No. 14438
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MATTER OF M.A.M.,
Youth in Need of Care
Appeal from: District Court of the Thirteenth Judicial
District,
Honorable Robert Wilson, Judge presiding.
Counsel of Record:
For Appellant:
Ralph Herriott argued, Billings, Montana
For Respondent:
Harold Hanser, County Attorney, Billings, Montana
Robert Waller argued, Deputy County Attorney,
Billings, Montana
Damon Gannett argued, Billings, Montana
Submitted: June 15, 1979
Decided: SEP 2 6 lgZg
Filed: SEP 25 - - A
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The natural mother of M.A.M. (herein referred to as
the child) appeals from a judgment of the Yellowstone
County District Court declaring M.A.M. to be a youth in
need of care, and awarding the permanent care, custody
and control of her to the Department of Social and
Rehabilitation Services (herein referred to as SRS), with
the authority to assent to adoption.
The mother does not contest the District Court's
determination that the child was dependent, neglected or
abused as defined in section 41-3-102, MCA, under the
evidentiary standard of "clear and convincing" as adopted in,
In The Matter of Inquiry into J.L.B., Youth in Need of Care
(1979), Mont . , 594 P.2d 1127, 1137, 36 St.Rep.
896, 902. Rather, she contends that once this determination
was made, the District Court abused its discretion in
awarding permanent care, custody and control of the child to
the SRS, with authority to consent to the child's adoption.
She argues that it is too harsh a remedy to permanently
deprive her of the custody of her child, and that the better
remedy is to return the child to her custody subject to
close supervision by the child welfare authorities. The
facts, however, fully support the District Court's decision.
The child involved in this matter, is five years of
age. On December 28, 1977, the natural mother of the
child appeared in the office of the social worker with the
Child Protection Unit, and reported that she had physically
beaten her child the previous evening, December 27, 1977.
Two social workers immediately went to a day care center
where the child was playing in order to determine the
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extent of her physical injuries. The social workers
discovered that the child had fresh bruises on her back,
shoulder, arm, rib cage, and a welt or bruise behind her
left ear.
The social workers brought the child to Dr. J. Patrick
Sauer for a medical examination. Dr. Sauer determined that
the child's bruises had been recently inflicted and caused
by repeated strikings with a foreign object. The social
workers, based upon Dr. Sauer's report and their own
investigation, removed the child from the custody of the
natural mother and arranged for foster care. The child's
natural mother agreed to this arrangement.
On February 14, 1978, the SRS filed a petition in
District Court seeking a decree declaring the child to be a
youth in need of care, with her permanent care, custody and
control being awarded to the State of Montana, with
authority to assent to adoption. Notice of the petition
and of the hearing on the issue of child custody were duly
issued to the natural mother and father.
On April 14, 1978, the District Court held a custody
hearing. The natural mother appeared and was represented
by counsel. An attorney appeared on behalf of the child,
having been appointed guardian ad litem and counsel for
the child. SRS appeared and was represented by the
Yellowstone County Attorney. The natural father, served
with notice by publication, did not appear.
On May 2, 1978, the District Court entered findings
of fact, conclusions of law, and a decree, finding that
the child was an abused and neglected child within the
meaning of section 41-3-102, MCA, and was a youth in need
of care. The court awarded the permanent care, custody
and control of the child to SRS, and granted SRS the
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authority to place the child for adoption. As a result
of the District Court order, the parental rights of the
natural mother were terminated. This appeal followed.
Under section 41-3-102(2)(a), MCA, the commission or
omission of any act or acts which materially affect the
normal physical or emotional development of a youth con-
stitutes abuse or neglect. Section 41-3-102(4), MCA,
provides that a youth who is dependent or is suffering from
abuse or neglect is a youth in need of care. Section
41-3-404, MCA, requires the District Court to hold a
hearing and determine whether the youth is an abused,
neglected, or dependent child, and to determine the cause.
Upon a finding that a child is dependent, neglected
or abused, section 41-3-406(1) (b)(i), MCA, permits the
District Court to transfer legal custody to SRS, which,
of course, was done in this case. There was substantial
credible evidence in the record to justify the District
Court order permanently depriving the mother of her child.
This Court has in previous decisions recognized that
family integrity is a constitutionally protected interest,
In The Matter of Inquiry into J.L.B., Youth in Need of Care
(1979), Mont . , 594 P.2d 1127, 1136, 36 St.Rep.
896, 902; In The Matter of The Guardianship of Doney (1977),
Mont. , 570 P.2d 575, 34 St.Rep. 1107, and of
course the declaration of policy which accompanies the
statutes governing termination places emphasis on the
preservation of family unity whenever possible (section 41-
3-101(1)(d), MCA). But we have also noted that family unity
need not be preserved at the expense of the best interests
of the child. In the Matter of Inquiry into J.J.S. Youth in
Need of Care (1978), Mont . , 577 P.2d 378, 35
St.Rep. 394; In Re Gore, Youths in Need of Care (1977),
Mont . , 570 P.2d 1110, 34 St.Rep. 1179.
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The instant case arose following the physical
beating of the child by her natural mother on December
27, 1977. On December 28, 1977, two social workers
examined the child and discovered she had fresh bruises
on her back, shoulder, arm, rib cage, and a welt or bruise
behind her left ear. After an examination of the child,
Dr. Sauer determined that the child's bruises had been
recently inflicted and caused by repeated strikings with
a foreign object. Testimony later established that the
beating had been administered with a belt or belt buckle.
Julie Goldberg, a social worker employed by Yellow-
stone County, testified that she was aware of four incidences
of abuse that the natural mother had inflicted upon the
child. Ms. Goldberg also testified that the child had
been placed away from her natural mother in foster care
on five separate occasions. Ms. Goldberg further testified
that three of the five foster care placements were directly
related to incidence of abuse, and the placements had taken
place after the acts of abuse had occurred.
Dr. Monty C. Gustafson, a clinical psychologist,
testified that the potential for further child abuse
by the natural mother was high. He specifically recommended
that the child not be returned to the natural mother. David
Pierce, a psychiatric social worker, also cautioned against
returning the child to the natural mother. During cross-
examination, he emphatically reiterated his position.
Based on the totality of circumstances of this record,
we cannot find an abuse of discretion in the District Court
decision to award permanent custody of the child to SRS.
The judgment of the District Court is affirmed.
W Concur:
e
/'
Chief J u s t i c e
.
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Justices