a c l e a r showing of abuse of d i s c r e t i o n . "
Review of t h e f a c t s and circumstances of t h i s c a s e l e a d s
t o t h e c o n c l u s i o n t h a t s u b s t a n t i a l c r e d i b l e evidence e x i s t e d t o
s u p p o r t t h e d e c i s i o n of t h e d i s t r i c t c o u r t .
The judgment of t h e d i s t r i c t c o u r t i s a f f i r m e d .
J /
Justice
W Concur:
e /