Matter of K.V. ( 1982 )

KO. 81-536
I N THE SUPREME COURT O F THE STATE O M N A A
F OTN
1982
I N THE MATTER O F DECLARING
K.V. a n d K . A . ,
Youth i n need o f c a r e .
Appeal from: District Court of t h e Eighteenth J u d i c i a l D i s t r , i c t ,
I n a n d f o r t h e County s f G a l l a t i n , The H o n o r a b l e
J a c k D. S h a n s t r o m , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
A. Michael S a l v a y n i , Bozeman, Montana
For Respondent:
Donald E. W h i t e , County A t t o r n e y , Bozeman,
Montana,
S u b m i t t e d on B r i e f s : May 2 0 , 1982
Decided: August 2 3 , 1982
Mr. J u s t i c e F r a n k B. M o r r i s o n , J r . , d e l i v e r e d t h e O p i n i o n o f
the Court.
This is an appeal from an Eighteenth Judicial
D i s t r i c t C o u r t o r d e r d e c l a r i n g KA t o b e a y o u t h i n n e e d o f
c a r e and g r a n t i n g G a l l a t i n County S o c i a l and R e h a b i l i t a t i o n
Services (SRS) p e r m a n e n t custody of KA w i t h the right to
consent t o adoption.
The i s s u e p r e s e n t e d o n a p p e a l i s w h e t h e r t h e D i s t r i c t
Court abused its discretion by terminating the parental
r i g h t s of a p p e l l a n t a n d a w a r d i n g p e r m a n e n t c u s t o d y t o SRS.
A p p e l l a n t i s t h e m o t h e r o f two c h i l d r e n , KV a n d KA.
Appellant and KV's natural father are divorced and KV
currently resides in California with her father under a
previous court order i n a c o l l a t e r a l matter. KA's natural
father is deceased. Only KA's custody is at issue on
appeal.
Appellant contends that the evidence submitted at
trial was insufficient to justify the harsh sanction of
g r a n t i n g p e r m a n e n t c u s t o d y t o SRS. S h e claims t h a t t h e r e
was no e v i d e n c e p r e s e n t e d by SRS t o show t h a t t h e c h i l d ' s
mental health had been harmed by acts or omissions of
appellant.
W do n o t
e find that to be the case. The record
r e v e a l s c l e a r a n d c o n v i n c i n g e v i d e n c e t o p r o v e t h a t KA i s a
n e g l e c t e d c h i l d and it i s i n h i s b e s t i n t e r e s t s t h a t a p p e l -
l a n t ' s parental r i g h t s be severed. No more i s r e q u i r e d t o
s u s t a i n the District Court's decision. In the Matter of
A.J.S. (1981), Mont. , 630 P.2d 217, 38 S t . R e p .
947; I n t h e Matter of M.R.L. ( 1 9 8 0 ) , - Mont. , 608
P.2d 134, 37 S t . R e p . 542; I n t h e Matter o f J.L.B. (1979),
Mont . , 594 P.2d 1 1 2 7 , 36 S t . R e p . 896. W affirm.
e
At the time the District Court made its dispositional
order in this matter, appellant and her children had been
involved with SRS for over three years. This was in fact
the second time SRS had sought temporary investigative
authority and protective services for appellant's children.
In March 1978 SRS received a telephone call from the Bozeman
Help Center reporting that appellant was disoriented and
unable to care for her children. With the aid of SRS,
appellant was hospitalized briefly for psychiatric treat-
ment, and under temporary court order the children were
placed in foster care for four months. When custody was
returned to appellant in July 1978, SRS was ordered to
continue monitoring the status of the home environment and
was to provide psychiatric care for appellant and daycare
for KA.
The second petition for temporary investigative
authority filed in October 1980 was precipitated by cul-
mination of events that led SRS to conclude that its
intervention was less than successful. SRS received reports
that KV was habitually tardy at school and that KA only
intermittently attended daycare. When KV attended school,
she was reported to be inadequately dressed, dirty and
socially immature; the Children's Development Center
forwarded similar reports regarding KA, noting particularly
that KA ofttimes sat in the corner by himself, rocking back
and forth with a blank look on his face. SRS also learned
that appellant's eviction from her apartment was imminent
because she was late in paying her rent, the apartment was
maintained in a filthy condition, and she had permitted the
children to throw broken furniture out the apartment
windows.
Although appellant now attempts to contest the
District Court's July 1, 1981, conclusion that KA was a
neglected child within the meaning of section 41-3-102(2),
MCA, it is of some note that appellant did not resist the
petition for temporary investigative authority which ini-
tially resulted in a November 14, 1980, declaration that KA
was a youth in need of care. As section 41-3-102(10), MCA,
defines "youth in need of care," the term includes youths
who are dependent, abused or neglected. If appellant
seriously believed that her acts or omissions had not or
would not harm KA's physical or mental health or welfare,
she should have immediately defended against SRS's October
1980 petition.
Additionally this Court notes that the allegations
contained in the February 1981 petition seeking permanent
custody are for the most part identical to the allegations
contained in the October 1980 petition, with the additional
allegation that appellant had since failed to cooperate with
SRS in establishing required parental skills programs. The
testimony received during the June 1981 dispositional
hearing simply substantiated each allegation with clear and
convincing evidence that KA was indeed neglected and that
prospects for remedying such neglect by maintaining
appellant's parental rights were dismal. A brief summary of
the testimony elicited during the June hearing will suffice
to show that the State met its burden and that the District
Court acted within its proper scope of discretion in
terminating appellant's rights.
Gala Goodwin, a social worker involved with appellant
and her children since July 1978, testified that in her
regular visits with the family over the last three years she
observed persistently deplorable conditions in several of
appellant's residences. She presented the court with photo-
graphs of appellant's most recent former residence. The
photographs were taken shortly before appellant was evicted
from the apartment and temporary investigative authority was
granted. The pictures showed garbage and dirt accumulation
throughout the apartment, filthy bath and kitchen fixtures
and appliances, a broken window, and inadequate sleeping
facilities for the children. Ms. Goodwin further testified
that appellant had been evicted from at least three rental
units since July 1978 because of the filthy condition of her
home.
Sherry Bersanti, neighbor of appellant from June
through October 1980, also testified as to the squalid
condition of appellant's home. Ms. Bersanti stated that the
apartment was filthy, strewn with cat feces and garbage, and
smelled terrible. Ms. Bersanti said she spent two days
helping appellant clean her apartment but that one month
later, after appellant had been evicted and Ms. Bersanti
returned to the apartment, she said she could not believe it
had been cleaned earlier.
Testimony regarding KA's physical and emotional
condition while in appellant's custody was also provided by
Ms. Goodwin and Ms. Bersanti. Ms. Goodwin stated KA was
very withdrawn and would either rock back and forth with his
arms about him or shake uncontrollably. She said he never
spoke during any of her visits with appellant and that he
was lethargic and very dirty. Ms. Bersanti said that KA was
a l w a y s d i r t y , c l a d i n t h e same s e t of c l o t h e s and b a r e f o o t ,
and t h a t he o f t e n t o l d h e r he was hungry and s h e would t h e n
g i v e h i m something t o e a t .
Ms. Goodwin further testified as to t h e change in
K A ' s c o n d i t i o n a f t e r he was p l a c e d i n f o s t e r c a r e . She s a i d
KA " i s now b r i g h t and a l e r t and c h a t t e r s a l l t h e t i m e . He's
clean, he's very i n t e l l i g e n t , he is v e r y a c t i v e , he r u n s ,
laughs, he is i n v o l v e d i n s c h o o l , he is i n v o l v e d w i t h h i s
f r i e n d s , he i s a v e r y normal t y p e boy."
The p s y c h o l o g i s t who e v a l u a t e d a p p e l l a n t i n F e b r u a r y
1981 d i a g n o s e d her as paranoid schizophrenic, "suffering
from a s e v e r e e m o t i o n a l d i s t u r b a n c e , t h a t was m a n i f e s t e d by
strong agitation, s e r i o u s ambivalence concerning her roles
a s a m o t h e r , and a p e r s o n . " H e s t a t e d she required a c t i v e
o u t p a t i e n t t h e r a p y and t h a t i t was h i s p r o f e s s i o n a l o p i n i o n
a p p e l l a n t l a c k e d t h e ongoing c a p a c i t y t o p r o v i d e l o n g - t e r m
care for KA. He s a i d h i s prognosis for returning KA to
a p p e l l a n t i n t h e f u t u r e was poor and t h a t KA would l i k e l y
s t a r t manifesting a u t i s t i c behavior again i f appellant
r e g a i n e d c u s t o d y of h e r c h i l d .
Appellant believes that it was improper for the
D i s t r i c t Court t o base i t s t e r m i n a t i o n d e c i s i o n on e v e n t s
which o c c u r r e d b e f o r e KA was a d j u d i c a t e d t o be a y o u t h in
need of care. A p p e l l a n t would require a showing by the
S t a t e t h a t t h e c i r c u m s t a n c e s and c o n d i t i o n s which p r e d a t e d
t h e a d j u d i c a t i o n c o n t i n u e d t o e x i s t a t t h e t i m e of t e r m i n a -
tion. While such a showing might be a p p r o p r i a t e i f SRS had
o n l y r e c e n t l y begun t o work w i t h t h e f a m i l y , i n a s i t u a t i o n
where t h e p a r e n t h a s been a s s i s t e d and m o n i t o r e d by SRS o v e r
a period of y e a r s and t h e f a m i l y e n v i r o n m e n t h a s n o t y e t
stabilized and perhaps even deteriorated, to require more
would beg for experimentation at the expense of the child's
best interests. See, e.g. In the Matter of M.R.L., supra.
Most certainly that is not what the law demanded in June
1981.
Even under the new law which now prescribes the
criteria that must be met before parental rights can be
terminated (see section 41-3-601 et seq., MCA), there is no
such circumscription of the evidence that the District Court
may properly consider. In fact the evidence adduced here
substantially conforms to that which is required under
section 41-3-609(c), MCA, viz., (1) SRS' previous interven-
tion and treatment program spanning three-plus years has not
been successful and (2) appellant's current mental condition
is such that it is unlikely she will be able to care for
KA's needs within a reasonable period of time. This Court
will require no more of the State nor the District Court
than to assure that the evidence supporting the District
Court's decision is clear and convincing.
Af f irmed.
We concur: