No. 80-483
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
IN THE MATTER OF A.J.S.
Youth In Need of Care.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone.
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
Jones Law Firm, Billings, Montana
For Respondent:
Harold F.Hanser, County Attorney, Billings, Montana
Olsen, Christensen & Gannett, Billings, Montana
Submitted on briefs: April 8, 1981
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
DS, mother of AJS, appeals from an order of the Thirteenth
Judicial District Court, Yellowstone County, declaring AJS
an abused and neglected child and awarding permanent custody
of AJS to the Department of Social and Rehabilitation Services
(SRS). We affirm.
Appellant raises these issues:
1. Was the evidence sufficient to support the finding
that AJS is a youth in need of care?
2. Is the testimony of a psychologist subsequent to a
court-ordered psychological evaluation violative of the
psychologist-client privilege?
3. Did the admission of psychologists' testimony
resulting from a court-ordered psychological evaluation
violate DS's constitutional right of privacy?
4. Does the delay in the adjudication of this matter
necessitate reversal?
AJS was born on December 16, 1963, mentally retarded,
possibly autistic and with epilepsy, characterized by both
grand and petit ma1 seizures. DS and OS are the natural
parents of the youth. OS abandoned the family in 1967 and
has had no contact with the family since. DS was subsequently
married to a man whom she divorced after discovering the
husband sexually abusing AJS. At the time AJS was removed
from the family home, DS was living with a man 11 years her
junior, in whose care AJS frequently was entrusted.
AJS first began attendance in special education classes
at Garfield School in 1972, and has attended continuously
since that time. Despite her years of education, AJS is not
toilet trained, has very little speech and is considered
nonverbal. She functions at approximately a two-year-old
developmental level.
DS raised and cared for AJS without interference by the
authorities until late 1976. At that time, DS placed herself
in a six-week drug rehabilitation program to overcome her
twelve-year dependence on Darvon and Librium, and left AJS
in the care of a foster home. During this period, AJS's
appearance and cleanliness improved dramatically, her reported
seizure activity subsided and her classroom attitude and
aptitude improved. All these conditions deteriorated when
AJS returned to her mother's household.
School officials and SRS personnel had from the outset
been concerned about the squalid condition of DS's household.
The home was consistently filthy, cluttered, frequently had
animal excretions scattered about, and had an odor which
nauseated visitors to the point that it was difficult for
the unaccustomed to remain in the home. DS allowed the
house to be used as a flophouse by friends of her other
children. These conditions prevailed both before and after
the 1976 drug rehabilitation.
While in the care of her mother, the state of AJS's
cleanliness and personal hygiene had been distressing to
school and SRS personnel from the time her schooling commenced.
She frequently came to school with body odor so intensive
she was difficult to approach closely, her hair was often
greasy and matted with food, and she frequently displayed brown
phlegm (apparently a side-effect of Dilantin, her anticonvulsant)
hanging from her teeth. AJS occasionally arrived at school
unfed, and often slept through large portions of the school
day. DS sometimes varied AJS's Dilantin dosages according
to the phases of the moon.
Beginning in 1976, school officials also began observing
an unusual number of bruises on AJS. Her teacher and the
school nurse each noticed, on numerous occasions, finger-
marks on the inner aspect of AJSk upper thighs and bruises on
both shoulders. When queried about the various bruises, DS
typically dismissed them as resulting from falls during
seizures (although teachers had observed that AJS knew when
a seizure was at hand and would protect herself by lying on
a bed prior to onset of the seizure).
In 1979, bruising and injuries to AJS grew drastically
more pronounced and frequent. On January 24, AJS arrived at
school with a large bruise extending from her right shoulder
to her elbow, with a long scratch down the center. On
January 26, AJS had several large, dark, streak-type bruises--
believed by the nurse to be fingermarits--on the inner portions
of each thigh. On February 14, AJS displayed small bruises
on her cheeks and nose, and a raised bright red rash over
the entire upper portion of her back, with small abrasions
in the center of the rash. On February 19, she had six
large, deep scratches, each about three inches long, on her
left cheek. On February 26, a social worker visiting the
home, noticed two black eyes on AJS. Finally, on February
28, the social worker and school nurse visited the home and
observed a second-to-third-degree burn approximately ten
centimeters long on her left shoulder. She also had a
bruise around her left eye across the bridge of her nose,
small bruises on her midchest, a small scratch on her upper
abdomen, and a small bruise on her right front groin area.
AJS was removed from the home the following day, March 1,
1979.
Following her removal, AJS was placed in a foster home
for one month, then transferred to a Special Training for
Exceptional People (STEP) group home. During the period
following her removal, her appearance and personal hygiene
again improved, her school attendance improved markedly, and
she was more alert while at school. There was also testimony
that her reported seizure activity subsided and her performance
in school improved.
SRS filed its petition alleging AJS was a youth in need
of care on June 29, 1979. The cause was heard by the District
Court at multiple hearings held on September 6, 1979; December
6, 1979; April 3, 1980 and June 3, 1980. The District Court
entered its findings, conclusions and order on October 31,
1980.
SRS presented as witnesses, school officials, nurses
and SRS personnel who testified to substantially the facts
found by the Court and related above. Additional testimony
was given by Dr. Monty Gustafson, a clinical psychologist,
who conducted a court-ordered psychological examination of
DS. Dr. Gustafson performed an extensive psychological
interview of DS and administered several detailed tests,
from which he concluded DS has some organic brain damage as
well as a personality disorder termed "inadequate personality."
He suggested these conditions greatly interfere with DS's
parenting ability, and expressed his opinion that DS is
unable to deal adequately with and care for AJS over the
long term.
Our function in reviewing dependency and neglect cases
has been well defined in a number of previous decisions.
,
Matter of LFG (1979), - Mont. - 598 P.2d 1125, 36
St.Rep. 1547; In Re Gore (1977), 174 Mont. 321, 570 P.2d
1110. In Gore, we stated:
"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 determination by the
district court will be made. [Citation
omitted.] Due to this presumption of correct-
ness, the district court's findings will not be
disturbed on appeal 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. (Citation omitted.)" 174
Mont. at 325, 570 P.2d at 1112.
We have subsequently held in Matter of JLB (1979), -
Mont . -, 594 P.2d 1127, 36 St.Rep. 896, that the court's
findings must be supported by clear and convincing evidence.
That burden has been sustained here.
DS attacks the sufficiency of the evidence on a number
of bases. However, we find clear and convincing evidence of
unexplained physical injuries and inadequate concern for the
cleanliness and hygiene of AJS to support the court's findings.
We therefore address only those areas.
A number of school officials testified of the absolute
squalor of DS's household, as related above. The same
witnesses provided vivid documentation of the various injuries
sustained by AJS, and of her chronic hygienic problems while
in the care of her mother. These same people noticed a
dramatic turnabout of AJS's cleanliness and physical well-
being after she had been removed from the home.
DS, on the other hand, testified that her home was
adequately maintained, and that AJS was kept as scrubbed as
her condition would allow. DS attributed her daughter's
poor school attendance and frequent exhaustion while at
school to seizure activity. Falls accompanying seizures
were credited by DS for all the various bruises; and the
burn resulted from a bath tub accident involving nearly
impossible physical contortions by AJS.
Where testimony is directly conflicting, we presume
that the judge's findings are correct because he was present
when the testimony was given and had the opportunity to
observe the demeanor of the witnesses. Matter of TER (1979),
Mont. , 590 P.2d 1117, 36 St.Rep. 276. Here, the
court chose to believe that the home was not properly maintained
despite repeated efforts of SRS to provide homekeeping
assistance, and that the injuries to AJS were neither adequately
nor credibly explained. The court did not abuse its discretion
in so finding.
