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                                                                 No. 98-109



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1999 MT 27N




IN RE THE MATTER OF

ADOPTION OF M.E.S.,




APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



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Neil D. Enright, Towe, Ball, Enright, Mackey & Sommerfeld, Billings, Montana



For Respondent:



Mary Rose Heller, Department of Public Health & Human Services, Child and Family Services Division, Helena,
Montana (DPHHS); Damon Gannett, Gannett Law Firm, Billings, Montana (guardian ad litem)




                                                                                                Submitted on Briefs: October 15, 1998



Decided: February 18, 1999

Filed:




__________________________________________

Clerk




Justice William E. Hunt, Sr. delivered the Opinion of the Court.


¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be

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filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Kathleen Smith (Appellant), maternal grandmother of M.E.S., a minor child,
appeals from the November 19, 1997 order of the Thirteenth Judicial District Court,
Yellowstone County, denying her petition for adoption of M.E.S. We affirm.

¶3. Appellant's daughter is Kristin Smith (Kristin) who is twenty years old. Kristin
began using drugs at the age of fourteen. In July 1993, at age fifteen, Kristin ran
away from home. In October 1993, Kristin discovered she was pregnant while being
treated for drug addiction at Cedar Mountain Treatment Facility in Cody,
Wyoming. After three months of treatment, Kristin went back to her home in
Billings and gave birth to M.E.S. in May 1994. Shortly thereafter, Kristin relapsed
and began to neglect M.E.S. The Department of Health and Human Services
(DPHHS) removed M.E.S. from Kristin's care and placed M.E.S. in the care of
Kristin's older sister and brother-in-law, Jennifer and Steve Feuerstein. Within a
number of months, Jennifer and Steve Feuerstein divorced making this arrangement
unworkable. The DPHHS placed M.E.S. in the care of Steve Feuerstein's parents, Vic
and Diana Feuerstein, as foster parents. Appellant had regular visitation with M.E.S.

¶4. In February and October 1995, the Rimrock Foundation in Billings evaluated
Kristin's chemical dependency and psychosocial status. As a result of these and other
evaluations, Kristin was declared unfit to parent M.E.S. and her parental rights were
officially terminated by judicial order on March 1, 1996.

¶5. Meanwhile, in March 1995, Appellant began the process of applying for adoption
of M.E.S. The DPHHS conducted an extensive adoptive home study of Appellant
spanning the period from August 1995 to April 1996. Despite identifying Kristin as
"a trigger in [Appellant's] life who is unpredictable," and despite Appellant's past
problems with herself and her family, the DPHHS noted that Appellant had made
positive changes in her life, was successfully raising her 13 year-old daughter, Sara,
and that strong support among family, friends, and professionals would help
Appellant provide a stable and nurturing home for M.E.S. The DPHHS ultimately
gave a favorable recommendation for approval of Appellant as a possible adoptive
parent for M.E.S. However, the DPHHS requested that Appellant undergo further

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evaluation by a licensed clinical psychologist.

¶6. Dr. William Woolston performed an evaluation of Appellant and ultimately
concluded that Appellant may be considered as an appropriate parent for M.E.S.
However, Dr. Woolston tempered his recommendation with the following concerns:
(1) Appellant's ability to raise M.E.S. as a single parent; (2) Appellant's emphasis on
how placement of M.E.S. with Appellant would be good for her and her daughter
without explaining how placement of M.E.S. with Appellant would be in the best
interest of M.E.S.; (3) that Appellant may see M.E.S. as an opportunity to prove her
worth as a parent and to assuage her guilt over having failed to protect her eldest
daughters; (4) that M.E.S. may have bonded to her foster parents and that removal
from this home may harm M.E.S.; (5) that Appellant may not be fully aware of her
contributions to her daughters' problems and, hence, may not be accepting of
feedback or assistance in parenting M.E.S.

¶7. In April 1996 and August 1997, Dr. Donna Veraldi, a licensed clinical
psychologist, conducted psychological evaluations of M.E.S. In the first evaluation,
Dr. Viraldi reported that M.E.S. was an overactive child and needed structure and
permanency with one set of primary caretakers. In the second evaluation, Dr. Viraldi
noted that M.E.S. appeared to be much more settled, appeared industrious in her
play, and was willing to follow the limits that were set. Dr. Viraldi opined that M.E.S.
appeared to live in a household where she related to adults as parents, where she had
structure, and where her surroundings were predictable. Dr. Veraldi did not
recommend another move for M.E.S.

¶8. In November 1996, the DPHHS considered Vic and Diana Feuerstein as possible
adoptive parents of M.E.S. The DPHHS conducted an adoptive home study of the
Feuersteins. The DPHHS reported that M.E.S. had been in the Feuersteins' care
since October 1994, a period of approximately two and one half years. The DPHHS
reported that the Feuersteins have grown attached to M.E.S. and that M.E.S.
appeared happy, comfortable, and confident in their love. The DPHHS reported that
several references had commented upon the Feuersteins' strong morals and family
values. The Feuersteins had successfully raised two children. The DPHHS
recommended that the Feuersteins be approved for possible adoption of M.E.S.

¶9. In December 1996, the DPHHS decided that it would not consent to Appellant's
adoption of M.E.S. Sheila Howe, a social worker for the DPHHS, and Betty Petak,


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the regional administrator for the DPHHS, both testified that this decision was the
result of genuine and sincere consideration of all circumstances related to M.E.S.'s
needs and the person best able to meet those needs. After careful thought and
discussion among several agency workers involved in the case, the DPHHS
determined that maintaining the stability of M.E.S. in her current placement fulfilled
M.E.S.'s greatest need.

¶10. Appellant filed a petition for adoption in the District Court. The District Court
reviewed the DPHHS's refusal to consent to Appellant's adoption of M.E.S. for a
determination of whether the refusal was arbitrary, capricious, or unreasonable. See
In Re M.L.M. (1996), 278 Mont. 505, 511, 926 P.2d 694, 697. In its order denying
petition for adoption, the District Court adopted as its findings of fact and
conclusions of law those proposed by the DPHHS. The court held that the agency's
decision was not arbitrary, capricious, or unreasonable, and was in the best interest
of M.E.S. The court emphasized the possibility of unhealthy contact between M.E.S.
and her biological mother, Kristin, if Appellant were the adoptive parent of M.E.S.
The court stated that M.E.S. "is a more fragile child than she might otherwise be
because of the drugs [her mother used during pregnancy] and because of her
multiple placements." The court noted that M.E.S. had been through "significant
upheaval and was now in a stable placement." The court concluded, "The bottom
line is that to make another change puts M.E.S. at too much additional risk."

¶11. The District Court's determination that the DPHHS did not act in an arbitrary,
capricious, or unreasonable manner in withholding consent to Appellant's adoption
of M.E.S. is a conclusion of law. We review a district court's conclusions of law to
determine if they are correct. In Re M.L.M., 278 Mont. at 507, 926 P.2d at 695.

¶12. We have held that an administrative decision is arbitrary and capricious if it
was not based upon a consideration of all relevant factors and if there has been a
clear error of judgment. Skyline Sportsmen's Ass'n v. Board of Land Comm'rs
(1997), 286 Mont. 108, 117, 951 P.2d 29, 35. The parties agree that the best interest of
the child is of paramount concern in determining that child's adoptive placement.
See In Re M.L.M., 278 Mont. at 507-11, 926 P.2d at 695-97. Having reviewed the
record on appeal, we determine that the DPHHS considered all relevant factors
concerning the best interest of M.E.S. We determine that the DPHHS did not err in
its judgment when, upon a thorough investigation and careful thought on the matter,
it decided that adoption by Appellant was not in M.E.S.'s best interest. We hold that

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the District Court correctly determined that the DPHHS did not act in an arbitrary,
capricious, or unreasonable manner in withholding consent to Appellant's adoption
of M.E.S.

¶13. Affirmed.

/S/ WILLIAM E. HUNT, SR.




We Concur:


/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY




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