                                           No. 04-026

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 23


IN THE MATTER OF A.R. and I.R.,

         Youths in Need of Care.



APPEAL FROM:           District Court of the Sixth Judicial District,
                       In and for the County of Park, Cause No. 01-26,
                       The Honorable Ted Mizner, Judge presiding.


COUNSEL OF RECORD:

                For Appellant:

                       Suzanne C. Marshall, Marshall Law Firm, P.C., Bozeman, Montana

                For Respondent:

                       Hon. Mike McGrath, Attorney General; Jim Wheelis,
                       Assistant Attorney General, Helena, Montana

                       Tara DePuy, Park County Attorney; Brett D. Linneweber, Deputy County
                       Attorney, Livingston, Montana


                                                    Submitted on Briefs: May 4, 2004

                                                               Decided: February 15, 2005

Filed:


                       __________________________________________
                                         Clerk
Justice John Warner delivered the Opinion of the Court.

¶1      Julie, the mother of A.R. and I.R., appeals from a Dispositional Order entered

November 17, 2003, in the District Court for the Sixth Judicial District, Park County,

granting long-term custody of A.R. and I.R. to the Department of Health and Human

Services (“Department”) and approving a permanency plan. We affirm.

¶2      We address the following issues on appeal:

¶3      1. Did the District Court err in finding that A.R. and I.R. were youths in need of

care?

¶4      2. Did the District Court exercise independent judgment when it adopted the

Department’s amended findings of fact and conclusions of law?

                 I. FACTUAL AND PROCEDURAL BACKGROUND

¶5      A.R. and I.R. are twin boys born April 4, 1995. Prior to these proceedings, the boys

lived with their mother, Julie, who was born June 15, 1957. Dan, the boys’ natural father,

was born on September 1, 1955. Julie and Dan were divorced on November 14, 2000.

¶6      Dan and Julie have three other children not subject to these proceedings.

¶7      On December 5, 2001, responding to a referral that Julie was abusing the boys, the

Department removed A.R. and I.R. from Julie’s home. On December 7, 2001, the

Department filed a petition seeking adjudication that the boys were youths in need of care

and requesting temporary legal custody of A.R. and I.R. The Department alleged that A.R.

and I.R. were youths in need of care because Julie psychologically abused them through

regular spankings or hitting and verbal and mental abuse; failed to provide them with proper

sustenance; failed to care for the youths when one was ill; failed to provide adequate housing


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by not providing the boys with a bed separate from their mother’s; and failed to provide the

boys with supervision.

¶8     A temporary legal custody hearing was held on February 1, 2002. At the hearing, the

Department presented expert testimony from a psychologist, Dr. Ned Tranel (“Dr. Tranel”),

who diagnosed Julie with bipolar disorder, and who concluded the boys showed symptoms

of reactive attachment disorder and hypervigilence, at least partially due to the volatile

behavior of their mother. The Department also presented testimony from a state social

worker, Stacey Jesson (“Jesson”), that the boys said their mother often hit them and

screamed at them calling them assholes and idiots. Jesson also testified that I.R. told her he

did not get much sleep because the boys slept in the same bed as their mother.

¶9     Julie presented evidence and testimony to rebut these allegations, including copies of

the boys’ medical records which stated the boys were in good physical health, and testimony

from Julie’s counselor that she was suffering from Post Traumatic Stress Disorder as a result

of her abusive marriage to Dan, rather than bipolarism, and it would be in the best interest

of the boys for them to be returned to the care of their mother.

¶10    On February 7, 2002, Julie moved to dismiss. The District Court denied the motion.

The parties submitted proposed findings of fact and conclusions of law and the guardian ad

litem filed his report and recommendation.

¶11    On March 14, 2002, the District Court filed its Findings of Fact, Conclusions of Law

and Order, granting temporary legal custody to the Department and denying Julie’s motion

to dismiss.

¶12    On May 14, 2002, the District Court filed a Dispositional Order granting temporary


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custody of A.R. and I.R. to the Department. Julie appealed.

¶13    On December 27, 2002, this Court decided Julie’s first appeal in this case, In re A.R.,

2002 MT 343N, 313 Mont. 424, 63 P.3d 514. We remanded for specific findings required

by § 41-3-437(7)(a), MCA, and affirmed the denial of Julie’s motion to dismiss.

¶14    On March 12, 2003, the District Court entered an order amending its findings and

conclusions of law. Julie appealed. This Court dismissed the appeal without prejudice.

The Department subsequently filed a proposed treatment plan and moved to extend

temporary legal custody of the children. After a hearing, the District Court entered an order

on November 17, 2003, granting the Department long-term custody of the children and

approving the permanency plan. This appeal followed. Additional facts are included as

necessary.

                             II. STANDARD OF REVIEW

¶15    In a youth in need of care proceeding, we review a district court’s findings of fact to

determine whether they are clearly erroneous. In re D.T.H., 2001 MT 138, ¶ 7, 305 Mont.

502, ¶ 7, 29 P.3d 1003, ¶ 7. A finding of fact is clearly erroneous if it is not supported by

substantial evidence, the court misapprehended the effect of the evidence, or a review of the

record leaves us with a definite and firm conviction that the court made a mistake. D.T.H.,

¶ 7. We review a district court’s conclusions of law to determine whether those conclusions

are correct. D.T.H., ¶ 7. When reviewing the adequacy of findings of fact and conclusions

of law, this Court examines whether they are sufficiently comprehensive and pertinent to

provide a basis for a decision and whether they are supported by substantial evidence. In re

Marriage of Nikolaisen (1993), 257 Mont 1, 5, 847 P.2d 287, 289.


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                                      III. DISCUSSION

                                          ISSUE ONE

¶16     Did the District Court err in finding that A.R. and I.R. were youths in need of

care?

¶17     Julie argues that the District Court erred when it found A.R. and I.R. were youths in

need of care without making a finding, supported by sufficient evidence and testimony, that

Julie had abused or neglected A.R. and I.R.; and without making specific findings with

respect to which allegations of the Department’s petition had been proved as required by §

41-3-437(7)(a), MCA.

¶18     With regards to her first allegation, Julie argues that other than the testimony of Dr.

Tranel, the Department offered no proof that A.R. and I.R. were abused or neglected.

Relying on In re Inquiry into B.S. (1992), 252 Mont. 435, 829 P.2d 939, Julie argues that

hearsay provides an insufficient basis on which to find a child is abused or neglected. Since

Dr. Tranel considered hearsay in diagnosing Julie and the boys, Julie argues the District

Court had insufficient evidence to conclude A.R. and I.R. are youths in need of care.

¶19     Julie further asserts the District Court erred in not citing specific acts or instances of

conduct which resulted in actual harm to the boys’ health or welfare. Relying on In re

Inquiry Into J.L., 2000 MT 289, 302 Mont. 254, 14 P.3d 473, Julie argues that the District

Court could not conclude A.R. and I.R. were youths in need of care unless it found that her

actions resulted in “substantial impairment” to the boys’ emotional ability to function.

According to Julie, since Dr. Tranel admitted Julie’s behavior was not the sole cause of the

boys’ hypervigilence and reactive attachment disorder, the District Court erred in making


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its determination that the boys were youths in need of care. We disagree.

¶20    In In re A.R., ¶ 11, this Court held that to sustain its conclusion of abuse and neglect,

the District Court was required to make “written findings as to which allegations of the

[Department’s] petition have been proved or admitted,” in accordance with § 41-3-437(7)(a),

MCA, and that a finding of abuse and neglect was required for the boys to be classified as

youths in need of care.

¶21    At issue here is whether there was sufficient credible evidence to support the District

Court’s finding that A.R. and I.R. are youths in need of care. A youth in need of care is a

youth who has been abused or neglected. Section 41-3-102(29), MCA. Abuse and neglect

is defined under § 41-3-102(7)(a), MCA:

       “Child abuse or neglect” means:
       (i) actual physical or psychological harm to a child;
       (ii) substantial risk of physical or psychological harm to a child; or
       (iii) abandonment.
       (b)(i) The term includes:
       (A) actual physical or psychological harm to a child or substantial risk of
       physical or psychological harm to a child by the acts or omissions of a person
       responsible for the child’s welfare . . . .

¶22    We conclude the record contains sufficient credible evidence to support the District

Court’s findings that A.R. and I.R. were abused and neglected and thus are youths in need

of care. Jesson testified that both A.R. and I.R. told her that Julie smacks them, and that she

sometimes calls them assholes and idiots. Additionally, I.R. told Jesson that he was tired

and did not get much sleep because both he and his brother sleep in the same bed as their

mother. Julie admitted to Jesson that the boys slept in the same bed as she. Further, Jesson

testified that on one occasion, she observed one of the boys wearing a gender-inappropriate

night shirt in spite of the fact that she had counseled Julie on gender issues such as providing

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the boys with gender appropriate toys. Jesson also testified that Julie’s behavior while

working with the Department ranged from cooperative to lashing out over minor issues.

¶23    Contrary to the inadmissible hearsay relied on by the District Court in B.S., 252 Mont.

at 436, 829 P.2d at 940, the opinions of Dr. Tranel, as an expert witness, are not

objectionable simply because they are based in part on hearsay, so long as the facts and data

relied on by Dr. Tranel were of the type typically relied on by experts in the field of

psychology. Rule 703, M.R.Evid. Dr. Tranel testified that Julie’s behavior had a negative

impact on the boys’ development, and it was his opinion that she should not have further

parenting responsibility for them. This Court has previously relied on a psychologist’s

opinion and conclusions derived from interviews and tests as substantial evidence supporting

termination of parental rights. In re K.C.H., 2003 MT 125, ¶ 21, 316 Mont. 13, ¶ 21, 68

P.3d 788, ¶ 21. Accordingly, the District Court did not err in relying on Dr. Tranel’s

testimony, even though it was based in part on hearsay.

¶24    Finally, the holding in the truly singular case, J.L., is not controlling here. J.L. was

decided under the 1997 child abuse and neglect statutes, which have since been substantially

amended. Additionally, the facts are distinguishable. Under the 1997 statutes, emotional

abuse could not be proved without evidence of “an identifiable and substantial impairment

of a child’s physical, mental, or emotional ability to function.” Section 41-3-102(8), MCA

(1997); J.L., ¶ 22. Accordingly, we held where no one, including the Department’s own

psychologist, or the District Court could determine whether the father caused the children’s

emotional injuries, or if the children suffered emotional injury from living with their

mentally ill mother prior to her death, we affirmed the District Court’s conclusion that there


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was insufficient proof that the father caused substantial impairment to the children’s

emotional ability to function, and the children were not youths in need of care. J.L., ¶¶ 23-

29.

¶25    Under the current version of the statute, psychological (emotional) abuse may be

proved by evidence of “acts or omissions that are injurious to the child’s emotional,

intellectual, or psychological capacity to function . . . .” Section 41-3-102(19)(a), MCA.

We conclude sufficient evidence was presented in this case through the testimony of Stacey

Jesson and Dr. Tranel to prove that Julie’s actions were injurious to A.R. and I.R.’s capacity

to function emotionally or psychologically. The District Court did not err in making this

determination under § 41-3-102(7)(a) and (19)(a), MCA.

¶26    Section 41-3-437(7)(i), MCA, requires a district court to make written findings on

which allegations of the petition have been proved. In its March 12, 2003, Order the District

Court incorporated a specific finding that the following allegations had been proved:

       [T]he birth mother has psychologically abused and/or neglected the youths
       through regular spankings or hitting, verbal and mental abuse, failing to
       provide adequate sustenance, failing to care for the youths when one is ill, and
       failure to provide adequate housing by failing to provide the youths a bed to
       sleep in apart from the mother.

We conclude that this finding is sufficient to meet the requirements of § 41-3-437(7)(a)(i),

MCA.

                                       ISSUE TWO

¶27    Did the District Court exercise independent judgment when it adopted the

Department’s amended findings of fact and conclusions of law?

¶28    Julie argues the District Court failed to exercise its independent fact finding judgment


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by adopting the Department’s proposed findings without substantial change.

¶29    While not error per se, this Court has stated district courts should not adopt verbatim

the findings of fact and conclusions of law of the prevailing party. Marriage of Nikolaisen,

257 Mont at 5, 847 P.2d at 289. The reason is that “error occurs when the court accepts one

party’s proposed findings of fact without proper consideration of the facts and where there

is a lack of independent judgment by the court.” In re Marriage of Kukes (1993), 258 Mont.

324, 328, 852 P.2d 655, 657.

¶30    Based on our review of the record, we find the District Court did not fail to exercise

independent judgment, nor did it adopt the Department’s findings verbatim. The District

Court’s findings of March 12, 2003, differ substantially from those originally proposed by

the Department on February 12, 2002. For example, as originally proposed, District Court

Finding No. 8 merely contained a statement that the District Court found Stacey Jesson’s

testimony credible that the boys had been abused and neglected and that the boys were

properly removed from Julie’s home. In the March 12, 2003, Order, the District Court

substantially expanded this finding to include evidence presented by Julie that the boys were

in good health and were performing well at school. The District Court further exercised its

independent judgment by making numerous other changes to the Department’s findings as

originally proposed, including deleting the Department’s proposed findings in reference to

a deposition taken of one of Julie’s adult children, which the District Court did not consider

in making its determination.

¶31    While it is true that in response to this Court’s December 27, 2002, Order, the District

Court merely added Finding No. 22, which included a statement as to which allegations of


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the Department’s petition had been proved, and added a clause to Conclusion of Law “E”

that the boys were abused and neglected, that is sufficient to satisfy our Order. As we

concluded in Issue 1, these findings are supported by substantial credible evidence. We do

not conclude the District Court’s findings are insufficient.

                                   IV. CONCLUSION

¶32    We affirm the District Court and hold it did not err in concluding A.R. and I.R. are

youths in need of care. We further hold the District Court did not fail to exercise its

independent judgment in reaching this conclusion.


                                           /S/ JOHN WARNER



We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER




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