DS submits that since there was no direct evidence that
she deliberately inflicted the injuries upon AJS, the finding
of abuse and neglect was improper. Section 41-3-102, MCA,
defines an abused or neglected child as ". . . a child whose
normal physical health or welfare is harmed or threatened
with harm by the acts or omissions of his parent or other
person responsible for his welfare." Regardless of any
actual proof that a parent intentionally inflicted injuries
upon his or her child, the occurrence of serious and frequent,
yet unexplained, physical injuries to the child is sufficient
to properly bring the child within the statutory definition.
Additionally, the statute is broad enough to include extreme
and prolonged uncleanliness under the definition of neglect.
- supra, 594 P.2d at 1135, 36 St.Rep. at 907.
JLB,
DS moved - limine, relying on section 26-1-807, MCA,
in
the psychologist-client privilege, to exclude Dr. Gustafson's
testimony. The motion was denied and the evidence subsequently
received. DS argues that she trusted Dr. Gustafson, expected
their communications to remain confidential; and insists her
expectation should be honored. We reject this argument.
We instead find that there was in fact no psychologist-
client relationship between Dr. Gustafson and DS. Section
26-1-807, MCA, places the relationship of psychologist and
client on the same status as attorney and client. In that
regard, a party is entitled to the protection accorded to
privileged communication if the communications have been
made to an attorney acting, for the time being, in the
character of legal advisor for the purpose of securing pro-
fessional advice or aid upon the subject of the client's rights
and liabilities. Bernardi v. Community Hospital Association
(1968), 166 Colo. 280, 443 P.2d 708, 716. Here DS did not
seek out and retain Dr. Gustafson for professional help, but
was ordered by the Court to undergo an evaluation. Nor were
the communications between the two directed toward securing
professional assistance for DS. The privilege clearly did
not attach in this instance.
This issue is somewhat complicated by a previous e
between DS and Dr. Gustafson in an unrelated matter. However,
even assuming arguendo, that the previous contacts did
establish a psychologist-client relationship, it was yet
within the discretion of the District Court to consider the
testimony. In proceedings of this type, the child's best
interest and welfare, not those of the natural mother, are
the paramount considerations. In re Bad Yellow Hair (1973),
162 Mont. 107, 509 P.2d 9. The District Court must balance
the rights of the mother and the child; and while the mother's
rights are important, they are not absolute. Matter of CMS
,
(1979), - Mont. - 609 P.2d 240, 36 St.Rep. 2004. In
some instances, the best interests of the child require some
degree of flexibility in procedure to insure that all evidence
pertaining to the best interests of the child may be considered.
- supra.
TER, In applying these rules, we find this language
pursuasive: "in the exercise of the court's inherent power
to do what is best to protect the welfare of the infant, the
right of [the mother] to invoke the patient-physician privilege
must yield to the paramount rights of the infant." People
v. Fitzgerald (1963), 40 Misc.2d 966, 244 N.Y.S.2d 441, 442.
DS next argues the admission of Dr. Gustafson's testimony
violated her right to individual privacy under 1972 Mont.
Const., Art. 11, S 10. The record indicates this argument
is raised for the first time here on appeal. The District
Court was presented with and decided only the question of
privileged communications. DS may not now raise the issue
of infringement of her right to privacy. It is well settled
that a party may not change a theory to this Court from that
advanced at trial court. Velte v. Allstate Ins. Co. (1979),
,
- Mont. - 593 P.2d 454, 36 St.Rep. 724. See also,
Johnson v. Doran (1975), 167 Mont. 501, 540 P.2d 306.
DS finally submits, without citation of authority, that
the District Court should be reversed for failure to handle
this cause expeditiously. We agree that the interval here
of 20 months between the time of removal from the home until
the final order was long; and we exhort District Courts to
give preference to custody cases. Section 41-3-401(2), MCA.
We believe, however, that reversal here would be an ill-
advised and improper sanction.
We reiterate that our paramount concern is for the best
interest of the child. Bad Yellow Hair, supra. Here, the
court did act somewhat slowly in permanently removing AJS
from an abusive environment. However, were we to replace
the child in that abusive environment due to the District
Court's deliberate pace, we would be negating our expressed
concerns for the child's best interests. The delay does not
necessitate reversal.
Affirmed.
ustice
We Concur:
Chief Justice