No. 13775
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
IN THE MATTER OF DECLARING
HEATHER MARIE FISH, A YOUTH IN
NEED OF CARE
Appeal from: District Court of the Eighth Judicial District,
Honorable Truman G. Bradford, Judge presiding.
Counsel of Record:
For Appellant:
William E. Berger argued, Lewistown, Montana
Steven Bunch argued, Helena, Montana
For Respondent:
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Thomas H. Mahan argued, Helena, Montana
David Paul1 argued, Great Falls, Montana
Submitted: September 13, 1977
Decided SEP 2 i 19tf
_1
Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal by the natural mother of a minor child
from an order of the district court, Cascade County, awarding per-
manent custody of the child to the Division of Child Welfare Services
of the Department of Social and Rehabilitation Services of the State
of Montana, with authority to consent to adoption.
On January 9, 1975, the Department of Social and Rehabilita-
tion Services (hereinafter, SRS), through their office in Great
Falls, petitioned the district court of Cascade County for permanent
custody of the minor child, requesting that the child be declared
dependent and neglected.
Hearing on the petition was held on May 1, 1975. The dis-
trict court, Honorable Truman G. Bradford presiding, ordered that
the child be and remain in the temporary custody of SRS for at
least six months, with leave to renew the petition for permanent
custody.
The petition was renewed by SRS and a second hearing held
on December 12, 1975. The district court ordered that temporary
custody of the child continue with SRS for another six months, again
with leave to renew the petition.
On October 1, 1976, the natural mother of the child moved
to vacate the order of December 12, 1975, and for an order granting
permanent custody of the child to her. A hearing on the motion was
held on November 4, 1976. At the close of the hearing, the district
court orally ordered that temporary custody remain in SRS and physi-
cal custody be in the mother on an experimental basis. On November
30, 1976, the district court issued a written order awarding per-
manent custody of the child to SRS, with authority to consent to
the adoption of the child. From this order, the natural mother
appeals.
Heather Marie Fish, the minor child, was born to Linda
Fish on February 23, 1974. At the time of the birth, Linda Fish
was unemployed, unmarried, and receiving funds from the Aid to
Dependent Children program. Several weeks after the birth, Linda
Fish was committed to Warm Springs State Hospital. During this
time, the total responsibility for care of the child was placed in
the child's maternal grandmother.
Linda Fish returned to Great Falls in July, 1974, but
returned voluntarily to Warm Springs in November, 1974. Soon there-
after, SRS filed its initial petition for permanent custody, alleging
that Linda Fish was unable to provide adequate care for the child.
Temporary custody was awarded to SRS by a May 1, 1975 order of the
district court.
Since November 13, 1974, and pursuant to placement by SRS,
the child has remained in the continuous custody of a foster family
in the Great Falls area.
Following her second release from Warm Springs, Linda Fish
has undertaken employment from time to time in various positions,
such employment being interrupted by the birth of a second child.
Linda Fish has been and presently remains unmarried.
Hearing on the renewed petition of SRS was held on Decem-
ber 12, 1975. By an order issued that same day, the district court
extended custody in SRS for an additional six months.
On November 4, 1976, a hearing was held on the motion of
Linda Fish to vacate the order of December 12, 1975, and to obtain
an order awarding permanent custody of the child to her. At the
time of the hearing, the child was approximately two years and nine
months of age. Evidence at the hearing was concentrated on the fit-
ness of Linda Fish as a parent. Testimony of witnesses for the
natural mother, including a social worker and psychologist who main-
tained close working relationships with Linda Fish, revealed improve-
ment in the desire and ability of Linda Fish to perform the duties
of a parent. It was shown that Linda Fish at present has the second
child in her sole care, and that the child is clean and well cared
for. ~inda i s h
~ was shown to presently have increased financial
resources for the care of the children.
The remaining testimony, that which was offered by SRS,
related to the relationship of the child with Linda Fish as evidenced
by the child's behavior relative to visitation periods. The sole
witness for SRS, a social worker who had supervised the bi-monthly
visitation periods and the foster family situation, testified as to
the close relationship between the child and the foster parents, and
a somewhat negative reaction of the child to Linda Fish. The wit-
ness testified that, in her professional opinion, the child's devel-
opment would be negatively affected by a transfer in physical custody.
At the close of the hearing, the district court ordered that
temporary custody remain in SRS, with physical custody in the natural
mother on a trial basis. However, on November 30, 1976, the district
court, without having found the child to be "abused, dependent or
neglected", entered an order placing permanent custody in SRS, with
authority to consent to adoption. No explanation has been offered
as to why the second written order is at variance with the prior
oral order.
In this appeal, the natural mother seeks review of the ac-
tions of the district court in the context of three issues. In our
view, the three issues constitute but one determinative inquiry:
Did the district court abuse its discretion in awarding permanent
custody to SRS while failing to find that the child was "abused,
dependent or neglected" within the meaning of section 10-1301,
R.C.M. 1947? We hold that it did.
The natural mother argues that the evidence introduced at
the hearing of November 4, 1976, clearly supports a finding that
she is presently a fit and proper parent. Our attention is focused
on the fact that the district court did at no time following the
hearing make a finding of parental unfitness or that the child is
abused, dependent or neglected. It is maintained that such findings
are an indispensable prerequisite to termination of parental rights
to the care, custody and control of her child by an award of per-
manent custody to SRS and, ultimately, to individuals who are not
the natural parents of such child.
SRS, in contrast, asserts that the central inquiry in a
case such as this is whether a permanent transfer of custody to
the social agency is "in the best interests of the child." It is
submitted that the best interests of the child should prevail over
the desire of the natural mother for custody in this case, and that
it would be in the best interest of Heather Marie Fish that her
custody be permanently transferred to SRS such that she may be
adopted by the foster family.
We have consistently recognized that the primary responsi-
bility for determining the proper custody of a child rests with
the district court. The reasoning behind such a rule appears in
the language of this Court in the case of In the Matter of the
Adoption of Biery, 164 Mont. 353, 522 P.2d 1377 (1974):
"What is, or what is not in the best interests of
the child depends upon the facts and circumstances
of each case. The responsibility of deciding custody
is a delicate one which is lodged with the district
court. The judge hearing oral testimony in such a
controversy has a superior advantage in determining
the same, and his decision ought not to be disturbed
except upon a clear showing of abuse of discretion.
(citing cases)." 164 Mont. at 356, 357.
This alone, however, does not give a district court the
power in a case arising under the Abused, Neglected and Dependent
Children or Youth Act, sections 10-1300 et seq., R.C.M. 1947. Here,
the court neglected to make the threshold finding that the particular
child is "abused, neglected or dependent" prior to transferring
permanent custody to a nonparent. Indeed, the court failed to
make - disposition to effect the perceived "best interests of
any
the child." Section 10-1312, R.C.M. 1947, in part provides:
"(1) In a hearing on a petition under section 10-1310,
R.C.M. 1947, the court shall determine whether said
youth is an abused, neqlected or dependent child,
and ascertain as far as possible, the cause thereof."
Section 10-1314, R.C.M. 1947, clearly states in part:
"(1) If a youth is found to be abused, neqlected,
or dependent, the court may enter its judgment mak-
ing any of the following dispositions to protect
the welfare of the youth:
"(b) transfer legal custody to any of the following:
"(1) department of social and rehabilitation services
* * *." (Emphasis added.)
The above statutes make plain that a finding of abuse, neglect or
dependency is the jurisdicitional prerequisite to any court order-
ed transfer of custody. It is then, and only then, that the
"best interests of the child" standard has its application in
the resolution of the question of custody. We reaffirm our posi-
tion expressed in the recent Montana case involving an attempt
to transfer custody from a parent to a nonparent:
" * * *It is important to note that the mother was
never * * * declared to be unfit to have the custody
of the children. This being so, the district court
had no jurisdiction to take the children away from
their natural mother.
