No. 13615
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
J E R R Y WAYNE GORE, RHONDA GAIL GORE,
and FVILLIAM ROY GORE, 11,
Youths i n Need o f C a r e .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l District,
H o n o r a b l e R. D . M c P h i l l i p s , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For A p p e l l a n t :
Howard F. S t r a u s e a r g u e d , G r e a t F a l l s , Montana
For Respondent:
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s ,
Montana
C a r r o l l B l e n d , Deputy County A t t o r n e y , a r g u e d ,
G r e a t F a l l s , Montana
Thomas Mahan a r g u e d , H e l e n a , Montana
Submitted: September 1 2 , 1977
Decided: OCT 26 19TI
Filed: ~c.1
, b6
./.
Clerk
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
This is an appeal by the natural parents of three minor
children from a judgment of the district court, Cascade County,
the Honorable R. D. McPhillips presiding. Permanent custody of
the children with the right to consent to adoption was awarded
to the Department of Social & Rehabilitation Services (SRS) of
the State of Montana.
The stipulation of facts presented to the district court
on July 8, 1976,provides a summary of the case:
1. In July, 1974, while the father was stationed at
Glasgow Air Force Base, Glasgow, Montana, a social worker was
contacted in regard to the hospitalized mother.
2. On September 2, 1974, the mother gave birth to their
third child. In late September and early October, the baby was
treated by physicians in Glasgow and Great Falls for pyloric
stenosis and hydrocephalism.
3. On October 18, 1974, the district court of the seven-
teenth judicial district, Judge Thomas Dignan presiding, found
the two older children to be dependent and neglected and ordered
the award of temporary custody to SRS, pending filing of a petition
for permanent transfer of custody.
4. On October 28, 1974, SRS petitioned the district
court for a declaration of dependency and neglect of the two older
children and the award of permanent custody to SRS. The hearing
on the petition was held on December 13, 1974. On the same day the
judge issued an order stating: (a) that the father was to be
transferred on January 6, 1975, to Malmstron Air Force Base, Great
Falls, Montana; (b) that the children were dependent and neglected
and awarded custody to SRS until the father was transferred to
Malmstrom; (c) that the parents obtain day care services for the
children for at least six months; (d) that the parents obtain
counseling from the Mental Health Center or military facilities
in Great Falls; and (e) that the parents cooperate with SRS
in Cascade County in regard to the children's care, health and
welfare.
5. On December 11, 1975, a Cascade County social
worker petitioned the district court for custody of the three
children and a declaration of dependency and neglect.
6. On January 26, 1976, a hearing was held on the peti-
tion. An order followed on January 29, 1976, stating: (a) that
the father's duties prevented him from caring for and controlling
the children; (b) that the mother had had a nervous breakdown
and was unable to care for and control the children without strain
upon her and them; (c) that the parents have shown deep love and
affection for the children which the children reciprocated; (d)
that the children are dependent and neglected and awarded custody
to SRS until further hearing; (e) that the two older children are
to be evaluated by a competent mental health professional; (f) that
the parents obtain counseling; and (g) that SRS make recommenda-
tions of the means and ways by which the children could be returned
to their parents and work with the parents to that end.
7. On April 7, 1976, the parents petitioned for the
return of the children to their custody. On June 2, 1976, SRS
petitioned for permanent custody and authority to assent to adop-
tion of the children.
A hearing was held July 11, 1976, on the petition de-
claring the children youths in need of care. At that hearing
five witnesses testified for the SRS and six witnesses testi-
fied for the parents. Based on the testimony at the hearing,
and the stipulated facts, the district court issued findings of
fact and conclusions of law on August 4, 1976. The district court
concluded that the children were dependent and neglected children
and granted the petition awarding permanent custody, includ-
ing the right to consent to adoption to SRS. From this judgment
the parents appeal.
Two issues are raised on appeal:
1. Did the district court abuse its discretion when
it granted SRS's petition for permanent custody and authority
to consent to adoption?
2. Were the natural parents of the children denied
their right to due process when their children were removed with-
out a petition for custody being filed within 48 hours of such
remova1?
