Matter of T.A.

NO. 90-538

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

IN THE MATTER OF T.A.,
Youth in Need of Care,

APPEAL FROM: District Court of
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Marcey Femling Schwarz; Schwarz Law Firm, Billings,
Montana
James Graves; Oliver & Graves, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders, Assistant Attorney General, Helena,
Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana; David Hoefer, Deputy County
Attorney, Billings, Montana
Damon Gannett, Gannett & Ventrell, Billings, Montana

Submitted on Briefs: May 16, 1991
Decided: July 2, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth
Judicial District, in and for the County of Yellowstone, Montana,
the Hon. G. Todd Baugh, presiding. The natural parents of T.A.
appeal from an order issued by the District Court, Yellowstone
County, declaring T.A. a youth in need of care and granting
temporary custody to the Department of Family Services until T.A.
reaches the age of eighteen.
Appellants present the following issues:
1. Did the District Court abuse its discretion by failing to
dismiss, on the basis of insufficient evidence, the petition of the
Department of Family Services for temporary custody of T.A.?
2. When awarding temporary custody of a child to the
Department of Family Services until the child reaches eighteen,
must the State prove by clear and convincing evidence, that the
child has been abused or neglected?
Due to neglect and abuse by her mother, T.A. has been a
dependent child in the custody of the Department of Family Services
(DFS) since 1987 when she was eight years of age. At the time of
the proceedings in question, T.A. was eleven years old. T.A.Is
father had not paid child support and had not attempted to contact
T.A. up to the time of the hearing in this matter, January 10,
1990.
In May, 1987, through the Yellowstone County Attorney's
Office, DFS petitioned the District Court for an order granting DFS
temporary investigative authority over T.A. and two of her half-
2
brothers, a fifteen-year old and a baby of seven months. All three
children had different fathers, and the identify of T.A.'s father
was unknown at the time of the 1987 hearing. The 1987 report to
the court filed by DFS in support of its petition contained nearly
two dozen referrals relating to the three children over a ten-year
period.
The earliest referrals to DFS involving T.A. were in 1980 when
T.A. was two years old. Child Protective Services received a
report that the mother had taken T.A. to a bar while she played
pool and that T.A. had a bruise on her cheek and a black eye. On
another occasion, the mother became so drunk that she was unable
to care for T.A., and the bar management called police to
investigate the matter.
The report to the court in support of the 1987 petition for
temporary care refers to numerous incidents of neglect, the
mother's drug abuse, sale of drugs by the mother, and evidence of
prostitution by the mother in the home. One report received from
a tenant who had rented a basement to the mother stated that the
mother used crank, did not feed her children regularly, and fought
constantly with the man living with her. A report based on
statements of T.A.'s older half-brother to a social worker states
in part:
[The mother] takes and sells drugs out of the home.
There are numerous people coming in late at night to buy
drugs. Mom shoots up drugs and is awake for 1 1/2 to 2
days prowling around the house keeping everyone up. Then
she sleeps for 2 days. He said his mother walks around
the house naked or dressed only in a see-through
nightgown.
 Among the reports was an alleged "spanking1'given T.A. by both
the mother and the youngest child's father in 1987 which resulted
in "massive bruising on her right buttock and left buttock and down
her right thigh." These injuries were documented at Billings
Deaconess Hospital and resulted in T.A.'s immediate placement in
emergency foster care.
The record indicates at least four temporary placements over
a period of some three years for T.A. With approval from DFS, from
December 1987 to June 1988, T.A. lived with her maternal
grandmother in North Dakota. Although T.A. adjusted well in North
Dakota, she was returned to Billings. T.A. was again placed in
foster care, and DFS was granted a motion for a six-month extension
of temporary custody in July 1988.
In September 1988 the mother moved to Broadus, Montana, with
a new boyfriend, and T.A. was allowed to return to her mother's
care on a trial basis. T.A. did well in school in Broadus, but the
mother's relationship with her new boyfriend disintegrated, and in
December 1988 T.A. was returned to foster care while her mother
attempted to stabilize her environment. T.A. remained in foster
care after DFS was granted six month extensions of temporary
custody of T.A. in February 1989 and in June 1989.
A treatment plan devised in June 1989 provided that T.A. could
be returned to her mother's care on a trial basis in August 1989
if the mother complied with the terms of the plan. The conditions
were not met, and in November 1989, DFS petitioned the court for
an order continuing temporary custody of T.A. until she reached age
eighteen.
On January 10, 1990, a hearing on the petition was held and
several medical people testified including Dr. Agosto, a licenced
clinical psychologist who had examined T.A. on numerous occasions.
He testified that T.A. showed stress reactions caused by her mother
