No. 94-020 AUG 3 0 1994
IN THE SUPREME COURT OF THE STATE OF MONTANi..; .s~nif/~
CLERK OF eUPF:EMl:: COUR'[
. STATE OF MONTANA
1994
IN THE MATTER OF J.J.G.,
A Youth In Need Of Care.
APPEAL FROM: District Court of the Seventeenth Judicial
District, In and for the County of Phillips,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David L. Irving, Attorney at Law,
Glasgow, Montana
For Respondent:
Jack Jenks, Deputy Phillips County
Attorney, Malta, Montana
Submitted on Briefs: June 23, 1994
Decided: August 30, 1994
Filed:
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Justice Terry N. Trieweiler delivered the opinion of the Court.
On January 21, 1993, the Phillips County Attorney, on behalf
of the Department of Family Services (DFS), filed a petition in the
District Court for the Seventeenth Judicial District in Phillips
County in which the court was requested to terminate the
parent-child relationship of Mary Ann G. and her natural child,
J.J.G., and to grant the DFS permanent legal custody of J.J.G. with
the right to consent to his adoption. On February 2, 1993, Rick
and Colleen Thompson, the foster parents of J.J.G. from the time of
his birth until he was 18 months old, filed a petition in which
they sought permanent custody of J.J .G. The District Court granted
the petition filed on behalf of the DFS, and dismissed the
Thompsons' petition on the basis that the Thompsons were without
legal authority to request permanent custody of J.J.G. upon the
termination of parental rights. The Thompsons appeal the order of
the District Court.
We reverse.
We rephrase the issues on appeal as follows:
1. Did the Thompsons file a timely notice of appeal?
2. Did the District Court err when it denied the Thompsons'
motion for medical and psychological evaluations of J.J.G.?
3. Did the District Court err by stating its intention to
award permanent legal custody of J.J.G. to the DFS prior to the
dispositional hearing?
4. Did the District Court err when it dismissed the
Thompsons' petition for permanent legal custody of J. J . G. and
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awarded the DFS permanent legal custody of J.J.G. with the right to
consent to his adoption?
This litigation arises out of a dispute between the Phillips
County DFS and Rick and Colleen Thompson concerning the welfare and
proper placement of J.J.G., a youth in need of care with special
needs.
J.J.G. was born on June 29, 1990. His attending physician
concluded that he suffered from fetal alcohol syndrome. On July 3,
1990, based on this diagnosis and the DFS's documented concerns
about whether the child's mother, Mary Ann G., could adequately
care for him, J.J.G. was removed from the hospital and placed with
foster parents, Rick and Colleen Thompson. The Thompsons are
specially trained in special education and child development.
The Phillips County DFS petitioned the District Court for
temporary investigative and protective services authority. This
petition was granted on August 2, 1990, after the court found that
there was probable cause to believe that J.J .G. was abused or
neglected, or in danger of being abused or neglected, within the
meaning of § 41-3-102, MCA.
The DFS prepared a social study in August 1990 in which it was
noted that Mary Ann had failed to comply with treatment plans prior
to J.J.G's birth, suffered from serious alcohol problems, had an
I.Q. of 60, and was illiterate. The report also disclosed that
Mary Ann had checked into an inpatient treatment program after
J.J.G. 's birth but, unable to finance treatment, was released after
being in the detoxification unit for approximately one day. It was
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also noted that at eight weeks, J.J .G. was still experiencing
alcohol withdrawal-like tremors and was at times inconsolable,
frequently slept for only 10 to 15 minute intervals, and demanded
constant physical attention from the Thompsons.
The report also noted that Mary Ann had an "adoptive brother
and sister-in-law," Martin and Loreen Scholler in Washington State,
who were very "supportive" of Mary Ann and were approved foster
parents in that state. The Schollers had volunteered to be the
main caretakers of J.J.G. until Mary Ann was able to complete a
treatment plan and assume parental responsibilities.
In an addendum to this report prepared in January 1991, the
DFS noted that it believed it would be beneficial to eventually
relocate Mary Ann, J.J.G., and Mary Ann's two other children, who
had also been placed in foster care in 1990, to Washington to live
with the Schollers.
Through various stipulations and court orders, the DFS' s
temporary investigative authority and protective services order was
extended until october 15, 1991. In a stipulation dated July 31,
1991, the Phillips County Attorney, counsel for J.J.G., and counsel
for Mary Ann, agreed that a hearing would be held on or before
October 15, 1991, to determine if J.J.G. was a youth in need of
care pursuant to § 41-3-404, MCA.
