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                                                               No. 99-445


                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 289

                                                             302 Mont. 254

                                                               14 P.3d 473

                                           IN THE MATTER OF INQUIRY INTO

                                                             J.L. and D.L.,

                                                      Youths in Need of Care.

                            APPEAL FROM: District Court of the Tenth Judicial District,

                                                 In and for the County of Fergus,

                                  The Honorable John R. Christensen, Judge presiding.



                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                           Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

                                       Assistant Attorney General; Helena, Montana

                       Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana

                                                           For Respondents:

                                Damon L. Gannett, Attorney at Law, Billings, Montana

                       (Respondents Martha Meador Smith and Terry and Carolyn Goerger)

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                                 Mariah Eastman, Attorney at Law, Lewistown, Montana

                    (Respondents John C. Lawhead, Jr. and Marion and John C. Lawhead, Sr.)

                                               Submitted on Briefs: April 20, 2000
                                                  Decided: November 16, 2000

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



Justice Terry N. Trieweiler delivered the opinion of the Court.

¶`1 The Department of Public Health and Human Services (DPHHS) brought this action in
the District Court for the Tenth Judicial District in Fergus County for Temporary
Investigative Authority (TIA) and Temporary Legal Custody (TLC) of J.L. and D.L.,
whose father, John, pled guilty to the negligent homicide of their mother, Nancy. John
stipulated to DPHHS's TIA and TLC over J.L. and D.L. Subsequently, John filed a motion
to terminate DPHHS's TIA and TLC, and filed a Notice of Temporary Custody, granting
custody of his children to his parents. Following a hearing, the District Court ordered that
J.L. and D.L. were not youths in need of care and dismissed DPHHS's petition for TLC.
The District Court further ordered that it would retain jurisdiction over the case pursuant
to the custody agreement executed between John and his parents which stipulated to the
District Court's continuing jurisdiction. DPHHS appeals from the District Court's order.
We affirm the judgment of the District Court.

¶2 The following issues are presented on appeal:

¶3 1. Did the District Court abuse its discretion when it concluded that J.L. and D.L. were
not youths in need of care?

¶4 2. Did the District Court have authority to retain jurisdiction after it had concluded that
J.L. and D.L. were not youths in need of care?



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                                                FACTUAL BACKGROUND

¶5 Nancy and John were married in 1989 in Tennessee. In 1995, John, Nancy, and their
two children, J.L., born on January 15, 1991, and D.L., born on November 19, 1992,
moved to Montana. John testified that prior to their move to Montana and during the time
they lived in Montana Nancy suffered recurring symptoms of a mental illness which had
been diagnosed prior to their marriage. After moving to Montana, John began counseling
with Chris Tremain, a licensed counselor, in order to better deal with his wife's behavior.

¶6 John testified that in the months leading up to Nancy's death she withdrew from the
family, was drinking more often, and began to carry a gun. John and several witnesses,
including their real estate agent, Ward Jones, J.L's speech counselor, Scott Stansberry, J.
L's kindergarten teacher, Betty Anderson, and D.L.'s preschool teacher, Debbie
Krummann, testified that they witnessed Nancy exhibit bizarre or irrational behavior
during the time she lived in Montana.

¶7 Debbie Krummann testified that during a parent-teacher conference Nancy insinuated
that Krummann had conducted a satanic ritual with the preschool children. Ward Jones
testified that Nancy was irrational in the way that she dealt with people. Scott Stansberry
testified that after spending several hours with Nancy he was so bothered and emotionally
affected by the experience, he had to seek counsel with his father so that he could discuss
the incident and better deal with it. Betty Anderson testified that in 28 years of teaching
and dealing with parents, Nancy was the only parent she had ever hung up the phone on.

¶8 John testified that on the evening of May 2, 1997, he and Nancy had an argument
during which Nancy pulled out her gun and threatened to kill herself and John. According
to John, Nancy put the gun to her head and pulled the trigger. John testified that she was
still alive and that he attempted to retrieve the gun from her. During the ensuing struggle,
John testified that he accidently pulled the trigger and the gun discharged a second time
into Nancy's head. According to John, Nancy died a short time later. John further testified
that following the two gunshots, his daughter D.L. woke up and began to cry in her
bedroom. John stated that he covered Nancy's body with their bedding and entered D.L's
bedroom; he then took D.L to her brother J.L's bedroom where he was sleeping, and then
stayed with D.L. for approximately 15 minutes while she went back to sleep.

