NO. 8 7 - 1 6 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN THE MATTER OF DECLARING
v.B., T.B., D.B. and B.B.,
Youths in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Farkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
O'Brien & Conrad; Barbara J. Conrad, Fissoula, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana
Margaret Borg, Missoula, Montana
Rruce M. Wilson, Missoula, Montana
- - - -~ ~
Submitted on Briefs: Aug. 13, 1 9 8 7
Decided: November 5, 1987
Filed: bj@'1315-19187
*,&Clerk
;
I
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
W. B. appeals a February 18, 1987, order of the Fourth
Judicial District, Missoula County. The order terminated her
parental rights but allowed contact with the children if the
Department of Social and Rehabilitation Services (SRS)
determines that such contact is in the children's best
interests. We affirm.
Appellant W. B. presents a single issue for our review:
Did the District Court abuse its discretion in terminating
parental rights while simultaneously maintaining the
possibility of parental contact?
W. B. is the natural mother of four children, ranging
in age from six to twelve. She has been diagnosed as having
a borderline personality disorder with marked shifts in moods
and behavior. She also suffers from a seizure disorder with
secondary psychosis. Prior to 1984, she was admitted to Warm
Springs State Hospital eleven times.
From 1984 to 1986, W. B. was admitted seven times to
the mental health unit of St. Patrick's Hospital in Missoula.
SRS placed her children in foster care six times due to
W. B.'s chronic mental and emotional problems. During this
time, the children were in their mother's care for a total of
three months.
On May 27, 1986, the Missoula County Attorney filed a
petition on behalf of SRS for temporary legal custody of the
children. On June 16, 1986, W. B. stipulated to a court
order which found that the children were neglected within the
meani-ng of S 41-3-102(2), MCA. The statute provides:
An "abused or neglected child" means a
child whose normal physical or mental
health or welfare is harmed or
threatened with harm by the acts or
omissions of his parent or other person
responsible for his welfare.
The father of the children also stipulated to the order, and
agreed to participate in a separate treatment plan. The
court granted temporary legal custody of the children to SRS.
In the same order, the District Court approved a treat-
ment plan for W. B. under which SRS would gradually return
the children to W. B. ' s physical care. The treatment plan
failed within two months. W. B. was again hospitalized for
her recurring mental problems. SRS again placed the children
in foster homes. On September 12, 1986, the Missoula County
Attorney filed a petition on behalf of SRS to terminate
W. B.'s parental rights.
The District Court heard the matter on February 6 ,
1987. The court found that all of the children suffer from
lack of appropriate affection, attention and emotional sta-
bility. In addition, the three oldest have learning disabil-
ities. The court found that appellant's mental and emotional
problems are too great for her to provide the structure and
consistency the children require. Therefore, the court
terminated the parent-child relationship.
However, the court also found that all of the children
have a psychological attachment to their mother. The court
stated:
They would benefit from contact --
with her
if it were regular and consistent, and
if her behavior does not upset the
children.
Child psychologists that have examined
the children believe that it would be
appropriate to allow visitation between
[W. B . ] and the children if it was in
the best interests of the children.
Such visitation should - - - a right -
not be of
.
[W. B. ] [Emphasis added. 1
Rased on these findings, the court then ordered:
[W. B.] may contact the children, as
restricted by SRS, when SRS determines
that such contact - - - children's
is in the
best interests.
Before SRS consents to an adoption of
any of the children, consideration
should be given to whether the adoptive
parents would voluntarily allow contact
between [W. B. 1 and the adoptive child.
[Emphasis added. ]
The District Court also ordered that SRS would retain legal
custody of the children pending a determination of the
father's rights.
On appeal, W. R. does not request physical custody of
the children. However, she does contend that she should
retain her visitation rights because the court found that
some contact with the children might be beneficial to them.
She argues that the order providing for limited contact
conflicts with 5 41-3-611(1), MCA, which states in pertinent
part:
An order for the termination of the
parent-child relationship divests the
child and the parents of all legal
rights, powers, immunities, duties, and
obligations with respect to each other
.. . [Emphasis added. ]
W. B. contends that the parent-child relationship in
Montana is an "all-or-nothing principle." She argues that the
only way for the court to act in her children's best inter-
ests is to not terminate the parent-child relationship and
thus ensure her right to visitation. W. B. also asserts that
substantial evidence does not support the court's finding
that her lack of fitness would continue.
On review of this issue, we will not disturb the
District Court's decision unless the findings of fact are not
supported by substantial, credible evidence, or the
conclusions of law amount to a clear abuse of discretion.
Matter of C. P. (Mont. 1986), 717 P.2d 1093, 1095, 43 St.Rep.
728, 730.
In analyzing a custody issue, the best interests of the
children are paramount. Matter of C.M.S. (1980), 187 Mont.
115, 123, 609 P.2d 240, 244. The record shows that W. B.
cannot provide basic care, such as shelter and supervision,
for her children because of her repeated hospitalization.
W. B.'s behavior toward her children is erratic and volatile.
The three psychologists who treated the children agreed that
it would be in the children's best interests for 97. R . 's
legal rights to be terminated. One of the psychologists who
observed W. B.'s interaction with her children testified: "I
would like to emphasize that if we do not provide the stable
environment for these children, that we can say that the
three older children are going to be institutionalized and
under the care of the State of Montana throughout their
lifetime."
The District Coiurt made specific findings, in
accordance with 5 41-3-609(1) (c), MCA, on W. B.'s failed
treatment plan and lack of fitness. The statute allows the
District Court to order a termination of the parent-child
legal relationship upon a finding that:
(c) the child is an adjudicated youth
in need of care and both of the follow-
ing exist:
(i) an appropriate treatment plan that
has been approved by the court has not
been complied with by the parents or has
not been successful; and
(ii) the conduct or condition of the
parents rendering them unfit is unlikely
to change within a reasonable time.
The District Court's findings were fully supported by the
testimony and documents. We find that the District Court
properly terminated W. B.'s parental rights.
Regarding visitation, we have often held that when
parental rights are terminated, the natural parent no longer
has any rights over the child. This includes visitation
rights. Matter of C. P., 717 P.2d at 1095; 5 41.-3-611(1),
MCA. However, in W. B.'s case the same psychologists who
advised that her parental rights be terminated also attested
to the close relationship between W. B. and her children.
The psychologists recommended some contact with the children
under appropriate conditions.
Focusing on the children's best interests, the District
Court had the delicate task of defining the scope of contact
within a warm but erratic family relationship. The District
Court carefully fashioned a conciliatory order which
acknowledged both W. B.'s lack of fitness as a mother and the
children's affection for her. The District Court distin-
guished contact from visitation. The court's order granted
no right of visitation but simply allowed the possibility of
contact conditioned upon SRS approval. In view of the
respective ages of the children, 12, 11, 9 and 6, such an
order is reasonable.
The court also limited SRS to mere consideration of
contact in the event of the adoption of the children. Such
consideration was further conditioned on the consent of the
adoptive parents to any contact with W. B. This limitation
accords with 5 40-8-125(2), MCA, which states:
After a final decree of adoption is
entered, the natural parents... shall
be relieved. of all parental
responsibilities for said child and have
no rights over such adopted child or to
his property by descent and
distribution.
The restricted contact allowed by the court falls short
of a visitation right. We find no inherent conflict within
the findings of fact and conclusions of law. We caution,
however, that when parental rights are terminated, continuing
contact is allowable only in exceptional cases. In the event
of an adoption, continuing contact cannot be court-ordered
even with SRS approval.
We hold that the District Court acted within its dis-
cretion and in accordance with the custody statutes.
Affirmed.