NO. 85-440 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF 

C.P., Youth in Need of Care. 

APPEAL FROM: District Court of the Zighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For A.ppellant : 

Cascade Law Clinic; Paula Jampsa, Great Fails, 

Nontana. 

For P.espondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy NcCarter, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, 

Montana; Barbara Bell, Deputy County Attorney 

Filed: 

Submitted on Briefs: Jan. 23, 1986 

Decided: April 24, 1986 

/"- cu $?, 

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 - all legal 

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 nor -- has any right to object - to 

the adoption - or - to participate -- 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 

- all parental responsibilitTes -- for saz 

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 willnot 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