¶9 According to John, by the time D.L. was back asleep, he felt that too much time had
passed and the police would not understand his delay in calling 911. Additionally, he


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testified that he did not want to traumatize J.L. and D.L. by subjecting them to the police's
removal of Nancy's body and his possible arrest. Instead of calling 911, John moved
Nancy's body to the basement. In the early morning hours he put his sleeping children in
his truck, placed Nancy's body in the back and drove to Big Sandy where he buried her
body in a shallow grave. Several months later, John exhumed Nancy's body and returned
to his residence where he cremated her body and then scattered her ashes in a nearby
stream.

¶10 Between the night of Nancy's death on May 2, 1997, until July 4, 1998, John told all
interested persons, including J.L and D.L., Nancy's family, and the police, that on May 2,
1997, Nancy packed all of her belongings and left with another man in the middle of the
night. However, on July 4, 1998, John confessed to the police that he had lied to them
previously. He ultimately gave several statements regarding his involvement in the events
which led to Nancy's death and his actions subsequent to her death.

¶11 Because John had no family or friends in Montana who could care for J.L. and D.L.,
following his arrest on July 4, 1998, DPHHS assumed protective custody of J.L. and D.L.
and placed them in foster care. DPHHS then filed a petition requesting a TIA. John
stipulated to granting DPHHS a 90-day TIA. However, John reserved his right to
withdraw his consent at any time. The District Court also appointed guardians ad litem for
J.L. and D.L.

¶12 On October 21, 1998, upon conclusion of its 90-day TIA, DPHHS petitioned for TLC
of J.L. and D.L. The District Court scheduled November 12, 1998 as the date for the
hearing to consider the petition for TLC. However, on November 10, 1998, John and
DPHHS entered into a second stipulation, which granted DPHHS TLC of J.L and D.L. for
a period of 180 days. John again reserved the right to withdraw his consent to DPHHS's
involvement and to request the District Court to hear the matter prior to the expiration of
the 180 days.

¶13 In the meantime, pursuant to a plea agreement, John pled guilty to the offenses of
negligent homicide, perjury, and two counts of tampering with or fabricating evidence. On
January 4, 1999, the District Court sentenced John to a combined total of 30 years in
prison, with 15 years suspended.

¶14 On January 11, 1999, John filed a motion for the District Court to determine custody
of J.L. and D.L. On January 12, 1999, John's parents, John, Sr. (Jack) and Marion, filed a


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petition for custody of J.L. and D.L. On January 27, 1999, John filed a motion with the
District Court requesting that the District Court terminate DPHHS's TIA based on the
execution of an agreement between John, Jack, and Marion granting temporary custody of
J.L. and D.L. to their grandparents, Jack and Marion. On February 11, 1999, Nancy's
sister, Martha Meador Smith, and Nancy's cousins, Carolyn and Terry Goerger, filed a
motion to intervene in the action, and the Goergers petitioned the District Court to
consider placing custody of J.L. and D.L. with them.

¶15 The District Court held a hearing on March 22, 1999, to consider DPHHS's petition
for TLC, John's motion to dismiss DPHHS's TIA pursuant to the second stipulation, Jack's
and Marion's petition for custody of J.L. and D.L., and the Goergers' petition for custody
of J.L. and D.L. At the hearing, DPHHS argued that J.L. and D.L. were youths in need of
care pursuant to § 41-3-403, MCA, and urged the District Court to grant TLC to DPHHS
which would then determine the proper placement for J.L. and D.L. John and his parents
argued that J.L. and D.L. were not youths in need of care, and that John's agreement to
place custody with Jack and Marion eliminated any need for involvement by DPHHS.

¶16 On June 18, 1999, prior to the District Court's decision regarding the issues presented
at the March 22, 1999 hearing, DPHHS filed a petition for permanent legal custody and
termination of John's parental rights. On June 30, 1999, the District Court entered its order
in which it granted John's motion to terminate DPHHS's TLC and pursuant to the custody
agreement entered into by John, Jack, and Marion, retained jurisdiction over the parties,
and ordered that J.L. and D.L. be placed with Jack and Marion. DPHHS now appeals the
District Court's order.

                                                  STANDARD OF REVIEW

¶17 We review a district court's determination of whether a youth is abused or neglected
for an abuse of discretion. See In re the Matter of D.H. and F.H. (1994), 264 Mont. 521,
525, 872 P.2d 803, 806. "Discretionary judgments made by the trial court are presumed to
be correct and will not be disturbed by this Court absent an abuse of discretion by the
lower court." In re the Matter of D.H. and F.H., 264 Mont. at 525, 872 P.2d at 806.

                                                            DISCUSSION

                                                                 ISSUE 1



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¶18 Did the District Court abuse its discretion when it concluded that J.L. and D.L. were
not youths in need of care?

¶19 DPHHS asserts that the District Court abused its discretion when it determined that J.
L. and D.L. were not youths in need of care. DPHHS contends that the evidence
establishes that J.L. and D.L. were youths in need of care, because John's involvement in
the circumstances surrounding Nancy's death and his explanation to his children that their
mother had abandoned them, constituted emotional abuse of the children. DPHHS alleges
that testimony from psychologist, Donna Veraldi, that both J.L. and D.L. were suffering
from posttraumatic stress disorder, clearly established that John's actions caused J.L. and
D.L. to suffer injury to their emotional well-being and, therefore, the District Court should
have concluded that they were youths in need of care.

¶20 In response, John contends that it was not sufficient to merely show that J.L. and D.L.
suffer from emotional injury. John asserts that DPHHS must prove that J.L.'s and D.L.'s
emotional injuries were a direct result of John's actions or inactions and that such
emotional injury amounted to "emotional abuse" as defined by § 41-3-102(8), MCA
(1997). John argues that because DPHHS was unable to prove that the emotional injury to
J.L. and D.L. was the direct result of his actions or inactions the District Court correctly
concluded that J.L. and D.L. were not emotionally abused by John and, therefore, not
youths in need of care.

¶21 It is the policy of the State of Montana to preserve the unity and welfare of the family
whenever possible. See § 41-3-101(1)(d), MCA (1997). It is also the policy of the State of
Montana to provide for the protection of children whose health and welfare are or may be
adversely affected and further threatened by the conduct of those responsible for their care
and protection. See § 41-3-101(2)(b), MCA (1997). Moreover, it is the policy of this State
to ensure that all youth are afforded an adequate physical and emotional environment to
promote normal development. See § 41-3-101(1)(a), MCA (1997).

¶22 Section 41-3-102(22), MCA (1997), defines a "youth in need of care" as "a youth who
is abused or neglected." Section 41-3-102(2), MCA (1997), defines "abused or neglected"
as "the state or condition of a child who has suffered child abuse or neglect." Section 41-3-
102(6)(a), MCA (1997), defines "child abuse or neglect" as "harm to a child's health or
welfare" or "threatened harm to a child's health or welfare." Section 41-3-102(6)(b), MCA
(1997), states that the term "child abuse or neglect" "includes harm or threatened harm to
the child's health or welfare by the acts or omissions of a person responsible for the child's


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welfare." Section 41-3-102(9), MCA (1997), defines "harm to a child's health or welfare"
as including "harm that occurs whenever the parent . . . inflicts or allows to be inflicted
upon the child physical or emotional abuse." Section 41-3-102(8), MCA (1997), defines
"emotional abuse" as "injury to the emotional well-being or intellectual or psychological
capacity of a child, as evidenced by an identifiable and substantial impairment of a child's
physical, mental, or emotional ability to function." Accordingly, the question before the
District Court was whether J.L. and D.L. suffered injury to their emotional well-being
through John's acts or omissions, as evidenced by an identifiable and substantial
impairment of J.L.'s and D.L.'s physical, mental, or emotional ability to function.

¶23 The District Court concluded as follows:

        The evidence is clear and convincing [that J.L. and D.L.] . . . are no longer youths in
        need of care . . . .

        ....

        . . . In essence, Dr. Veraldi believes the children suffered severe emotional abuse
        while in the custody of their father after their mother's death and the children now
        suffer from post traumatic stress disorder. Dr. Veraldi believes the children will
        require long-term therapy and her recommendations were that the children have a
        stable, supportive home environment, participate in long-term therapy, have contact
        with their father and be re-evaluated as requested. . . . Dr. Veraldi did not
        recommend termination of the father's parental rights or that he not be allowed to
        have contact with his children.

        Of interest to the Court was Dr. Veraldi's inability to separate the emotional trauma
        to the children experienced prior to their mother's death from the emotional trauma
        caused by their father's dishonesty with the children after their mother's death. The
        Department, in its extensive Report to The Court, had little time to discuss the
        mother's mental condition just prior to her death. It is the Court's recollection a
        representative of the Department sat through the sentencing hearing and heard the
        testimony of Debbie Krummann, Betty Anderson and Scott Stansberry. These
        individuals were unbiased objective individuals from the community who had an
        opportunity to deal first hand with the mother within the weeks before her death.
        The day care teacher was accused of participating in satanic rituals with the . . .
        children. A school teacher testified that in 30 plus years of teaching, . . . [Nancy]


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        was the only parent she ever hung up on. After several hours with the children's
        mother, a speech therapist had to seek counsel with his father after being completely
        drained emotionally from the experience. Moreover, the father sought counseling
        from professionals in his attempt to deal with his wife's serious mental disorder. . . .
        The Court has carefully reviewed the Psychological Evaluation completed on the
        children's mother dated October 16, 1987 and notes that the same symptomatology
        that was evident in 1987 was evident just prior to her death . . . .Thus, these children
        were subjected to emotional trauma even before the loss of their mother.


¶24 As the basis for its determination that J.L. and D.L. were not youths in need of care,
the District Court considered the testimony given by several witnesses at the adjudicatory
hearing in addition to the testimony of several witnesses who testified at John's sentencing
hearing. Our review of the record discloses that those witnesses speculated about several
different causes for the emotional injuries suffered by J.L. and D.L. The different causes
discussed included Nancy's mental illness, the tragic loss of J.L.'s and D.L.'s mother,
John's explanation to them that Nancy had abandoned them and his failure to tell them the
truth about her death for over a year, the children's separation from their father by
DPHHS, and John's failure to provide his children with counseling. While different
witnesses testified regarding what they believed to be the cause of J.L.'s and D.L.'s
emotional injuries, no witness was able to testify with certainty that John was the cause of
the children's emotional injuries.


¶25 At John's sentencing hearing, psychiatrist Dr. Joseph Rich testified as follows:

        Q. Dr. Rich, have you--in listening to the testimony today have--have you been able
        to form or at least further form your opinion concerning Nancy's well being at the
        time or concerning around the time of the incident in question?

        ....

        A. With regard to this case there are very few things that Iam going to be able to say
        for sure, very few things that I will be able to say with reasonable medical certainty,
        but with regard to Nancy Meador I believe that I can say with certainty, with
        reasonable medical certainty, that Nancy Meador had a chronic mental disorder of
        some type, and in particular it was of the type that we call one of the psychotic
        mental illnesses, meaning that it's one of the types that causes individuals to have

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        delusions, hallucinations, and that they go through periods of remission when they
        seem better and then periods of exacerbation where the symptoms emerge again,
        and examples of those are schizophrenia, delusion disorder, schizo-affective
        disorder, manic depressive disorder. I can't tell you exactly what diagnosis she had,
        but I can say with reasonable medical certainty that she had one of those . . . .

¶26 While testifying at his sentencing hearing, John stated:

        Q. Do you think that there is more than one victim in the case, John?

        A. Oh, yes. I feel the children and I are also a victim of--of Nancy's mental illness
        over the period of time that we were married and the children growing up.

        Q. And you recognize that your actions, although they may have been to protect the
        children, actually may have harmed them?

        A. Yes, I understand that now. I didn't at the time.

¶27 Dr. Veraldi testified as follows:

        Q. And, as a result of your speaking with the children, gathering the background
        information, and doing the testing that you described earlier for the Court, did you
        come up with any type of a result or a diagnosis as to what their condition was at
        least on December the 1st when you evaluated them?

        A. I believe that D.L. in particular met the diagnostic criteria for post-traumatic
        stress disorder, and I believe that J.L., while he seemed to be more closed down,
        also had sufficient symptoms when I really looked at them that that was the best
        diagnosis to give him, although I did not think his problems were as apparent as D.
        L.'s.

On cross-examination Dr. Veraldi testified as follows:

        Q. So the symptoms that you are seeing in [D.L.] and [J.L.] are similar to symptoms
        that you would expect to see from a child who has lived in a home where the
        primary care-giver has been mentally ill?



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        A. That's very possible. Absolutely.

        Q. Okay, and, to back my hypothetical, if you were told that children were
        experiencing those types of behavior prior to a traumatic event would you be able to
        determine the consequences of the traumatic event versus the consequences of living
        in a household that's unstable in that way?

        A. Generally not . . . .

¶28 Based on the evidence and testimony relating to Nancy's mental illness and bizarre
behavior prior to her death, the District Court concluded that J.L. and D.L. were subjected
to substantial emotional injury before the loss of their mother, as a result of living with a
mentally ill parent. The District Court further concluded that John's actions or inactions,
while they may have contributed to the children's emotional injury, did not cause
substantial impairment to the children's emotional ability to function. Accordingly, the
District Court concluded that J.L. and D.L. were no longer youths in need of care.

¶29 Based on our review of the evidence and testimony presented to the District Court, we
conclude that the District Court did not abuse its discretion when it concluded that
DPHHS had not proven by clear and convincing evidence that J.L. and D.L. were youths
in need of care.

                                                                 ISSUE 2

¶30 Did the District Court have authority to retain jurisdiction after it had concluded that J.
L. and D.L. were not youths in need of care?

¶31 DPHHS contends that after concluding that the children were not youths in need of
care, the District Court had no authority to retain jurisdiction of the case to require that the
grandparents follow through with counseling. DPHHS asserts that § 41-3-404(4)(a), MCA
(1997), requires that once a determination is made that youths are not in need of care, the
petition must be dismissed. Although this position is inconsistent with DPHHS's prior
expressions of concern for the children's well-being and its claim that the children are "in
need of care" because of their need for counseling, we limit our discussion to the legal
merits of its claim.

¶32 In support of its position, DPHHS relies on In re M.P.M. and A.R.M., 1999 MT 78,


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294 Mont. 87, 979 P.2d 988. In In re M.P.M. and A.R.M., we held that once the district
court dismissed DPHHS's petition for temporary investigative authority, it did not have the
authority to order DPHHS to place custody of the youths with their father, stating:

        When the District Court vacated the orders issued following the filing of the petition
        for TIA, as required by § 41-3-404(2), MCA, it did not have the authority to order
        the Department to place the children with their father. Nowhere in the statutory
        framework is the District Court authorized to grant the Department the authority to
        place the children with one parent as opposed to the other following dismissal of the
        petition for TIA.

In re M.P.M. and A.R.M., ¶ 22.

¶33 In response, John concedes that the District Court no longer has jurisdiction over the
DPHHS action, which ceased upon the District Court's determination that the children
were not youths in need of care. John asserts that the District Court properly retained
jurisdiction over the children via John, Jack and Marion's petition for custody, and
stipulation to the District Court's jurisdiction.

¶34 The Custody Agreement entered into by John, Jack, and Marion contains the
following condition:

        The parties acknowledge, understand, and agree that jurisdiction over the parties,
        the children, and all matters pertaining to this Agreement shall be vested with the
        Montana Tenth Judicial District Court, in and for the County of Fergus; and that any
        action to modify or enforce this Agreement must be made by petition or motion to
        the Montana Tenth Judicial District Court, in and for the County of Fergus.

¶35 The District Court ordered that "jurisdiction over John, Jack and Marion, the children
and the J.L. and D.L. Trust shall continue pursuant to the terms of the parties' Custody
Agreement . . . ."

¶36 Because the District Court's jurisdiction over the parties in this case was based on the
terms of the parties' Custody Agreement made pursuant to their petition for custody, and
not based on the action to determine whether the children were youths in need of care, we
determine that the District Court did not err when it concluded that it retained jurisdiction
pursuant to the Custody Agreement.


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¶37 The judgment of the District Court is affirmed.


                                                     /S/ TERRY N. TRIEWEILER

                                                              We Concur:

                                                       /S/ J. A. TURNAGE

                                                /S/ WILLIAM E. HUNT, SR.

                                                         /S/ JIM REGNIER

                                                    /S/ JAMES C. NELSON

                                              /S/ W. WILLIAM LEAPHART

                                                     /S/ KARLA M. GRAY




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