Matter of B.N.

NO. 90-297
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

IN THE MATTER OF B.N. and T.N.,
and M.M., A.M. and T.G.M.,
Youths in Need of Care.

APPEAL FROM: District Court of the
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Joseph R. Massman, Esq., Massman Law Firm, Helena,
Montana (Father and Paternal Grandparents)
William P. Driscoll, Esq., Gough, Shanahan, Johnson
and Waterman, Helena, Montana (Mother)
For Respondent:
Mike McGrath, County Attorney; Leo J. Gallagher,
Deputy County Attorney, Helena, Montana
Hon. Marc Racicot, Attorney General; Elizabeth L.
Griffing, Assistant Attorney General, Helena,
Montana
J. Mayo Ashley, Esq., Public Defender, Helena,
Montana
Randi Hood, Esq., Public Defender, Helena, Montana

Submitted on Briefs: October 26, 1990
Decided: December 11, 1990
Filed: 0
Chief Justice J. A. Turnage delivered the Opinion of the Court.
R.N.M. (mother) and T.N. (father), parents of B.N. and T.N.,

appeal the judgment of the First Judicial District, Lewis and Clark
County, which terminated their custodial rights of their children
and awarded legal custody to the Montana Department of Family
Services. The paternal grandparents of the children also join in
the appeal. We affirm.
The issue presented on appeal is whether the record lacked
substantial evidence to support the District Court's order to
terminate the natural parents1 custodial rights of their two
children.
The mother and father married in 1980. The marriage produced
two daughters, B.N., born November 7, 1980, and T.N., born October
27, 1981. The marriage also marked the beginning of a ten-year
history of family turmoil and parental neglect as recorded by the
Lewis & Clark County Department of Family Services (Department).

In 1980 and just thirty-two days following B.N.'s birth, the
Department began receiving reports lodged against either one or
both of the parents for parental neglect. Three months following
T.N.'s birth, T.N. was hospitalized for ''failure to thrive."
In 1982, Dr. Robert J. Bateen, a clinical psychologist,
evaluated mother and father at the request of the Child Protective
Services. Dr. Bateen found that mother had a low IQ of seventy-
six and that she was an lloverwhelmedmother who was lacking in
skills.11 Dr. Bateen found that father had an even lower IQ of
fifty-nine, rendering him a mental age of a first or second grader.
Dr. Bateen also established father's history of physical violence
through accounts given by mother.
Later in 1982, the Department received a report alleging that
father was physically abusing his wife and his oldest daughter,
B.N. This report was followed by the October 27, 1982, filing of
an abuse complaint lodged against father by a social worker of the

Department, who was at St. Peter's Hospital when B.N. was receiving
treatment for contusions, bruising, and swelling to the head area,
injuries allegedly inflicted by father.
No legal action was pursued against the parents at this time
as mother decided to live apart from father, and father consented
to evaluation and treatment at Montana State Hospital in Warm
Springs. Upon his release from this hospital, however, the
Department received reports that father had returned to living at
the family residence, contrary to an informal agreement between the
Department and the parents.
On April 14, 1983, the State petitioned the District Court
for temporary custody and temporary investigative authority
regarding B.N. and T.N., based on further reports of father's
violent behavior and both parents' neglectful behavior toward their
children. The children were temporarily placed in foster care, but
were eventually returned to their mother, who then departed with
the children to Wyoming in August of 1983. Following mother's
departure, father petitioned for dissolution of marriage on
September 7, 1983.
The petition for temporary custody and temporary investigative
authority resulted in a court-ordered custody investigation by Rita
Pickering of Lewis & Clark County Human Services. In her report
to the court, dated February 17, 1984, Pickering recommended that
1) mother be given custody of the children while she continues

professional counseling to improve and monitor her parenting
skills, and, 2) father be given supervised visitation rights.
Pickering's report stated that mother had few developed parenting
skills, but she had the potential and desire to learn to care for
her children. Pickering's report further stated that father's
"history of poor frustration control11 created a potentially
dangerous situation for the children.
In August of 1984, mother and father signed a custody
agreement which granted mother sole-custody of the children and
granted father supervised visitation rights. On January 16, 1985,
the court dissolved the parents1 marriage incorporating the custody
agreement into the decree. No further action was pursued with
regard to the petition for temporary custody and temporary
investigative authority, and it was eventually dismissed on July
7, 1987.
From the time of the custody agreement through 1988, father,
along with his parents, regularly contested mother's refusal to
grant father supervised visitation rights and questioned if mother
3
was providing adequate care to the girls. These disputes resulted
in three petitions to enforce visitation rights. Meanwhile, mother
-
entered a common-law marriage with B.M., a long-haul truck driver,
and had three more children: M.M., born June 16, 1986; A.M., born
February 18, 1988; and T.M., born August 19, 1989. Mother, B.M.
and all the children resided mainly in Idaho and Washington at this
time, but eventually moved to Helena in 1989.
In July, 1988, the State filed a second petition for temporary
custody and investigative authority based upon an incident
involving mother's brother and his girlfriend of Helena. On July
16, 1988, mother and B.M. left the children (except T.M., who was

not yet born), with mother's brother and his girlfriend so mother
could accompany B.M. on a long-haul trucking trip. Mother assured
her brother that they would return in several days. She gave her
brother and his girlfriend $20.00 to cover the costs associated
with the children's care, and left clothing for the children, some

covered with human feces and so filthy that the clothing was
discarded. Additionally, T.N. had head lice, which had been left
untreated by mother. Mother and B.M. did not return for the
children for one month.
Following a preliminary investigation, records of the
Department revealed that several reports of neglect and abuse were
lodged against the family while living in Idaho and that Idaho
welfare workers reported a consistent lack of success in working
with mother and B.M. to remedy the problems.
4
 On August 4, 1988, the District Court granted the State
temporary custody of all the children and temporary investigative
authority. B.N. and T.N. were placed in foster care with their
paternal grandparents. In December of 1988, all parties stipulated
to the entry of a treatment plan. B.M. and mother recovered
custody of M.M. and A.M. a few days before Christmas of 1988. On
January 18, 1989, the District Court adjudicated all the children
as youths in need of care.
B.M. and mother once again became parents when T.M. was born
on August 19, 1989. Following his birth, the treatment plan was
extended to include T.M. as well. Currently, mother and B.M.
continue to have custody of M.M. , A.M. , and T.M. , and are complying
with the treatment plan. The District Court approved the treatment
plan on March 14, 1989.
Mother and B.M., however, did not recover physical custody of
B.N. and T.N., and they continued to reside in the home of their

paternal grandparents until October 27, 1989. While living with
their grandparents, the girls began therapy with Mary Grace Black,
a licensed clinical social worker, who assessed that both girls had
suffered physical, emotional, and sexual abuse while residing with
their mother and B.M. While living with their grandparents, the
girls' school attendance and performance improved; however, further
problems ensued.
Initially, father resided with the paternal grandparents when
they assumed physical custody of the girls. However, following the
5
children's disclosures that father sexually abusedthem, father was
forced to move out of the grandparents' home. The children were
then removed from the paternal grandparents' home on October 27,
1989, when it was discovered that, on one occasion, they had
allowed father to see the children unsupervised following the
children's disclosures of sexual abuse. Currently, T.N. and B.N.
are living with a maternal aunt in Billings. According to Mary
Grace Black, the children are continually improving emotionally and
are responding well to their new environment.
The State petitioned to terminate parental rights of mother
and father on November 7, 1989. A hearing was held in District
Court on January 25, January 30, and February 2, 1990. Several
witnesses testified that they felt that mother and B.M. need long-
term counseling, that it was doubtful that mother could be an
effective parent to all five of her children at this time, and that
father was not capable of parenting B.N. and T.N. at this time.
On March 20, 1990, the District Court terminated the parental
custodial rights of mother, father and B.M. and awarded permanent
custody of B.N. and T.N. to the Montana Department of Family
Services. The District Court granted visitation rights to the
parents and paternal grandparents under the supervision and
directives of the Lewis and Clark Department of Family Services.
From this decision, mother, father, and the paternal grandparents
appeal.
 Did the record lack substantial evidence to support the

