I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
I N THE MATTER O DECLARING M.R.L.
F
Youth i n Need o f C a r e .
Appeal from: District Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
I n a n d F o r t h e County o f F l a t h e a d .
H o n o r a b l e R o b e r t C. S y k e s , J u d g e p r e s i d i n g .
C o u n s e l of Record:
For Appellant:
D a l e y , S h e r l o c k & N a r d i , K a l i s p e l l , Montana
P a t S h e r l o c k argued and Stephen N a r d i a r g u e d ,
K a l i s p e l l , Montana
For R e s p o n d e n t s :
Ted Lympus, County A t t o r n e y , K a l i s p e l l , Montana
Randy S c h w i c k e r t a r g u e d , Deputy County A t t o r n e y ,
K a l i s p e l l , Montana
R o b e r t B . A l l i s o n a r g u e d , K a l i s p e l l , Montana
Submitted: F e b r u a r y 2 6 , 1980
~ e c i d e d MAR
: 24 1W
9
Mr. J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion o f t h e C o u r t .
The n a t u r a l mother of M.R.L. ( h e r e i n r e f e r r e d t o as
c h i l d ) a p p e a l s from t h e o r d e r and judgment of t h e F l a t h e a d
County D i s t r i c t C o u r t d e c l a r i n g t h e c h i l d t o be a y o u t h i n
need of care, and awarding permanent c u s t o d y of t h e c h i l d
t o 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
( h e r e i n r e f e r r e d t o as SRS), w i t h a u t h o r i t y t o c o n s e n t t o
adoption.
The n a t u r a l mother c o n t e n d s f i r s t , t h a t t h e S t a t e f a i l e d
t o show t h r o u g h c l e a r and c o n v i n c i n g e v i d e n c e t h a t t h e c h i l d
had been abused o r n e g l e c t e d ; and second, t h a t t o permanently
d e p r i v e h e r o f t h e c u s t o d y of h e r c h i l d i s t o o h a r s h a
remedy, and t h a t t h e b e t t e r remedy i s t o a l l o w h e r and t h e
c h i l d t o e n r o l l i n t h e S i n g l e Mother Program a t t h e F l o r e n c e
C r i t t e n t o n Home i n Helena, Montana. The f a c t s , however, f u l l y
support t h e t r i a l c o u r t ' s decision.
The c h i l d i n v o l v e d i n t h i s m a t t e r i s 1 1 / 2 y e a r s o f a g e .
On October 2 8 , 1977, t h e n a t u r a l mother e n r o l l e d i n t h e Teenage
Pregnancy P r o j e c t of t h e F l a t h e a d County H e a l t h Department
( h e r e i n r e f e r r e d t o a s Projectl; a t which t i m e s h e w a s 16
y e a r s o l d , unmarried, and 1 3 1/2 weeks p r e g n a n t . The P r o j e c t
o f f e r e d t h e n a t u r a l mother p r e n a t a l c l a s s e s , l a b o r and
d e l i v e r y c l a s s e s , t h e WIC n u t r i t i o n a l program, f r e e m e d i c a l
s e r v i c e s , a p h y s i c i a n g r a n t t o o f f s e t t h e c o s t of h e r
pregnancy, A.D.C. and Medicaid. The n a t u r a l mother p a r t i c i p a t e d
i n t h e s e programs and o f t e n s o u g h t t h e a s s i s t a n c e and g u i d a n c e
of w e l f a r e d e p a r t m e n t p e r s o n n e l ; however, d u r i n g t h e c h i l d ' s
f i r s t n i n e months o f l i f e h e r p h y s i c a l c o n d i t i o n d e t e r i o r a t e d
and s h e s u f f e r e d from many i n f e c t i o n s and a i l m e n t s , a l l
w h i l e i n t h e c a r e o f t h e n a t u r a l mother.
On F e b r u a r y 1, 1979, t h e F l a t h e a d County Department of
P u b l i c Welfare p e t i t i o n e d t h e D i s t r i c t C o u r t f o r , and was
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granted an order authorizing temporary investigative
authority and protective services. On April 10, 1979, 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 custody being awarded to the State of Montana,
with authority to consent to adoption. ?Jotice of the petition
and hearing were duly issued to the natural mother and father.
On July 9, 1979, a hearing was held, and the natural
mother appeared and was represented by counsel. An attorney
appeared on behalf of the child, having been appointed counsel
for the child. The SRS appeared and was represented by the
Flathead County Attorney. The natural father, served with
notice by publication, failed to appear and his default was
entered.
On July 11, 1979, the District Court entered its findings
of fact, conclusions of law and decree. The District Court
granted the SRS petition, declaring the child to be a youth
in need of care, terminating the natural mother's parental
rights, and awarding permanent custody of the child to the
SRS with authority to consent to adoption. On July 18, 1979,
the natural mother filed motions to amend the findings of
fact, conclusions of law, decree and for a new trial; which
were denied by the District Court on August 8, 1979. As a
result of the District Court order, the parental rights of the
natural mother were terminated, and this appeal followed.
Although section 41-3-101, et seq., MCA, was amended by
the legislature in 1979, the former statutory scheme contained
in section 41-3-101, et seq., MCA (1978), is controlling in
the instant case.
Under section 41-3-102 (2)(a), MCA, the commission or
omission of any act or acts which materially affects the
normal physical or emotional development of a youth constitutes
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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. Under section 41-3-102
(2)(a), MCA, a youth's "failure to thrive" is presumed to be
nonaccidental and to materially affect the normal development
of the youth. 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.
The natural mother contends that the state failed to
establish through clear and convincing evidence that the
child was abused or neglected. When the child was born, her
weight for age placed her in the 50th percentile and her
length for age placed her in the 75th percentile. While in
the care of the natural mother, the child's rate of growth
and development gradually declined until at six months of age,
her weight for age had dropped to the 10th percentile and the
child's length for age had dropped to the 50th percentile.
At nine months of age, the child's weight for age had dropped
below the 5th percentile and her length for age had dropped
below the 35th percentile.
During the child's first nine months of life, while in
the care of the natural mother, the child suffered from a
number of ailments including: fever, vomiting, diarrhea,
yeast infection in her mouth and on her lips, infection of
her middle ear, severe case of diaper rash, a cough, con-
gestion, and at one time was hospitalized for a gastro-
intestinal infection. Additionally, during this same period
of time the child was having problems with eating and sleeping
The family physician testified that there was no physical or
congenital condition suffered by the child which would prolong
the various infections.
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The family physician and a nurse both diagnosed a
"failure to thrive". The physician testified that the
child was beginning to suffer from a "failure to thrive"
while in the care of the natural mother, but that the decline
stopped once the child was placed in foster care. Within
a period of two months following placement in foster care,
the child's various ailments disappeared and her weight
increased from the 5th percentile to the 50th percentile.
In June 1979, approximately four months after placement in foster
care, the child's condition had dramatically improved.
The evidence clearly established that the child "failed
to thrive" while in the care of the natural mother. A
physician, nurses, and Welfare Department personnel all
testified that the child was failing to thrive. The child's
physical condition deteriorated while in the care of the
natural mother. However, the child's condition improved
dramatically while in foster care. The District Court's
finding and conclusion that the child was a neglected child,
pursuant to section 41-3-102(2)(a), MCA, is supported by
"clear and convincing" evidence.
Upon a finding that a child is dependent, neglected,
or abused, section 41-3-406 (1)(b)(ii), MCA, permits the
District Court to transfer legal custody to the SRS, which,
of course, was done in this case. There was substantial
credible evidence in the record to justify the ~istrict
Court order permanently depriving the natural mother of the
child.
This Court has recognized that family integrity is a
constitutionally protected interest. Matter of J.L.B.
(1979), Mont. , 594 P.2d 1127, 1132, 36 St.Rep.
896, 902; Matter of Guardianship of Doney (19771, Mont .
, 570 P.2d 575, 34 St.Rep. 1107. 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) . We have also noted,
however, that family unity need not be preserved at the
expense of the child's best interests. In Re M.A.M. (19791,
Mont . , 600 P.2d 203, 205, 36 St.Rep. 1680, 1682;
(19781, Mont.
Matter of J.J.S.h 577 P.2a-378, 357X.Rep. 394.
The natural mother contends that permanently depriving
her of the custody of the child is too harsh a remedy.
However, all of the evidence presented at the hearing indicated
that the child, from the time of her birth until the foster
placement at nine months of age, had simply deteriorated to
a degree that was totally inconsistent with proper parenting.
The child thrived while in foster care, and all of the
illnesses were resolved when the child was out of the care
of the natural mother.
The natural mother contends that the better remedy is
to allow her and the child to enroll in the Florence Crittenton
Home where she could receive education in nutrition, informa-
tion and necessary training relating to the general care of
the child. However, that is precisely what was provided to
her for fifteen months by various agencies and Welfare
Department personnel, all without success. The natural
mother's request for enrollment in the Florence Crittenton
Home comes too late. The best interests of the child oppose
further experimentation and delay.
Based upon the totality of the circumstances in the
instant case, we cannot find an abuse of discretion in the
District Court decision to award permanent custody of the
child to the SRS, with authority to consent to adoption.
The judgment of the District Court is affirmed.
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W e Concur:
2 i e f Justice