                                                    No. 84-360

                                   IN THE SUPREIm COURT OF THE STATE OF MONTANA
                                                        1985



IN THE MATTER OF INQUIRY
S.L.T., Youth in Need of Care.




APPEAL FROM:                        District Court of the Sixteenth Judicial District,
                                    In and for the County of Custer,
                                    The Honorable A. B. Martin, Judge presiding.


COUNSEL OF RECORD:

                For Appellant:

                                   George T. Radovich, Billings, Montana

                For Respondent:
                                   Hon. Mike Greely, Attorney General, Helena, Montana
                                   Keith D. Haker, County Attorney, Miles City, Montana
                                   J. Dennis Corbin, Deputy County Atty., Miles City



                                                    Submitted on Briefs:   Dec. 20, 1984
                                                                 Decided: March 28, 1985


         $, ,1 s:: \
         , -           :   *   \   $385
Filed:




                                                    Clerk
Mr. Justice L. C. Gulbrandson del.ivered the Opinion of the
Court.

      The parents of S.L.T.                appeal from an order of the
District Court of the Sixteenth Judicial Di-strict, Custer
County, Montana,         the    Honorable      A.     B.    Martin   presiding,
finding    that    S.L.T.       is    an    abused    and     neglected    child;
granting temporary custody of S.L.T.                   to the Custer County
Department of Public Welfare; and requiring that S.L.T. and
her parents       follow a treatment plan               submitted by       Custer
County Department of Public Welfare and adopted by the court.
We affirm.
      In August 1983, S.L.T., a fifteen year old, was stopped
by a police officer and taken into custody for unauthorized
use of a vehicle.          She told the officer that she needed the
car in order to get to the bus depot and leave town.                         Her
reasons for wanting to leave were that she was creating a
problem between her adoptive father, J.T.                     and her mother,
L.T., and that she had been sexually abused by J.T.
      S.L.T. was placed under the supervision of Juvenile
Probation and, with her parents' consent, was sent to the
Youth Evaluation Program in Great Falls, Cascade County,
Montana.        During    her     interviews there           she revealed    the
details    of    her     sexual      abuse.     The        Great   Falls   Police
Department also took a statement from her about the abuse at
the request of Cascade County Child Protective Services.                     The
interview reports and             the      statement of       the police were
forwarded to Custer County Welfare Office and formed the
basis for a Petition for Temporary Investigative Authority
filed on September 21, 1983.
      Several instances of sexual abuse were alleged in the
interview reports and statements.              These occurred when S.L.T.
accompanied her father on business trips.                    They slept in the
same motel room and the same bed.                    J.T. molested S.L.T.     by
fondling her breasts and rubbing the inside of her thighs.
The mother permitted S.L.T. to accompany the father on these
trips and miss school because of her inability to control
S.L.T.    and her disbelief that such activity would occur.
         As a result of the petition, the District Court signed
an Order for Protective Services and Order to Show Cause on
September       21,     1983.        The   order    gave    the   Custer     County
Department of Public Welfare authority to place S.L.T.                             in
temporary care, to require S.L.T.                   and her parents to have
medical        and/or     psychological          evaluations          and   receive
counseling, and the right of entry by a peace officer or
social worker.           The order also appointed Joe L. Hegel, an
attorney, as counsel and guardian ad litem for S.L.T.                       and set
a hearing for October 3, 1983.
         Following       the    hearing,      the   District      Court     granted
temporary investigative authority and custody of S.L.T.                            to
Custer County for a period of six months.                         This order was
issued October 11, 1983 and based on a finding that S.L.T.
was in danqer of being abused and neglected.                           Four months
later J.T. and L.T. moved for a new hearing on the custody of
S.L.T.     The motion was denied after a hearing on March 19,
1984 on the grounds that it was premature.                      At this time the
District Court also ordered                   that S.L.T.       and   her parents
undergo an evaluation by a psychologist and a psychiatrist as