During the hearing on this matter on September 6, 1991, the
parties stipulated that J.J.G. should be adjudged a youth in need
of care. However, the court refused to approve the DFS's proposed
treatment plan because it included placement of the child in
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Washington which the court believed would be "a mistake." In its
order dated January 17, 1992, the court declared J.J.G. a youth in
need of care and transferred legal custody of J.J.G. to the DFS
pursuant to § 41-3-406(1) (c) (i), MeA.
Prior to the issuance of this order, the DFS made arrangements
for J.J.G. and Mary Ann to reside with the Schollers in Washington.
On January 8, 1992, counsel for J.J.G. requested a temporary
restraining order to prevent the DFS or Mary Ann from taking J.J.G.
to Washington. No action was taken on this motion, and on
January 12, 1992, J.J.G. was removed from the Thompsons' home and
traveled to Washington with Mary Ann.
One year later, on January 21, 1993, the DFS filed a petition
in which it requested the court to terminate the parental rights of
J . J . G. 's natural parents and to grant the DFS permanent legal
custody of J.J.G. with the right to consent to his adoption. In a
report attached to the petition, the DFS stated that Mary Ann had
not followed the treatment plan prepared by the DFS, was no longer
attending drug and alcohol counseling, had left the Scholler's
home, and was no longer trying to parent J.J.G. because, in Mary
Ann's words, parenting "feels overwhelming at this time."
The Thompsons, thereafter, filed a petition in which they
sought permanent custody of J.J.G. The DFS moved to dismiss this
petition. without ruling on this motion, the court, by order dated
May 7, 1993, ruled that the Thompsons and the Schollers could
intervene in the proceedings on the DFS's petition to terminate
parental rights and to obtain permanent legal custody of J.J.G.
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By affidavit signed on July 6, 1993, Mary Ann waived all of
her parental rights and waived her right to consent to the adoption
of J.J.G.
On August 9, 1993, J.J.G. 's court-appointed guardian ad litem,
Barbara Anderson, filed a report which was prepared after she
personally met with J.J.G., the Schollers, the Thompsons, and the
various professionals who had been providing services to J.J.G. in
Montana and Washington. The report incl uded numerous concerns
about J.J.G. 's mental and physical well-being, and recommended that
J . J . G. be permanently placed with the Thompsons. Furthermore, when
the guardian ad litem testified during the September 9, 1993,
dispositional hearing, she recommended, prior to any decision
regarding placement or adoption, that J.J.G. be immediately
evaluated by specialists in Montana who had monitored his progress
from birth until the time he was removed to Washington.
On August 25, 1993, the court dismissed the Thompsons'
petition for permanent custody of J.J.G. for the following reason:
Under MCA 41-3-607 and 41-3-401, only the County Welfare
Dept. or DFS can file a Petition for Termination of
Parental Relationship. MCA 41-3-610 allows permanent
placement of the child by DFS, and this is done
subsequent to the Court Order terminating the
parent-child relationship.
The court also amended its May 7, 1993, order and stated that the
Thompsons and Schollers, as interested parties, could "appear to
provide evidence" but that neither were allowed to seek permanent
custody of J.J.G.:
In Montana, the right to seek permanent custody rests
solely with those agencies/ individuals who would have the
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right to give consent to adoption. Such position is
consistent with §§ 41-3-607, MCA, et seq. and 41-3-401,
MCA.
The court concluded that it could only review the placement actions
of the DFS, but could not make the permanent placement itself and
stated, with respect to the current action:
Should such Petition result in terminating the parental
rights to the child, this Court must grant DFS, as
Peti tioner , the permanent custody wi th the right to
consent to adoption.
Thus, prior to the dispositional hearing on the DFS's
petition, the court ruled that the Thompsons were without authority
to request permanent custody of J.J.G., and that, upon terminating
parental rights, it had no alternative other than to award
permanent custody of J.J.G. to the DFS.
On September 2, 1993, based on the guardian ad litem's report,
the Thompsons filed a motion requesting that J.J.G. be returned to
Montana for further medical and psychological evaluations by the
Developmental Educational Assistance Program (DEAP). The DEAP, a
private, nonprofit corporation based in Miles City, Montana, which
does contract work for the State of Montana, had regularly tested
and evaluated J.J.G.'s medical and psychological health while he
was in the Thompsons' care. In a report issued in 1990, the DEAP
had recommended regular evaluations and long-term therapy in order
to deal with J.J.G. 's physical and emotional problems.
The Thompsons' motion was made pursuant to § 41-3-406(1) (d),
MCA, which allows the court to order any party to the action to do
what is necessary to give effect to the final disposition of a
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youth in need of care, "including undertaking medical and
psychological evaluations, treatment and counseling." The request
for evaluations was made in order to acquire information on
J.J.G.'s current condition for consideration at the dispositional
hearing.
The dispositional hearing was held on september 9, 1993.
During the hearing, prior to the time that the Thompsons were
allowed to submit evidence and present witnesses, the court stated:
I'm going to terminate the parental rights, I'm going to
grant permanent custody to the Department of Family
Services when all the rigmarole is completed. The only
reason I'm going to let you introduce this evidence
you've got here is so that it will be a part of the
record so that it becomes something that the Department
is going to have to decide.
At the conclusion of the dispositional hearing, the Thompsons
again urged the court to grant their motion regarding medical and
psychological evaluations of J.J.G. by the DEAP team in Montana.
The presiding judge stated:
I think that should be done. I think if they're [DFS]
looking honestly out for the best interests of the child,
they'll bring him back and get an evaluation by the same
team that evaluated him at the time that they originally
saw him. . . . I think they should have that evaluation
and I think they're not doing their duty if they don't do
it, I'll tell you that.
However, the court again concluded that it had no authority to
order such an evaluation, stating, "I find nothing that's been
produced to me here today to feel that I have any authority in
these proceedings to order Social services to do anything."
In its findings of fact, conclusions of law, and order issued
subsequent to the hearing, the court found that the conduct of
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Mary Ann "renders her unfit and unable to give the youth adequate
parental care," and therefore, it was in J.J.G. 's best interest to
terminate parental rights pursuant to § 41-3-609, MCA, and award
permanent legal custody to "a qualified agency or individual having
authority to develop a permanent placement plan for the youth."
The court also noted that the Thompsons and the guardian ad litem
expressed concern over the existing physical and emotional
condition of J.J.G., and it stated that it would be in J.J.G.'s
best interest to have the testimony of the DEAP professionals, as
well as medical reports submitted by the Thompsons, considered by
the DFS in its determination of a permanent placement for J.J.G.
Therefore, on September 16, 1993, the court terminated
Mary Ann's parental rights and the natural father's parental rights
(whose identity was in dispute) subject to his failure to show
cause and object after being served with notice. Furthermore, the
court awarded the DFS permanent custody of J.J.G. with the
authority to consent to adoption. The court also concluded:
This Court acts as a reviewing authority and does
not have authority under sections 41-3-609 and 41-3-610,
MeA, to order an evaluation of the youth in the
preparation of the permanent placement plan for the
youth. Any evaluation deemed necessary can be conducted
by the agency vested with custody of the youth in
preparation of a permanent placement plan.
On October 27, 1993, the natural father's parental rights
were terminated after he was served with summons and failed to
appear. The Thompsons, thereafter, filed a notice of appeal and
petition for writ of supervisory control with this Court,
requesting that the District Court be ordered to hold a new
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dispositional hearing after a medical and psychological evaluation
of J.J.G., and that they be allowed to seek custody of J.J.G. at
this hearing. The petition for writ of supervisory control was
denied on March 8, 1994, on the basis that these issues should be
resolved through the appeal process.
STANDARD OF REVIEW
In Matter of D.H. and F.H. (Mont. 1994), 872 P. 2d 803, 805, 51
st. Rep. 386, 387-88, this Court clarified the standard of review
to be used in cases involving a youth in need of care and the
termination of parental rights. We concluded that the appropriate
standard to be applied to purely factual findings in a proceeding
to terminate parental rights is the clearly erroneous standard as
set forth in Interstate Production Credit Association v. DeSaye (1991), 250 Mont.
320, 323, 820 P.2d 1285, 1287. Conclusions of law in a termination
proceeding will be reviewed to determine if those conclusions are
correct. Matter of D.H. and F.H., 872 P. 2d at 805.
ISSUE 1
Did the Thompsons file a timely notice of appeal?
The DFS contends that the court's denial of the Thompsons'
petition for custody should be affirmed because the Thompsons
failed to file a timely notice of appeal. The DFS claims that the
court's denial of the Thompsons' petition was mailed to all parties
on August 25, 1993, and, pursuant to Rules 5(a) (1) and 21(c),
M.R.App.P., the Thompsons' opportunity to appeal expired on
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october 28, 1993. The DFS notes that the Thompsons did not file
their notice of appeal until November 26, 1993.
We disagree with the contention that the Thompsons did not
appeal in a timely manner. The record reveals that on September 3,
1993, the Thompsons filed an objection and motion to amend the
court's August 25, 1993, order pursuant to Rules 52(b) and 59(g),
M.R.civ.p. This motion was deemed denied 45 days later after the
court failed to rule on the motion. Rule 59(d), M.R.civ.p.
Rule 5(a) (4), M.R.App.P., provides that when a motion is made to
alter or amend a judgment pursuant to Rules 52 or 59, M.R.Civ.P.,
the time for filing a notice of appeal runs from the entry of an
order in which the motion is denied, or from the time the motion is
deemed denied at the expiration of the 45-day period.
Here, the time for appeal did not start until the Thompsons'
motion was deemed denied in mid-October. The notice of appeal,
filed on November 26, 1993, was well within the 60-day time period
provided for in Rule 5, M.R.App.P.
ISSUE 2
Did the District Court err when it denied the Thompsons'
motion for medical and psychological evaluations of J.J.G.?
The Thompsons contend the court erred when it concluded that
it was without authority to order a medical and psychological
evaluation of J.J .G. The Thompsons assert that sufficient evidence
was presented to the court to demonstrate the need for such
evaluations prior to the termination proceedings, but that the
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court refused to order evaluations based on its erroneous
conclusion that it was without authority to do so.
section 41-3-609(3), MCA, provides as follows:
[I] n terminating the parent-child relationship, the court
shall give primary consideration to the physical, mental,
and emotional conditions and the needs of the child. The
court shall review and, if necessary, order an evaluation
of the child's or the parent's physical, mental, and
emotional conditions.
Furthermore, when a petition for termination is filed pursuant to
§ 41-3-607(1), MCA, n[t]ermination of a parent-child legal
relationship shall be considered at a dispositional hearing held
pursuant to 41-3-406 . n section 41-3-406(1), MCA, which sets
forth the dispositions a court may make to protect the welfare of
a youth in need of care, clearly states that a court may:
(d) order any party to the action to do what is
necessary to give effect to the final disposition,
includina undertaking medical and psychological
evaluations, treatment, and counseling . . . .
(Emphasis added.)
We disagree with the court's conclusion that it was without
authority to order medical and psychological evaluations of J.J.G.
by the DEAP professionals in Montana who had previously evaluated
him. The relevant statutes clearly provide the court with the
discretionary authority to order such evaluations.
In its responsive brief, the DFS acknowledges that it is
within a court's discretion whether or not to order specific
evaluations of a child prior to a termination proceeding. However,
the DFS urges this Court to affirm the District Court's refusal to
order an evaluation on the basis that there was SUbstantial
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evidence to support the court's decision to terminate parental
rights without additional evaluations of J.J.G.
After reviewing the record and considering the evidence,
however, we conclude otherwise. The court clearly stated that it
believed an evaluation of J.J .G. was warranted and there is
sufficient evidence in the record to support the court's finding in
this regard. contrary to the DFS' s contention, the court's refusal
to order an evaluation was not a discretionary decision based on
its review of the evidence. Rather, as is demonstrated in the
record, the court's decision was based on its erroneous conclusion
of law.
The record reveals that evidence gathered by the guardian ad
litem and reviewed by the DEAP professionals raised questions about
the adequacy of care J.J.G. received after he was transferred to
Washington. Also, the allegations contained in various reports or
affidavits raised the question of whether J.J .G. suffered from
abuse or neglect or from post-traumatic stress, depression, or
other "flat affect" disorder. The court was presented wi th
extensive testimony to the effect that the DEAP, which had
conducted regular testing and evaluations of J.J .G. since his
infancy, would be in the best position to evaluate J.J.G. and to
make a comparative analysis of his condition since leaving the
Thompsons' care.
We have made clear that, in a termination proceeding, the
rights of the child must be given paramount consideration and must
take precedence over the parental rights. In the Matter of s.c.
