No. 79-41
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
IN THE MATTER OF
T. J. D., J. L. D. and R. J. W.
Appeal from: The District Court of the Thirteenth Judicial
District, In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
Counsel of Record:
For Appellant:
Stacey and Nye, Billings, Montana
Damon Gannett, ( Guardian), Billings, Montana
For Respondent :
Harold F. Hanser, County Attorney, Billings,
Montana
Submitted on Briefs: June 5, 1980
Decided: G-LLD+& , ) 9 W
/2
e
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
This is a consolidated appeal from the order of the
Yellowstone County District Court which terminated the
parental rights to three children. The mother of all three
children appeals from the order terminating her parental
rights to each of the children. The father (father to only
the infant son) appeals from an order terminating his
parental rights to the infant son.
The hearing in relation to the State's petition to
terminate the mother's parental rights to each of the three
children, was held on May 2, 1979, and a final order of ter-
mination was entered on May 24, 1979, terminating the mother's
parental rights. A hearing in relation to the State's
petition to terminate the father's parental rights to the
infant son was held on July 6, 1979 and a final order of
termination was entered on July 16, 1979. Because at least
two of the issues raised are common to both final orders of
termination, the appeals have been consolidated.
The mother and father raise several issues. Both the
mother and father contend that there was a lack of clear and
convincing evidence to justify the final orders of termination.
Matter of J.L.B. (1979), - Mont . -, 594 P.2d 1127, 1136,
36 St.Rep. 896, 908, held that the proof must be clear and
convincing to justify a final order of parental termination
that a child is, within the meaning of section 41-3-102(2) (b),
MCA (1978), abused or neglected. The State met its burden
here. The second issue raised is the contention that it was
error to bring out at the May 2 and July 6 hearing, that the
father had a prior felony conviction--armed robbery. Both the
mother and father contend that this was impeachment by prior
conviction of a felony which is directly prohibited by Rule
-2-
609, Mont.R.Evid. W e d e t e r m i n e , however, t h a t t h e e v i d e n c e
w a s properly admitted. The t h i r d i s s u e c o n c e r n s t h e c u s t o d y
of t h e i n f a n t son and t h e mother and f a t h e r ' s c o n t e n t i o n t h a t
t h e t r i a l c o u r t e r r e d i n n o t g r a n t i n g t h e f a t h e r ' s motion t o
o r d e r t h e S t a t e t o c o n d u c t a home s t u d y o f t h e f a t h e r ' s
p a r e n t s t o d e t e r m i n e t h e i r s u i t a b i l i t y t o be c u s t o d i a n s of
t h e i n f a n t son. T h i s motion was made a t t h e c o n c l u s i o n of
t h e J u l y 6 h e a r i n g , and i t was, under t h e c i r c u m s t a n c e s
here, properly denied. F i n a l l y , both p a r e n t s contend t h a t
t h e I n d i a n C h i l d Welfare Act of 1978, 2 5 U.S.C. 81901, e t s e q . ,
(19781, was i n e f f e c t a t t h e t i m e , and t h a t by v i r t u e o f t h e
m o t h e r ' s motion ( t h e mother i s a member o f t h e Chippewa C r e e
T r i b e ) , t h e p r o c e e d i n g s h o u l d have been t r a n s f e r r e d t o t h e
j u r i s d i c t i o n o f t h e Chippewa C r e e T r i b e o f North Dakota, o r
m i n i m a l l y , t h a t t h e p r o c e e d i n g s s h o u l d have been h a l t e d s o
t h a t t h e T r i b e c o u l d be n o t i f i e d of t h e S t a t e c o u r t p r o c e e d i n g s .
W e d e t e r m i n e , however, t h a t t h e p r o c e e d i n g a g a i n s t t h e
mother and t h e f a t h e r , had been commenced b e f o r e t h e e f f e c t i v e
d a t e o f t h e A c t , and t h e r e f o r e t h a t t h e A c t , by i t s own
t e r m s , does n o t apply.
A l l t h r e e c h i l d r e n w e r e born t o t h e mother w h i l e s h e
was unmarried. Each a p p a r e n t l y h a s a d i f f e r e n t f a t h e r . A t
t h e t i m e o f t h e h e a r i n g , t h e mother was twenty-one y e a r s o l d
and unmarried. The o l d e s t c h i l d , a d a u g h t e r , was s i x y e a r s
o l d ; t h e second c h i l d , a s o n , was f o u r y e a r s o l d ; and t h e
y o u n g e s t c h i l d , a s o n , was e i g h t months o l d a t t h e t i m e of
t h e hearing. The a l l e g e d f a t h e r s of t h e f i r s t two c h i l d r e n
c o u l d n o t b e r e a c h e d f o r p e r s o n a l s e r v i c e and t h e r e f o r e
s e r v i c e w a s made by p u b l i c a t i o n . After t h e i r failure t o
appear t h e i r d e f a u l t s w e r e duly entered. The f a t h e r of t h e
i n f a n t s o n , however, a p p e a r e d a f t e r p e r s o n a l s e r v i c e , and h e
a d m i t t e d a t t h e May 2 h e a r i n g t h a t h e was t h e f a t h e r o f t h e
mother s t h i r d c h i l d .
-3-
The mother has several personal problems affecting her
ability to care for her children. In June 1978, while
pregnant with her third child, she plead guilty to a charge
of prostitution. She is addicted to alcohol and Talwin. The
effects of alcohol are well known. Talwin is a pain reliever
which causes euphoria, drowsiness, and in some cases hailucinations.
The mother attempted withdrawal from these drugs on a
previous occasion, but left the clinic after only a twenty-
four hour residency. Expert testimony forecasts that to
prevent the mother from lapsing into deepening addiction,
in-patient treatment is required for approximately six
months. Expert testimony at the mother's hearing also established
that she is devoid of parenting skills and lacks the psychol-
ogical skill to care for her children.
At the time of his hearing, the father was living in
his aunt's home with the mother and two other adults. He is
not regularly employed, but earns some income by occasionally
driving cab and working at the fairgrounds. He has three
other children, apparently adopted during a previous marriage,
but he does not support them. The father admitted at the
hearing that he could not care for the child. The father
has lived with the mother off and on for a period of three
years. After the child's birth he visited the mother and
child three or four times a week, and apparently provided
some support for the child. He admitted his own inability
to care for the child, but testified that he believed the
mother's care of the infant child to be adequate. It was at
the end of his own hearing on July 6, that the father moved
the court to have the welfare officials conduct a home study
of his parents home to determine his father's fitness to
care for the infant son.
-4-
An e x a m i n a t i o n o f t h e c i r c u m s t a n c e s l e a d i n g up t o t h e
S t a t e ' s i n t e r v e n t i o n and t a k i n g temporary c u s t o d y o f t h e
c h i l d r e n , r e v e a l s a c l e a r and c o n v i n c i n g case f o r p a r e n t a l
a b u s e o r n e g l e c t of t h e t h r e e c h i l d r e n .
The c h a i n o f e v e n t s seemed t o b e g i n i n t h e s p r i n g o f
1977. A t t h a t t i m e t h e mother moved i n t o an a p a r t m e n t where
t h e owners d i d n o t p e r m i t c h i l d r e n a s r e s i d e n t s . For t h i s
r e a s o n t h e m a t e r n a l g r a n d p a r e n t s t o o k temporary c a r e o f t h e
two c h i l d r e n . The mother c o n t a c t e d t h e w e l f a r e d e p a r t m e n t i n
J u n e 1977 f o r h e l p i n l o c a t i n g a new a p a r t m e n t which p e r m i t t e d
children. The w e l f a r e o f f i c i a l s s u g g e s t e d t h a t t h e g r a n d p a r e n t s
c o n t i n u e t o p r o v i d e c a r e u n t i l t h e mother moved i n t o an
a p p r o p r i a t e apartment. The mother used t h i s t i m e p e r i o d t o
i n d u l g e i n h e r own a c t i v i t i e s . She worked i n a c a f e and a l s o
d i d some t r a v e l i n g . During t h e n e x t f o u r t e e n months, s h e
v i s i t e d her children only occasionally. During t h i s t i m e p e r i o d ,
s h e became p r e g n a n t w i t h h e r t h i r d c h i l d , t h e i n f a n t son i n v o l v e d
here.
I n August 1978, someone made a c o m p l a i n t t o t h e w e l f a r e
o f f i c e c o n c e r n i n g t h e boy and g i r l i n t h e c u s t o d y o f t h e grand-
parents. On August 2 4 , 1978 a t 1 1 : O O a.m. a s o c i a l worker, a
home a t t e n d a n t , and a p o l i c e o f f i c e r , went t o t h e home t o check
on t h e c h i l d r e n . The young boy was i n t h e y a r d u n s u p e r v i s e d .
H i s b l a c k h a i r w a s g r a y from d i r t and h e s m e l l e d of u r i n e . The
young g i r l w a s s i t t i n g a l o n e i n an empty b a t h t u b . Both grand-
parents w e r e highly intoxicated. The g r a n d f a t h e r was b e l l i g e r a n t .
B e l i e v i n g t h a t t h e c i r c u m s t a n c e s r e q u i r e d immediate a c t i o n ,
t h e i n v e s t i g a t i n g t e a m removed t h e c h i l d r e n from t h e a p a r t m e n t
and t o o k them t o t h e B i l l i n g s R e c e i v i n g Home. L a t e r t h e same
day t h e c h i l d r e n w e r e t a k e n t o t h e h o s p i t a l . The d a u g h t e r
complained o f neck p a i n s and had d i f f i c u l t y i n walking. She
had s e v e r e c h i l l s and s u f f e r e d a s e i z u r e . She remained
h o s p i t a l i z e d u n t i l September 5, 1978. L a t e r , t h e g i r l was
found t o be s u f f e r i n g from j u v e n i l e rheumatoid a r t h r i t i s .
These e v e n t s prompted t h e o f f i c i a l s t o check i n t o t h e
w e l f a r e o f t h e i n f a n t son who was w i t h t h e mother. On August
2 4 , 1978, a p u b l i c h e a l t h n u r s e v i s i t e d t h e m o t h e r ' s home
t o check on t h e i n f a n t s o n who was born on August 1 3 , 1978.
A s a r e s u l t of t h i s v i s i t , a r e p o r t was made t o t h e c o u n t y
a t t o r n e y ' s o f f i c e , and w i t h i n a week t h e c o u n t y a t t o r n e y f i l e d
a p e t i t i o n f o r a temporary i n v e s t i g a t i v e a u t h o r i t y and f o r
protective services. On September 6 , 1978, t h e c o u r t i s s u e d
an o r d e r r e q u i r i n g t h e mother t o c o o p e r a t e w i t h t h e w e l f a r e
o f f i c i a l s and t o p e r m i t t h e s o c i a l w o r k e r ' s e n t r y i n t o t h e
m o t h e r ' s home.
A s a r e s u l t o f t h e s e c o u r t o r d e r s , on September 7, 1978,
a home a t t e n d a n t began weekly v i s i t s t o h e l p t h e mother d e v e l o p
parental s k i l l s . A f t e r s e v e n v i s i t s t o t h e house, s h e concluded
t h a t t h e mother had no p a r e n t i n g s k i l l s and was n o t i n t e r e s t e d
i n developing t h e s e s k i l l s . Also, a c l i n i c a l psychologist
examined t h e mother on October 3 , 1978, and d e t e r m i n e d t h a t t h e
mother c o u l d n o t p l a c e h e r c h i l d r e n s ' n e e d s above h e r own and
t h a t s h e c o u l d n o t p r o v i d e p r o p e r n u r t u r e f o r t h e i n f a n t son.
A week a f t e r t h i s e x a m i n a t i o n , a p u b l i c h e a l t h n u r s e v i s i t e d
t h e m o t h e r ' s home t o check on t h e c a r e o f t h e i n f a n t . The
b a b y ' s d i a p e r s w e r e f i l t h y and t h e r e w e r e no c l e a n d i a p e r s i n
t h e house. The s k i n on h i s p e n i s and s c r o t u m was raw and
excoriated. The c h i l d a l s o had s i g n s o f poor p h y s i c a l develop-
ment. N o baby formula was a v a i l a b l e i n t h e house and t h e
mother f e d j u i c e t o t h e baby from a b o t t l e . The n u r s e concluded
t h a t t h e mother was i n c a p a b l e of p r o v i d i n g f o r t h e n e e d s o f
t h i s infant. B e f o r e l e a v i n g s h e made a n appointment f o r October
1 7 t o v i s i t t h e home a g a i n t o f o r m a l l y t e s t t h e b a b y ' s development.
-6-
When t h e n u r s e a r r i v e d on October 1 7 , t h e baby w a s n o t
i n t h e home. The f o l l o w i n g day D r . Gustafson t o l d t h e s o c i a l
worker t h a t i n l i g h t o f a l l t h e s e developments, he b e l i e v e d
t h e baby t o be i n d a n g e r and t h a t s h e s h o u l d c o n s i d e r removing
him from t h e home. The s o c i a l worker had a l r e a d y r e c e i v e d
a d v e r s e r e p o r t s from t h e home a t t e n d a n t and p u b l i c h e a l t h n u r s e ,
and s h e knew t h a t t h e mother was n o t a t t e n d i n g p a r e n t i n g c l a s s e s
on a r e g u l a r b a s i s . On October 1 9 , t h e s o c i a l worker, t h e
p u b l i c h e a l t h n u r s e , and a s h e r i f f ' s d e p u t y , went t o t h e
m o t h e r ' s home. Three men and a woman w e r e p r e s e n t , b u t t h e
mother w a s n o t a t home. The baby was f i l t h y , had d i a p e r r a s h
and c r a d l e c a p , and i t s s k u l l was f l a t t e n e d on one s i d e a s a
r e s u l t of l y i n g on t h e same s i d e f o r an e x t e n d e d p e r i o d o f
time. The s o c i a l worker immediately removed t h e baby from t h e
home and t o o k him t o a h o s p i t a l . The baby was f o r m a l l y t e s t e d
t h a t day i n t h e h o s p i t a l ; h e had slow development i n t h r e e of
t h e four areas tested.
A s a r e s u l t of these actions, t h e t r i a l c o u r t extended
t h e temporary i n v e s t i g a t i v e a u t h o r i t y o r d e r f o r a n a d d i t i o n a l
n i n e t y days. I n J a n u a r y 1979, a g u a r d i a n a d l i t e m was a p p o i n t e d
f o r the children. A t t h e e x p i r a t i o n of t h e n i n e t y day
period, t h e county a t t o r n e y f i l e d a p e t i t i o n t o o b t a i n
permanent c u s t o d y o f t h e m o t h e r ' s t h r e e c h i l d r e n . This set
i n motion t h e n o t i c e s t o t h e a l l e g e d f a t h e r s o f t h e d a u g h t e r
and o l d e s t son. Because t h e y c o u l d n o t b e found f o r p e r s o n a l
s e r v i c e , t h e y w e r e s e r v e d by p u b l i c a t i o n and t h e i r d e f a u l t s
w e r e d u l y e n t e r e d when t h e y f a i l e d t o a p p e a r . The f a t h e r o f
t h e i n f a n t son was s e r v e d on May 1, 1979 and t h e h e a r i n g was
s c h e d u l e d t o b e g i n t h e f o l l o w i n g day. When t h e f a t h e r
a p p e a r e d on May 2 , h e r e q u e s t e d t h a t an a t t o r n e y be a p p o i n t e d
t o r e p r e s e n t him. The c o u r t took t h e r e q u e s t under a d v i s e m e n t ,
and d e c i d e d t o h o l d t h e h e a r i n g o n l y i n r e l a t i o n t o t h e
-7-
State's petition to terminate the mother's rights to her
children. A hearing for the father in relation to the
infant son, was set for a later time.
Before the commencement of the May 2 hearing, the trial
court ruled against the mother's motion to have the cause
dismissed or transferred to the Chippewa Cree Tribe pursuant
to the Indian Child Welfare Act. No reason was given for
the rulings but argument by the State immediately preceding
the ruling was that the Act was not in effect when the
proceedings here were commenced, and thus the Act was inapplicable.
At the May 2 hearing the father testified when questioned
by the guardian ad litem on direct examination, that he had
been convicted of armed robbery some nine years before, that
he had been out of prison since 1976, and that he was still
on parole. The mother's attorney (who was also later appointed
to act as the father's attorney) objected on the grounds
that one cannot be impeached for prior conviction of a
felony. The State did not respond. The trial court simply
observed that in proceedings such as this such evidence is
admissible. We note in this respect that at the July 6
hearing, the father, under questioning by the court, and
with no objection from his counsel, admitted to the felony
conviction and to his present parole status.
On May 24, 1979, the trial court entered a final order
permanently depriving the mother of her parental rights to
her three children. The trial court held a hearing on July
6 with relation to the petition to terminate the father's rights
to the infant son. At the conclusion of this hearing the
father moved the court, pursuant to section 41-3-406(1) ( b )
(iii), MCA, to have his parents' home studied to determine
the suitability of his father to take care of his child.
The trial court immediately denied the motion.
-8-
We have set forth the facts concerning the abuse or
neglect of the children. Suffice to say that they clearly
and convincingly lead to the inescapable conclusion that the
children were abused or neglected within the meaning of
section 41-3-102 (2)(b), MCA (1978) . The remaining issues
are whether it was prejudicial error to admit evidence of
the father's prior conviction of a felony, whether the court
should have required a home study of the father's parents to
determine their suitability to care for the infant son, and
whether the cause should have been transferred to the Chippewa
Cree Tribe of North Dakota under the Indian Child Welfare
Act.
Counsel for the father argues that the prior conviction of a
felony should not have been admitted for any purpose and
that its admission constitutes prejudicial error. He
offers no argument however, as to why or how the evidence,
under the circumstances of this case, was prejudicial error.
Nor does he answer the argument that he waived any right
to claim error by not objecting to its admission at the
second hearing. Although it was the trial court who elicited
the information, it was nonetheless the duty of counsel to
object. We thus hold that he waived any right to conkplain
of error. See Rule 103(a)(l), Mont.R.~vid. But even beyond
a holding of waiver, we hold that in a case of this nature,
the evidence was not only relevant but perhaps even required
if the trial court was to get a true picture of the father's
background.
Section 41-3-102, MCA (1978), charges the courts with
determining whether or not the parents or other custodians
have the ability to provide ". . . care necessary for the
youth's physical, moral, and emotional well-being." Clearly
the father's background, including criminal background, is a
relevant factor in reaching this determination. While a
criminal background does not of course, disqualify one from
having the custody of his children, and does not disqualify
one from having the appropriate parenting skills, it is a
factor that should be considered in a proceeding of this
nature. For example, although the crime itself may not be
that relevant to the proceedings, whether or not the father
had conducted himself as an exemplary parolee or was con-
stantly on the fringes of parole violations is relevant to a
proceeding of this nature. We thus hold that admission of
the prior felony conviction at each hearing, was not error.
The mother and father next contend that the court was
duty bound to grant the father's motion to have a home study
of the home of the father's parents in order to determine
their suitability to care for the infant son. Section 41-3-
406(1), MCA, provides, inter alia, that upon a determination
of abuse, neglect or dependency, and "to protect the welfare
of the youth", the trial court may transfer legal custody to
"a relative or other individual who, after study by a social
service agency designated by the court, is found by the
court to be qualified to receive and care for the youth .. ."
The statute is not mandatory, but provides only that the
trial court "may" do so. Moreover, there was no evidence
presented at the trial by which the trial court's discretion
would have been so moved.
The grandfather was, at the time of the hearing, aged
73. He worked in the mornings, as did his wife, who was not
present at the hearing. This employment would have required
the grandparents to furnish a babysitter. Although the
grandfather testified to having raised many children, his
advanced age was a factor to consider as the court had to
determine not only his present ability to raise the child
but his probable ability to continue in this role. Although
custody in the grandparents would provide opportunity for
both parents to visit the child, this arrangement would not
necessarily be in the best interest of the child. See In Re
Gore (1977), - Mont . -, 570 P.2d 1110, 34 St.Rep. 1179.
The infant, when he was removed from his mother, had several
developmental deficiencies. Since his removal, however, in
only four months time he showed remarkable physical and
emotional improvement. The circumstances here present no
compelling reason to declare that the District Court abused
its discretion in not ordering a home study.
As the final issue, the parents argue that this action
should have been transferred to the Chippewa Cree Tribe of
North Dakota by virtue of the motions made pursuant to the
Indian Child Welfare Act. We determine, however, that the
Act was not in effect at the time the actions here were com-
menced and is therefore inapplicable.
25 U.S.C. S;1911(b) provides that ". . . In any State
court proceeding for . . . termination of parental rights
to, an Indian child . . . the court, in the absence of good
cause to the contrary, shall transfer such proceeding to
the jurisdiction of the tribe . . . upon the petition of
either parent. . ." The mother not only petitioned the
trial court to transfer the proceeding to the Chippewa Cree
Tribe of North Dakota, of which she is a member, but also,
pursuant to 25 U.S.C. §1912(a) she moved to dismiss or at
-11-
l e a s t postpone t h e S t a t e c o u r t proceeding because t h e t r i b e
had n o t been n o t i f i e d of t h e p r o c e e d i n g s . 25 U.S.C. S1912(a)
provides i n p a r t t h a t ". . . No . . . t e r m i n a t i o n of p a r e n t a l
r i g h t s proceeding s h a l l be held u n t i l a t least t e n days
a f t e r r e c e i p t of n o t i c e by t h e p a r e n t ... and t h e t r i b e
The c o n t r o l l i n g p a r t o f t h e Act i n s o f a r a s t h i s a p p e a l
i s c o n c e r n e d , i s 25 U.S.C. 81923, which p r o v i d e s as t o t h e
e f f e c t i v e d a t e o f t h e Act:
"None o f t h e p r o v i s i o n s of t h i s s u b c h a p t e r ,
. .. s h a l l a f f e c t a p r o c e e d i n g under S t a t e law f o r
... termination of parental r i g h t s ... which was
i n i t i a t e d o r completed p r i o r t o o n e hundred and
e i g h t y days a f t e r November 8, 1978, b u t s h a l l a p p l y
t o any s u b s e q u e n t p r o c e e d i n g i n t h e same m a t t e r
o r subsequent proceedings a f f e c t i n g t h e custody
o r placement of t h e s a m e c h i l d . " 2 5 U.S.C. 5
1923.
The S t a t e f i l e d i t s p e t i t i o n f o r permanent c u s t o d y on
March 1, 1979, and b e c a u s e t h e Act d i d n o t go i n t o e f f e c t
u n t i l May 7, 1979, it i s i n a p p l i c a b l e t o t h e S t a t e c o u r t
proceedings.
The p a r e n t s make t h e a d d i t i o n a l argument t h a t under t h e
Act, t h e J u l y 6 h e a r i n g on t h e f a t h e r ' s r i g h t t o c u s t o d y of
t h e i n f a n t s o n was a " s u b s e q u e n t p r o c e e d i n g i n t h e s a m e
m a t t e r " and t h u s f a l l s w i t h i n t h e t e r m s o f t h e A c t . The
d e f i n i t i o n o f c h i l d - c u s t o d y p r o c e e d i n g under t h e Act i n c l u d e s
"any a c t i o n r e s u l t i n g i n t e r m i n a t i o n o f t h e p a r e n t - c h i l d
relationship .. ." 25 U.S.C. §1903(1) ( i i ) . he ~ u l y
6
p r o c e e d i n g , however, was n o t a s e p a r a t e p r o c e e d i n g under t h e
Act. R a t h e r , it w a s a c o n t i n u a t i o n o f t h e a c t i o n i n i t i a t e d
by t h e S t a t e on F e b r u a r y 24, 1979. T h i s a c t i o n o r pro-
c e e d i n g w a s n o t t e r m i n a t e d u n t i l t h e p a r e n t a l r i g h t s of b o t h
p a r e n t s had been a d j u d i c a t e d . It is clear, therefore, t h a t
t h e I n d i a n C h i l d Welfare Act d i d n o t a p p l y t o t h e s e p r o c e e d i n g s .
-12-
We note that in this case, counsel was appointed as
guardian ad litem to represent the children at the District
Court hearings and on this appeal. His briefs filed with
this Court forcefully argue in favor of the District Court
judgments terminating the rights of the parents and giving
permanent custody to the SRS.
The separate judgments of the District Court terminating
the parental rights of the parents are affirmed.
We Concur:
Chief Justice