No. 89-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF
T.C. & R.C.,
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, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sally M. Johnson, Bill-ings, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Kathy Seeley, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Greg Mullowney, Deputy,
Billings, Montana
Damon L. Gannett; Olsen, Christensen & Gannett, Billings,
Montana
--
C-
c
z
cu 3 Submitted on Briefs: Oct. 20, 1989
N 0
'vl c j
-I :ju, ~ ~ ~ i d December 20, 1989
~ d :
--I 7: "
E C,,i
File:Q . -: <
, s tv
d
-
A
C)
.-
:-Lo d
%
', .{
:, k')
! &"*"
LL CU ;
:
,
(2
-f
1 -------
:
- 9
-
w .A
-
st
i/
*,
)$&: &.J! v & 4 $:
!$ & 9 1 4 .
.,
J
u w;z: '' Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
In a hearing for permanent custody, the District Court
for the Thirteenth Judicial District, Yellowstone County,
ordered the parental rights of T.C. and R.C. terminated and
awarded custody to the Montana Department of Family Services.
Court-appointed guardian ad litem Damon L. Gannet appeared on
behalf of the children. The natural mother, appellant,
appeared in person and was represented by court-appointed
counsel, Sally M. Johnson. The putative fathers were served
by publication with notice of the proceedings but failed to
appear. Defaults were entered. The natural mother appeals
the termination of the parental rights of R.C.
Two issues are presented on appeal:
1. Was the District Court's finding that R.C. was a
"youth in need of care" supported by substantial credible
evidence?
2. Did due process require appointment of counsel for
the mother prior to the award of temporary custody of the
children to the State?
The appellant is the natural mother of T.C. and R.C.
The children have different fathers with whom appellant does
not have contact. She never married either of the children's
fathers nor do either of the children know their father. At
the time of the hearing, appellant was 26 and her husband,
Mr. H., was 64.
This appeal concerns only R.C. However, we feel it
necessary to set forth the facts as they apply to T.C. since
the overwhelming evidence with regard to her abuse was prop-
erly considered in the determination as to R.C. Appellant
became pregnant with T.C. when she was 16 years old. T.C. is
now a 10 year old girl. The Children's Protective Services
(CPS) invol~rement heqan when T.C. was born. Appellant had
difficulty in comprehending parenthood and exhibited problems
in responding to T.C. 's needs. Appellant and T.C. werp
living with appellant's maternal grandparents.
In 1979, Dr. Richard Agosto, a clinical psychologist
evaluated appellant and determined her I.Q. to be in the
borderline range of mental retardation due to poor educa-
tional background and lack of environmental and cultural
stimulation. The Montana Center for Handicapped Children
clinically evaluated T.C. and found she exhibited "signifi-
cant delays in the area of cognitive skills, self-help
skills, and severe delays in the area of speech and lan-
guage." At this time in her life, appellant's grandparents
were the primary caretakers of T.C. During the next year,
T.C. demonstrated only a "two to four month gain in intellec-
tual skills. " Several agencies were involved with T.C.,
appellant, and appellant's grandparents over this period but
due to the family's refusal to cooperate, the agencies termi-
nated their contact.
Late in 1980, CPS reestablished twice monthly contact
with appellant to help her obtain employable skills, develop
parenting skills, and clarify who was parenting T.C. Appel-
lant's grandparents were T.C.'s primary caretakers until she
was three, at which time appellant's mother, A.C., assumed
parenting responsibilities with appellant having infrequent
visitations.
In 1985, CPS was again contacted by appellant, this time
regarding R. C. , appellant ' s 8-month old baby boy. She was
overwhelmed by parenting responsibilities and agreed to allow
grandmother A.C. to parent R.C. Ongoing services were again
terminated by CPS.
In 1987, the Montana Department of Family Services
interviewed T.C. at school in response to a referral received
concerninq possible sexual abuse of T.C. by an uncle. At
this point, T.C. was living with A.C., an aunt (age 16) , and
R.C. (age 2). T.C. disclosed to the social worker that her
Aunt J. was doing "nasties" to her. She explained that Aunt
J. was touching and kissing her on her "boobs," " ass," and
"lucy," indicating her vaginal area, and made T.C. also touch
her in the same places. T.C. further told of seeing Aunt J.
and her boyfriend have sex. T.C. said that she had seen Aunt
J. perform the same acts on her brother, R.C., and touched
and licked his "weiner." Throughout the interview, T.C.
displayed abnormal sexual behavior. At the conclusion of the
interview, T.C. said she made up the story in order to hurt
her Aunt J.
However, just two days later, another interview was
conducted in which T.C.'s story remained consistent. She
also demonstrated with anatomical drawings where J. touched,
kissed, and licked her, and explained that both she and J.
wore no clothing during these encounters. She also used the
drawings to show where J. touched and kissed R.C. T.C. was
video taped playing with anatomically correct dolls. Her
behavior with the dolls repeated her story with the drawings.
At one point, T.C. asked the social worker if she could
remain in foster care until age 18, at which time she would
return home "to beat up [J]."
Soon thereafter, Dr. Linda Johnson, a pediatrician at
Billings Clinic, conducted a physical examination of T.C.
She noted "a vaginal discharge being present" and a "definite
fissure in the rectum with the cause being that of an exter-
nal to an internal force. " Dr. Johnson concluded that the
results of the examination were consistent with sexual abuse
findings. During the course of the examination, T.C. again
showed where she was touched by J . She also added explana-
tions which indicated that Mr. H., appellant's husband, was
havinq sexual intercourse with her.
On February 18, 1987, the State petitioned the District
Court for Temporary Investiqative Authority of appellant's
two minor children, T.C. and R.C. On the basis of physical,
sexual, and emotional abuse and neglect of the children, the
petition was granted. On June 11, 1987, after a hearing, the
District Court granted temporary custody to the State.
Over the next year, T.C. remained adamant about not
wanting to return to live with her family or even see them.
She displayed an intense fear of her mother when she would
come to visit. A May 1988 visitation was supervised. During
that visit T.C.'s "first act once we were all upstairs in the
conference room was to attempt to take off her sweater and
shirt and to 'show my boobs' to [appellant and appellant's
mother]." After this visit, visitations were terminated.
Continued therapy sessions revealed more and more infor-
mation regarding the abuse suffered by these two children,
including being burned with cigarette lighters. Both the
things T.C. said and the things she did confirmed her stories
of abuse. Her social behavior and intellectual skills im-
proved "remarkably" during the time she stayed with the
foster families. Due to "the children's special needs and
the apparent inability of the parent to change in a reason-
able amount of time," in late May 1988, the social worker
recommended permanent custody he granted to the Montana
Department of Family Services with consent to adopt. In July
1988, the District Court granted permanent custody of 10-year
old T.C. and 4-year old R.C. to the Department and terminated
parental rights. The natural mother appeals only as to R.C.
I
Was the District Court's finding that R.C. was a "youth
in need of care" supported by substantial credible evidence?
Appellant asserts that the District Court erred in
terminating parental rights of R. C. based solely upon
statements made by T.C., an emotionally disturbed child. She
contends that at the time of the hearing, there was no psy-
chological, medical or physical data generated as to R.C.
Thus, she urges that there is no evidence to support the
finding that R.C. is a "youth in need of care" as defined in
§ 41-3-102(2), MCA. She cites In re M.R.L. (1980), 186 Mont.
468, 608 P.2d 134, for the proposition that professional
personnel must conclude that the child would be better off if
the parental rights were terminated. She maintains that in
M.R.L. there was considerable evidence based on the testimony
of professionals, to support the court's decision, and that
in this case there was no "professional" testimony as to R.C.
She contends that the only person who testified about R.C.
was social worker, Dan Carlson-Thompson, and that his testi-
mony alone is insufficient. She further contends that the
court failed to order an evaluation of R.C. as required by §
41-3-609 (3), MCA.
The State correctly points out that 5 41-3-609 (1), MCA,
authorizes the district court to terminate parental rights if
certain criteria are found to exist, and it is shown by clear
and convincing evidence that the statutory criteria for such
termination have been met. Matter of A.H., A.H., J.A.H.
(Mont. 1989), 769 P.2d 1245, 1247, 46 St.Rep. 395, 397.
Furthermore, it asserts that the district court's decision
will not be disturbed unless a mistake of law exists or the
factual findings are not supported by substantial credible
evidence. Matter of J.L.S. and A.D.S. (Mont. 1988), 761 P.2d
838, 840, 45 St.Rep. 1842, 1845. The State contends the
record supports the termination of parental rights in this
case. It maintains that after the temporary custody hearing,
the order adjudicating T.C. and R.C. youths in need of care,
was never appealed and is irrelevant in an appeal of a new
proceeding for permanent custody. Relying on In the Matter
of T.Y.K. & D.A.W.R. (1979), 183 Mont. 91, 95-96, 598 P.2d
593, 596, the State urges that when the d-istrict court ob-
serves abuse of one child, it should not be forced to refrain
from taking action until the next child suffers injury.
Regardless of the statements by T.C. regarding R.C., the
State maintains that there was sufficient evidence to support
that R.C. was a youth in need of care. We agree.
This Court will not overturn a transfer of custody of
abused, neglected, or dependent youth to the State absent a
clear showing of abuse of discretion. Matter of A . H . , A.H.,
J.A.H., 769 P.2d at 1249. Section 41-3-609 (1)(c), MCA,
provides for termination of the parent-child relationship if
the child is an adjudicated youth in need of care and if both
(i) an appropriate treatment plan that has been approved by
the court has not been complied with by the parents or has
not been successful; and (ii) the conduct or condition of the
parents rendering them unfit is unlikely to change within a
reasonable time. Youth in need of care means a youth who is
dependent, abused, or neglected as defined in this section.
Section 41-3-102(11), MCA. An "abused or neglected" child is
one 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.
Section 41-3-102(2), MCA. A "dependent youth" is one who has
no proper g,uidance to provide for his necessary physical,
moral, and emotional well-being, Section 41-3-102 (10)(c),
MCA. In its 1987 order for temporary custody, the District
Court found T.C. and R.C. to be dependent youths in need of
care because they were in "immediate or apparent danger of
harm." The District Court made this finding based on a
culmination of reports on T.C. and R.C. from various social
workers, psychologists and psychiatrists of various State
agencies. T.C. had b e e n i n v o l v e d w i t h S t a t e a g e n c i e s o v e r a
period of eight years.
The f a c t t h a t T.C. i s a y o u t h i n need o f c a r e i s n o t i n
dispute. R.C. lived in f o s t e r homes s i n c e h e was only 2
years old. During t h a t t i m e , h e e x h i b i t e d behavior problems
such a s urinating on t h e floor, becoming self-destructive,
h i t t i n g h i m s e l f on t h e h e a d , s p i t t i n g and h i s a t t e n t i o n s p a n
was " v e r y s h o r t . " Dan Carlson-Thompson t e s t i f i e d t h a t h e n o t
only relied on statements from T . C . for his determination
t h a t R.C. had been a b u s e d and n e g l e c t e d , b u t t h a t i n a d d i t i o n
a p p e l l a n t "has n o t parented [R.C.] and h a s n o t d e m o n s t r a t e d
an a b i l i t y t o do so, " and " t h e f a m i l y members and e x t e n d e d
f a m i l y members1 a p p a r e n t inability t o protect [T.C.] would
place [R.C.] a t g r e a t r i s k i f h e was r e t u r n e d t o t h a t e n v i -
ronment . . ." The D i s t r i c t C o u r t r e v i e w e d e x t e n s i v e e v i -
dence. Clearly, i t s d e t e r m i n a t i o n t h a t R.C. was a y o u t h i n
need o f c a r e was b a s e d on more t h a n j u s t T.C. 's statements,
and 5 41-3-102 ( 2 ) and ( 1 0 ) ( c ) , MCA, have been satisfied.
T h i s C o u r t h a s f o l l o w e d t h e m a j o r i t y r u l e t h a t i f it i s shown
t h a t o n e c h i l d i s a y o u t h i n need o f c a r e , " t h e p a r e n t does
n o t have t h e p r i v i l e g e of i n f l i c t i n g b r u t a l t r e a t m e n t upon
e a c h o f h i s c h i l d r e n i n s u c c e s s i o n b e f o r e t h e y may i n d i v i d u -
ally obtain the protection of the state." See
I n t h e Matter of T.Y.K. & D.A.W.R, 598 P.2d 593, 596.
Once t h e r e h a s b e e n a d e t e r m i n a t i o n t h a t t h e c h i l d i s a
youth in need of care, the district court may terminate
p a r e n t a l r i g h t s i f two r e q u i r e m e n t s have been m e t :
1. a n a p p r o p r i a t e t r e a t m e n t p l a n t h a t a s been
a p p r o v e d by t h e c o u r t h a s n o t b e e n c o m p l i e d w i t h by
t h e p a r e n t s o r h a s n o t been s u c c e s s f u l ; and
2. t h e conduct o r condition of t h e p a r e n t s render-
i n g them u n f i t i s u n l i k e l y t o change w i t h i n a
reasonable t i m e .
Section 41-3-609 (1)(c), MCA. These criteria have clearly
been met. These children have been parented by appellant for
only a brief portion of their lives. Their caretaking need-s
were tossed from family member to family member and they were
abused by several family members. The family denied any
abuse even after overwhelming physical and emotional evi-
dence. Appellant, her grandmother, mother, husband and
sister all adamantly rejected agency involvement and refused
to cooperate with programs the State suggested in attempts to
keep the family together. This Court has carefully reviewed
the record and we note that it reveals much more abuse than
has been elaborated in this opinion. F e hold the District
7
Court's finding that R.C. was a "youth in need of care" is
supported by substantial credible evidence.
I1
Did due process require appointment of counsel for the
mother prior to the award of temporary custody of the chil-
dren to the State?
Appellant contends that because she was not represented
by counsel during the temporary custody proceedings, her due
process rights were violated. She relies on Lassiter v.
Department of Social Serv. (1981), 452 U.S. 18, which stated
that in deciding what due process requires, there are three
elements which must be balanced: (1) the private interests
at stake; (2) the government's interest; and (3) the risk
that the procedures used will lead to erroneous decisions.
In short, because as she asserts, parental rights are funda-
mental rights under the Constitution, she claims she was
entitled to appointed counsel throughout the temporary pro-
ceedings as a matter of due process.
The State maintains that appointment of counsel is not
required for "temporary" custody hearings. We agree.
In child protective proceedings culminating in the
termination of parental rights, due process of law
requires only that the parents have counsel prior
to the Permanent custody hearings. Due process
does not require that the parents have counsel
during the initial stages of the proceedings.
Matter of M.F. (1982), 201 Mont. 177, 653 P.2d
1205. In so holding, this Court relied upon the
United States Supreme Court in Lassiter v. Depart-
ment of Social Services (1981), 452 U.S. 18.
Matter of A.B. (Mont. 1989), 780 P.2d 622, 46 St.Rep. 1734.
In Matter of H.R.R. (Mont. 1989), 780 P.2d 1139, 4 0 St.Rep.
1771, we held that:
Because the parents' right to custody is a funda-
mental interest, the State must show by clear and
convincing evidence that the statutory criteria
have been met. Our decisions hold that we will not
reverse a district court's decision regarding
findings of fact unless the findings of fact are
not supported by substantial credible evidence.
(Citations omitted. )
"All reasonable presumptions as to the correctness of the
determination by the district court will be made" on appeal.
See Matter of J.L.S.and A.D.S. 761 P.2d 838.
Appellant was represented by counsel throughout the
proceedings for permanent custody. Clearly, she was not
deprived of due process. We hold that due process does not
require appointment of counsel for the mother prior to the
award of temporary custody of the children to the State.
Affirmed.
Justices