"The 'best interests of the child' test is correctly
used to determine custody rights between natural
parents in divorce proceedings. In this situation
the 'equal rights' to custody which both the father
and the mother possess under section 61-105, R.C.M.
1947, are weighed in relation to each parent's
ability to provide best for the child's physical,
mental, and emotional needs upon the breakdown of
the marital relationship. 'Fitness' of each parent
is determined only in relation to the other and not
to society as a whole. However, where third parties
seek custody, it has long been the law in Montana
that the right of the natural parent prevails until
a showing of a forfeiture of this right. (Citing
cases.) The Uniform Marriage and Divorce Act does
not change this law. This forfeiture can result
only where the parent's
conduct does not meet the minimum standards
of the child abuse, neglect and dependency
statutes." Henderson v. Henderson, ~ o n.
t
- P. 2d , 34 St.Rep. 9 4 2 , 9 4 7 (1977).
In the case before us, the district court patently failed
to make the required findings. We hold that the district court
was therefore without power to effect a permanent transfer of
custody to SRS under section 10-1314 and abused its discretion in
so doing.
Two other matters have been brought to this Court's atten-
tion in this case, which present serious procedural problems in
cases of proposed termination of parental custody rights in favor
of a nonparent or social agency. We deem these matters to merit
considered discussion and resolution.
The first of these considerations involved the right of a
child who is the subject of a custody proceeding to independent coun-
sel in the representation of his or her "best interests." In the
case at bar, following the hearing of November 4, 1976, an attorney
was, by stipulation, permitted to intervene ostensibly as the "court
appointed attorney for the child." In reality, such attorney was
retained by and represented the interests of the foster parents
seeking to ultimately adopt Heather Marie Fish.
As we have indicated herein, once the finding of an abused,
neglected and dependent child case has been made, one of the pri-
mary considerations in a custody determination of the nature involved
in this case is protection and promotion of the "best interests of
the child." This being the case, we refer to the holding of this
Court in Guardianship of Gullette, Mont. , 566 P.2d 396, 34
'I* * * where custody is in serious dispute, the
court shall appoint independent counsel for the
child or make a finding stating the reasons that
such appointment was unnecessary." 34 St.Rep. at 282.
è he critical word appearing in the above holding, in our view, is
the word "independent". Cases such as the one before us typically
involve at least three central interests: those of the natural
parent(s1, the nonparent(s), and finally, the child. The first two
interests are, in the usual case, in direct conflict with each
other. The child's interest, however, may be consistent with one
or the other, or in some cases neither of such interests. Hence,
in cases where the potential for inconsistency of interests exists,
as here, the child must be afforded counsel which is independent
from and disinterested in the parental/nonparental interests. In
this manner, development of facts and production of evidence relevant
to the child's best interests, in addition to the evidence offered
by the parents or nonparents, is best assured.
The second dilemma faced by this Court arises from the length
of time the child has resided with the foster family as opposed to
the natural mother. The court appointed attorney for the child
argues, in effect, that the fact of a lengthy period of residence
with the nonparents can itself operate to prevent custody from being
revested in the natural mother in a given case. We do not adopt
such a position under the facts of this case. A child cannot be
adversely possessed as can a piece of real property.
Further, and more importantly, to adopt such a position
would be to ignore the reason for the period of nonparental custody:
rehabilitation of the parent such that custody of the child may be
regained on a permanent basis. Any efforts at rehabilitation would
prove fruitless if a parent were to believe that the longer the
period of counseling or treatment, the less would be the chance that
the child would be returned to him or her on a permanent basis.
We do not approve of such an argument. Nor should the
district courts assist in making possible such an argument under
circumstances of this case.
Priority should be given by the district courts of this
state to prompt resolution of custody proceedings under the Abused,
Neglected or Dependent Children or Youth Act, such that the dilemma
created by the delay necessarily inherent in the statutory scheme
is minimized.
The appellant is granted a right to file a supplemental brief.
The order of the district court is vacated and the cause is remanded
for rehearing in accordance with this opinion.
We Concur:
-7
,A -7dez-*- /
-'Chief ~hstice