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(Mont. 1994), 869 P.2d 266, 270, 129 st. Rep. 129, 132. Here, we
conclude that the evidence supports the District Court's expressed
finding that an immediate evaluation of J.J.G. by the DEAP was in
the child's best interest.
We conclude that the District Court erred when it denied the
Thompsons' motion. For this reason, and others discussed below,
this matter is remanded to the District Court for the purpose of
ordering a mental and psychological evaluation to be done by
appropriate professionals designated by the court prior to a new
dispositional hearing.
ISSUE 3
Did the District Court err by stating its intention to award
permanent legal custody of J.J.G. to the DFS prior to the
dispositional hearing?
The Thompsons next contend that the court erred when it
stated, on several occasions prior to the dispositional hearing,
its intention to award the DFS permanent custody of J.J.G. upon
termination of parental rights. The Thompsons cite Matter of M.L.H.
(1986), 220 Mont. 288, 715 P.2d 32, as authority for the
proposition that it is reversible error for a court to state its
intention regarding an award of custody prior to the time that
testimony is presented at the dispositional hearing.
We agree. As we stated in MatterofML.H., 715 P.2d at 36, the
mandate of § 41-3-406, MCA, is clear:
A district court may make a dispositional order only
after a dispositional hearing. We have cautioned
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previously that "[t]o insure that the minors involved
received the full protection of [custody] laws, these
procedures should be 'rigorously followed.'" In the Matter
of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 553, 597
P.2d 1156, 1164. Here, the record indicates the District
Court stated its intention to transfer custody to the
state three times, and before the parties had the
opportunity to present any evidence at the dispositional
hearing. This is error and we reverse.
In this instance, the District Court stated its intention to
transfer permanent custody of J.J.G. to the DFS several times prior
to the time that evidence was considered at the dispositional
hearing. In its August 25, 1993, memorandum and order, the court
stated that, should parental rights be terminated in this matter,
"this Court must grant DFS, as Petitioner, the permanent custody
with the right to consent to adoption." Also, at the dispositional
hearing, prior to the time that the Thompsons were allowed to
submit evidence alleging that the DFS committed abuse and neglect
by transferring J.J.G. to Washington, the court again announced
that custody would be awarded to the DFS.
The record demonstrates that the court believed its only
option upon terminating rights was to award custody to the DFS.
Although this interpretation of the law may have prompted the court
to make these statements regarding custody, this does not negate
the error. Regardless of the court's rationale, the result is the
same: the evidence adduced at the dispositional hearing was
essentially disregarded by the court and the hearing itself was a
mere formal i ty . As we held in Matter of ML.H., this constitutes error
and we reverse.
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ISSUE 4
Did the District Court err when it dismissed the Thompsons'
petition for permanent legal custody of J.J.G. and awarded the DFS
permanent legal custody of J.J.G. with the right to consent to his
adoption?
The Thompsons contend that the District Court erred when it
awarded the DFS permanent legal custody of J.J.G. in view of the
evidence of abuse or neglect while J.J.G. was in the custody of the
DFS and had been placed by the DFS with the Schollers in
Washington. Furthermore, the Thompsons contend the court erred
when it concluded that the Legislature made the DFS the exclusive
party to whom custody could be given and denied them the right to
seek custody of J.J.G. at the dispositional hearing.
A review of the record discloses several legal grounds which
the District Court set forth as a basis for granting the DFS
permanent legal custody to the exclusion of all other interested
parties. In its August 25, 1993, order the court dismissed the
Thompsons' petition and ruled that only the DFS could have custody
because it alone has the authority to petition for termination of
parental rights pursuant to § 41-3-607, MCA, and to file abuse,
neglect, and dependency petitions pursuant to § 41-3-401, MCA.
During the dispositional hearing, the court reiterated its belief
that the Legislature took away the court's authori ty to award
permanent custody to anyone other than the DFS and that it was
constrained by this legislative mandate. Finally, in its order of
September 16, 1993, the court concluded that the DFS was the proper
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party with which to vest custody of J.J.G. because it is the agency
which has the authority to make a permanent placement plan pursuant
to § 41-3-610, MeA, and has the authority to place him for adoption
pursuant to § 40-8-108, MeA.
The DFS, relying on the language of § 40-8-108, MeA, which
states that a child may be placed for adoption only by the DFS, a
licensed child-placing agency, or the child's parents, asserts that
the court's legal conclusions were correct and that the Thompsons
could not have received permanent custody of J.J.G. with the right
to consent to his adoption.