The attention of this Court is first focused on the
district court order of December 13, 1974. Apparently, evidence
existed to justify declaring the children dependent and neglected
and to award custody to SRS. Custody of the children was return-
ed to the parents on the condition that they comply with the order
of December 13, 1974. Just one year later, a Cascade County
social worker again petitioned the district court for custody of
their children. Following extensive hearings, the district court,
Cascade County, awarded permanent custody to SRS. The end result
of the judicial proceedings finds two different district court
judges declaring the children to be dependent and neglected. This
Court is mindful that the primary duty of deciding the proper
custody of children is the task of the district court. As a result,
all reasonable presumptions as to the correctness of the deter-
mination by the district court will be made. Foss v. Leifer,
Mont . , 550 p.2d 1309, 33 St.Rep. 528 (1976). Due to this pre-
sumption of correctness, the district court's findings will not
be disturbed unless there is a mistake of law or a finding of
fact not supported by credible evidence that would amount to a
clear abuse of discretion. Solie v. Solie, - - 561
Mont. ,
P.2d 443, 34 St.Rep. 142 (1977).
The parents did not dispute the 1974 findings, nor the
prerequisites required of them to regain custody of their
children. The record shows that the parents were either unable,
or unwilling, to comply with the 1974 court order. While the
parents were ordered to obtain mental counseling, the records
reveal that the mother received no counseling and that the father
attended only one counseling session at Malmstrom Air Force Base.
Counsel for the parents argues that the parents were not finan-
cially able to obtain counseling. No evidence is found demon-
strating the parents' efforts to obtain assistance or reduced
counseling rates due to their financial status. The parents' un-
willingness to obtain counseling was again repeated following
the court order of January 29, 1976. This order, for the second
time, required the parents to obtain counseling. The record gives
testimony of four mental health professionals. Dr. Jones, a
clinical psychologist, testified that the father was resentful
and defiant. While being tested, he voiced distaste for having
to undertake the tests. The mother cancelled her appointment
either because she could not or would not come to see the doctor.
At a later date, Dr. Jones had to fit the mother into his schedule.
The father was able to bring the mother in at that time on account
of her being in the right frame of mind.
Dr. Haire, a clinical psychologist, testified that the
father was not tested because he was so bitter. The doctor could
not test without absolutely insisting, and this he did not want
to do. The mother was not seen by Dr. Haire since she refused to
come in.
Mr. Hiber, a mental health professional, reported doing
a court ordered evaluation of both parents. While the parents
expressed interest in continuing treatment with Mr. Hiber, they
did not embark on a counseling program following Mr. ~iber's
report. Mr. Hiber was also unaware of any participation by the
parents in any ongoing treatment program. The fourth mental
health professional, Dr. Shubat, did not interview nor test
the parents.
The 1974 order required the parents to cooperate with
SRS in Cascade County. Testimony of a Cascade County social
worker reveals that the 2arents placed their children in a day
care center as required. The father frequently visited the SRS
office to discuss the situation. The mother also came at times,
but during discussion of what was expected of the parents, she
walked out. The parents were given information and telephone
numbers of the mental health clinic. No efforts to obtain counsel-
ing were known by SRS. During a hearing in July, 1976, testimony
was given that the father had become violent in the SRS office.
The father did not physically injure anyone, but he did threaten
to do so and slammed chairs against the wall.
No purpose would be served by a further extended dis-
cussion of the evidence before this Court. In 1974 the district
court placed a burden on the parents to comply with the court
order to regain custody of their children. The parents failed
to show that they complied. On August 4, 1976, the district court,
after hearing oral testimony and considering medical reports,
made as a finding of fact that the parents had enotional problems
requiring professional assistance and though ordered to obtain
assistance, they had failed to acquire such help. The parents
had the burden to show that the district court's finding in 1976
was not supported by credible evidence and amounted to a clear
abuse of discretion. This was not done. Two times the parents
were ordered to obtain mental counseling, but nowhere is there
evidence that any counseling was obtained nor any ongoing program
taken.
This Court will not hold the children hostage for the
good behavior of the parents. The parents were ordered to obtain
help but refused to seek this help, even after 21 months of
proceedings before the courts. The parents were ordered twice
to comply, but finally in August, 1976, the district court ruled
that time had run out and it would not be in the children's best
interest to allow the parents to continue to raise them,
The children's rights also merit consideration by this
Court. The children were adjudged dependent and neglected twice.
This finding is the jurisdictional prerequisite for any court
ordered transfer of custody. In the Matter of ~eclaringHeather
Marie Fish a Dependent and Neglected Child, Mont .
-1 -
P.2d , 34 St.Rep. 1080 (1977). Once there is a showing of
dependency or abuse or neglect by the natural parents as defined
by section 10-1301, R.C.M. 1947, the "best interests of the child"
test is the appropriate basis for determining custody. In re
Guardianship of Doney, Mont .
-
1 -P.2d , 34 St.Rep.
(No. 13813, filed October 14, 1977); Henderson v. Henderson,
Mont .
-
1 -P.2d , 34 St.Rep. 942 (1977).
The entire thrust of the child psychologist testimony
was that the children were mentally disabled. Disagreement exist-
ed as to whether the mental deficiencies were caused by organic,
genetic problems or the environment the children were being raised
in. Nevertheless, the record is clear that the children needed
help. Dr. Shubat so states:
" * * * both children are children that are in
need of special educqtion. They are also in
need of special help now, today, emotionally
and educationally."
Section 10-1300(1), R.C.M. 1947, states that the de-
clared policy of Montana is:
"(1) to ensure that all youth are afforded an
adequate physical and emotional environment to
promote normal development,"
Abuse or neglect is defined in section 10-1301(2), R.C.M. 1947, as:
(2) 'Abuse' or 'neglect' means:
"(a) The commission or omission of any act or
acts which materially affect the normal physical
or emotional development of a youth, any exces-
sive physical injury, sexual assault or failure
to thrive, taking into account the age and medi-
cal history of the youth, shall be presumptive
of 'material affect' and nonaccidental; or
"(b) The commission or omission of any act or
acts by any person in the status of parent,
guardian or custodian who thereby and by reason
of physical or mental incapacity or other cause,
refuses, or with state and private aid and assis-
tance is unable to discharge the duties and re-
sponsibilities for proper and necessary subsis-
tence, education, medical or any other care neces-
sary for his physical, moral and emotional well-
being. "
Children have the right under the "best interest test" to receive
normal physical and emotional development. By looking at the
totality of the circumstances the court may determine what is
the child's "best interest".
In the case at hand the parents are not capable of pro-
viding for the special needs of their children. The parents
failed to demonstrate their desire or ability to seek help.
Their children are shown to need special help for normal physical
and emotional development. This Court has been called on before
to decide what is the "best interest" for the children where the
natural parents are involved. In In re Declaring Olson Dependent,
164 Mont. 431, 434, 524 P.2d 779 (1974)) this Court in quoting
from In re Bad Yellow Hair, 162 Mont. 107, 509 P.2d 9 (1973) stated:
" ' * * * The children's best interest and wel-
fare, not that of the natural mother, is the
paramount consideration [citing cases]. We are
mindful that ordinarily a child's interests and
welfare will best be served by retaining custody
in the natural parents. However, the circum-
stances of the individual case may require a
different result. ' "
See also: In the Matter of Burgdorf & Berry, - '
Mont. 551
P.2d 656, 33 St.Rep. 605 (1976); Foss v. Leifer, Mont . I
There is ample evidence to warrant the removal of these
children from their parents. The district court correctly follow-
ed the dictates of the Montana statute. As this Court stated be-
fore in Olson, 164 Mont. at 435:
" * * * It may be that it would be to the best
interests of the mother for her to retain these
children, but certainly, based upon the evidence
presented, it would not be in the best interests
of the children. This Court has repeatedly
pointed out--the primary consideration is the
best interests of the children."
Issue number two has no merit due to the particular
facts of this case. The parents did not object to the late filing
of the petition under section 10-1309, R.C.M. 1947, until several
hearings and approximately six months later. The parents were
no strangers to court proceedings and workings of SRS as a result
of the prior child custody hearing. The district court was in the
best position to weigh the evidence of the parents as to the prej-
udicial effect of filing the petition ten days late. Bauer v.
Chaussee, Mont. , 567 P.2d 448, 34 St.Rep. 778 (1977);
Olson v. Westfork Properties, Inc., Mont . , 557 P.2d 821,
33 St. Rep. 1133 (1976).
While issue two is not a controlling issue, this Court
strongly condemns the negligent disregard of section 10-1309 by
the SRS and county attorney. By statute, a petition shall be filed
within 48 hours following the emergency removal and placing of a
youth in a protective facility. SRS failed to comply in this
case. SRS was acting under the guise of the law when it removed
the children. SRS therefore has a duty to strictly adhere to the
requirements of that same law. Removal of children from their
parents is an area too sensitive to allow any abuse or noncompliance
of the law.
The extensive publicity given this case has brought
another serious matter to the attention of this Court. The names
of the parties in this action have been purposely deleted. This
Court directs that in this and in future cases under section
10-1300 et. seq., all names of parties involved shall be removed
to avoid publicity of the minor parties involved, in both the
district and Supreme Courts
We concur: