Custody of Evans ( 1996 )

NO. 95-142
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE CUSTODY OF:
JESSICA EVANS, a minor child.
DAVE EVANS,
Respondent and Respondent.
APPEAL FROM: District court of the Twenty-first Judicial
District, In and for the County of Ravalli,
The Honorable Jeffrey Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dave D. Evans, pro se, Miles City, Montana
For Respondent:
Philip J. O'Connell, Missoula, Montana
Submitted on Briefs: January 11, 1996
Decided: February 6, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Dave Evans appeals a child custody decision of the Twenty-
first Judicial District Court, Ravalli County. We affirm.
Evans claims the District Court erred by failing to adopt the
recommendations in the custody evaluation by David Stube; by
ignoring the evidence of child abuse, substance abuse, and
violation of previous visitation orders; and by relying upon Cindy
Miller's custody recommendation.
Jessica Evans was born on February 11, 1993. Her parents,
Dave Evans and Kim Chavez, neither married nor lived together.
Since her birth, Jessica has lived with her mother. Evans has
visited Jessica for several days at a time.
In this action, Evans sought to have physical custody of
Jessica placed with himself and his wife, Linda. He claimed that
Chavez has physically abused Jessica.
The court ordered a home study and custody evaluation, and the
parties stipulated that licensed clinical counselor David Stube
would do the evaluation. Stube recommended in writing that Chavez
be granted physical custody initially, with an eventual alternating
custody arrangement. He recommended that both parents complete
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parenting training with Cindy Miller, a clinical psychologist, and
that Miller then monitor their progress. That recommendation was
followed.
Cindy Miller testified that she had met with both Chavez and
Evans and had observed an exchange of custody. She reported that
Jessica is well bonded to Chavez and less well bonded to Evans.
In its findings, the court set forth the results of the
custody evaluation and the recommendations of David Stube. It then
stated that it found Miller's testimony "the most insightful and
credible testimony presented." The court found that Chavez had
demonstrated a willingness to abide by the visitation schedule, and
that Evans had not fully utilized his visitation time. It found
that Evans' allegations of abuse had been investigated by local law
enforcement and the Department of Family Services but that there
was no record that either agency found any substance to the allega-
tions. The court found that Evans had failed to substantiate his
allegations that Chavez physically abused Jessica. It took notice
of both parents' recent criminal convictions for trafficking in
dangerous drugs. The court found that Jessica's best interests
would be served if she was placed in the joint care, custody and
control of her parents, with Chavez as her primary custodian.
Our standard of review is whether the findings of fact are
clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont.
216, 220-21, 875 P.2d 1018, 1021. The findings must be based upon
substantial credible evidence in the record, and the court's
decision will be upheld unless a clear abuse of discretion is
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shown. In re Marriage of Zuelke (Mont. 1995), _ P.2d _I _I
52 St.Rep. 1225, 1226. Where there is conflicting evidence, this
Court will not reweigh the evidence; the finder of fact (in this
case, the District Court) is in the best position to resolve
conflicting factual testimony. In re Marriage of Boyer (Mont.
1995), ____ P.2d _I _, 52 St.Rep. 1233, 1235.
After reviewing the record, we conclude that the court did not
err in relying heavily on Miller's opinion and in failing to adopt
in their entirety the custody recommendations in Stube's written
report. Further, the claims that the court ignored the evidence of
physical and substance abuse and problems with visitation are
refuted by the findings addressed to those issues. Those findings
are supported by substantial credible evidence in the record.
Evans has not shown the findings to be clearly erroneous. We
affirm the decision of the District Court.
y Chief Justice
We concur:
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