No. 8 8 - 6 1 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MATTER OF
R.T.L.P., Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G Barz, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Sally M. Johnson, Billings, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Greg Mullowney, Deputy,
Billings, Montana
Damon Gannett; Olsen, Christensen & Gannett, Billings,
Montana
Carnil-leVentrell; Davidson & Poppler, Billings, Montana
Submitted on Briefs: May 25, 1989
I _
P-- Decided: August 11, 1989
)
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a ruling of the District Court of
the Thirteenth Judicial District, Yellowstone County, grant-
ing long-term custody of R.T.L.P. to his natural grandmother
and her husband. Mother appeals. We affirm.
The issues presented for our review are:
1. Did the District Court err in determining that
R.T.L.P. was a "youth in need of care?"
2. Is the granting of long-term custody until age 18
the equivalent of a termination of parental rights, requiring
that the statutory factors of termination be established?
3. Was the mother constitutionally entitled to effec-
tive assistance of counsel?
R.T.L.P. was born in Montana on February 5, 1983. The
family moved to Wisconsin where they resided until 1984. In
1984 R.T.L.P. 's mother and father separated and the state of
Wisconsin began an investigation into the family situation.
In violation of a Wisconsin court order, mother moved to
Missoula, Montana on August 15, 1984, with R.T.L.P. and his
baby sister. At that time R.T.L.P. was seventeen months old
and the sister was two months old. Mother claims she left
Wisconsin because she was afraid of physical harm from her
husband. Upon arrival in Montana, mother and her children
moved in with the maternal grandmother and her husband.
Upon their arrival, the grandmother immediately noticed
that the 2 month old baby appeared very sick and that the
infant had a burn on her body. Grandmother made an appoint-
ment with a doctor and both the grandmother and the mother
took the baby to the doctor on August 17, 1984. The baby was
diagnosed as a "failure to thrive" baby and a letter from the
doctor began by stating: "To Whom it May Concern: This
child suffered from severe malnutrition." Efforts to feed
the infant resulted in a perforated bowel. On August 20 the
infant was flown to Salt Lake City, Utah for further medical
care, but the infant died on August 31, 1984. While the
cause of death was listed as septicemia with meningitis,
reports from both the Missoula doctors and the Salt Lake City
doctors revealed that the infant was in a very weakened
physical condition.
The grandmother testified that for the few days in which
she observed the mother care for the child, the mother was
feeding the infant diluted formula, and also that she allowed
the infant to cry all night rather than feeding her. She
testified that the mother never held or cuddled the baby.
After the funeral of the baby sister, R.T.L.P. spent
five weeks with an aunt who lived in Idaho. Mother made no
contact with R.T.L.P. during this time.
The state of Wisconsin continued its involvement with
the family, culminating in an award of temporary custody of
R.T.L.P. to the grandmother. Mother agreed to this custody
arrangement. R.T.L.P. and his mother resided with the mater-
nal grandparents from August 1984 until October 1986. During
this time the grandparents took care of R.T.L.P. Mother
would occasionally leave the home for periods of up to 4 to 6
weeks at a time, and during these absences she maintained
little or no contact with her son. When the grandparents
moved to Billings mother and R.T.L.P. moved with them.
In May 1986, mother moved out of the grandparents' home
and moved in with a man whom she later married. R.T.L.P.
remained with his grandparents who assumed his total care.
After this, mother visited her son only every 10 days to two
weeks.
In October of 1986, mother and her boyfriend asked the
grandparents if they could pick up R.T.L.P. and take him out
to get pizza that evening. The grandparents agreed to this
and R.T.L.P. left with his mother and her friend. When the
child was not returned, the grandparents contacted the po-
lice. The State of Montana obtained temporary investigative
authority, and it was determined that mother and her boy-
friend had taken R.T.L.P. to California, where they were
residing with the boyfriend's parents. On November 7, 1986,
pursuant to an order granting the State of Montana temporary
custody of R.T.L.P., the child was returned to Montana.
