No. 90-630 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE 

PARENTAL RIGHTS OF 

BABY GIRL W., 

A Minor Child. 

JUL. - 2 1991 

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 

Filed: 

Submitted on Briefs: May 10, 1991 

.Decided: July 2, 1991 

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 intermittently 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 jurisdiction 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 55 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 of Baby Girl W. 

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 interests 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 eliminate my right of visitation to my minor child 

and my right to have contact with the same. 

It is my understanding that [the foster parents] 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 CSSts petition 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 ~irl [W.]. 

In its September 26, 1989 order, the District Court properly 

held that CSS8s petition 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 disposition 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. 

-- See also 55 40-6-128 and -130, MCA 

Here, it is undisputed that Baby Girl W. was born out of 

wedlock. D.M.W., the child's mother executed a voluntary relinquishment 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, 55 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 55 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 parental 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: ''In all matters 

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 parents 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 Statutes, 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 CSS8s April 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 

adopt ion. 

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 55 

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 f irmed. 

We concur: