No. 13704
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
IN THE MATTER OF RICKY MOYER a/k/a
STEWART MOYER, KENNY PIOYER, STEVE MOYER
AND SHANNON MOYER, Youths in Need of Care.
Appeal from: District Court of the Thirteenth Judicial
District
Honorable Robert Wilson, Judge presiding.
Counsel of Record:
For Appellant:
Vernard C. Anderson, Jr. argued, Billings, Montana
F o r Respondent:
Harold F. Hanser, County Attorney, Billings
Montana
Charles Bradley, argued, Deputy County Attorney,
Billings, Montana
Richard Webber argued, Helena, Montana
Submitted: June 22, 1977
Filed:
&-L 2 6 19ff
Mr. Chief J u s t i c e P a u l G. H a t f i e l d d e l i v e r e d t h e Opinion o f
t h e Court.
T h i s i s a n a p p e a l from a n o r d e r o f t h e d i s t r i c t c o u r t ,
Yellowstone County, awarding permanent c u s t o d y of a p p e l l a n t ' s
f o u r minor c h i l d r e n t o t h e C h i l d W e l f a r e S e r v i c e s D i v i s i o n ,
Department o f P u b l i c W e l f a r e , S t a t e of Montana.
A p p e l l a n t , E t h e l Rebecca Moyer, i s t h e mother o f Ricky
Moyer, a l s o known a s Ricky S t e w a r t , Kenny, S t e v e and Shannon
Moyer. On December 31, 1975, t h e Yellowstone c o u n t y a t t o r n e y
f i l e d i n t h e d i s t r i c t c o u r t a p e t i t i o n f o r temporary i n v e s t i g a -
t i v e a u t h o r i t y and p r o t e c t i v e s e r v i c e s on b e h a l f o f t h e Moyer
c h i l d r e n , p u r s u a n t t o s e c t i o n 10-1311, R.C.M. 1947. The c o u n t y
a t t o r n e y s u p p o r t e d t h e p e t i t i o n w i t h a n a f f i d a v i t and w i t h a
r e p o r t t o t h e c o u r t which had been p r e p a r e d by t h e Yellowstone
County Department o f P u b l i c W e l f a r e , and which was s u b m i t t e d t o
t h e d i s t r i c t c o u r t i n a c c o r d a n c e w i t h s e c t i o n 10-1311. The re-
p o r t t o t h e c o u r t l i s t e d t h e p o l i c e r e c o r d s of Ricky and Kenny
Moyer, c o m p l a i n t s from t h e i r s c h o o l a u t h o r i t i e s r e g a r d i n g emo-
t i o n a l problems o f Ricky, Kenny, and S t e v e , and a l l e g a t i o n s by
t h e welfare department t h a t a p p e l l a n t f a i l e d t o provide adequate
d i s c i p l i n e and s u p e r v i s i o n of t h e c h i l d r e n . The d i s t r i c t c o u r t ,
o n J a n u a r y 5 , 1976, i s s u e d a n o r d e r f o r temporary c u s t o d y of t h e
Moyer c h i l d r e n , r e q u i r i n g a p p e l l a n t t o c o o p e r a t e w i t h a n i n v e s t i -
g a t i o n i n t o t h e y o u t h s ' home s i t u a t i o n and g i v i n g temporary c u s -
t o d y of t h e y o u t h s d u r i n g t h e pendency o f t h e a c t i o n t o t h e Yellow-
s t o n e County Department of W e l f a r e .
On March 11, 1976, t h e Yellowstone c o u n t y a t t o r n e y f i l e d
a p e t i t i o n p u r s u a n t t o s e c t i o n 10-1310 ( 1 0 ) ( d ) , R.C.M. 1947, re-
q u e s t i n g t h e d i s t r i c t c o u r t t o g r a n t permanent l e g a l c u s t o d y of
t h e Moyer c h i l d r e n t o t h e C h i l d W e l f a r e S e r v i c e s D i v i s i o n . The
c o u n t y a t t o r n e y i n h i s p e t i t i o n a l l e g e d t h a t t h e Moyer c h i l d r e n
were n e g l e c t e d and abused y o u t h s i n need of c a r e , w i t h i n t h e
meaning of s e c t i o n 10-1301, R.C.M. 1947, and s e t
f o r t h c e r t a i n general a s s e r t i o n s i n support of h i s a l l e g a t i o n s .
Because t h e whereabouts of t h e p u t a t i v e f a t h e r s of t h e
Moyer c h i l d r e n w e r e unknown, t h e d i s t r i c t c o u r t a u t h o r i z e d
s e r v i c e o f p r o c e s s by p u b l i c a t i o n p u r s u a n t t o Rule 4 ( d ) , M.R.
Civ.P. None o f t h e p u t a t i v e f a t h e r s a p p e a r e d a t t h e A p r i l 1 6 ,
1976 c u s t o d y h e a r i n g and none a p p e a l s t h e d e c i s i o n of t h e d i s -
t r i c t court.
A t t h e n o n j u r y h e a r i n g t o d e t e r m i n e permanent l e g a l
custody of t h e c h i l d r e n , e i g h t witnesses t e s t i f i e d f o r respon-
d e n t C h i l d W e l f a r e S e r v i c e s D i v i s i o n and s i x w i t n e s s e s t e s t i f i e d
f o r a p p e l l a n t E t h e l Rebecca Moyer. Based on t h e t e s t i m o n y a t
t h e h e a r i n g , t h e d i s t r i c t judge on May 1 3 , 1976 i s s u e d f i n d i n g s
o f f a c t and c o n c l u s i o n s of l a w . The c o u r t concluded t h a t t h e
Moyer c h i l d r e n were y o u t h s i n need of c a r e w i t h i n t h e meaning
o f s e c t i o n 10-1301, R.C.M. 1947, and o r d e r e d t h a t t h e i r permanent
c u s t o d y , i n c l u d i n g t h e r i g h t t o c o n s e n t t o t h e i r a d o p t i o n , be
awarded t o t h e C h i l d W e l f a r e S e r v i c e s D i v i s i o n .
Appellant raises t h e following i s s u e s i n h e r appeal:
1. Is it l e g a l l y i m p e r m i s s i b l e f o r a c o u n t y a t t o r n e y t o
f i l e a prehearing " r e p o r t t o t h e c o u r t " i n support of a s e c t i o n
10-1310, R.C.M. 1947, p e t i t i o n f o r permanent l e g a l c u s t o d y o f
d e p e n d a n t and n e g l e c t e d c h i l d r e n ?
2. W a s t h e evidence presented a t t h e custody hearing
s u f f i c i e n t t o s u p p o r t t h e j u d g e ' s d e c i s i o n t o award permanent
c u s t o d y of t h e Moyer c h i l d r e n t o t h e C h i l d W e l f a r e S e r v i c e s
Division?
Appellant contends t h a t t h e county a t t o r n e y ' s r e p o r t t o
t h e c o u r t w a s i n a d m i s s i b l e i n a permanent c u s t o d y a c t i o n under
s e c t i o n 10-1310, R.C.M. 1947. S e c t i o n 10-1310 n e i t h e r r e q u i r e s
nor p r o h i b i t s t h e f i l i n g of a prehearing r e p o r t t o t h e c o u r t .
The district court record in this case, however, contains only
one report to the court, a report which the county attorney
filed in support of his December 31, 1975 petition for temporary
investigative authority and protective services. Section 10-
1311(3), R.C.M. 1947 specifically authorizes the filing of a
welfare department report in support of a temporary investigative
authority and protective services petition. We need not, there-
fore, decide whether it would have been proper for a county
attorney to file a prehearing report in support of a section
10-1310 petition for permanent custody.
Appellant next contends that the evidence presented at
the custody hearing does not support the district judge's find-
ing that the Moyer children were dependent and neglected within
the meaning of 10-1301, R.C.M. 1947, or his decision to award
permanent legal custody to the Child Welfare Services Division.
Appellant claims that the aforementioned report to the court
contained hearsay statements which were prejudicial to appellant
and which strongly influenced the judge in his custody decision.
It is true that a judge violates due process requirements if he
bases his child custody order on statements in a welfare depart-
ment report without requiring the authors of the report to testi-
fy at a hearing and be subject to cross-examination. In re
Appeal in Maricopa Cty., Juv. Action No. J-75482, 111 ~ r i z588,
536 P.2d 197; C.B. v. People in Interest of J.T.B., 30 ~ o l o . ~ p p .
269, 493 P.2d 691; In re Baum, 8 Wash.App. 337, 506 ~ . 2 d
323.
In a civil case, such as the one at bar, which is tried before
the court without a jury, there is a presumption that the trial
judge has disregarded all inadmissible evidence in reaching his
decision. OfSullivan v. Simpson, 123 Mont. 314, 212 P.2d 435;
Healy v . First Nat. Bank, 108 Font. 180, 89 P.2d 555, There is
nothing in the record and appellant has cited nothing to this
Court to rebut this presumption or show that the district judge
based his decision on any evidence other than that presented
by the witnesses who testified at the permanent custody hear-
ing. We must, therefore, examine the record to determine if
there is sufficient evidence to support the district judge's
permanent custody order.
Appellant claims that absent the report to the court,
there was insufficient evidence to sustain the district court's
findings. Appellant asserts that the district court's custody
judgment must be reversed in light of this court's recent de-
cision in In re Declaring Swan Children Youths in Need of Care,
Mont . -P.2d , 34 St.Rep. 390 (1977). The facts
which demanded reversal in Swan are not present in this case.
In Swan we held that hearsay evidence was inadmissible
in a custody hearing. We reversed the decision of the district
court in Swan because the record established that the judge's
decision to award custody of appellant's three minor children
to the Montana Department of Social and Rehabilitative Services
(SRS) was based mainly on hearsay evidence. " * * *the record
is replete with oral and written hearsay evidence, admitted over
proper objection." Swan, 34 St.Rep. 392. The only evidence
which SRS submitted in Swan was written reports prepared by SRS
and other state agencies, a written medical report, and the test-
imony of two SRS employees. The reports contained written hear-
say and the testimony oral hearsay, none of which fell under
the exceptions to the hearsay rule. Without the inadmissible
hearsay evidence, there was insufficient evidence in Swan to
sustain the district judge's permanent custody order.
The facts in the case at bar are markedly different from
the facts in Swan. Whereas in Swan the record indicated that
" * * * certain written reports * * * were considered by the
court in its decision", (34 St-Rep. 391) ,there is nothing in the
record in this case to indicate that the district judge con-
sidered the welfare department report in his permanent custody
decision. While the testimony at the custody hearing in Swan
consisted solely of largely hearsay statements of two SRS
employees, the district court in the instant case heard testi-
mony from a clinical psychiatrist, a police officer, school
nurse, school principal, school attendance officer, teacher and
social worker, all of whom had had personal contact with either
the Moyer children, the appellanttor both. In addition, the
court heard testimony from appellant herself and from friends
and neighbors of appellant. The district court in this case had
the opportunity to examine the statements and judge the credi-
bility of all the witnesses before making a decision as to cus-
tody.
This Court will not reverse the child custody decision
of a trial judge in the absence of a clear showing of abuse of
discretion. In re Declaring Burgdorf and Berry,Dependent and
Neglected Children, Mont . , 551 P.2d 656, 33 St.Rep. 605
(1976); In re Declaring Bessette Children Youths in Need of Care,
Mont . , 551 P.2d 653, 33 St.Rep. 600 (1976). The district
court must exercise its discretion in child custody cases
to further the welfare and best interests of the children. In
re Declaring Henderson a Dependent and Neglected Child, 168
Mont. 329, 542 P.2d 1204, 32 St-Rep. 1154; In re Declaring Olson
Children Dependent and Neglected Children, 164 Mont. 431, 524
P.2d 779. Did the district court's decision further the children's
best interests and satisfy the statutory requirements of Title
10, Chapter 13, R.C.M. 1947?
Section 10-1314 (1)(b) (i), R.C.M. 1947 authorizes a
district judge to transfer custody of abused or neglected youths
to SRS. Section 10-1301 (2)(a), R.C.M. 1947 defines abuse or
neglect as the " * * * commission or omission of any act or
acts which materially affect the normal physical or emotional
development of a youth * * *". The testimony at the custody
hearing produced ample evidence to support both the district
judge's finding that the children were abused and neglected
while in the custody of their mother, and his judgment that
it would be in the children's best interests to transfer their
legal custody to Child Welfare Services, a division of SRS.
A clinical psychologist testified that he had tested the two
oldest children and had found them to have learning disabilities
and behavior problems which he concluded were caused by inade-
quate home care and supervision. A police officer listed the
numerous times that he had apprehended one of the children
on juvenile offenses. The officer also testified that he once
had discovered one of the children burning lighter fluid on
the living room floor of the family home and was informed by
appellant that she had given her son permission to play with
the fluid. The school nurse testified that on numerous occasions
the children had come to school with serious injuries and that
they were often inadequately dressed for the time of year.
When the school nurse visited the Moyer home, she noticed that
the house had a strong smell of vomit, that there were dog feces
on the floor, that the two youngest children were very dirty,
and that appellant had a very difficult time controlling or
disciplining her children.
Other witnesses testified that the three school aged
children often roamed the city streets unsupervised late at
night, often came to school hungry and sleepy, and were oft-
times unwilling to associate or play with their classmates.
In addition, various witnesses testified as to appellant's
admissions that she often did not know where her children were,
and that she was unable to discipline them. Finally, a social
worker testified appellant had failed to follow the recommen-
dations of public agencies which had worked with her, and that
when the children had been temporarily taken from appellant and
placed in a receiving home, they had progressed well emotionally.
We do not dispute the assertions of appellant and the
neighbors who testified in her behalf that appellant loves her
children. It is clear from the record, however, that appellant
is unwilling or unable to provide the care necessary for the
physical and emotional well-being of her children. The testi-
mony at the custody hearing supports the district judge's find-
ing that the children were abused and neglected youths in need
of care within the meaning of section 10-1301, R.C.M. 1947, and
his judgment, pursuant to section 10-1314(1) (b)(i), R.C.M. 1947,
transferring permanent legal custody of the children to S R S .
The judgment of the district court is affirmed.
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We concur:
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I-
Chief Justice
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Justices