District Courtls order to terminate the natural parents1 custodial
rights of their two children?
The District Court ordered that I1[t]he parental custodial
rights of [mother, father, and B.M. ] in and to the youths, [B.N.
and T.N.], and to their property, are hereby terminated."
(Emphasis added. ) The court then awarded Itpermanentlegal custodyf1
to the Department and gave the Department the right to place the
children in foster care. The court also awarded supervised
visitation rights to the parents and grandparents.
The State, in its brief, properly addresses that, upon a
superficial reading of the order, confusion exists with regard to
the District Court's intent--did the court intend to terminate the
parties' parental rights or did the court intend to grant the State
long-term custody? Termination of parental rights involves
severing the parent-child legal relationship and after such action,
the parents have no right to notice or consent to the adoption of
the child. Section 41-3-611, PICA. And, the term "permanent
custodyI1 vests the person or agency with such custody the right to
"consent to the adoption of [the ~hild].~' 11.5.508, ARM.
Furthermore, under 5 41-3-609, MCA, three requirements must be
satisfied to terminate parental rights: 1) the child must be
adjudicated a youth in need of care, 2) a court-approved treatment
plan must be violated or deemed unsuccessful, and 3) the conduct
or condition causing the problem cannot be rectified within a
7
reasonable amount of time. The termination of parental rights
results in the natural parents losing all rights to the child,
including visitation rights. Section 41-3-611(1), MCA; Matter of
C.P. (1986), 221 Mont. 180, 183, 717 P.2d 1093, 1095.
An award of long-term custody, however, does not fully sever
a parent's rights with regard to the child:
An award of long-term custody does not totally
terminate the rights of the natural parent.
In the present case, although mother's visita-
tion 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.
Matter of R.T.L.P. (1989), 238 Mont. 384, 391, 777 P.2d1 892, 896.
Under § 41-3-406, MCA, an award of long-term custody to the State
only requires that the child be found to be "abused, neglected or
dependent." The pertinent term to these facts, "abused or
neglected child,11 is defined 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. Section 41-3-102(2), MCA.
Upon reviewing the record, it is clear that neither the State
nor the District Court intended to fully sever the parties'
parental rights to B.N. and T.N., although the court unfortunately
used the words "termination1'and "permanent custody" in its order.
~ u r i n g the hearing, the State asserted that in its request for
permanent custody, it did not ''envision a total termination of the
parental rights of either the father or the mother," and recog-
nized the necessity of continued visitation with the parents and
grandparents. The District Court awarded supervised visitation
rights to mother, father and paternal grandparents, this visita-
tion award being inconsistent with terminating parental rights.
And, in its conclusions of law, the District Court cited 5 41-3-
406, MCA, the statute providing for long-term custody, as authority

for its actions. Most noteworthy, as the State asserts in its
brief, the District Court's order did not authorize the Department
to allow the adoption of B.N. and T.N.; the order merely gave the
Department custody of the children.
Based on the above we hold that the District Court in its
order, intended to grant the State long-term custody. Accordingly,
substantial evidence must exist in the record to support the
premise that the children were abused, neglected, or dependent
under 5 5 41-3-102 (2), and 41-3-406, MCA. Clearly, the ten-year
history of family turmoil as previously recited in this opinion
provides substantial, if not overwhelming evidence that B.N. and
T.N. were abused, neglected or dependent while in the custody of
mother. In fact, we believe that the evidence supports terminating
the parental rights of mother and father, even though this harsher
result was not the District Court's intent.
And unfortunately, while evidence reflects that the paternal
grandparents made a noble attempt to provide a stable environment
to the girls while in their foster care, evidence also reflects

9
that because of father's accessibility to the children and the bad
relations between mother's and father's families, the children's
physical or mental health or welfare are threatened with harm.
Therefore, the children still qualified as abused, neglected, or
dependent. Furthermore, it is the child's best interest, not the
parents' or grandparents', that is the paramount concern in child
custody matters. Matter of V.B. (1987), 229 Mont. 133, 136, 744
P.2d 1248, 1250 (citations omitted). From reviewing the record,
we believe that at the present time, it is in the best interest of
B.N. and T.N. to be placed in a foster home. We therefore affirm
the District Court's order.
Affirmed.

I
.
?
'
Chief Justice

We concur:

Justices /