DECLARING OLSON DEPENDENT
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No. 12656 I N T E SUPREME COURT O T E STATE O M N A A H F H F OTN 1974 I N T E M T E O DECLARING ALLEN J E A N H ATR F OLSON and LEA CYNTHIA OLSON, Dependent and Neglected Children Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t , Honorable Robert Sykes, Judge p r e s i d i n g Counsel o f Record: For Appellant : Joseph F. Daley argued, K a l i s p e l l , Montana For Respondent : H . James Oleson, County Attorney, argued, K a l i s p e l l , Montana Thomas Mahan argued, Helena, Montana Submitted: Decided:&-a Filed : May 21, 1974 1974' Mr. Justice Wesley Castles delivered the Opinion of the Court. This is an appeal by a natural mother from an order granting permanent custody of her two minor children to the Flathead County Welfare Division. On January 6, 1971, following the filing of a petition alleging that a three year old boy and his two year old sister were dependent and neglected, the district court after hearing testimony ordered that the children be taken from their father permanently and from the mother on a temporary basis until June 1, to which time the matter was continued. That date, June 1, was continued until August 25, 1971. At that time testimony was taken and the court returned temporary custody of the children to their mother, retaining legal custody in the Flathead County Welfare Department for one year thereafter. The mother went to Idaho with her children. On June 5, 1973, the Flathead County Welfare Division again petitioned the court for permanent custody. June 26, 1973. A hearing was had on The court granted the county's petition for permanent custody with full rights to arrange for adoption of the children. It is from this order the mother appeals. The district court found the mother had abandoned and neglected the children to such an extent as to justify temporary custody in the welfare department of Flathead County in 1971; then just two and one-half years later, after additional hearings, permanently took the children from their mother. The issues on appeal are whether the two children are "neglected" within the meaning of section 10-501, R.C.M. 1947; and in that connection whether the trial court abused its discretion. No purpose would be served by an extended discussion of the evidence before the court. Depositions of baby sitters and members of their families in Idaho were considered. Also, the staff director of the Department of Environmental Community Services from Bonners Ferry, Idaho testified. The mother testified. The entire thrust of the testimony, including that of the mother, was that the children were mentally retarded and had suffered from environmental deprivation. The lack of parental love and care was such that, as a doctor testified, the children are "retarded as if they had closed off the blood supply to the brain". Section 10-501, R C M ... 1947, provides: "For the purpose of this act, the words 'dependent child' or 'neglected child' shall mean any child of the age of seventeen (17) years, or under that age, who is dependent upon the public for support, and who is destitute, homeless, or dependent, or who has no proper parental care or guardianship, or who habitually begs or receives alms, or who is found living in anv house of ill-fame, or in any house of prostitution, or whose home, by reason of neglect, cruelty, or depravity on the part of its parents, guardian, or other person in whose care it may be, is an unfit place for such child, or whose environment is such as to warrant the state, in the interest of the child, to assume its guardianship or support.'I This Court in In re Cantrell, 159 Mont. 66, 71, 495 P.2d 179, held: 1I However, the 'fact' of neglect, that of abandonment of a helpless infant, occurred off the reservation and continued for over a year off the reservation. The mother's only effort, to all practical purposes, was to remain in the sanctuary of the reservation, oblivious to the needs of her child * * *. "The district court ruled that it had iurisdiction h because the child was physically in t ; county and off the reservation when the petition was filed. That is the sole issue here. "section 10-516, R.C.M. 1947, states in part: "'This Act shall be liberally construed, to the end that its purposes may be carried out, to wit: That proper guardianship may be provided for in order . I that the child may be educated and cared for * * *" Cantrell was a 1972 decision by this Court concerning abandonment. The facts are not identical as those in the instant case since it involved an Indian child and an Indian mother, but it was a case of abandonment and a case of what is for the best interests of the child and what is proper guardianship. In In re Bad Yellow Hair, St. Rep. 446, this Court stated: Mont . ,509 P.2d 9, 12, 30 "These same f a c t s and t h e i r r e s u l t i n g e f f e c t s on t h e four c h i l d r e n a l s o support t h e d i s t r i c t courds o r d e r awarding permanent custody with t h e r i g h t of adoption t o t h e w e l f a r e department. The b e s t i n t e r e s t and w e l f a r e , n o t t h a t of t h e n a t u r a l mother i s t h e paramount c o n s i d e r a t i o n [ c i t i n g c a s e s ] . W a r e mindful t h a t o r d i n a r i l y a c h i l d ' s i n t e r e s t s e and welfare w i l l b e s t be served by r e t a i n i n g custody i n t h e n a t u r a l parents. However t h e circumstances of t h e i n d i v i d u a l c a s e may r e q u l r e a d i f f e r e n t r e s u l t . I n Bonser v. County of Cascade, - .-, Mont It 507 P.2d 1064, 1068, 30 S t . Rep. 358, 364, t h e Court a f t e r considering t h e evidence, stated: "Appellant has n o t urged nor argued t h e m e r i t s , b u t we have s t u d i e d t h e t r a n s c r i p t and f i n d t h e b e s t i n t e r e s t s of t h e c h i l d r e n , i n view of t h e evidence presented a t t h e hearing, show t h a t t h e d i s t r i c t c o u r t judge's order was proper. 1 l Here, t h e mother apparently had t h r e e s t r i k e s a g a i n s t h e r t o s t a r t with. She only had p a r t of t h e n i n t h grade when she dropped o u t of school. She married a t a very young age t o a man more than 25 years h e r senior. This man turned o u t t o be a hopeless drunkard who d e s e r t e d h i s family. She had no t r a i n i n g o r means of supporting h e r s e l f o r h e r c h i l d r e n and no knowledge of how t o r a i s e t h e children. She apparently ignored them t o such an e x t e n t t h a t they d i d n o t develop emotionally and a s a normal human being does between t h e ages of e i g h t months and t h r e e y e a r s , r e s u l t i n g i n mental retardation i n the children. The mother h e r s e l f needs h e l p , b u t r e f u s e s t o admit i t even a f t e r two and one-half years before t h e c o u r t s and counseling by t h e Welfare Department. Everyone t r i e d t o help h e r , including t h e County Welfare Department, t h e County Attorney, t h e D i s t r i c t Judge and t h e doctor. counseling of She had h e l p and t r a i n e d s o c i a l workers, h e r c h i l d r e n were s t r a i g h t e n e d o u t i n f o s t e r homes and w i t h b a b y - s i t t e r s , b u t f i n a l l y t h e c o u r t r u l e d t h a t time had run out and i t would n o t be t o t h e c h i l d r e n ' s b e s t i n t e r e s t s t o allow t h e mother t o continue t o r a i s e them. There i s ample evidence t o warrant t h e c o u r t i n removing t h e s e c h i l d r e n from t h e i r mother and t h e d i s t r i c t c o u r t followed t h e d i c t a t e s of t h e Montana s t a t u t e . It may be t h a t i t would be t o t h e b e s t i n t e r e s t s of t h e mother f o r h e r t o r e t a i n t h e s e c h i l d r e n , b u t c e r t a i n l y , based upon t h e evidence presented, i t would n o t be i n t h e b e s t i n t e r e s t s of t h e children. This Court has r e p e a t e d l y pointed out---the primary consideration is the best interests of the children. We hold that under section 10-501, R.C.M. 1947, where the mother's actions and inactions are such that the children have become mentally retarded due to emotional deprivation and abnormal environmental stimulation, as the record here fairly shows, the language of the section permits and requires the state to assume the guardianship and support. The order appealed from is affirmed. Justice We Concur:
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