                                             No.    88-214

                   I N THE SUPREME COURT O THE STATE OF MONTANA
                                          F

                                                   1989




I N THE MATTER O    F
C . C . , Youth i n Need o f C a r e .




APPEAL FROM:         ~ i s t r i c t ourt of Eighth ~ u d i c i a l i s t r i c t ,
                                   C                              ~
                     I n a n d f o r t h e County o f C a s c a d e ,
                     The H o n o r a b l e J o e l G . R o t h , J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

              For Appellant:

                     J o h n ~ e i t h ,Great F a l l s , Montana

              For Respondent:

                     Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
                     Kathy S e e l e y , A s s t . A t t 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 , County A t t o r n e y ; Tammy P l u b e l l ,
                     Deputy County A t t y . , G r e a t F a l l s , Montana
                     A n t o n i a M a r r a , ( f o r c h i l d ) , G r e a t F a l l s , Montana
                     E. J u n e L o r d , ( f o r f a t h e r ) , G r e a t F a l l s , Montana



                                                   S u b m i t t e d on B r i e f s :   March 3 1 ,   1989

                                                      Decided:         M a Y 2,    1989
         I-n
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F i l e d;
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                                                   Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
        The Youth Court, Eighth Judicial District, determined C.C. to
be a youth in need of care. C.C. was removed from her mother's
 (K.C. Is) home pursuant to a petition for temporary custody filed
by the Department of Social and Rehabilitation Services (SRS) (now
Department of Family Services) . Later C.C. was taken out of foster
care and, after a dispositional hearing, she was placed in the
custody of her natural father, B.C. Additionally, K.C. was ordered
to pay monthly child support to the youth's father.
        The mother appeals. The respondents are the State of Montana
on behalf of the Department of Family Services (Department), the
youth, and the father.
        The three issues on appeal are stated by the mother as
follows:
         (1) Did the Youth Court err by transferring custody of C.C.
because it had no jurisdiction to do so;
         (2) Did the Youth Court err in awarding child support payments
to the father;
        (3) Did the Department of Family Services act arbitrarily in
making its recommendation to the court.
        We affirm the custody award and reverse the child support
award. The third issue is without merit.
        C.C. is a nine-year-old caucasian female. She first came to
the attention of SRS in the spring of 1985 when it was reported
that C.C. was left at home alone after preschool every day until
5 : 0 0 p.m. when her mother returned home from work. C.C. was just
six years old at the time.          C.C. was then living in the sole
custody of her mother and had been since her parents divorced when
she was an infant. Her mother was employed as a phone receptionist
at a local business and, in fact, was not providing any supervision
of C.C. while the mother was at work.
     After being contacted by SRS and advised that this was
unacceptable supervision of a minor of C.C.'s young age, K.C.
placed C.C. in an SRS-approved daycare at county expense. However,
K.C. was defensive and not open to the suggestions of SRS. She was
resentful of their interference and told them of her financial
inability to provide daycare for C.C.         K.C. denied that the
previous arrangements she had made for C. C. were harmful to her and
explained that she had obtained a large dog to keep C.C. company
and that she had instructed her to go to the neighbor's if she were
frightened. Further, C.C. and K.C. had a phone-calling system of
daily check-in calls.
     C.C. continued in daycare until the next fall, but then was
removed by her mother. Her mother again had the child walk home
alone from school and remain in the family home alone until the
mother returned from work each evening.
     C.C. came to the attention of SRS again in March of 1986 when
it was reported that C.C. had multiple deep purple bruises on her
buttocks from a severe spanking inflicted by her mother.          At
roughly the same time, C.C. showed a social worker a bump on her
head and bleeding gums she had from her mother harshly brushing her
teeth as discipline.
     This information was outlined in the affidavit filed by SRS
in support of its petition seeking temporary custody of C.C. and
an investigation. Hearing on that petition was held April 4, 1986,
and the Youth Court determined C.C. to be a youth in need of care.
She was removed from the temporary receiving home in which she had
been staying since the petition was filed and was then placed in
a foster home. Foster care continued for about a year. The mother
exercised visitation of C.C. throughout these proceedings.
     To make a final disposition, the court ordered an
investigation and psychological studies. Psychological evaluations
of all parties and home studies of each parent were conducted in
the months that followed the original hearing.
     The dispositional hearing, which was continued a number of
times, began January 8, 1988, and concluded on January 22, 1988.
Testimony at trial was undisputed that C.C. had emotional problems
that manifested themselves in peculiar behavior.          C.C. was
extremely afraid to get dirty for fear of being disciplined. She
would not play with other children or with toys in order to keep
clean. She had trouble completing homework at school, for fear of
making a mistake and being disciplined. At the same time, C.C.
exhibited some surprising social skills. Although shy and fearful
at some times, she became quite talkative at other times and always
responded positively to outside nurturing. C.C. impressed everyone
as a bright and alert child.
     Dr. Kuka, a clinical psychologist, testified at trial as
C.C.Is therapist. He relayed many instances of psychological abuse
of C.C. by K.C. in addition to the limited physical abuse. C.C.
had an older sister, Brenda, who died of cancer. K.C. compared
C.C. to Brenda on many occasions in a harsh and detrimental
fashion: telling her to behave or she would be in the grave with
her dead sister; telling her that she was not as pretty or well-
behaved as Brenda. K.C. also instructed C.C. never to get out of
bed at night or the Itmonsters from under the bed would get her."
This terrified her greatly, which led to severe nightmares,
headaches, and crying fits.
     Dr. Kuka testified that C.C. should not live with K.C. until
K.C. could recognize the effect her actions had on C.C. K.C. could
not admit that this conduct was harmful to or abusive of C.C. K.C.
was defensive and consistently denied responsibility for her
actions. At one point, she told Dr. Kuka that it was C.C.'s fault
and that C.C. forced K. C. to behave that way. Dr. Kuka recommended
that K.C. continue her own psychotherapy program, to continue
visitation of C.C. to foster trust and abate the fear in that
relationship, and that permanent custody be transferred away from
the mother.
      Dr. Rushworth, a clinical psychologist, testified at trial as
K. C. s therapist.    She testified to K. C. Is progress in the two
years since the case began, but expressed reservations about K.C.
having custody. Dr. Rushworth ultimately could not recommend that
K.C. have custody at that time.
      All experts at trial testified that a final disposition of
this case would be to C.C.'s benefit. She had been in foster care
for a year and had since been living with her father on a "tempor-
ary" basis, which had continued for several months. Stability for
C.C. and knowing definitely where she would be living permanently
were stressed at trial as being in C.C.'s best interest.
      B.C., C.C. Is natural father, lived in a different city when
these proceedings began and had little contact with C.C. from the
time of her birth until the time he became aware of her circum-
stances.    However, B.C. had always provided for the financial
support of C.C. and moved to the same city as K.C. during the
proceedings.
      B.C. testified at trial that he had never been the custodial
parent of C.C. and that he hesitated earlier to do so because of
his lack of parenting skills. Over the course of the proceedings,
however, B.C. sought advice on parenting and began exercising
visitation and custody of C.C. He testified that he now wanted
custody of C.C., was comfortable in parenting her, and would allow
visitation with the mother.
      Home study of B.C. as conducted by the Department showed that
B.C. had adequate parenting skills; no abusive tendencies; no
history of abusive behavior; no alcohol or chemical dependency or
tendency for same.     The Department concluded that B.C. could
receive and care for the youth and recommended to the court in its
report and by oral testimony in court that B.C. be awarded custody
of C.C.
     The Youth Court awarded custody to B.C., awarded him child
support and allowed visitation by K.C. K.C.'s parental rights were
not terminated. K.C. appeals that judgment and order.
     I. Jurisdiction
     Appellant's first challenge to the Youth Court order is that
the court erred in transferring permanent custody because it had
no jurisdiction to do so. Sole jurisdiction, the mother argues,
for that type of action lies exclusively with the district court
which originally dissolved the marriage and awarded sole custody
to her. (The parties were divorced in Fort Benton less than one
year after they married.) She claims that a transfer of custody
can only be made by that court, on affidavit, after a change of
circumstance, pursuant to the family law statutes set out in 4 0 - 4 -
219 et seq., MCA. We do not agree.
     The Youth Court is created and governed by statute in Montana.
However, because this case does not involve a youth charged with
a violation of law, it is not within the Youth Court Act, section
41-5-101 et seq., MCA. Actions brought under that Act are within
the exclusive jurisdiction of the Youth Court.
     Rather, in this case, the Youth Court and the District Court
have concurrent jurisdiction.
     Section 41-3-103, MCA, reads in pertinent part:
          (1) In all matters arising under this chapter,
          the Youth Court shall have concurrent juris-
          diction with the district court over:
          (a) all youths who are within the state of
          Montana for any purpose;
          (c) any person who is alleged to have abused,
          neglected, or caused the dependency of a youth
          who is in the state of Montana for any pur-
          pose.
Thus, the Youth Court had jurisdiction over C.C. and K.C. and any
challenge to that jurisdiction is unfounded.
     Once a child such as C.C. has been determined to be a youth
in need of care, the Youth Court has many options. The award of
custody to B.C. is statutorily provided for in section 41-3-406,
MCA. That section provides:
          If a youth is found to be abused, neglected,
          or dependent under 41-3-404, the court after
          the dispositional hearing may enter its judg-
          ment making any of the following dispositions
          to protect the welfare of the youth:
          (1) permit the youth to remain with his
          parents or guardian subject to those condi-
          tions and limitations the court may prescribe;


          (3) transfer legal custody to ...   a relative
          or other individual who, after study by a
          social service agency designated by the court,
          is found by the court to be qualified to
          receive and care for the youth[.]
     The Youth Court properly took in testimony that B.C. was
qualified to receive and care for C.C. The findings made by the
court are based on the substantial credible evidence of the experts
and of B.C. The transfer of custody was lawful under this statute
and no challenge to that transfer can be sustained. The court is
affirmed on that issue.
     Appellant contends that affirming the Youth Court on that
issue would encourage parties who were not successful in obtaining
custody pursuant to the family law statutes to try again to get
custody through a Youth Court proceeding. That argument has no
merit. We note only that this was not a custody battle between two
parents.   Rather, this action was instituted by the State of
Montana when a petition for temporary custody was brought by SRS
to protect C.C.    The natural father later was apprised of the
continued abuse and neglect of his child by his ex-wife. After
being investigated and interviewed over many months, the court
determined the father to be a qualified person to receive and care
for the youth as provided by the statutes and ordered that legal
custody be transferred to the father for the welfare of the child.
That transfer of custody was lawful, was made to protect the
welfare of the child and will not be overturned.
     11. Child Support
     The court erroneously awarded child support to B.C.       That
portion of the Youth Court order is reversed.
     Child support in Montana is awarded only after the trial court
considers I1all relevant factorsI1 pursuant to section 40-4-204(1),
MCA. Such factors include, but are not limited to,
     (a) the financial resources of the child;
     (b) the financial resources      of   the   custodial
         parent ;
     (c) the standard of living the child would have
         enjoyed had the marriage not been dissolved;
     (d) the physical and emotional condition of the
         child and his education needs;
     (e) the financial resources and needs of the
         noncustodial parents   ...
Additionally, in order to award an equitable amount, the court must
consider the formula set forth in In Re Marriage of Carlson (Mont.
1984), 214 Mont. 209, 693 P.2d 496. There is no record that the
trial judge considered either the factors in section 40-4-204 (1)
or the Carlson formula, except to note that the father had just
started a new business and that the mother was employed as a
receptionist.
     Where there is insufficient evidence to support a finding that
child support is necessary, there has been an abuse of discretion.
See for discussion, In re the Marriage of Keel (Mont. 1986), 726
P.2d 812, 43 St.Rep. 1742. There is insufficient evidence in this
case. The child support award is reversed.
     It should be noted here that B.C. did not request an award of
child support. If, in fact, he is financially in need of child
support from his ex-wife, he could petition the proper forum at a
later date and put forth evidence of the factors listed herein.
     Lastly, K.C. contends that the Department acted arbitrarily
in its recommendation to the court regarding custody of C.C. K.C.
bases that allegation on her suspicion that the Department had been
following her and just wanted a reason to take her child away. She
states that the Department acted arbitrarily in recommending she
not have custody because they did not recognize the progress she
had made with Dr. Rushworth during the months of therapy. Rather,
they had already made their minds up months ago that K.C. should
lose custody of her child, K.C. argues. That argument is without
merit.
     The only proper question for review that K.C. could pose to
this Court on appeal is whether the Youth Court acted arbitrarily
in following the recommendation of the Department. We have already
held that the custody award was both lawful and supported by the
substantial credible evidence in this record. We will not discuss
further challenges to the custody award.
     The custody award to B.C. is a
child support is reversed.
We concur:
