In Re the Parental Rights of Baby Girl W.

No. 90-630

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF THE
PARENTAL RIGHTS OF JUL. - 2 1991
BABY GIRL W.,
A Minor Child.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena,
Montana
For Respondent:
William P. Driscoll and Michael S. Lattier; Gough,
Shanahan, Johnson & Waterman, Helena, Montana
Randi Hood; Public Defender's Office, Helena,
Montana
Nicholas C. Jacques, Attorney at Law, Helena,
Montana

Submitted on Briefs: May 1 0 , 1991
.Decided: July 2, 1991
Filed:

I

Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
R.T.C., the natural father of Baby Girl W., appeals an order
of the First Judicial District, Lewis and Clark County, which
terminated the parental rights of R.T.C. and D.M.W., the natural
mother, to Baby Girl W., awarded custody of Baby Girl W. to
Catholic Social Services for Montana, Inc. (CSS), and granted CSS
the right to consent to Baby Girl W.Is adoption. We affirm.
R.T.C. presents the following three issues for review. We
note that we restate the first issue:
1. Did the District Court err in denying R.T.W.Is August 14,

1989 motion to dismiss?
2. Did the District Court err when it determined that it had
subject matter jurisdiction over this matter?
3. Did the District Court err when it determined that R.T.C.
could not specifically determine who had the right to adopt his
child when he terminated his parental rights?
On March 29, 1989, thirty-eight-year-old D.M.W. gave birth to
Baby Girl W. in Great Falls, Montana. It is undisputed that R.T.C.
is the natural father of Baby Girl W. D.M.W. and R.T.C., both
residents of Wyoming, never married, but lived together intermit-
tently from December of 1985 until February of 1989. They continue
to live apart in Wyoming.
On March 30, 1989, D.M.W. executed a voluntary release of
custody, consent to termination of parental rights for purposes of
adoptive placement, and a waiver of right to notice and right to
2
appear regarding Baby Girl W. In this document, D.M.W. transferred
and assigned custodial rights of Baby Girl W. to CSS, a licensed
adoption agency. Thereafter, CSS placed Baby Girl W. in a foster
home in Helena, Montana.
On April 18, 1989, CSS petitioned the District Court for
termination of D.M.W. and R.T.C.'s parental rights. In its
petition, CSS also sought an award of custody and the right to
consent to Baby Girl W. Is adoption. On April 18, 1989, the
District Court notified R.T.C. of a May 15, 1989 hearing concerning
the termination of his parental rights.
R.T.C. responded by letter to the District Court and to CSS1s
counsel, and later appeared at the May 15, 1989 hearing to contest
the termination of his parental rights. At this hearing, the
District Court determined R.T.C. to be indigent, appointed him
counsel, and continued the termination hearing to a later date.
On August 14, 1989, R.T.C. moved the court to dismiss this
action on the ground that CSS did not have standing. The District
Court dismissed R.T.C.'s motion to dismiss in an order dated
September 26, 1989.
On April 20, 1990, R.T.C. moved the court to dismiss this
action on the ground that the court lacked subject matter jurisdic-
tion under 5 40-4-211, MCA. The District Court determined in an
order dated July 13, 1990, that R.T.C. Is reliance on 5 40-4-211,
MCA, was misplaced; the court held that it had subject matter
jurisdiction of this action under 5 5 41-3-101 to -1143, MCA, based
3
on the presence of Baby Girl W. in Montana. The District Court
further held that even if 5 40-4-211, MCA, applied, the court still
had subject matter jurisdiction of this action because Montana is
the gghome
stateu1 Baby Girl W.
of
On October 15, 1990, R.T.C. executed a voluntary release of
custody, consent to termination of parental rights for purposes of
adoptive placement, and waiver of right to notice and right to
appear. In this document, R.T.C. stated in part:
2. I hereby voluntarily relinquish, transfer
and assign to [the foster parents] . . . all
of the custody rights which I now have to the
minor child because I believe the transfer and
assignment made herein is in the best inter-
ests of the minor child with respect to her
physical, mental, social, and economic well
being.

5. I do hereby voluntarily consent to the
termination of any and all of my parental
rights in my child forever; and I agree to the
adoption of my minor child by [the foster
parents] because such adoptive placement is in
the best interests of my minor child with
respect to her physical, mental, social and
economic well being.
6. I do hereby declare that this termination
of parental rights, however, does not elimin-
ate my right of visitation to my minor child
and my right to have contact with the same.
It is my understanding that [the foster par-
ents] have consented to keeping me informed
about my daughter and to allow me visitation
as deemed reasonable between them and myself.
However, I do expressly agree that I am not
entitled to have custody of my daughter and
specifically agree not to take my daughter
outside the jurisdiction of the State of
 Montana without the written consent of [the
foster parents].
On October 17, 1990, the District Court heard argument
concerning CSStspetition to, inter alia, terminate parental rights
of Baby Girl W. It is undisputed that R.T.C. received notice of
this hearing. R.T.C. did not attend this hearing, but his attorney
presented to the court his voluntary release of custody, consent
to termination of parental rights for purposes of adoptive
placement, and waiver of right to notice and right to appear.
Following discussion regarding this document, the District Court
judge stated:
This signed document that he [R.T.C.] has
provided this Court among a whole lot of other
things he has stated that he is the child's
father ... that he voluntarily relinquishes
all of his parental rights, he believes that
that [sic] is in the best interest of his
child.
Later R.T.C.'s counsel stated:
Your honor, I guess before we proceed here I
think the Court before we took a recess made
a finding that [R.T.C.] has acknowledged that
the best interest of the child are [sic] not
going to be sewed by the child being with him
.
[R.T.C. ] Therefore I would have an objection
to any evidence about or concerning [R.T.C.].
I don't think that is relevant at this point.
The District Court judge agreed and disallowed any evidence
regarding R.T.C., even though CSS was prepared to present witness
testimony regarding R.T.C. Is lack of fitness as a parent. The
District Court stated "Well, that testimony, I don't believe, is
necessary at this particular hearing since [R.T.C.] has stated that
he does not want custody of the child, that it is in the best
interest of the child that he relinquish his parental rights of the
child.
In an order dated October 19, 1990, the District Court
terminated R.T.C. and D.M.W.Is parental rights, awarded custody of
Baby Girl W. to CSS, and granted CSS the right to consent to Baby
Girl W.'s adoption. From this order, R.T.C. appeals.

1. Did the District Court err in denying R.T.C.'s August 14,
1989 motion to dismiss?
R.T. C. argues that the District Court erred when it denied his
August 14, 1989 motion to dismiss CSS1s petition based on the
ground that CSS had no standing. R.T. C. argues that CSS needed and
lacked R.T.C. Is consent under 5 40-8-11 (1)(a), MCA, before it
could petition the court for Baby Girl W.'s adoption.
R.T.C.'s argument fails as it reflects a misunderstanding of
the nature of CSS1s petition. CSS1s petition states:
NOW, THEREFORE, Petitioner [CSS] prays this
court [to] issue an order as follows:
1. Terminating the parental rights of the
child's natural mother ...
and the child's
natural father ....
2. Awarding permanent, legal custody of the
child to Catholic Social Services for Montana,
Inc., a licensed adoption agency for the state
of Montana.
3. Authorizing Catholic Social Services for
Montana, Inc. , to appear in any court where
 adoption proceedings are pending and consent
to the adoption of Baby ~ i r l[W.].
In its September 26, 1989 order, the District Court properly
held that CSS8spetition did not pray for Baby Girl W.Is adoption.
Instead, the District Court held that the petition, inter alia,
prayed for the termination of R.T.C.'s parental rights regarding
Baby Girl W., which is a necessary procedural step before an
adoption proceeding can be initiated. The District Court properly
stated that CSS did not need R.T.C. s consent to petition the court
for the termination of his parental rights. Therefore, the District
Court properly held that 5 40-8-111(1) (a), MCA, a statute requiring
parental consent prior to a child's adoption in most instances,
does not apply to these facts. See also Brost v. Glasgow (1982),
200 Mont. 194, 202-03, 651 P.2d 32, 36 (a discussion regarding the
legislative history of 5 40-8-111, MCA, which indicates that
terminating parental rights should be determined in separate
proceedings from adoption proceedings).
As stated by the District Court, the applicable statute, 9 40-
6-125, MCA, provides:
(1) If the mother of a child born out of
wedlock proposes to relinquish the child for
adoption and the relinquishment or consent of
the birth father cannot be obtained, the child
may not be placed for adoption until the
parental rights of the father are terminated
by the court as provided in this part, by the
court pursuant to Title 41, chapter 3, or by
a court of competent jurisdiction in another
state or county.
 (2) Pending the termination or other disposi-
tion of the rights of the father of the child
born out of wedlock, the mother may execute a
relinquishment terminating her rights to the
child. If the mother relinquishes the child,
the agency of the state of Montana or the
licensed adoption agency to whom the child is
relinquished may file a petition under this
part or a petition of dependency or neglect
pursuant to Title 41, chapter 3. Pending
disposition of the petition, the court may
enter an order authorizing temporary care of
the child.
-- 5 5 40-6-128 and -130, MCA
See also
Here, it is undisputed that Baby Girl W. was born out of
wedlock. D.M.W., the child's mother executed a voluntary relin-
quishment of custody to CSS, and she voluntarily consented to
termination of her parental rights. In this document, D.M.W.
expressly authorized CSS to arrange for and complete the adoptive
placement of Baby Girl W. by such persons as selected by CSS. CSS
then properly proceeded by petitioning the District Court to 1)
terminate the parental rights of R.T. C. and D.M.W. to Baby Girl W. ,
2) award custody of Baby Girl W. to CSS, and 3) grant CSS the

exclusive right to consent to Baby Girl W. Is adoption before it
proceeded with the commencement of an adoption proceeding. We
therefore hold that the District Court committed no error when it
dismissed R.T.C.Is motion to dismiss on the ground that CSS had no
standing.

