                                            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:
