NO. 85-440
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
I N THE MATTER OF
C.P., Youth i n Need of Care.
APPEAL FROM: D i s t r i c t C o u r t of t h e Z i g h t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f C a s c a d e ,
The H o n o r a b l e J o e l G. R o t h , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
F o r A . p p e l l a n t:
C a s c a d e Law C l i n i c ; P a u l a J a m p s a , G r e a t F a i l s ,
Nontana.
F o r P.espondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dorothy N c C a r t e r , A s s t . A t t y . G e n e r a l , Helena
P a t r i c k L. P a u l , County A t t o r n e y , Great F a l l s ,
Montana; B a r b a r a B e l l , Deputy County A t t o r n e y
Submitted on B r i e f s : J a n . 2 3 , 1986
Decided: A p r i l 24, 1 9 8 6
Filed:
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Clerk
Mr. Justice Justice I,. C. Gulbrandson, delivered the Opinion
of the Court.
Appellant, C.P.'s mother, appeals from a Cascade County
Youth Court order awarding permanent custody of C.I?. to
Social Rehabilitation Services (SRS). She contends that this
final order should have included a provision for an "open"
adoption under an agreement between appellant, SRS and the
county attorney. We affirm.
In May 1983, the Cascade County Attorney's Office filed
a petition for temporary custody and temporary investigative
authority alleging C.P. was abused, neglected and dependent
within the meaning of 85 43-3-101 and -102, MCA. The
supporting affidavit alleged that appellant sexually abused
C.P. The District Court granted the temporary custody
request and ordered that visitation between appellant and
C.P. was to be supervised, that both appellant and C.P.
should receive psychological evaluations and that they
complete any treatment recommended as a result of the
evaluations.
On the basis of the evaluations, the county attorney's
office fil-ed for temporary custody of C.P. for one year with
SRS and requested a treatment plan for appellant. In
November 1983, after a hearing, the District Court concluded
that (1) C.P. should continue to reside in foster care with
his aunt, appellant's sister, and he was doing well in
psychotherapy, (2) appellant continued to deny any sexual
abuse of her son by herself, (3) psychological evaluations
and counselling of C.P. revealed that he was hypersexual and
had been sexually abused, and (4) in the opinion of the
psychologist, appellant committed the sexual abuse.
About two and one-half months later, appel-lant asked
the District Court to modify this order and allow C.P. to
return to her custody. She argued that she and C.P. had made
progress in counselling and continued separation would only
further weaken their relationship. After two hearings, the
District Court denied this request. SF.S continued to have
legal custody, C.P. 's aunt continued to have physical
custody, and visitation between C.P. and appellant continued
to be supervised.
About six months later, in September 1984, the county
attorney's office filed for permanent custody to be awarded
to SRS with the right to consent to an adoption of C.P. The
petition alleged appellant failed. to complete her court
ordered treatment plan, did not maintain contact with her
social worker and that the conditions making her an unfit
parent were unlikely to change within a reasonable amount of
time. The hearing on this petition began on January 21, 1985
and was continued to and completed on February 7, 1985.
Appellant, C.P. and C.P. 's father were present and
represented by counsel during the proceedings. The District
Court found that appellant (1) lacked a stable home
environment, (2) lacked a stable job situation, (3) denied
any involvement in the sexual abuse of her son, ( 4 ) made no
gains in her parenting skills, (5) refused to release
medical information needed to set up a treatment plan for
herself, and (6) failed to complete her treatment plan and
her alcohol abuse program. The District Court also noted
C.P.'s father had not contacted C.P. for three years and paid
no child support although, at times, he was capable of doing
SO. The order, filed July 2, 1985, terminated the
appellant's and the father" parental rights and awarded
permanent custody to SRS with the right to consent to C.P. Is
adoption by the aunt who was his foster mother.
Prior to the entry of this final order, appellant's
attorney, the social worker and a representative of the
Cascade County Attorney's Office discussed including
visitation rights for appellant in the order in the event SRS
placed C.P. for adoption. The date or dates of discussion
are not clear and the record contains no indication that the
parties informed the District Court of the discussions or
reached any agreement on this issue.
On appeal, appellant presents one issue: Whether the
final order for permanent custody should have included a
provision for an "open" adoption allowing her to have
visitation rights with C.P.
The findings of a district court in an abuse and
neglect case enjoy a presumption of correctness and "will not
be disturbed unless there is a mistake of law or a finding of
Eact not supported by credible evidence that would amount to
a clear abuse of discretion ... " (Citation omitted.) In
Re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110, 1112.
When a district court considers terminating parental rights,
it must find clear and convincing evidence of abuse before
such rights can be terminated. In Re T.J.D. (Mont. 19801,
615 P.2d 212, 213, 37 St.Rep. 1385, 1386. Appellant here
does not contend that the District Court erred in terminating
her parental rights, only that she should have retained
visitation rights if SRS places the child for adoption.
Montana statutes governing termination of parental
rights are clear and explicit. Section 41-3-611, MCA,
states:
(1) An order for the termina.tion of the
parent-child legal relationship divests
the child and the parents of - legal
all
rights, powers, immunities, duties and
obligations with respect to each other as
provided in Title 40, chapter 6, part 2,
except the right of the child to inherit
from the parent.
( 3 ) After the termination of a
parent-child legal relationship, the
former parent is neither entitled to any
notice of proceedings for the adoption of
the child - - any right to object -
nor has to
the adoption - - participate - -
or to in any
other placement proceedings held pursuant
to 41-3-609. [Emphasis added.]
Section 40-8-125, MCA, states:
El) After the final decree of adoption
is entered, the relation of parent and
child and all the rights, duties, and
other legal consequences of the na.tura1
relation of child and parent shall
thereafter exist between such adopted
child and the adoptive parents. ..
12) After a final decree of adoption is
entered, the natural parents ...
of the
adopted child ... shall be relieved of
- parental responsibilitTes - -z
all for s a
child and have no rights over such
adoptedPchild. ..
[Emphasis added.]
This language is clear. When parental rights are terminated,
the natural parent no longer has any rights over the child.
This includes visitation rights. Appellant cites no
authority to support her contention and this Court finds
none.
Even if the statutes provided for such a retention of
visitation rights, the record in this case contains -
no
evidence to support such a finding. No one presented an
agreement on such visitation to the District Court and no one
testified concerning whether an "open" adoption would serve
the physical, mental and emotional needs of C.P. There is no
question that appellant disputed SRS obtaining permanent
custody. Thus, there is no question of whether she agreed to
their custody in exchange for visitation rights. The record
contains no facts which would support the District Court's
inclusion of visitation rights for appellant in the event
C.P. is adopted.
Appellant has new counsel representing her on appeal.
This counsel appended a letter written by appellant's prior
counsel to the deputy county attorney involved in the
discussion. The letter is not part of the record and it will-
not be considered on appeal. We hold that the final order
for permanent custody correctly contained no provision for an
"open" adoption.
The order of the District Court is
/ Justice
We Concur: /
Chief Justice
Matter of CP
Combined Opinion