part of the investigation by Custer County.                       This order was
entered on the basis of an agreement by the parties.
         S.L.T.   received her evaluation but her parents did not
appear for their appointment.                  On April 2, 1984, the judge
issued an order to show cause why J.T. and L.T. should not be
found     in    contempt       for    their    failure     to   appear      for   the
appointment and scheduled a hearing for April 23, 1984.                           This
failure to appear also prompted the county attorney's office
to file a petition for temporary legal custody of S.L.T.
since the order for temporary investigative authority was to
expire on April 11, 1.984.
        At the contempt hea.ring on April 23, 1984, J.T. and
L.T.    requested    that   the   contempt   proceeding   be   vacated
because they were not notified of the appointment.               Their
attorney stated that he had not advised them because he could
not reach them.      The judge issued a notice granting J.T. and
L.T.    time to reschedule their evaluations.           On April 27,
1984, J.T. and L.T. filed a motion for substitution of judge.
The motion was denied as untimely on April 30, 1984.
        J.T. appeared for his evaluation as scheduled on May 2,
1984.     However, the psychol.ogist reported in a letter to the
court that no evaluation was possible.           To use the doctor's
words :
                "Due to [J.T.'s] extreme defensiveness,
                threats to sue everyone involved in this
                case, including this psychologist, and
                his   unwillingness   to   complete  the
                required testing in a necessary fashion,
                it is my conclusion that no valid
                psychological    evaluation     can   be
                accomplished at this time."
        The hearing on the petition of temporary legal custody
of S.L.T. was held. on May 21, 1984.         The State of Montana was
represented by a Custer County Deputy Attorney, S .L.T. was
present and represented by her counsel and guardian ad litem
and J.T. and L.T. were present and represented by counsel.
        The Judge concluded from the evidence presented that
S.L.T. was an abused and neglected child and should be placed
in the temporary custody of Custer County Welfare Department.
for    six months.      In addition, the       judge incorporated a
treatment plan designed by Custer County Welfare Department
into the order that set out steps to help re-establish the
parent/child    relationship.       The   findings and    conclusions
issued on June 15, 1984 are the subject of this appeal by
J.T. and L.T.
        The issues raised by appellants are:
        (I.) Did the District Court err in finding S.L.T. was an
abused a.nd neglected child?
        (2) Did the District Court err in awarding custody to
Custer County Department of Public Welfare and in requiring
that S.L.T., J.T. and L.T. follow a treatment plan set up by
that d.epartment?
        (3) Did the District Court incorrectly deny appellantst
motion to disqualify Jud.ge Martin?
        This    Court     will    not   overturn   a   district    court's
decision in an abuse and neglect action unless there is a
mistake of law or a finding of fact not supported by credible
evidence that would amount to a clear abuse of discretion.
Matter of C.M.S.          (1979), 187 Mont. 115, 121, 609 P.2d 240,
243, citing In re G., Youths in Need of Care (1977), 174
Mont. 321, 325, 570 P.2d 1110, 1112.               The findings in this
case are amply supported by the record and no mistake of law
was made.      S.L.T.'s    allegations of sexual abuse were believed
to be truthful by all authorities who interviewed her and a
psychological evaluation indicated that S.L.T. exhibited the
characteristics of a sexual-Ly abused child and that she did
not exhibit the synptoms found in individuals most likely to
make    such false allegations.           This, along with        S.L.T.'s
testimony, is sufficiently clear evidence to support the
findings of the trial court.
        Section 41-3-404, MCA, gives the trial court authority
to   order any      of    the    forms of relief listed. in        section
41-3-403(2), MCA, once the court determines that the youth is
abused, neglected or dependent.              The relief that may be
ordered includes right of entry by a peace officer or social
services worker; medical and psychological eva.luation of the
youth    or    parents;     counseling   services for the youth or
parents; placement of the youth in a facility for protection;
other ser~~ices be furnished to the vouth by the parents,
              to
guardian or custodian; and any other temporary disposition as
may be required in the best interest of the youth.                            In this
case, the         trial    judge     found that          S.L.T.    should not be
returned home under the present circumstances and should
remain     in     the   foster home         where        she was     responding to
control.          In addition, the judge ordered S.L.T.                     and her
parents to follow a treatment plan submitted by the county