The Thompsons' petition in which they sought permanent legal
custody of J.J.G. was filed pursuant to § 41-3-406(1) (c) (iii), MeA,
which allows a court, in order to protect the welfare of the child,
to transfer legal custody of a youth in need of care, following a
dispositional hearing, to an "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." In their
peti tion, the Thompsons requested the court to grant them the
"care, custody and control" of J.J .G. after termination of parental
rights, and to deny the DFS's request for legal custody with the
consent to adoption based on allegations that the DFS failed to
properly provide for the best interests of J.J.G. when they placed
him in out-of-state foster care.
After considering the pertinent statutes and reviewing the
various petitions filed by the parties, we conclude that the court
erred when it concluded that the Thompsons were without legal
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authority to seek custody of J.J.G. and that it had no option other
than to grant custody to the DFS.
Upon the filing of a petition for termination of parental
rights, § 41-3-607 (1), MCA, mandates that such a petition "shall be
considered at a dispositional hearing held pursuant to 41-3-406."
As set forth above, § 41-3-406, MCA, allows the court to transfer
legal custody of a youth to several parties: the DFS, a
child-placing agency, or an individual who, after study by a social
service agency, is found to be qualified to receive and care for
the youth.
This Court has made clear that a district court has
discretionary authority to transfer legal custody to any qualified
individual, including a non-relative, in order to protect the
welfare of the youth. MatterafS.P. (1990), 241 Mont. 190, 786 P.2d
642. The paramount consideration in a court's exercise of this
discretionary authority is the best interests of the youth. Matter
afS.P. 786 P.2d at 648; MatterafMN. (1982), 199 Mont. 407, 410, 649
P.2d 749, 751. In order for an individual to obtain permanent
legal custody under this provision, it is not necessary for that
individual to have the authority to consent to adoption or to seek
termination of parental rights.
Pursuant to § 41-3-406(1) (c) (iii), MCA, we conclude that the
Thompsons were entitled to seek legal custody of J.J.G. and the
court, if it determined it was in J.J.G.'s best interests, could
award permanent legal custody to the Thompsons.
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We note that at one point during the proceedings the court
discussed the alternatives set forth in this provision, but
indicated that awarding custody to the Thompsons was really not an
option because the DFS would most likely find the Thompsons not
qualified to care for J.J.G. due to the ongoing dispute between the
Thompsons and the DFS. However, under this provision, it is the
court which has the authority to determine if an individual is
qualified to care for a youth after the individual is studied by
"g social service" agency designated by the court. contrary to the
court's apparent conclusion that it would be up to the DFS to
determine if the Thompsons are qualified, the statute does not
restrict the court to designate the DFS as the social service
agency to evaluate the qualifications of an individual seeking
custody.
In response to the DFS's argument that the Thompsons, even if
they were granted legal custody, could not consent to J. J . G. 's
adoption, we note that the Thompsons did not seek this authority.
The Thompsons requested permanent legal custody of J. J • G. and
petitioned the court to deny the DFS's request for custody with the
right to consent to adoption. Furthermore, under § 40-8-111(d),
MCA, once parental rights have been judicially terminated, any
person having legal custody by court order qualifies for a consent
to adopt by decree if the court having jurisdiction of the custody
of the child also consents to adoption. Therefore, the fact that
the Thompsons could not "place" J.J.G. for adoption under
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§ 40-8-108, MCA, is not relevant to the question of whether the
Thompsons have the right to seek permanent legal custody of J.J.G.
We conclude, based on the court's erroneous interpretation of
the law, that the court erred when it dismissed the Thompsons'
petition and granted permanent legal custody to the DFS. Because
we are reversing on a question of law, we need not rule on the
merits of whether the court's grant of custody to the DFS was in
J.J.G. 's best interests and was supported by sUbstantial evidence.
The District Court's order in which the DFS was awarded
permanent legal custody is vacated and we remand for a new hearing
to determine, based on J.J.G. 's best interests and a consideration
of all relevant evidence, an award of permanent legal custody to
any qualified agency or individual.
The District Court's order is reversed and vacated. The court
is instructed to order a mental and psychological evaluation of
J.J.G. by appropriate professionals designated by the court prior
to a new dispositional hearing at which the Thompsons are entitled
to seek permanent legal custody of J.J.G.
We concur:
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