NO. 8 8 - 5 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN THE MATTER OF DECLARING
M.W., a Youth in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Mi.ssoula,
The Honorable Jack L. Green, Judge presiding.
COI.TWSEL OF RECORD:
For Appellant:
Diana P. Leibinger, Missoula, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Peter Funk, Asst. Atty. General, Helena
Martha McClain, Missoula, Montana
Robert L. Deschamps, 111, County Attorney; Diane
Conner, Courthouse, Missoula, Montana
Submitted on Briefs: Sept. 1, 1 9 8 8
Decided: November 29, 1 9 8 8
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
R.Wrs parental rights as father of M.W., a child, were
terminated on October 23, 1987, in the District Court, Fourth
Judicial District, Missoula County. The District Court
awarded the Montana Department of Social Rehabilitative
Services custody of the child with authority to assent to
adoption. R.W. appeals. This Court affirms the decision of
the District Court.
The issues are these:
1. Did the District Court abuse its discretion by
terminating the father's parental rights?
2. Is 41-3-609(b), MCA (1985), unconstitutional as
applied to non-custodial parents?
M.W. was born October 21, 1976. C.M. (mother) and R.W.
(father) were living in California at the time of the child's
birth. Mother left California in Zanuary, 1978, and came to
Montana to visit her family. On April 2, 1979, mother filed
a petition for dissolution of her marriage to R.W. in
Missoula County. A default decree was entered on December
10, 1979. Custody of the child was awarded to mother and
father was granted reasonable visitation and ordered to pay
child support in the amount of $100 per month through the
office of the Clerk of Court of Missoula County.
From 1978 to 1983, father had no contact with M.W. He
attempted to see the child in 1980 but mother would not
cooperate. In 1983, father moved to Missoula and again tried
to establish contact with the child. After problems with
visitation, father retained an attorney in Missoula to have
his visitation rights specified by the court. During this
time, father paid child support beginning May, 1983, at the
advice of his attorney. Part of the problem was mother's
boyfriend, who demanded that all visitation arrangements be
made through him. Father, father's wife and M.W.'s
grandmother all found mother's boyfriend to be intimidating
and physically threatening. Father complied for the most
part with mother's boyfriend's demands, although father had
to obtain law enforcement assistance on two occasions.
Father discontinued child support payments in December, 1983.
In February, 1985, father moved to Glendive, Montana,
with his girlfriend and her three daughters. He eventually
married his girlfriend. When he left Missoula, he made no
attempt to notify mother of his whereabouts. During this
time, father made several trips to Missoula but was unable to
locate mother. In one instance, he saw M.W. on the street
but he did not approach the child.
In November, 1985, father and his wife and her children
moved to Anacortes, Washington. Father made no effort to
contact or locate mother and M.W. In December, 1986, M.W.'s
maternal grandmother contacted father to inform him that his
and mother's parental rights had been terminated. Father
immediately contacted the Missoula County Attorney seeking
custody of K.W.
The S R S placed M.W. in foster care in February, 1985, at
mother's request. S R S had received referrals regarding M.W.
from 1979 to 1985. Mother was supposed to take medication
for epilepsy but failed to take the medication regularly.
S R S learned she was not taking her medication, and that she
and M.W. were living in a house with no hot water,
electricity or heat. There was no food in the house and
mother was being evicted. Other earlier referrals to S R S
about M.W. concerned lack of food and inappropriate clothing.
Throughout the process, mother claimed to have no
knowledge of father's whereabouts and was vague about his
identity. On September 18, 1986, after mother's failure to
comply with a treatment plan, the District Court terminated
mother's and "unknown father's" parental rights.
M.W. is mildly mentally retarded and has been placed in
special education classes at school. M.W. has been treated
by Dr. Cook, a child psychologist, since she was 2 years old.
Dr. Cook opines that M.W. has been adversely affected by the
combined effects of the absence of one parent and the neglect
by the other parent. M.W. has demonstrated anxiety and fear
because of the lack of a stable home environment and she
becomes very fearful at the mention of any change in her
current living arrangements.
On January 8, 1987, father filed a petition for custody
claiming paternity. January 9, father filed motions pursuant
to Rule 60(b) (1) - (4) of the Montana Rules of Civil
Procedure seeking relief from that part of the September 18,
1986, judgment terminating his parental rights. On March 24,
1987, the District Court set aside its order of September 18,
1986, as applied to father and awarded him custody. On March
27, 1987, SRS filed a petition for temporary investigative
authority and order for protective services which was issued
that same day. On April 7, 1987, the State filed a petition
to terminate parental rights alleging the father had
abandoned M. W. On October 23, 1987, the District Court
terminated father's parental rights on grounds of
abandonment, § 41-3-609 (1)(b), MCA.
I.
Did the District Court abuse its discretion by
terminating father's parental rights?
Statutory law governing the termination of parental
rights is found in Title 41, Chapter 3, MCA. Parental rights
of the father were terminated pursuant to S 41-3-609 (1)(a),
MCA, which states parental rights may be terminated upon a
rights. Section 40-6-102, MCA, defines the parent and child
relationship as follows:
"Parent and child. relationship" means the legal
relationship existing between a child and his
natural or adoptive parents incident to which the
law confers or imposes rights, privileges, duties
and obligations. It includes the mother and child
relationship and the father and child relationship.
(Emphasis added. )
The legal relationship between father and M.W. did not
change despite the fact mother was awarded custody. Father
continued to have the obligation of support, § 40-6-211, MCA;
he continued to have the right to obtain records regarding
the child, § 40-4-225, MCA; he continued to have the right to
visit the child., 5 40-4-217, MCA, and the right to reciprocal
support, § 40-6-214, MCA. Section 41-3-102 (3) (d), MCA,
considers the action of "the parent responsible for the
child's welfare," not the action of the custodial or
noncustodial parent. Father had continuing responsibilities
for the child that did not disappear when he and mother
divorced. However, father failed to continue in his
obligations to this child and thus, abandoned the child
.
within the meaning of § 41-3-609 (b)
In the Matter of R.B. Jr., Youth in Need of Care (Mont.
1985), 703 P.2d 846, 42 St.Rep. 1055, this Court emphasized
the procedural aspect:
We emphasize that the termination in Montana of a
natural parent's right to care and custody of a
child is a fundamental liberty interest, which must
be protected by fundamentally fair procedures .. .
R.B., 703 P.2d at 848.
Father argues he was not afforded adequate due process.
We disagree. Although father was not properly notified of
the first proceeding in which mother's and "unknown father's"
rights were terminated, the District Court rectified the
finding that the child has been abandoned as set forth in S
41-3-102 (3)(d), MCA:
" (3) Harm to the child's health or welfare" means
the harm that occurs whenever the parent or other
person responsible for the child1s
welfare: .. . (dl abandons the child by leaving
him under circumstances that make reasonable the
belief that the parent or other person does not
intend to resume care of the child in the future or
by willfully surrendering physical custody for a
period of 6 months and during that period does not
manifest to the child and the person having
physical custody of the child a firm intention to
resume physical custody or to make permanent legal
arrangements for the care of the child; .. .
This Court has stated that due to the presumption of
correctness of the determinations of the District Court
regarding custody of children, findings will not be disturbed
unless a finding of fact is not supported by substantial
credible evidence. In Re the Matter of C.G. (Mont., ~ecided
January, 1988), 45 St.Rep. 63. This Court has also stated
that the State is required to meet its burden of proof by
clear and convincing evidence in the termination of parental
rights. In the Matter of JLB, Youth in Need of Care (1979),
182 Mont. 100, 594 P.2d 1127; In the Matter of MSM, Youth in
Need of Care (Mont. 1982), 654 P.2d 994, 39 St.Rep. 2191.
This standard was adopted by this Court after the U.S.
Supreme Court mandated this higher standard in Sandusky v.
Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 Ll.Ed.2d 599.
In the present case, father had no contact with M.W. for
three years and at no time indicated his intention to resume
custody of the child until he learned his parental rights had
been terminated. By this time, M.W. had been in foster care
almost two years. Father's failure to make contact with M.W.
for three years supports a finding by the District Court that
father abandoned M.W. within the meaning of the statute.
This Court found a father had abandoned his children in the
case of In the P4atter of MJD, CKD, ARD, Youths in Need of
Care (Mont. 1987), 731 P.2d 937, 44 St.Rep. 167, when the
noncustodial father had minimal contact with his children for
two years. This Court noted in that case that the period for
e~tablish~ng abandonment is six months. MJD, 731 P.2d at-
940. Father's lack of contact for three years clearly
establishes abandonment under the controlling statute.
Other evidence that establishes father's abandonment of
the child incl-udes the fact that father was well aware of
mother's mental retardation and the fact she suffered from
epileptic seizures because she failed to regularly take her
medication. He testified that when they were married, mother
refused to take her medication regularly and did not care for
M.W. properly but yet he made no attempt to prevent mother
from gaining custody in the dissolution of their marriage.
It was this failure by mother to take her medicine that
eventually caused SRS to proceed with termination of mother's
parental rights. It was reasonable for the District Court to
assume that an interested father would not leave a child in
the hands of a clearly incompetent mother.
11.
Is S 41-3-609(b), MCA (1985), unconstitutional as
applied to noncustodial parents?
Father contends that because he was the noncustodial
parent, he could not have abandoned his daughter and the
procedure terminating his parental rights because of
abandonment is fundamentally unfair. The guardian ad litem
contends that this argument fails to consider the ongoing
nature of the rights and obligations of the noncustodial
parent. This Court agrees with the guardian ad litem. The
noncustodial parent continues to have obligations as well as
situation by reinstating father's rights. Father was given
proper notice of the second proceeding in which his rights
were terminated. The District Court appointed counsel on
behalf of the father in order to protect his rights at the
beginning of the procedure to have his parental rights
reinstated. Father personally appeared at all subsequent
hearings with his attorney. Procedural due process means
notice and opportunity to appear. This Court concludes that
father was afforded adequate due process.
This Court finds there is substantial evidence in the
record to support the District Court's findings of fact and
order terminatinq father's parental rights.
Affirmed.
Justice
Chief Justice