No. 86-399
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN THE MATTER OF
J.W. AND J.C.,
Youths in Need of Care.
APPEAL FROM: The District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena,
Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Patricia J. Schaeffer, Asst. Atty. General, Helena
Mike McGrath, County Attorney, Helena, Montana
Carolyn Clemens, Deputy County Attorney, Helena
Nicholas Jacques, (Children), Helena, Montana
Submitted on Briefs: Jan. 29, 1987
Decided: May 11, 1 9 8 7
Filed : MAY 111987
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The natural mother of J.W. and J.C. appeals orders of
the First Judicial District Court, County of Lewis and Clark,
finding J.W. and J.C. to be youths in need of care and
granting temporary custody to the Lewis and Clark County
Office of Human Services. We affirm.
The natural mother, B.W. (hereinafter "mother") has two
children, J.C. and J.W. J.C., currently twelve, was born of
a prior marriage of the mother. J.W. was delivered at home
on December 18, 1984. Lewis and Clark County Office of Human
Services (LCCOHS) received a referral concerning the birth.
The mother stated she was unaware of her pregnancy.
On February 4, 1985, LCCOHS received a report that J.C.
had extensive unexcused absences from school. On May 1,
1985, the mother was hospitalized for psychiatric care. The
deputy county attorney filed a petition on behalf of LCCOHS
requesting temporary investigative authority and protective
services. The petition was granted by the District Court May
10, 1985. J.C. and J.W. were placed in foster care, with
J.C. subsequently being allowed to spend the summer with his
natural father in Arizona.
Both children were returned to the mother and LCCOHS
terminated its involvement with the family in September,
1985, as it appeared the mother had successfully completed
psychiatric treatment.
Following further reports concerning the children's
welfare, a supplemental petition for temporary investigative
authority and protective services was filed November 15,
1985, on behalf of LCCOHS. A report attached to the petition
listed the following LCCOHS referrals concerning the
children:
10-10-85: Educational neglect - extensive absences
from school. Referrant noted that [J.C.]
has attended many different schools in
Helena and has a history of lengthy
unexcused absences.
10-25-85: Concerns about [the mother's] emotional
condition and ability to care for her
children, [J.C.'s] nonattendance at
school, and fires in the family apartment
on two consecutive days. Referrant said
[the mother] attributed the fires to
someone who she said had broken into her
apartment, but [the mother] had been home
both days.
10-28-85: Continued educational neglect of [J.C.].
Neighbors have seen him outside playing.
10-29-85: Concern expressed about [the mother's]
emotional state and about [J.C. ' s] not
being in school since October 2.
11-01-85: Continued educational neglect of [J.C.!.
Social worker Paul Heath made several attempts to
visit the family but no one came to the door until
11-07-85. He was admitted briefly by [the mother]
and saw both children, who seemed to be okay. [The
mother] spoke very slowly and the house was stuffy
and dark. [The mother] insisted that the social
worker leave right away. Later on 11-07-85 social
worker Laura Taffs attempted to visit to explore
the recent concerns. [The mother] opened the door
for about two minutes, would not allow the social
worker in, and said she and her children were sick
and were staying home. She then shut the door and
would not respond to further knocking.
The District Court entered its order November 15, 1985,
granting LCCOHS temporary investigative authority and the
right to place the children in foster care if deemed
necessary for their protection. Pursuant to the order,
LCCOHS investigated the matter and placed the children in
foster care. A show cause hearing concerning the order was
held December 3, 1985. Following hearing, the District Court
entered its order dated December 6, 1985, placing temporary
custody with the Department of Social and Rehabilitation
Services (SRS) and declaring the children to be youths in
need of care. The order further required LCCOHS to develop a
treatment plan and recommended J.W. be placed in foster care
and J.C. be placed with his father if a favorable home study
was received from Arizona officials.
Pursuant to the mother's request for a hearing the
District Court held a hearing on March 20, 1986. At the
hearing, counsel for the mother questioned whether the
District Court orders of November 15, 1985, and December 6,
1985, were a proper exercise of the court's jurisdiction.
The district judge set a briefing schedule concerning the
issue and set hearing for May 15, 1986.
At the hearing on March 20, 1986, testimony was heard
from the psychologist and social workers involved with the
case, the mother, and the foster mother of J.W. Dr. Leonard,
a psychologist who examined the mother, testified that the
mother had a borderline personality and most likely was
schizophrenic when under stress. Dr. Leonard found the
mother denied her problems and tended to reject counseling.
Dr. Leonard concluded that without treatment the mother would
be incapable at times of caring for her children.
The social workers testified that the visits between the
mother and J.C. and J.W. conducted at LCCOHS had not gone
well. The mother argued excessively with J.C. and was
generally inattentive to J.W.'s needs. Two of the social
workers testified that the mother had refused to sign the
treatment plan. The mother indicated that she would not take
medication if prescribed for her, did not believe she needed
counseling, and on one occasion refused to speak with a
psychologist who was brought to her home.
