No. 87-379
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MATTER OF
C.G., Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, District Judge.
COUNSEL OF RECORD:
For Appellant:
Harris & Seidler; Nancy Seidler, Billings, Montana
For Respondent z
Greg S. Mullowney, Deputy County Attorney, Billings,
Montana
Olsen, Christensen & Gannett; Damon Gannett, Billings,
Montana
Sally M. Johnson, Billings, Montana
Submitted on Briefs: Dec. 17, 1987
Decided : January 1 4 , 1988
Filed:
F N 1 4 1988'
A
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal of findings of fact, conclusions of
law and order entered April 15, 1987 and judgment filed April
16, 1987, by the District Court of the Thirteenth Judicial
District, Yellowstone County. The District Court granted to
the Montana Department of Social and Rehabilitation Services
(SRS) temporary custody of C.G. until she reaches the age of
eighteen. C.G.'s natural father, D.G., (father) appeals.
We affirm.
The only issue is whether the District Court erred in
granting temporary custody to the SRS.
The appellant in this case, the natural father of the
child, argues the District Court erred by applying only the
"abuse and neglect" portion of S 41-3-609, MCA, for
termination of parental rights. He contends that there was
not clear and convincing evidence to support the District
Court's decision. However, the District Court's order
clearly shows that there was not a "termination" of parental
rights, only a granting of temporary custody to SRS until
C.G. reaches the age of eighteen. The District Court stated:
It is not in the best interests of [C.G.]
that she not see her parents while in the
State's custody. It is strongly
recommended by this Court that [C.G.] be
placed in a long-term private foster home
. .
. and be allowed regular contact with
both [her mother and father].
We note at the outset that the mother of C.G. does not
appeal the decision of the District Court, therefore,
evidence presented as to her conduct is not directly relevant
to our determination. Nonetheless, this evidence will be
considered in our ascertainment of the best interests of the
child.
The mother and father of C.G. were never married and
informally lived together from 1976 until 1981. C.G. was
born March 13, 1979. Both parents have had alcohol and/or
substance abuse problems. As a result, C.G. and her
half-brother, R.B., the mother's son from a previous
marriage, have spent significant amounts of time in foster
care or with local community service organizations. A
detailed history of the children's home environment, drafted
by Majel Bird (Bird), a social worker for the Yellowstone
County Human Services, shows that the children were often
left alone for long periods of time and C.G. ' s brother was
forced to accept many of the parental responsibilities.
After C.G. 's father left in 1981, he maintained only minimal
contact with the children and provided no support.
C.G.'s father has since remarried and moved to Hayward,
California. At the time of the hearing on termination of
parental rights, the father was receiving workers'
compensation payments as a result of an injury suffered on a
job in California. A court-approved written treatment plan
was entered into by C.G.'s father from April 15, 1983 to July
15, 1983. This plan required the father to attend parental
classes, visit C.G. weekly, secure clean, appropriate
housing, attempt to procure employment, complete a
psychological evaluation and follow any recommendations, and
obtain and follow a chemical dependency counselor's
recommendations. Not one of these requirements was ever met.
Testimony was presented that C.G.'s father never kept
appointments, did not get involved in employment training
programs, nor did he seek or receive any psychological or
chemical dependency assistance. He testified that he did not
attend parenting classes. C.G.'s father stated "I just
didn't feel right for someone to tell me how to raise my
daughter. " Additionally, C .G. ' s father did not make contact
with the social worker assigned to his case from December of
1985 to September of 1986, only days prior to the District
Court hearing. During this period of time, he also had only
limited contact with C.G. in the form of a number of cards
and alleged telephone calls.
C.G. 's mother has a history of mental illness and was
judicially committed in 1981. The mother suffers from severe
depression and an exorbitant alcohol problem. Between 1981
and 1986, C.G.'s mother suffered a number of relapses of both
mental problems and alcohol abuse which resulted in neglect
and abuse of C.G. and her brother. The two children were
placed in a foster home numerous times, which was documented
by the report filed by Bird. Four separate court-approved
written treatment plans designed to assist the mother by
stabilizing her emotional life, improving parenting skills,
establishing a concrete home environment, and limiting her
dependency on alcohol and drugs, were signed by the mother
yet never completed.
Testimony presented at the District Court hearings held
September 15, 24 and 26, 1986, showed that C.G.'s father had
custody of C.G. only a couple of weeks after his separation
with the mother in 1981. The father also testified that his
current wife had been arrested for prostitution and there was
testimony that C.G. did not wish to spend nights with her
father and new spouse because she was sent to her room while
they "did business."
The conclusions of law of the April 15, 1987 District
Court order stated:
[C.G.] is an abused or neglected child
within the meaning of Section 41-3-102,
MCA, and is a youth in need of care. Her
normal physical and mental health or
welfare is threatened with harm by the
acts and omissions of [her father and
mother]. Both parents have been unable
to provide a safe, appropriate, home
environment for this child.
It is in [C.G.] 's best interests that she
be taken from the custody of [her mother
and father], and that her temporary care,
custody, and control be awarded to [SRS]
until she reaches the age of 18 years.
Counsel for C.G.'s father argues that the District Court
erred " [i]n applying Section 41-3-609, M.C.A., 1987, 'abuse
and neglect' standards for termination of parental rights."
This argument is inaccurate and appellant's claim does
not address any issue of error by the District Court. It is
clear from a reading of the District Court's order that no
termination of parental rights occurred. Therefore, the
formal process outlined in 5 41-3-609, MCA, which defines
guidelines and criteria for termination of the legal
child-parent relationship, need not be addressed. The
Guardian Ad Litem appointed for C.G. advocates affirmance of
the order of the District Court and filed a supporting brief.
The modification of the parental rights of C.G.'s mother and
father clearly does not terminate the parent-child legal
relationship and therefore any argument regarding termination
is superfluous.
The District Court set forth the powers that SRS would
have over C.G. allowing that agency to find appropriate
long-term private foster care. This will give the child
st.ability and a favorable home environment and still allow
interaction between the parents and C.G.
The order does not disallow the parents of C.G. from
gaining custody of the child in the future, contingent upon
proper compliance with a service treatment agreement which
has so far proved unsuccessful.
The policy of this state is to ensure the family unit
and that interest is constitutionally guaranteed. Section
41-3-101 (1)(d), MCA; Matter of J.L.B. (1979), 182 Mont. 100,
109, 594 P.2d 1127, 1132. However, the right to maintain the
family unit is not absolute and although the children's best
interests and welfare generally are served by maintaining the
family unit with custody retained by the natural parents,
" [t]he children's best interest and welfare, not that of the
natural [parent], is the paramount consideration." In Re
Gore (1977), 174 Mont. 321, 328, 570 P.2d 1110, 1114. he
District Court properly determined the best interest of C.G.
would be served by temporary custody granted to SRS.
We have stated:
[Tlhis Court is mindful that the primary
duty of deciding the proper custody of
children is the task of the district
court. As a result, all reasonable
presumptions as to the correctness of the
determination by the district court will
be made. Foss v. Leifer, 170 Mont. 97,
550 P.2d 1309, 33 St.Rep. 528 (1976).
Due to this presumption of correctness,
the district court's findings will not be
disturbed unless there is a mistake of
law or a finding of fact not supported by
credible evidence that would amount to a
clear abuse of discretion.
Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 12181 41
There was credible evidence that C.G. was a youth in
need of care and is an abused and neglected child pursuant to
5 41-3-102 (2), MCA, which states: " ' [a]bused 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 ... " Harm to a child's health or
welfare is defined in subsection (3) of 5 41-3-102, MCA.
Either subsection (3)(c), which deals with failure to supply
an adequate home environment or subsection (3)(d), dealing
with abandonment for a period of six months, would apply in
this case.
The findings of fact and conclusions of law are
supported by the evidence and testimony and the District
Court did not err in determining the best interest of C.G.
would be served by temporary custody being granted to SRS.
We affirm.
/'
1
Justice
We concur: M