welfare department.           The treatment plan had a stated goal of
re-establishing the parentlchild relationship and required
S.L.T.'s        parents     to    attend     counseling       sessions        and    to
cooperate in receiving full psychological evaluations.                              The
plan     also     required       L.T.,      the    mother,    to     keep     regular
appointments with a social worker and required L.T. and J.T.
to present the other children for an appointment at the
mental health center.             Clearly, these are within the forms of
relief     the     judge    can order under              sections 41-3-403 and
41-3-404, MCA.          Thus the trial judge committed no error in
ordering this relief.
         Appellants contend that the treatment plan requires
J.T.     to admit guilt and that the welfare department has
denied them contact with S.L.T.                          These contentions are
without merit.          One treatment goal seeks to reduce J.T.'s and
L.T.'s     denial of problems within their family and become
informed        about      sexual        abuse     and     another     goal     seeks
evaluations of J.T.              and L.T.         There is no requirement of
admitting guilt, only of recognizing that there are problems
within the family unit.
         As to appellants being denied contact with S.L.T.,                         the
record does not indicate they ever acknowledged the existence
of     S.L.T.'s     guardian        ad    litem     and    counsel, much            less
contacted        him    about      arranging        a    meeting.       Appellants
apparently did not give him notice of motions or appeals
filed and did not acknowledge his representative capacity in
any documents.           He was appointed by the court in September
1983 to serve on her behalf and appellants zre obligated to
deal with him rather than representatives of the county to
request and arrange contact.
      Appellants         made     one    additional         contention   that    is
meritless.          Section       41-3-202,          MCA     requires    that    an
investigation be conducted by the county attorney, a peace
officer or a social worker upon receipt of a report of abuse
or neglect.        The appellants contend that because the social
worker     did     not    visit    the        home    the     investigation     was
inadequate and presumably, that the orders made                          in this
matter     should be       vacated.           The    record    is replete with
instances where J.T.         and L.T. refused to cooperate with the
welfare department.          The investigation conducted covered all
relevant and necessary matters as far as possible given their
hostility and lack of cooperation.                    This Court will not hear
appellants '     complaint that              the    information missing       as a
result of their actions should be fatal to these proceedings.
      We find that the District Court did not err in awarding
custody of S.L.T.         to Custer County and in ordering S.L.T.,
J.T. and L.T. to follow a treatment plan.                     The court acted on
findings supported by the evidence on the sexual abuse and
other problems present in the family.                       The court considered
the results of an investigation by the police department and
the   information provided              by    others who       investigated the
problem.    Appellants' contentions regarding the basis of this
judgment are meritless.
      The final issue concerns the motion to disqualify Judge
Martin     filed    by     appellants          on    April    30,   1984.       The
controlling statute on this issue, section 3-1-802, MCA,
states:
               "Whenever a judge is assigned a case for
               ten consecutive days and the attorneys of
               record on both sides have knowledge of
               the assignment for that period of time,
               and if during this time no motion for
               substitution of a judge is filed against
               him, all rights to move for substitution
               of a judge shall be deemed waived by all
               parties, unless the presiding judge
               disqualifies himself thereafter in which
               case the right to move for substitution
               of a judge is reinstated and the ten-day
               period starts running anew."    (Emphasis
               added. )
This   case was   initiated   on   September   20,   1983, with   a
petition for temporary investigative a.uthority filed by the
Custer County Attorney's Office.       The initial pleadings at
that time reflected that the case had been assigned to Judge
Martin.      Even assuming the petition    for temporary legal
custody filed April 11, 1984 was the start of a new case, the
motion to disqualify made on April 27, 1984 is well past the
ten-day time limit of section 3-1-802, MCA.           Judge Martin
properly denied the motion as not timely filed.
       The decision of the District Court is here



                                                                      \




We concur:
  n
