                                                  NO.    85-230

                       I N T H E SUPREME COURT O F THE S T A T E O F MONTANA

                                                        1986




I N T H E MATTER OF:
B.T.,      B.T.,   M.T. & M . T . ,
Y o u t h s i n N e e d of C a r e .




APPEAL FROM:             D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
                         I n and f o r t h e C o u n t y of C a s c a d e ,
                         T h e H o n o r a b l e T h o m a s M c K i t t r i c k , Judge p r e s i d i n g .


COUNSEL O F RECORD:


           For A p p e l l - a n t :

                         N a n c y M.   B e l c h e f f , G r e a t Falls, Montana


           For Respondent:

                         H o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                         Joe R. R o b e r t s , A s s t . A t t o r n e y G e n e r a l , H e l e n a
                         P a t r i c k L. P a u l , C o u n t y A t t o r n e y , G r e a t F a l l s , M o n t a n a




                                                        S u b m i t t e d on B r i e f s :   July 17, 1986

                                                           Decided:        S e p t e m b e r 18, 1 9 8 6


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Filed.:
                skk        :.   :986




                                                        Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.


     This is an appeal from the order of the District Court
modifying the custody of appellant's four minor children.            We
affirm the District Court.
     Appellant    and   his    ex-wife   are the parents of         four
children, two boys and two girls ages 9 to 14 years.                The
appellant and his ex-wife were divorced in October, 1981, and
appellant was awarded custody of the children.            The mother of
the children was not represented by counsel at the divorce
and did not ask for custody at that time since she was
uncertain of her plans and ability to support the children.
     In August, 1982, the two daughters were removed from
their father's custody by court order following allegations
of sexual abuse by him against the girls.                The girls were
temporarily   placed      in     the     custody    of     Social   and
Rehabilitation Services (SRS), and later placed with their
mother.   The two boys remained in their father's custody
until the District Court's final order modifying the custody
of all four children from their father to their mother in
December, 1984.
     From the record below, it appears that two separate
actions were merged into one proceeding.           Initially, Cascade
County and SRS had petitioned for temporary investigative
authority and temporary custody of the two girls, and the
mother had instigated proceedings to modify the 1981 custody
decree a.s to all four children.         During the March 16, 1983
hearing, a motion was granted to appoint an attorney for all
four children in conjunction with the custody modification.
At the May 14, 1984 hearing, from which the trial court's
final order was issued, the court was prepared to review its
previous temporary custody orders, to receive psychological
evaluations of          the    parties,      and    to     review the mother's
petition for change of custody of the four children.
        The District Court found that circumstances had arisen
since the prior divorce decree which were unknown to the
court at that time indicating that the children's continued
residence      with     their    father       seriously         endangered     their
physical, mental, moral or emotional health.                      The court based
its finding on two psychologists' testimony that the boys had
observed their father tickling their sisters between the
I-egs, and that the boys were at a high risk to begin acting
out     sexually.       The     court    also      found     it     to be    in the
children's best interests to reside together in one home.
Appellant was ordered to pay the children's mother $100 per
month    per    child    as child        support and to turn over the
children's clothes and personal belongings.                         His visitation
of the children was to be supervised by SRS.
        The    appellant       contends      his         parental    rights     were
improperly terminated under             §§   41-3-401 and 402, MCA.            Those
sections       govern    the    procedure          for    abuse,     neglect,    and
dependency       proceedings.            However,         the     District    Court
proceeded under the statute governing custody modification, 5
40-4-219, MCA, and never conducted an abuse and neglect
dispositional hearing            or     terminated        appellant's       parental
rights.        The court opened the May                   14 hearing under the
caption of the divorce cause.                 The court's conclusion that
the children were "youths in need of care" was mooted by its
order for custody modification.               The statutory procedure for
terminating parental rights is specific and exclusive, and
must be strictly followed.               In the Matter of Aschenbrenner
(1979), 182 Mont.        540, 553, 597 P.2d        1156, 1164; In re
Marriage of Schultz (1979), 184 Mont. 245, 247, 602 P.2d 595,
596.    The District Court did not follow the statutory scheme
for abuse and neglect since it did not reach the issue of
terminating appellant's parental rights.
       The District Court's jurisdiction over matters of child
custody is of a continuing nature.          In re Custody of Dumont,
(Mont. 1985),      700   P.2d    167, 169,      42 St.Rep.   687, 689;
Gianotti v. McCracken (1977), 174 Mont. 209, 213, 569 P.2d
929, 931; Foss v. Leifer (1976), 170 Mont. 97, 100, 550 ~ . 2 d
1309, 1311.       To establish its jurisdiction in a custody
proceeding, the court must find the elements of 5 40-4-219,
MCA, present:
       Modification. (1) The court may in its discretion
       modify a prior custody decree if it finds, upon the
       basis of facts that have arisen since the prior
       decree or that were unknown to the court at the
       time of entry of the prior decree, that a change
       has occurred in the circumstances of the child or
       his custodian and that the modification is
       necessary to serve the best interest of the child
       and if it further finds that:


       (c) the child's present environment endangers
       seriously his physical, mental, moral, or emotional
       health and the harm likely to be caused by a change
       of environment is outweighed by its advantages to
       him;  .. .
       In this instance, the District Court discovered the
allegations of sexual abuse one year after the divorce decree
was entered.      The evidence of sexual abuse from statements
made   by   the   children, and      the   risk of    the appellant's
sexually abusive behavior continuing or escalating were a
sufficient     change    of     circumstances    to   give   the   court
jurisdiction in the matter.
       The findings and conclusions of the court will not be
disturbed if supported by substantial, credible evidence.            In
Re Marriage of Sarsfield (Mont. 1983), 671 P.2d 595, 599, 40
St.Rep.    1736, 1739.        Testimony of both the mental health
nurse     and   the   psychiatrist who    talked    to   the     children
indicated that the two girls had been touched by their father
in the vaginal area.          One of the boys told the psychologist
that a man had. touched him between the legs, but the boy
would     not   say who.      Appellant admitted to tickling his
daughters but did not see anything wrong with tickling them
on any part of their bodies.          A psychological evaluation of
appellant by an expert in the field of sex offenders found
him to be a pedophile and very rigid in his thinking--a
person who projected. blame for his problems onto others.              The
court found this evidence, plus the evidence that the boys
had observed their father's sexual abuse of their sisters,
constituted serious endangerment which required a change of
custody from father to mother.
     Appellant agrees that the statutes grant the District
Court the       ability to make      a determination of abuse and
neglect as to all children in a family based upon the policy
that abuse of one child. may have a detrimental effect on the
other     children's development.        In the Matter         of T.Y.K.
(1979), 183 Mont. 91, 95-96, 598 P.2d 593, 596.                 Here, the
District Court        found   substantial, credible evidence that
appellant's      behavior     was   detrimental    not   only     to   his
daughters, but also to his sons in that they also were at a
high risk to begin acting out sexually.            This potential for
the boys' actions, and the probability of continued sexual
abuse of the girls by appellant was sufficient substantial,
credible evidence to support the trial court's modification
of the custody degree.          In Re Marriage of Sarsfield (Mont.
1983), 671 P.2d 595, 602, 40 St.Rep. 1736, 1743.
        Lastly, appellant contends his right to counsel was
denied by     the     failure of the District Court to appoint
replacement     counsel     immediately        once   appellant's      first
attorney withdrew         from   the   case.     Appellant argues the
District Court should have informed him of his right to
appointed counsel. and should have declared a recess until he
had secured appointed counsel.
        Appellant's    argument    is without merit.         The    record
indicates that the District Court questioned appellant on his
wish to proceed pro se after his counsel withdrew at the
March    16, 1983 hearing.         The court informed him of the
problem with proceeding on his own insofar as he could not
cross-examine two little girls who might testify in chambers,
since his presence would hinder the children's testimony.
The court informed him that if the children testified in
chambers out of his presence, he would be provided with a
transcript of       the   testimony.      Appellant     agreed    to   this
arrangement.
        At the end of the hearing, the court again advised
appellant to seek counsel since he could lose his parental
rights if SRS pressed its abuse and neglect claim.               The court
then furnished him with the name of an attorney to contact
for legal aid.        New counsel was appointed for him within one
week.
        Appellant also argues that he was not able to properly
cross-examine two witnesses, Irene Johnson, a social worker,
and his ex-wife.       However, both witnesses were cross-examined
on two other occasions by appellant's attorneys.             Ms. Johnson
was cross-examined in December, 1982, and May, 1984; his
ex-wife was cross-examined twice in May, 1984.             At both times
the cross-examination was conducted by appellant's attorney.
Finally, the two girls did not testify at the March 16, 1983
hearing.     They did not testify until March 25, 1983, at which
time appellant's new counsel was present to cross-examine
them.   For the above reasons, we find that the District Court
did not err in failing to appoint counsel for appellant at
the March 16 hearing, or in not declaring a recess.
     Based on the foregoing evidence, we find the record
contains     substantial   credible   evidence   to   support   the
findings and order of the trial court and, therefore, the
order modifying the custody of the children is affirmed.




We Concur:
