No. 14547
I N THE S P E E COUHT O THE STATE O MXJTANA
UH M F F
1979
I N THE MATTER O DEXLMUNG
F
T.Y.K. and D.A.W.R., Youths
i Need of Care.
n
Appeal from: D i s t r i c t Court of the Eleventh J u d i c i a l D i s t r i c t ,
Honorable R o b e r t Sykes, Judge presiding.
Counsel of Record:
For Appellant :
W b w t B. Allison, Kalispell, Mntana
For Respondent:
Randy K. Schwickert, Kalispell, Mntana
Patrick D. Sherlock, Kalispell, Mntana
S u b i t t e d on b r i e f s : April 5, 1979
Decided: AUG - 9 1 9 ~
Filed: - ;
.
m
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal by the parents of three minor children
from a judgment of the District Court, Flathead County, the
Honorable Robert C. Sykes presiding. Permanent custody of two
of the minor children, T. K. and D. R., with right to consent
to adoption was awarded to the Department of Social and Rehabili-
tation Services (SRS) of the State of Montana.
On March 31, 1977, D. R. suffered an oblique fracture
of the right mid-femoral shaft, the large bone connecting the
hip to the knee. At the time of this injury, D. R. was five
and one-half weeks old. The mother immediately took the child
to the hospital and the leg was placed in a cast. On October 7,
1977, D. R. suffered a spiral fracture of the humerus, the large
bone between the shoulderand the elbow. He was again taken to
the hospital for treatment. Both injuries occurred in the
parents' home with no one present other than D. R., T.K. and
the parents.
On Friday, October 7, 1977, representatives of the Flat-
head County sheriff's department and welfare department removed
both children from the parents and placed them in foster care
pending an investigation.
On Tuesday, October 11, 1977, the Flathead County attorney
filed a petition for temporary investigative authority and
protective services, and an order was issued on October 13,
1977, granting the same.
Early in the investigation the parents requested a p o l y ~
graph examination. On October 28, 1977, the parents and their
attorney stipulated and agreed with the deputy county attorney
to submit to polygraph examinations and psychological stress
evaluation tests. There was a further stipulation that the
results of said tests could be entered into evidence by
either party in this matter. All tests were conducted in
accordance with the stipulation.
On March 31, 1978, permanent custody was requested. A
hearing was held on June 1 and 2, 1978, by the court sitting
without a jury. Notice of the hearing by publication was
given to T. K.'s natural father, E. V., on April 17, 24, and
May 1, 1978. He failed to appear at the hearing and was de-
faulted.
The court issued its findings of fact and conclusions
of law on June 21, 1978, stating in part: (a) that E. V.
is unfit to have the care, custody or control of T. K. and
that his rights as a parent should be terminated; (b) that
the explanation of the 2arents of how the fractures were
sustained by D. R. are contrary to and against any credible
version of the cause of said fractures; (c) that the battered
child syndrome doctrine of evidence applies and by reason
thereof, by reasonable medical certainty, the fractures
were sustained by traumatic blows caused by the father;
(d) that the percentile in weight of both children at the
time of foster care placement and the improvement of both
children after foster home placement establishes emotional
and physical damage to both children while in the custody
of the parents; (e) that the children are of adoptable age
and have sustained physical and emotional damage; (f) that
the parents have abused and neglected D. R. and T. K., and
are not fit and proper to have the care and custody of
these children, and that their parental rights should be
permanently terminated; (g) that as a result of the abuse
and neglect, these children are youths in need of care and
the custody of these children should be permanently awarded
to the Welfare Department with the right to consent to their
adoption.
On June 26, 1978, the court issued its judgment and an
order permanently awarding the care, custody and control of
and
the minor children to the Department of ~ocial/~ehabilitation
Services of the State of Montana with authority to consent
to their adoption.
On July 6, 1978, the parents filed their motion to amend
the findings and conclusions or a motion for a new trial on
a number of grounds. All motions were denied by the court.
The parents appeal from the judgment of the trial court.
The following issues are before the Court:
(1) Was the filing of the petition for temporary
investigative authority and protective services prejudicial
to the parents' rights?
(2) Did the District Court err in awarding permanent
custody of the children to the Montana Department of Social
and Rehabilitation Services? In so ordering, did the court
comply with policies set forth in section 41-3-101 et seq.,
MCA?
(3) Was the admission of the results of a polygraph
examination taken by stipulation of the parties proper?
The October 11, 1977, filing of the petition for temporary
investigative authority and protective services was timely
and proper. Section 41-3-301(2), MCA, provides: "a petition
shall be filed within 48 hours of emergency placement of a
child. . ." Here, the petition was filed on a Tuesday
although the children were removed on the preceding Friday.
Rule 6 ( a ) , M.R.Civ.P., s t a t e s : "When t h e p e r i o d o f t i m e
p r e s c r i b e d o r a l l o w e d i s less t h a n 7 d a y s , i n t e r m e d i a t e
S a t u r d a y s , Sundays and h o l i d a y s s h a l l b e e x c l u d e d i n t h e
computation." Using t h i s f o r m u l a , t h e Department f i l e d t h e
p e t i t i o n w i t h i n t h e 48-hour' l i m i t a t i o n . Therefore, t h e
parents' objection i s without m e r i t .