The District Court entered its order May 28, 1986,
denying the mother's motion to vacate the November 15, 1985,
and December 6, 1985, orders of the court. However, the
District Court did strike the portion of the December 6,
1985, order finding the children to be youths in need of
care. Prior to the May 28, 1986, District Court order the
county attorney filed a petition on April 29, 1986,
requesting that the children be declared youths in need of
care. A hearing relating to the petition was held May 30,
1986.
At the hearing on May 30, 1986, testimony was heard from
the children's pediatrician and the social worker working on
the mother's case at that time. The pediatrician testified
that J.W. has asthma and respiratory problems which are
aggravated by cigarette smoke. Additionally, he stated there
were no medical reasons for J.C.'s extensive absences from
school. The social worker testified that the mother
continued to smoke in J.W.'s presence even though aware
smoking aggravated J.W.'s asthma. The social worker further
testified that the mother continued to deny that she needed
therapy and refused to be involved with the family focus
program which would have assisted the mother in caring for
her children.
On June 20, 1986, the District Court entered its order
declaring the children to be youths in need of care, and
granting continued temporary custody with S R S until a
dispositional hearing could be held. A dispositional hearing
was held July 28, 1986, and subsequently the District Court
entered its order relating to disposition August 22, 1986.
The court granted continued temporary custody with S R S and
recommended that J.C. remain with his natural father in
Arizona and J.W. remain in foster care. The court approved
the proposed treatment plan, and ordered LCCOHS to inform the
court of its recommendation as to placement of the children
upon the mother's completion of the treatment plan.
The mother appeals and raises the following issues:
1) Whether the District Court erred in denying the
motions to vacate?
2) Whether the District Court erred in declaring the
children to be youths in need of care and in its subsequent
dispositional order?
The mother contends the November 15, 1985, District
Court order should have been vacated for the following
reasons: 1) the petition for temporary investigative
authority was not supported by probable cause that the
children were in danger of being abused or neglected; 2) the
petition did not request immediate removal of the children
from the home; and 3) section 41-3-403, MCA, does not
authorize immediate removal of the children from the home
without a prior hearing. We find no merit to these
contentions.
The supplemental petition dated November 15, 1985, was
filed pursuant to 41-3-402 and -3, MCA. The county
attorney chose to file the petition under those statutes
because LCCOHS could not actually determine whether the
children were in danger of being abused or neglected. Such
determination could not be made because the mother would not
permit anyone to enter her home to investigate. Pursuant to
§ 41-3-402, MCA, the county attorney may file a petition for
investigative authority and protective services "in cases
where it appears that a youth is abused or neglected or is in
danger of being abused or neglected."
The LCCOHS report accompanying the petition established
probable cause to investigate the possibility of abuse or
neglect of the children. The report included: 1) numerous
referrals concerning J.C.'s absence from school for no
apparent reason; 2) concerns from neighbors about the
mother's emotional condition and ability to care for her
children; 3) reports of fires in the family apartment on two
consecutive days; 4 ) the mother's recent hospitalization for
psychiatric care and placement of the children in foster care
at that time; and 5) social workers' reports that the mother
would not answer the door to speak with them.
Section 41-3-102, MCA, provides in part:
(2) An "abused or neglected child" means a child
whose normal physical or mental health or welfare
is harmed or threatened with harm by the acts or
omissions of his parent or other person responsible
for his welfare.
(3) "Harm to a child's health or welfare" means
the harm that occurs whenever the parent or other
person responsible for the child's welfare:
(c) causes failure to thrive or otherwise
fails to supply the child with adequate food
or fails to supply clothing, shelter,
education, or health care, though financially
able to do so or offered financial or other
reasonable means to do so;
We find substantial evidence in the LCCOHS report
supporting probable cause that the physical and mental health
of J.W. and J.C. was in danger. The mother ' s previous
history of psychiatric problems, the fires in the family
home, J.C.'s extensive absences from school, and the
inability of social workers to investigate these matters are
sufficient facts to warrant the granting of temporary
investigative authority.
The November 15, 1985, District Court order granted
LCCOHS the right to place the youths in foster care if deemed
necessary for their protection. The mother contends the
District Court improperly delegated its authority to remove
the children from the home to LCCOHS. We disagree with this
contention and find the court order to be within the scope of
S; 41-3-403, MCA. Pursuant to this section, the court may
grant "such relief as may be required for the immediate
protection of the youth."
LCCOHS was in a difficult position in this case because
the mother would not cooperate with its investigative
efforts. We find that portion of the court order granting
LCCOHS the right to place the youths in foster care if deemed
necessary for their protection was proper under the
circumstances.
The mother contends she was entitled to a show cause
hearing before the removal of her children. The District
Court order stated that the mother shall immediately comply
with the order - appear before the court to show cause why
or
she should not be required to comply. The order was in
compliance with 5 41-3-403, MCA. There is no requirement in
S; 41-3-403, MCA, that a show cause hearing be held prior to
removal of youths pursuant to this section. We find the
November 15, 1985, District Court order to be lawful and a
proper exercise of the court's discretion.
The mother next contends that the December 6, 1985,
District Court order should be vacated for failure to comply
with S; 41-3-404, MCA, and S; 41-3-406, MCA. Further, the
mother contends that the placement of J.C. with his father in
Arizona was not in compliance with 5 41-3-406(3) (c), MCA.
The mother argues that the filing of a petition for
investigative authority under S; 41-3-402, MCA, must also
include a petition drawn pursuant to 5 41-3-401, MCA. The
mother points out that the 1985 amendment to 5 41-3-401, MCA,
eliminated 41-3-401(13), MCA, which provided: "This
section does not apply to a petition for temporary
investigative authority and protective services." The mother
claims the legislature clearly intended to consolidate
petitions to have youths declared in need of care and
petitions for temporary investigative authority. We find no
legislative history to support this contention, nor is there
any language in either section providing a petition filed
pursuant to 5 41-3-402, MCA, must be accompanied with a
petition filed under 5 41-3-401, MCA.
The mother seeks to have the December 6, 1985, order
vacated for lack of an adjudicatory hearing pursuant to
$ 41-3-404, MCA, and a dispositional hearing pursuant to
5
S 41-3-406, MCA. In denying the motion to vacate, the
District Court found the proceedings to be under §§ 41-3-402
and -3, MCA, and a show cause hearing was properly held
within 20 days as required by B 41-3-403, MCA.
We agree with the District Court that a show cause
hearing is the only hearing required when a petition for
temporary investigative authority is filed under § 41-3-402,
MCA. The District Court did strike its finding that the
youths were in need of care from the December 6, 1985, order
as being in excess of its jurisdiction. We find no error by
the District Court.
In its December 6, 1985, order the District Court
granted temporary custody of J.C. and J.W. to SRS with a
recommendation that J.C. be placed with his father in Arizona
following receipt of a favorable home study from Arizona
officials. The mother contends this portion of the order is
in violation of 5 41-3-406(3)(c), MCA. We disagree. Section
41-3-406, MCA, relates to transfer of legal custody following
the adjudicatory and dispositional hearings. The District
Court granted temporary custody to SRS with a recommendation
that J.C. be temporarily placed with his father in Arizona.
We find this to be within the court's authority under
5 41-3-403, MCA, which permits temporary disposition in the
best interest of the youth.
The next issue is whether the District Court erred in
declaring J.W. and J.C. youths in need of care in its June
20, 1986, order. We find substantial credible evidence in
the record supporting the District Court determination.
Prior to the proceedings at issue herein, the mother
experienced a psychotic break in May, 1985, and was
hospitalized for psychiatric care. The children were placed
in temporary foster care at that time. Contrary to the
mother's assertions this evidence is relevant and was
properly admitted. Events from the recent past relating to
the mother's mental condition are clearly relevant in
determining whether she is capable of properly caring for her
children. The medical testimony reveals that the mother is
presently in need of counseling and likely should be
receiving medication. The record also indicates the mother
has refused to accept medical treatment for the most part.
The older youth, J.C., told social workers that he looks
after J.W. during periods when his mother is acting
irrationally. J.C. worries about J.W.'s safety when left
alone with the mother. The mother leaves cigarettes burning
and forgets to turn off the stove. J.W. has a problem with
respiratory illness which is aggravated by cigarette smoke.
The mother is aware of this, but continues to smoke in the
presence of J.W. J F . will likely need frequent medical
.7
attention if exposed to smoke on a regular basis.
The mother claims J.C. has poor school attendance due to
sickness. J.C.'s pediatrician disputed this claim stating
that J.C. was a normal, healthy child. J.C. missed 73% days
during a school year while at Kessler School. In the fall of
1985, J.C. missed 33 consecutive school days while a student
at Bryant School. J.C. informed his counselor that he was
bored staying at home and rarely felt sick. Neighbors
frequently saw him playing in the yard.
The mother asserts that poor school attendance is not
educational neglect as defined in § 41-3-102, MCA, and is a
matter for school authorities, not LCCOHS. We find J.C.'s
poor school attendance to be a proper focus of inquiry in the
LCCOHS investigation. The record is clear the mother is
responsible for educational neglect of J.C.
An abused or neglected child is a child whose normal
physical or mental health or welfare is harmed or threatened
with harm by the acts or omissions of his parent. Section
41-3-102 (2), MCA. In this case, it is clear J.W. 's welfare
is in danger due to the mother's emotional and mental
condition and J.C. has missed extensive schooling due to his
mother. The medical evidence is that the mother's ability to
care for J.W. and J.C. is questionable but that with therapy
and medication the mother's problems are treatable. The
treatment plan approved by the District Court provides for
counseling and interaction between the mother and her
children with the ultimate goal of returning custody of the
children to their mother. We find no abuse of discretion or
errors of law by the District Court.
The District Court is affirmed.
We Concur:
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