and that T.A. needed "quite a bit of helpw in the area of stability
and security. He further stated that in his opinion the mother was
unable to provide stability and structure for T.A. at the present
time.
Jerri Tate, a social worker for DFS who had been involved with
the case since its inception, testified that the mother had six
living arrangements in a period of six years. At the time of the
hearings the mother had plans to move again. Ms. Tate testified
that the mother would not participate in counseling and refused to
take her lithium for her recently diagnosed manic-depressive
disorder, or bipolar illness. The mother failed to complete the
recommended re-evaluations by Dr. Yaney, the mental health
professional who first diagnosed her bipolar illness.
Over the course of her involvement with T.A., Ms. Tate
testified that T.A. had shown positive improvement, but she had not
seen similar improvement in the mother. Ms. Tate recommended
continued contact between mother and daughter, although she advised
the court to continue temporary custody of the child with DFS
because of the mother's instability.
The District Court, which had presided at all of the prior
hearings involving DFS custody of T.A., awarded temporary custody
of T.A. to DFS until she reached age eighteen.
I
The first issue is whether sufficient evidence supports the
District Court's decision that T.A. was a youth in need of care and
ordering that she be placed in the temporary custody of DFS. More
than sufficient evidence supported the decision. Nearly every page
of the record presented to the court and the court's own knowledge
of the case over many years are indicative of a badly abused child
in need of care.
Section 41-3-101, MCA, sets forth the policy of the State of
Montana regarding the youths of this state. All youth should be
afforded ''an adequate physical and emotional environment to promote
normal developmentttl possible, in the environment of a child's
if
own family. When a healthy family environment is not possible and
when the rights of a child to an adequate physical and emotional
environment are trampled by acts or omissions on the part of the
child's natural parents, then the rights of the youth must be
paramount over the desires of parents. See In re Gore (1977), 174
Mont. 321, 328, 570 P.2d 1110, 1114.
The District Court had to find that the child was abused,
neglected, or dependent before awarding temporary custody of T.A.
to DFS. Section 41-3-406, MCA. In awarding temporary custody, the
ruling of the District Court is presumed correct and cannot be
reversed by this Court unless there is (1) a mistake of law, or (2)
lack of substantial, credible evidence to support the findings
amounting to an abuse of discretion. Matter of S.P. (1990), 241
Mont. 190, 194, 786 P.2d 642, 644; Matter of R.T.L.P. (1989), 238
Mont. 384, 387, 777 P.2d 892, 894.
The natural parents claim that the court's finding was a clear
abuse of discretion because of the testimony of Dr. Ralph Yaney,
a Billings psychiatrist, and Dr. Richard Agosto, a clinical
psychologist.
Dr. Yaney made the statement that he "would prefer to see the
child back with the mother and with the Family Services observing
her from that point of view." Dr. Yaney's contact with the mother
consisted of four appointments, the last on January 12, 1989, and
a twenty-minute talk with the mother immediately before the hearing
on January 10, 1990. Dr. Yaney based his recommendation on the
fact that the mother, at the time of the hearing, did not have
strong indications of continued bipolar illness. Dr. Yaney
conceded that he did not have enough information to "make a solid
statement." In addition, Dr. Yaney admitted that he had not had
access to the mother's history, could not make a personality
diagnosis, had no knowledge of the mother's abilities to parent
T.A., and was not familiar with the extent of the mother's abuse
of alcohol and drugs.
Dr. Agosto testified that, although a reunification of T.A.
and her mother at a future time was possible, at this time T.A.
needed the stability of being in the same school with the same
social group and required the assistance and care she was receiving
from her foster family. Dr. Agosto advised that the mother would
have to have counseling to "work on some of her own personal
responsibility and involvement in improving her own situation and
her situation with her childrenttbefore reunification with T.A.
would be feasible.
Both Dr. Agosto and Dr. Yaney testified in favor of continued
supervision of T.A. by DFS. Although Dr. Yaney said that he
thought the child should be placed with her mother, he admitted
that his recommendation was not based on all of the facts
concerning the history of the mother. The natural parents failed
to show any abuse of discretion on the part of the District Court.
Rather, the record shows years of abuse by the mother and a
complete absence of involvement with the child by the father. The
findings and conclusions of the District Court show thoughtful
consideration of not only constitutional authority, but statutory
directives and judicial precedent. The record contains substantial
credible evidence to support the decision of the District Court.
See Matter of R.T.L.P., 238 Mont. at 389-90, 777 P.2d at 895.
Living under these circumstances, T.A. and her brothers are
part of Ita generation of lost children." In T.A.Is case the
hopeful indication in the record is that she has been placed in a
loving home and that her efforts in school are improving. There
is hope for T.A.
I1