W e n e x t c o n s i d e r t h e D i s t r i c t C o u r t o r d e r o f J u n e 26,
1978, d e c l a r i n g b o t h c h i l d r e n t o b e a b u s e d and n e g l e c t e d
and a w a r d i n g permanent c u s t o d y of t h e c h i l d r e n t o SRS. We
have d i s c u s s e d a t l e n g t h i n many r e c e n t d e c i s i o n s t h e p r e -
s u m p t i o n s t h a t t h e D i s t r i c t C o u r t i s presumed t o h a v e a c t e d
c o r r e c t l y i n t h e s e m a t t e r s and w e w i l l n o t d i s t u r b t h e
judgment u n l e s s t h e r e i s found t o b e a m i s t a k e o f law o r
f i n d i n g s o f f a c t n o t s u p p o r t e d by c r e d i b l e e v i d e n c e . When
determining whether o r n o t a youth i s abused o r n e g l e c t e d
t h e D i s t r i c t C o u r t i s g u i d e d by s e c t i o n 4 1 - 3 - 1 0 2 ( 2 ) ( a ) , MCA,
which p r o v i d e s :
"(2) 'Abuse' o r ' n e g l e c t ' means:
" ( a ) t h e commission o r o m i s s i o n o f a n y a c t o r
a c t s which m a t e r i a l l y a f f e c t t h e normal p h y s i c a l
o r e m o t i o n a l development o f a y o u t h . Any e x c e s -
s i v e physical injury, sexual a s s a u l t , o r f a i l u r e
t o t h r i v e , t a k i n g i n t o a c c o u n t t h e a g e and medi-
c a l h i s t o r y o f t h e y o u t h , s h a l l b e presumed t o
b e n o n a c c i d e n t a l and t o m a t e r i a l l y a f f e c t t h e
normal development o f t h e y o u t h . "
The a b o v e g u i d e l i n e s a l l o w t h e c o u r t t o l o o k a t t h e
" t o t a l i t y o f t h e c i r c u m s t a n c e s " s u r r o u n d i n g a c h i l d ' s home
e n v i r o n m e n t b e f o r e making a d e t e r m i n a t i o n . I n R e Gore
(1977) I Mont. , 570 P.2d 1 1 1 0 , 1 1 1 4 , 34 St-Rep. 1179.
A t t h e c u s t o d y h e a r i n g m e d i c a l t e s t i m o n y was p r e s e n t e d
which showed t h a t D. R. had s u f f e r e d two b r o k e n b o n e s which
w e r e c a u s e d by s u b s t a n t i a l v i o l e n t f o r c e o r t r a u m a t i c blows.
Testimony of the doctors, social workers and polygraph experts
was received, all of which linked the cause of D. R.'s injuries
to the father. Other testimony showed physical and verbal
abuse of T. K. by her stepfather. Psychological evaluations
of the parents revealed that the father manifested long
term paranoic trends as well as strong underlying hostile
agressive trends which may cause him to do physical injury
and harm to others, and that the mother suffers from long
term emotional instability causedby a moderately high level
of anxiety. Also received were conflicting statements by
both parents. Testimony by a nutritionist revealed that
after the placing of D. R. in a foster home, his weight and
height increased. There was also testimony of satisfactory
performance by the father at his job at the Handicapped
Thrift Store, a position which required some measure of
patience.
Appellants' contention that there was insufficient
evidence of abuse is of little merit when viewed with the
family environment as a whole. Under section 41-3-102(2),
MCA, abuse or neglect can take many forms--some violent,
others more 2assive but just as injurious. This Court
cannot hold the children hostage while awaiting the good
behavior of the parents. It must protect the children's
rights as well as the parents. In Re Gore, supra, 570
P.2d at 1114.
In situations such as this, where the abuse of one
child is less than the abuse of another, various jurisdictions
have upheld the authority of a court to remove both children.
The more enlightened majority rule appears to be that a
parent does not have the privilege of inflicting brutal
treatment upon each of his children in succession before they
may individually obtain the protection of the state. In Re
Miller (1952), 40 Wash.2d 319, 242 P.2d 1016. See also, In
Re K.D.E. (1973), 87 S.D. 511, 210 NW.2d 907; People in the
Interest of C. R., et al. (Colo. 1976), 557 P.2d 1225; and
In the Interest of Brooks (1978), 63 Ill.App.3d 328, 379
Section 41-3-101 et seq., MCA, grants to the District
Court the ability to make a determination of neglect and
abuse as to all children in a family based on the policy
that abuse of one child has a detrimental effect on the other
children's development.
The declared policy of Montana is found in section
41-3-101, MCA:
"(a) insure that all youth are afforded an
adequate physical and emotional environment
to promote normal development;
"(2) It is the policy of this state to
provide for the protection of children
whose health and welfare are adversely
affected and further threatened by the
conduct of those responsible for their
care and protection. .. to seek to
prevent further abuses, protect and en-
hance the welfare of these children,
and preserve family life wherever
possible."
The parents1 objection to the admission of the results
of the polygraph examination is without merit under the
circumstances here. The parents failed to object to the
admission of the polygraph results in the District Court.
An issue cannot be raised for the first time on appeal.
Velte v. Allstate Ins. Co. (1979), - , .
Mont - 593 P.2d
454, 36 St.Rep. 724. Therefore, we decline to comment on
this issue.
The r e c o r d c o n t a i n s s u f f i c i e n t s u b s t a n t i a l , c r e d i b l e
e v i d e n c e t o s u p p o r t t h e f i n d i n g s a n d judgment o f t h e t r i a l
c o u r t a n d , t h e r e f o r e , t h e judgment o f t h e D i s t P i c t C o u r t
i s affirmed.
,/
/'
Justice
W e concur:
?Ld?Lgwq&
Chief ~ u s t i ' c e