2. Did the District Court err when it determined that it had
subject matter jurisdiction over this matter?
8
 In its order dismissing R.T.C. Is April 20, 1990 motion to
dismiss, the District Court held that it had subject matter
jurisdiction of this matter under the dependency and neglect
statutes, 5 5 41-3-101 to -1143, MCA. Under these statutes, subject
matter jurisdiction is granted to the District Court if the child
is present in Montana. Section 41-3-103 (1)(a), MCA. R.T. C. argues
that the District Court improperly applied the abuse and neglect
statutes to these facts. Instead, R.T.C. argues that 5 40-4-211,
MCA, a jurisdictional statute involving custody matters, applies.
Under b 40-4-211, MCA, R.T.C. argues that because he and D.M.W.
are Wyoming residents, Montana is not Baby Girl W.'s "home statett
and the District Court does not have subject matter jurisdiction.
This action was filed under the provisions of 5 5 40-6-125 to -
135, MCA. Unfortunately, these statutes provide no specific
guidance for jurisdiction where one or more of the parties reside
outside of Montana. We, however, agree with the District Court
that it had subject matter jurisdiction of this matter under the
abuse and neglect statutes.
CSS petitioned for, inter alia, the termination of parental
rights regarding Baby Girl W. As the District Court states:
That action [termination of parental rights]
necessarily proceeds as one to first determine
whether the child is a youth in need of care
under [Title 41, Chapter 3, MCA] ; in the event
such a determination is made by the court,
then a specific procedure to terminate paren-
tal rights must be followed. Sections 41-3-
601to 41-3-612, MCA. Jurisdiction under this
Chapter is conferred under Section 41-3-103,
 MCA, which states in part: ' I all matters
'n
arising under this chapter, the youth court
shall have concurrent jurisdiction with the
district court over. . .all youths who are
within the state of Montana for any purpose.''
This same chapter governs a child whose par-
ents have voluntarily relinquished custody of
the child and whose legal custody has been
transferred to a licensed agency. Section 41-
3-102 (10)(f), MCA. It also includes the
Court's authority to transfer legal custody to
a child-placing agency. Section 41-3-
406(3) (b), MCA.
Since the present petition alleges that the
child has been voluntarily relinquished to a
licensed agency and that the father's parental
rights should be terminated, the action is
governed by the Dependency and Neglect Stat-
utes, and jurisdiction is established by the
mere fact that the child is in Montana, in
accordance with Section 41-3-103, MCA.
We agree with the District Court's reasoning and hold that the
Montana's dependency and neglect statutes, 11 41-3-101 to -1143,
MCA, apply to these facts. Accordingly, the District Court has
subject matter jurisdiction over this matter based solely on the
presence of Baby Girl W. in Montana. In passing, we wish to note
that we agree with the District Court that even if 1 40-4-211, MCA,
applied, the District Court would still have subject matter
jurisdiction of this matter because 1) Montana is the "home staten
of Baby Girl W. under 9 40-4-211(l) (a)(i), MCA, and 2) it is in
Baby Girl W.'s best interest that the District Court assume
jurisdiction of this matter under 1 40-4-211(1)(b), MCA.
 3. Did the District Court err when it determined that R.T.C.
could not specifically determine who had the right to adopt his
child when he terminated his parental rights?
R.T.C. executed a voluntary release of custody, consent to
termination of parental rights for purposes of adoptive placement,
and waiver of right to notice and right to appear (release of
custody) on October 15, 1990. In his release of custody, R.T.C.
relinquished his parental rights to Baby Girl W. and agreed to her
adoption by her foster parents.
On October 17, 1990, the District Court conducted a hearing
regarding CSS8sApril 18, 1989 petition. R.T.C. did not attend the
hearing. R.T.C.'s counsel presented R.T.C.'s release of custody
to the court. Following discussion regarding R.T.C.Is release of
custody, R.T. C. Is counsel objected to, and the court disallowed,
the admittance of any testimony regarding R.T.C. in light of
R.T.C. Is release of custody, where he stated that it was in the
child's best interest that he relinquish his parental rights. On
October 19, 1990, the District Court terminatedthe parental rights
of R.T.C. and D.M.W. to Baby Girl W., awarded custody of Baby Girl
W. to CSS, and granted CSS the right to consent to Baby Girl W.Is
adoption.
R.T.C. argues that his release of custody was limited to Baby
Girl W.Is adoption by the foster parents only. R.T.C.'s argument
lacks merit. R.T.C. failed to appear at the October 17, 1990
hearing regarding the termination of his parental rights, and
11
therefore his parental rights were subject to termination under 5 5
40-6-128(6) and -129, MCA. Additionally, R.T.C. executed a release
of custody, which also subjected his parental rights to termination
under 40-6-129(1) (a), MCA. Under these facts, R.T.C. has no
authority to direct the placement of his child.
Furthermore, the District Court awarded custody of Baby Girl
W. to CSS, a duly qualified adoption agency, holding that this
action was in Baby Girl W. Is best interest. There was nothing
erroneous about the District Court's decision. In conclusion, we
hold that the District Court committed no error when it terminated
the parental rights of R.T.C. and D.M.W. to Baby Girl W., awarded
custody of Baby Girl W. to CSS, and granted CSS the authority to
consent to Baby Girl W.'s adoption.
Af firmed.

We concur: