Matter of JJG

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:
 '.

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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Ju ces

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