                                            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


                                                                                   2
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

                                                                                 3
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:




                                                                                 4