A guardian ad litem was appointed for R.T.L.P., and on
December 4, 1986, a hearing was held in Montana to determine
the custody of R.T.L.P. At the close of the hearing, the
court ordered that R.T.L.P. be placed in the temporary custo-
dy of Social Rehabilitation Services (SRS) for six months.
R.T.L.P. resided with foster parents in their home. Tempo-
rary custody was extended twice and in April of 1988 the
grandparents made a motion to obtain custody of R.L.T.P. As
a result of the hearing on this motion, held May 31 and June
1, 1988, the court granted long-term custody of R.T.L.P.
until age 18 to the natural grandmother and her husband.
Mother appeals. We affirm.
Did the District Court err in determining R.T.L.P. to be
a youth in need of care?
In reviewing a custody order by the Dist-rict Court we
have previously 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 determi-
nation by the district court will be made. 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 sup-
ported by credible evidence that would amount to a
clear abuse of discretion. (Ci-tation ommitted. )
Matter of C.G. (Mont. 1988), 747 P.2d 1369, 1371, 45 St.Rep.
63, 66.
Before the State may become involved in the custody of a
youth, the youth must be adjudicated a "youth in need of
care", which, pursuant to 5 41-3-102(11), means a youth who
is "dependent, abused or neglected." An abused or neglected
child is further defined in 5 41-3-102(2) as "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." In the present
case the District Court determined that R.T.L.P. was a youth
in need of care, in that he had been "physically abused,
emotionally abused and emotionally neglected." Our review of
the record reveals ample evidence to support this finding.
The mother voluntarily left R.T.L.P. in the care of her
mother and stepfather for two years. During this time, the
grandmother assumed responsibility for the child's physical
and emotional needs. The evidence showed that mother often
left home for days and weeks, without maintaining contact
with him. R.T.L.P. called the grandmother "Mamma," and he
called his mother by her given name. In fact, grandmother
testified that at times the mother directed her son not to
call her "Mamma," telling him that the grandmother was his
"Mamma.I'
The mother and her boyfriend testified that they took
R.T.L.P. to California because they wanted to get married and
"be a family." However, the testimony elicited from them on
cross-examination showed that they never considered the
impact of that decision on R.T.L.P. Reports from social
workers showed that after this event the youth had nightmares
and was fearful of being taken from his grandparents again.
When R.T.L.P. was returned to Montana, the mother and
her boyfriend also returned and were married. Neither became
employed. Mother then began a Service Treatment Program
through SRS designed to help her with parenting abilities.
Although she was somewhat cooperative in this plan, she
missed many appointments. During this time she and her new
husband had visits with R.T.L.P. two times per week. After
several of these visits. R.T.L.P. was returned to the grand-
parents with indications of physical abuse, including a
swollen mouth, swollen lip, black eye, chipped tooth, and
back and abdominal pain.
The court heard testimony from a licensed clinical
psychologist. The psychologist determined that mother was
capable of parenting. However, he also noted that he only
saw her twelve times during a period of two and one half
months, and based his evaluation solely on mother's state-
ments to him. He acknowledged that he might change his
evaluation if her statements were incorrect. He diagnosed
two disorders in the mother: post-traumatic stress disorder
and dependent personality disorder.
The social worker saw mother and R.T.L.P. for a year and
a half, from October 1 9 8 6 to April 1 9 8 8 . His testimony
emphasized that the child has shown a lack of ability to bond
with his mother, but that there is a strong bond with the
grandmother. He stated that irreparable damage had been done
in regard to R.T.L.P.'s ability to bond with his mother. He
testified that the youth was emotionally healthy at the time
of the hearing, but that this was a result of being in the
grandparents' care. He expressed serious concern about
R.T.L.P.'s physical and emotional welfare should he be placed
in the custody of mother and her new husband. His recornmen-
dation was that R.T.L.P. remain in the grandparents' care.
The District Court found that mother was unstable and
totally lacked credibility. The record supports this find-
ing. Mother gave two different stories as to the origin of
the burn on the infant daughter who died. In 1984 she first
reported that at a women's shelter in Wisconsin another
mother had put Crisco on the baby and left her laying in the
sun. At the custody hearing mother testified that her former
husband and his friends had broken into the women's shelter,
tied her to a chair, and gang raped her. She stated they had
put Crisco on the infant and put her under a heat lamp,
resulting in the infant's burn.
Mother's sister testified that for many years mother had
accused various people, including family members, of sexual
abuse. She stated that none of these allegations had ever
been proven to be true. She also testified to personal
knowledge of mother's past drug abuse, including the use of
cocaine and heroine during her pregnancies. She testified
that she had seen mother chase R . T . L . P . with a vacuum hose,
even though the child was terrified of loud noises.
Mother contends that the District Court merely consid-
ered the child's best interests in awarding custody, and did
not first establish that R . T . L . P . was a youth in need of
care. Mother is correct in urging that an initial finding of
abuse, neglect or dependency is the "jurisdictional prerequi-
site for any court ordered transfer of custody," and only
after this showing has been made is the best interests test
relevant. Matter of M.G.M. (1982), 201 Mont. 400, 407, 654
P.2d 994, 998. However, our review of the record reveals
ample evidence to support the District Court's finding that
R.T.L.P. was physically abused, emotionally abused, neglect-
ed, and therefore a youth in need of care.
For four years mother's actions were marked by indiffer-
ence to and neglect of her parental responsibilities. She
did not assume the physical care of her son, and was insensi-
tive to her son's emotional needs. Additionally, the Dis-
trict Court gave serious consideration to the circumstances
surrounding the death of R.T.L.P.'s infant sister, which
strongly suggested mother's neglect of that child also.
These facts are certainly relevant to mother's ability to
parent.
The record demonstrates that mother has not been an
adequate parent and that there is substantial potential for
harm to R.T.L.P. should he be placed in mother's care. While
mother states that she would provide a good home at this
point, her past actions and her present instability and lack
of credibility are not persuasive. R.T.L.P. does not need to
wait longer for mother to improve her parenting skills.
Matter of C.A.R. (1984), 214 Mont. 174, 188, 693 P.2d 1214,
1222. We conclude that R.T.L.P. is a youth in need of care
whose best interests are served by remaining in the custody
of the grandparents. We therefore affirm the District Court.
11
Is the granting of long-term custody until age 18 the
equivalent of a termination of parental rights, requiring
that the statutory factors of parental termination be met?
The court's order awarded custody of R.T.L.P. to his
grandparents until he reaches age 18. The grandparents have
the right to make decisions regarding the youth's medical,
educational, and legal needs. Further, the order states that
the mother's visitation rights shall be restricted and super-
vised. Mother is allowed visitation only twice a month for
one hour at the Montana Department of Family Services.
Mother contends that this equates with parental termination
and that therefore the factors of fj 41-3-609, MCA, must be
fulfilled.
The court granted long-term custody pursuant to B
41-3-406, MCA, which states in pertinent part:
If a youth is found to be abused, neglected or
dependent under 41-3-404, the court after the
dispositional hearing may enter its judgment making
any of the following dispositions to protect the
welfare of the youth:
(3) transfer legal custody to any of the
following:
(c) 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;
Under this statute it is only necessary that the child
be a "youth in need of care," defined in 41-3-102(11), MCA,
as a youth who is "abused, neglected, or dependent. " Termi-
nation of the parent child relationship requires much more
stringent criteria. The relevant statute, $ 41-3-609, MCA,
lists three requirements which must be established before
parental rights may be terminated. Those requirements are 1)
that the child is an adjudicated youth in need of care, 2) a
court approved treatment plan has not been complied with or
been successful, and 3 ) the conduct or condition causing the
problem cannot be rectified within a reasonable time. Sub-
section (2) of that statute enumerates several factors for
guidance in the determination of the third requirement.
The effect of a decree terminating the parent-child
relationship is explained in 41-3-611, MCA, which states
that the decree operates to divest the child and the parents
of "all legal rights, powers, immunities, duties, and obliga-
tions with respect to each other. . " . Only the child's
right to inherit is excepted from this.
The effect of termination of parental rights was ex-
plained in Matter of V . B . (Mont. 1987), 744 P.2d 1248, 1250,
44 St.Rep. 1838, 1841. In that case we stated that "when
parental rights are terminated, the natural parent no longer
has - rights over the child.
any This includes visitation
rights. "
This Court has previously acknowledged the difference in
an order granting long-term custody until age 18 and an order
terminating parental rights. We recognized the distinct
nature of each disposition and the differences in statutory
requirements in the case of Matter of A.H., (Mont. 1989), 769
P.2d 1245, 46 St.Rep. 395. That case affirmed the termina-
tion of parental rights as to one child and the granting of
long-term custody until age 18 as to the other two children.
In Matter of A.H. we concluded that the district court had
terminated parental rights to one child because the statutory
factors of § 41-3-609, MCA, were met. We also concluded that
the other two children were appropriately put in long-term
custody until age 18 because they were determined to be
"youths in need of care," pursuant to § 41-3-404, MCA. Thus
this Court implicitly recognized that the granting of long-
term custody until age 18 is not the equivalent of a termina-
tion of parental rights, and that different statutory
criteria apply to each disposition.
An award of long-term custody does not totally terminate
the rights of the natural parent. In the present case,
although mother's visitation rights are restricted, she may
still visit her child, and may possibly petition for less
restricted visitation in the future. Additionally, mother
may at some point in the future petition the District Court
to regain custody of R.T.L.P. While the record demonstrates
a grievous incapacity to parent, it is conceivable that
mother could develop as a parent to the point where it would
be appropriate to restore custody to her. Possibly there are
other factors which could alter the effect of the long-term
custody decree. Mother's rights as the parent of R.L.T.P.
have not been terminated by the award of long term custody
until age 18. The award of custody until the child's age of
majority gives stability to the child's future and prevents
repeated litigation over custody. The proper inquiry is
whether parental rights have actually been terminated.
Because parental rights have not been terminated we hold that
a grant of long-term custody is not the equivalent of a
termination of parental rights.
I11
Is mother entitled to effective assistance of counsel at
a hearing which granted long-term custody of her son to his
grandparents?
Mother alleges that her legal representation at the
custody hearing was less than effective, citing certain
evidence which her attorney did not present. Mother contends
that she was entitled to effective assistance of counsel at
the hearing which determined the custody of her child,
R.T.L.P. This contention fails because it is premised on an
incorrect assumption.
Mother urges that the parent-child relationship is a
fundamental liberty interest entitled to constitutional
protection. The cases cited in support of this argument
however, involved a termination of parental rights. See,
e.g., Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846,
848, citing Santosky v. Kramer (1982), 455 U.S. 745, 753-54,
102 S.Ct. 1388, 71 L.Ed.2d 599. In Matter of R.B. we stated
that a termination of parental rights must be protected by
"fundamentally fair procedures," and that the court must
address each statutory requirement of termination. Matter of
R.B., 703 P.2d at 848. In the present case, the procedure
followed by the court was fundamentally fair as far as this
party is concerned. We find no authority for mother's con-
tention that a parent is entitled to effective assistance of
counsel in a termination proceeding. Furthermore, as we
concluded in Issue I, the present case is not a termination
because it does not involve the severing of a parent-child
relationship. Therefore, we need not address mother's con-
tentions regarding effective assistance of counsel.
Affirmed.
We Concur: