Matter of M.G.M. ( 1987 )

NO. 86-538
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN THE MATTER OF M.G.M.,
Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Wj-lliam Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ralph L. Herriot-t Billings , Montana
,
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
Greg Mullowney, Deputy County Atty., Billings
Damon Gannett, Guardian Ad Litem, Billings, Montana
Submitted on Briefs: July 1, 1987
Decided: August 20, 1987
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
The natural father of M.G.M. appeals the September 2,
1986, order of the Thirteenth Judicial District Court, County
of Yellowstone, finding M.G.M. to be a youth in need of care
and awarding temporary custody to the Montana Department of
Social and Rehabilitation Services. We affirm.
This matter was previously before this Court in In the
Matter of M.G.M. (1982), 201 Mont. 400, 654 P.2d 994. The
pertinent facts of the case prior to 1982 are contained in
that opinion. On appeal, we reversed the lower court's
termination of the natural father's parental rights for
failure to find that M.G.M. was a youth in need of care and
remanded for further findings.
During the pendency of the previous appeal, M.G.M. was
placed in a foster home in Missoula. Following remand, the
termination of parental rights proceedings were halted midway
through trial by agreement of the parties. In a court
approved stipulation, the parties agreed that M.G.M. would be
placed in the care and custody of the natural father for a
period of six weeks. During that period, M.G.M. would meet
once a week with psychologist Richard Agosto to monitor
M.G.M.'s mental and emotional well-being. In the event Dr.
Agosto found M.G.M. was suffering, or likely to suffer,
identifiable and substantial impairment of her intellectual
or psychological functioning due to the acts or omissions of
the natural father, M.G.M. would return to her foster home on
a permanent basis. The natural father would maintain
visitation rights under the agreement.
Dr. Agosto issued a written report on August 2, 1985,
concerning M.G.M.'s mental and emotional well-being during
her stay with the natural father. Dr. Agosto found that
M.G.M1s intellectual development was close to that of a
fifteen year old while her emotional and social development
was comparable to the nine or ten year old level. During
M.G.M.'s six week stay with the natural father, Dr. Agosto
noted symptoms of emotional stress by M.G.M. including sleep
disruption, weight loss, fatigue, feelings of helplessness
and increased levels of anger. M.G.M. considered the natural
father and his new wife to be critical of her which
diminished M.G.M.'s self-esteem.
In his report, Dr. Agosto concluded that M.G.M.
suffered identifiable impairment of her psychological
functioning during her stay with the natural father. Dr.
Agosto described M.G.M. as a very vulnerable young teenager
in need of a supportive and loving family. Dr. Agosto
recommended that M.G.M. return to her foster family.
The natural father filed a contempt petition on
September 12, 1985, alleging the State and guardian ad litem
had violated the terms of the stipulation and that he was
entitled to custody of M.G.M. Specifically, the natural
father alleged that Dr. Agosto did not conclude M.G.M. had
suffered substantial impairment of her intellectual or
psychological functioning necessary to terminate his custody
rights as provided in the agreement. A hearing on the
contempt motion was held October 31, 1985.
Dr. Agosto testified at the hearing that he concluded
M. G.M. had suffered substantial impairment of her
psychological functioning during her stay with the natural
father and would be at risk of greater emotional stress
should the placement continue. Following hearing, the court
denied the contempt motion of the natural father.
On January 8, 1986, the State filed a motion to set a
hearing date to determine whether M.G.M. was a youth in need
of care and whether the stipulation entitled the State to
maintain M.G.M.'s placement with her foster family in
Missoula. A hearing was held February 6, 1986, and testimony
received from Vince Matule, director of the Casey Family
Foundation which was responsible for monitoring M.G.Mts
placement. Matule recommended that M.G.M. continue in her
present foster home placement with the natural father
retaining visitation rights. Matule believed that M.G.M. was
in need of stability and a secure family during her
adolescence and that her foster family in Missoula met these
needs.
The District Court entered its findings of fact,
conclusions of law, and order on September 2, 1986. The
court found M.G.M. to be a youth in need of care, that it was
in M.G.M.'s best interest to continue her placement with her
foster family, and that the natural father shall be entitled
to regular visitation. The natural father appeals and raises
the following issue: Are the District Court's findings of
fact and conclusions of law supported by clear and convincing
evidence?
The natural father first contends that the District
Court erred in adopting previous findings of the District
Court because such findings were rejected on appeal by this
Court. We disagree. Our previous opinion in this matter
clearly stated that the case was remanded "for further
findings." 201 Mont. at 401, 654 P.2d at 998. We reversed
on appeal because the lower court failed to find that the
natural father abused or neglected M.G.M. In order to
deprive a parent of child custody pursuant to 8s 41-3-404 and
-406, MCA, the court must find that the child is abused,
neglected or dependent.
With the exception of the District Court finding
relating to opinion testimony of the psychiatric nurse, this
Court did not reject any of the District Court's findings in
our previous opinion. We find no error in the District Court
adopting these findings on remand. Findings one through
nine, objected to by the natural father, are supported by
substantial credible evidence.
The natural father contends there is insufficient
evidence to support Dr. Agosto's conclusion that M.G.M.
suffered substantial impairment of her psychological
functioning during her stay with the natural father and would
be at risk of increased emotional stress if the placement
continued. The record shows Dr. Agosto is well qualified as
a clinical psychologist. Dr. Agosto had weekly sessions with
M.G.M. during her stay with the natural father. Dr. Agosto
noted that M.G.M. suffered the classic symptoms of depression
and emotional stress during the period. Dr. Agosto's
testimony and affidavit reflect his belief that M.G.M.
suffered substantial psychological impairment while in the
custody of the natural father. We find no reason to doubt
Dr. Agosto's conclusions regarding M.G.M.
The natural father further contends that there is not
clear and convincing evidence to support the District Court's
finding that M.G.M. was a youth in need of care and that the
court again improperly applied the "best interest" test. In
finding M.G.M. to be a youth in need of care, the District
Court applied § 41-3-102, MCA, which provides in part:
(2) An "abused or neglected child" means
a child whose normal physical or mental
health or welfare is harmed or threatened
with harm by the acts or omissions of his
parent or other person responsible for
his welfare.
M.G.M. spent the first five years of her life with her
mother, who suffered from chronic schizophrenia. M.G.M. did
not develop normally and adapted to a role-reversal with her
mother. The testimony of mental health professionals in this
case indicates that children of schizophrenics increase their
risk of developing schizophrenia if raised by schizophrenic
parents because they fail to properly develop their own
self-identity. The natural father is also a diagnosed
schizophrenic.
Testimony was given at the May 2 and 3, 1985, hearing
by three mental health professionals involved with the case.
Each witness favored placing M.G.M. with a foster family to
prevent the possibility of M.G.M. developing schizophrenia as
a result of being raised by a schizophrenic parent.
Dr. Wagner, a clinical psychologist, testified that it
would be stressful for M.G.M. to be in the custody of the
natural father, and recommended that M.G.M. continue to
reside with her foster family. Testimony was also received
from Dr. Tranel, a psychologist who interviewed and tested
both M.G.M. and the natural father in 1980. Dr. Tranel
stated his opinion that the acts, conduct, or omissions of
the natural father posed imminent risk of harm to M.G.M1s
psychological well-being.
Mary Honaker, a certified mental health professional
who conducted therapy with M.G.M., testified that M.G.M. was
distressed and apathetic during periods when she visited the
natural father. Honaker testified that she felt further
visits with the natural father would be harmful to M.G.M.
Dr. Tranel, Dr. Wagner and Ms. Honaker, were not
actively involved with M.G.M. or the natural father after
1981. However, both Dr. Tranel and Dr. Wagner testified that
the natural father's schizophrenic condition would not
improve without therapy and treatment. There is no evidence
that the natural father has sought treatment for his
condition.
We find clear and convincing evidence in the record to
support the District Court's determination that M.G.M. is a
youth in need of care within the meaning of § 41-3-102, MCA.
The record clearly supports transferring custody to the State
with M.G.M. continuing in her present foster home.
The District Court is affirmed.
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Justices