L. F. G., Matter of
| Decision Date | 20 August 1979 |
| Docket Number | No. 14688,14688 |
| Citation | 183 Mont. 239,598 P.2d 1125,36 St.Rep. 1547 |
| Parties | In the Matter of L. F. G., Youth in Need of Care. |
| Court | Montana Supreme Court |
Robert L. Stephens, Jr., and David B. Kinnard, argued, Billings, for appellant.
Harold F. Hanser, County Atty., Robert Waller, Deputy County Atty., argued, Damon L. Gannett, argued, Billings, for respondent.
This appeal arises from a custodial hearing held on September 29, 1978, in the District Court of the Thirteenth Judicial District, State of Montana, in and for the County of Yellowstone, the Honorable Robert H. Wilson presiding. The case was tried on the petition of the Department of Social and Rehabilitation Services of the State of Montana (SRS) to have L.F.G. declared to be a youth in need of care and to have his permanent care, custody and control awarded to the State of Montana, with authority to consent to adoption. The Yellowstone County attorney's office appeared and participated as counsel for SRS. The natural parents were present at the hearing and were represented by counsel, and a previously appointed guardian ad litem for the youth appeared and participated in the hearing as the representative of the child.
Upon completion of the hearing, the matter was taken under advisement by the trial court. It entered findings of fact, conclusions of law and order on October 16, 1978, granting the relief requested by SRS. Judgment was subsequently entered in accordance therewith on October 17, 1978. The parents of the youth appeal.
L.F.G. was born on September 29, 1977, in Billings, Montana. The natural parents of the child are J.C.G. and R.G. At the time of the hearing, the natural parents and the child resided in Yellowstone County, Montana.
The social worker in the case, Martha Everett, had her first contact with the mother on September 19, 1977, when she and her mother contacted the local SRS office to learn the procedures relative to the relinquishment of the mother's then unborn child. The mother indicated to Everett during their initial contact that she did not feel that "she was strong enough to take care of a baby."
The child was born ten days after the mother's initial contact with the social worker. At birth, the baby weighed four pounds and eleven ounces. He was normal in all respects, except that his birth weight was light for a full-term infant.
On October 3, 1977, the mother informed Everett that she had changed her mind about relinquishing the child, and that she no longer was interested in having the child placed adoptively. The baby was placed in a foster home on October 5, 1977, with the knowledge, understanding, and consent of the child's natural parents. At the time of placement in foster care, the mother indicated that "she didn't feel that she was physically ready for taking care of the child." Mrs. Delores Smith was the foster parent who provided the primary care for the baby during his residence in her foster home.
The baby remained in the Smith foster home from October 5, 1977, until April 10, 1978. During that six-month period, the mother made 38 visits to the foster home to visit her child. The purpose of the mother's visits with her child in the foster home was to allow her visitation, to observe her with the child, and to attempt to teach her the skills she would need to care for the child on his return to her physical custody. Mrs. Smith was present during each of the visits that the mother had with her child. During this six-month period of foster care, the father made one visit to see the child in the Smith home.
The mother showed some improvement in her apparent ability to care for the child during the period of January to March 1978. Mrs. Smith indicated, however, that she never really held the baby properly, and that she failed to demonstrate any affection or emotion towards the child. The baby seemed to cry more than usual when he was around his mother, and the mother appeared to be confused and uncertain about what to do with the child in general.
Mrs. Smith never observed any physical contact or interaction between the child and his father during the initial period of foster care in her home.
The baby was returned to his natural parents on April 10, 1978. Prior to that return, Martha Everett had made arrangements for the provision of many support services to assist the mother in her care of the child. Homemakers from SRS and a public health nurse made regular and frequent visits to the child and his parents. Despite these efforts made to upgrade the mother's child-caring skills, she failed to learn the things that she was taught concerning her care of the child. There was also an absence of physical contact and play between the child and his mother. The public health nurse also observed the mother leave the baby unattended on two occasions. The mother also described the father as having thrown the child into the baby crib.
The child's situation with his natural parents began to deteriorate. According to the homemakers and public health nurses who were in the home, the mother became more distant and less cooperative. Finally, on May 18, 1978, based upon the observations of the service providers and the recommendation of a psychiatrist, Dr. Van Dyke, the child was removed from the home of his natural parents and returned to the Smith foster home. At the time of the child's return to the foster home, his head was dirty, his body was dirty, and his "little penis was filthy." He was subsequently observed apparently having nightmares and waking up crying and shaking.
Evidence concerning the mother's psychological condition was presented at the hearing. The mother had been evaluated in November 1977 by Dr. Ned Tranel and again on March 21, 1978. Dr. Tranel diagnosed the mother as having two major psychological disorders. The first is technically classified as schizophrenic reaction, chronic undifferentiated type. The second disorder was described by Dr. Tranel as being an organic brain syndrome or chronic brain syndrome. Dr. Tranel offered the opinion that the child should not be returned to a situation in which the mother was the primary caretaker for the child.
The issues presented on appeal are:
1. Was the evidence presented at the custody hearing sufficient to support the finding of the District Court that L.F.G. was a youth in need of care within the meaning of section 41-3-102, MCA?
2. Did the District Court err in terminating the parental rights of R.G., the father, based upon the evidence presented?
3. Was L.F.G. a youth in need of care?
The function of a reviewing court in a case such as this one has been well defined in prior decisions of this Court. In Re Gore (1977), Mont., 570 P.2d 1110, 34 St.Rep. 1179, involved an appeal from a District Court determination similar to one in the instant case. In deciding that the District Court had not abused its discretion when it granted SRS's petition for permanent custody, this Court stated:
570 P.2d at 1112, 34 St.Rep. at 1181-1182.
The rule in Montana is that before the ruling of the District Court can be overturned, it must be shown that the District Court clearly abused its discretion.
For the district Court to find that L.F.G. was a youth in need of care, it had to find that he was dependent or suffering from abuse or neglect. Section 41-3-102(4), MCA. Section 41-3-102(2)(a) and (b), MCA, define abuse or neglect:
Appellants contend that under the facts of this case, there was a clear abuse of discretion on the part of the District Court in the entry of its findings.
Appellants argue that the Montana legislature has declared the policy of this state for abused and neglected children in section 41-3-101(1), MCA, which provides:
Where a child has allegedly been abused or neglected by his natural parents, the State has a clear duty to protect the interests of the child by means of a judicial hearing to determine whether the youth is in fact abused or neglected. The importance of the nature and scope of this judicial proceeding has previously been addressed by this Court in a recent...
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