The second issue is whether the standard of proof imposed on
the State should be clear and convincing evidence when awarding
temporary custody with DFS until the child reaches age eighteen.
The parents assert that the proper standard of proof for
temporary custody with DFS until the child reaches age eighteen
should be the clear and convincing standard required for
termination of parental rights. In Matter of J.L.B. we concluded
that in a case involving termination of parental rights, 'Ithe
higher standard represented by the 'clear and convincing' test more
adequately furthers the policy of family unity and more nearly
approximates the previous approach of this Court than does the
'preponderance of the evidence' test. In the Matter of J.L.B.
(1979), 182 Mont. 100, 117, 594 P.2d 1127, 1137. The parents argue
that the same standard of proof required of the State should be
adopted when temporary custody is granted to DFS until the child
reaches age eighteen, since "T.A. has, in effect, been taken away
from her mother until adulthood.''
We examined the differences between termination of parental
rights and grant of custody until the child reaches age eighteen
in Matter of R.T.L.P., where we held that the same statutory
criteria should not be required for "long-term custody until age
eighteen" as for termination of parental rights. Matter of
R.T.L.P., 238 Mont. at 390-92, 777 P.2d at 895-97. When custody
of the child until age eighteen is awarded to a party other than
the natural parent, continued contact with the parent may be
allowed, and the parent has a right at some point in the future to
petition the court for less restricted visitation or for physical
custody of the child. The award of temporary custody until age
eighteen gives the child stability and prevents repeated litigation
over custody. Matter of R.T.L.P., 238 Mont. at 391, 777 P.2d at
896.
Since an order of temporary custody under B 41-3-406, MCA,
does not unalterably deprive parents of their right to raise the
child, we conclude that the higher burden of clear and convincing
evidence need not be met for a district court to order temporary
custody of the child with DFS until age eighteen. When the
evidence demonstrates that a child is a "youth in need of care"
who is I1abused, neglected, or dependent" under 5 41-3-404, a
district court may order that the child be placed in the temporary
legal custody of DFS until the child reaches majority if the court
determines that such custody is in the child's best interest.
Matter of R.T.L.P., 238 Mont. at 389-90, 777 P.2d at 895.
The arrangement ordered by the court gives T.A. a chance for
stability and consistency in her life and will also allow for the
possibility of future contact between both natural parents and T.A.
The court determined that T.A. was a youth in need of care, and
that the arrangement that DFS made for the care of this child was
in her best interest. Under these circumstances, the District
Court possessed all the authority and requisite discretion to enter
the order that is the subject of this appeal. We hold that the
District Court did not abuse its discretion by awarding temporary
custody of T.A. to the Department of Family Services.
The decision of the District Court is affirmed.
We concur: H