No. 92-097 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MATTER OF 

A.E., C.E., S.R. and J.R., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcefl, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. June Lord, Attorney at Law, Great Falls, Montana 

For Respondent: 

Ross P. Richardson, ~enningsen, Vucurovich & 

Richardson, Butte, Montana 

For Guardian Ad Litem: 

Mary Kay Starin, Attorney at Law, Butte, Montana 

Filed: 

submitted on Briefs: July 30, 1992 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

L.D. (appellant), the mother of A.E., C.E., S.R. and J.R. 

(children), appeals from two orders of the District Court for the 

Second Judicial District, Silver Bow County. The first order found 

the children to be youths in need of care and abandoned by their 

mother and fathers. Based upon these findings, the court terminated appellant's parental rights as to each of the children and gave 

permanent legal custody, including authority to consent to 

adoption, to the Montana Department of Family Services (DFS). 

The second order denied appellant's motion to rescind the 

order terminating her parental rights and specifically reaffirmed 

the termination order. We affirm the decisions of the District 

Court. 

We state the issues raised by appellant as follows: 

1. Did the District Court err in terminating appellant's 

parental rights based upon abandonment? 

2. Did the District Court correctly rule the requirements of 

the code had been met and that appellant was afforded due process 

prior to terminating her parental rights? 

3. Did the District Court properly hold appellant's motion 

to rescind the order terminating her parental rights was untimely? 

On November 5, 1990, DFS in Butte became involved with 

appellant and her children in an attempt to ascertain whether the 

children were abused or neglected or otherwise in need of care. 

After a preliminary investigation, the children were placed in 

foster care, and DFS petitioned the District Court for an order of 
temporary investigative authority and protective services. At a 

show cause hearing on November 16, 1990, the District Court issued 

the temporary order which was effective until February 14, 1991. 

On December 20, 1990, appellant consented to a treatment plan 

in which she was to meet certain criteria aimed at eliminating her 

chemical dependency and establishing a nurturing home environment 

for herself and her children. Appellant did not comply with the 

terms of the treatment plan. As a result, DFS petitioned the 

District Court for temporary legal custody of the children on 

February 11, 1991. On the same date, appellant waived her right to 

a hearing on the temporary legal custody issue and consented to DFS 

having temporary legal custody of her children. 

Additionally, appellant entered into a second treatment plan 

by court-ordered consent decree on February 11, 1991. However, by 

the end of February 1991, appellant once again was not in compliance with the terms of the treatment plan. The DFS social worker 

continued in her attempts to work with appellant but with no 

success. By April 15, 1991, appellant had ceased all contact with 

DFS and her children. Efforts were made to contact appellant but 

her whereabouts were unknown. DFS petitioned for termination of 

appellant's parental rights on August 9, 1991. 

A hearing on the petition was held on August 26, 1991. 

Appellant was not present at the hearing. On August 27, 1991, the 

District Court terminated the parental rights of appellant and 
granted permanent legal custody and authority to consent to 

adoption to DFS. Appellant's motion to rescind the termination 

order was denied on February 4, 1992. This appeal followed. 

It should be noted the District Court also terminated the 

parental rights of the father of A.E. and C.E. and the father of 

S.R. and J.R. The fathers do not appeal the District Court ruling 

and are therefore not considered. 

I. 

Did the District Court err in terminating appellant's parental 

rights based upon abandonment? 

A "parent's right to care and custody of a child is a 

fundamental liberty interest, which must be protected by fundamentally fair procedures." Matter of R.B. (1985), 217 Mont. 99, 103, 

703 P. 2d 846, 848. The State must show by clear and convincing 

evidence the parent(s) abandoned the children prior to parental 

rights being terminated. Matter of M.W. (1988), 234 Mont. 530, 

533-34, 764 P.2d 1279, 1281. 

On appeal, we will affirm the District Court's decision to 

terminate parental rights where substantial, credible evidence 

exists to support that decision. Matter of T.M.M. (1988), 234 

Mont. 283, 287, 762 P.2d 866, 869. The judge hearing oral 

testimony has the advantage in determining the outcome of the 

controversy. We will not disturb the District Court findings on 

appeal unless there is a mistake of law, or a finding of fact not 
supported by substantial, credible evidence. Matter of Henderson 

(1975), 168 Mont. 329, 333, 542 P.2d 1204, 1206; Matter of S.P. 

(1990), 241 Mont. 190, 194, 786 P.2d 642, 644. 

Appellant contends the District Court erred in finding she had 

abandoned her children. She bases her argument upon the premise 

that her actions did not meet the requirements of § 41-3-102, MCA. 

We disagree. The District Court applied the appropriate section of 

the code applicable to termination of parental rights and made a 

finding that appellant had in fact abandoned her children. This 

finding is supported by the record. 

Under 5 41-3-609, MCA, parental rights can be terminated when 

any one of three circumstances exists. Matter of M.J.D. (1987), 

225 Mont. 200, 206, 731 P.2d 937, 941. One of the circumstances in 

which parental rights can be terminated is abandonment. The 

applicable subsection provides: 

(1) The court may order a termination of the parentchild legal relationship upon a finding that any of the 

following circumstances exist: . . . 

(b) the child has been abandoned by his parents as set 

forth in 41-3-102 (3) (d) ; . . . 

Section 41-3-609 (1) (b) , MCA. 

Section 41-3-102(3)(d), MCA, defines abandonment as occurring 

when the parent: 

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; . . . [emphasis added]. 

We have previously held "[tlhe period for establishing 

abandonment pursuant to § 41-3-102(3)(d), MCA, is six months." 

M.J.D., 731 P.2d at 940. Matter of M.W. (l988), 234 Mont. 530, 

534, 764 P.2d 1279, 1282. Both of these cases involved facts which 

warranted application of the second clause in 5 41-3-102 (3) (d) , 

MCA, regarding willful surrender of physical custody of the child. 

The first part of 41-3-102(3)(d), MCA, applies where a 

parent abandons a child under circumstances that make reasonable 

the belief the parent does not intend to resume care of the child. 

No time frame is specified for this particular clause. We now 

clarify our previous rulings and hold the six-month requirement is 

applicable only to the subsection of 5 41-3-102(3) (d) regarding 

willful surrender of physical custody of the child. 

In the case at bar, substantial, credible evidence supports 

the District Court's decision to terminate appellant's parental 

rights. The record indicates appellant's last contact with any of 

her four children was March 19, 1991. It was at this time that DFS 

once again removed appellant's daughters from her home because of 

appellant's continued failure to follow the treatment plan. 

Despite a letter from DFS to appellant requesting she contact DFS 

to continue with efforts aimed at reuniting her with her children, 
appellant did not contact DFS until April 15, 1991. Upon contacting DFS, appellant informed her social worker she had just returned 

to the Butte area and was planning to move to Dillon. 

Appellant requested DFS send her children to Dillon to set up 

foster care there. The DFS social worker informed appellant that 

the treatment plan had to be complied with in Butte, and that all 

visitation with her children had to occur in Butte. It was at this 

time that appellant ceased all contact with her children and DFS. 

Substantial efforts by DFS to ascertain the whereabouts of 

appellant from the middle of April 1991, until the termination 

hearing in August 1991, were fruitless. 

We hold there was no mistake of law or finding by the District 

Court not supported by substantial credible evidence. We affirm 

the District Court's holding that appellant abandoned her children 

by leaving them under circumstances that made reasonable the belief 

she did not intend to resume care of them. 

11. 

Did the District Court correctly rule the requirements of the 

code had been met and that appellant was afforded due process prior 

to terminating her parental rights? 

Appellant next contends she was deprived of her fundamental 

right to fair procedure because the District Court did not afford 

her proper procedural safeguards. Specifically, appellant argues 

because she was not personally served with notice of the termina- 
tion proceedings, her due process rights were violated. In the 

alternative, appellant argues she should have been served by 

publication. However, appellant's reliance upon § 41-3-401(4) and 

(5), MCA, in support of these propositions is misplaced. Section 

41-3-401, MCA, dictates the procedures to be followed when the 

State moves for a determination that children are abused, neglected, or dependent. These procedural aspects do not apply to 

termination proceedings. 

The proper procedure to be followed when petitioning for 

termination of a parent-child legal relationship is found in Title 

41, Chapter 3, Part 6, MCA: 

This part provides procedures and criteria by which the 

parent-child legal relationship may be terminated by a 

court if the relationship is not in the best interest of 

the child. The termination of the parent-child legal 

relationship provided for in this part is to be used in 

those situations where there is a determination that a 

child is abused, neglected, or dependent, as defined in 

41-3-102. 

Section 41-3-602, MCA. 

In November 1990, the District Court found that the children 

were abused, neglected, or dependent pursuant to 5 41-3-102, MCA. 

The record is clear that all procedural requirements were met in 

making this determination. It was only after appellant's failure 

to comply with two treatment plans and her failure to keep DFS 

comprised of her whereabouts for over ninety days that the 

termination proceedings were initiated. Upon the DFS petition for 
termination of the parent-child relationship, Title 41, Chapter 3, 

Part 6, MCA, controlled. 

Section 41-3-608, MCA, outlines the notice requirements 

applicable to parent-child relationship termination proceedings: 

Before a termination of the parent-child legal relationship based on abandonment may be ordered, the court shall 

determine whether the rules of civil procedure relating 

to service of process on the parents have been followed. 

If the parents were not served personally, the petitioner 

must file an affidavit stating what efforts have been 

made to locate the parent or parents of the child. The 

affidavit must be filed at least 10 days prior to the 

hearing. 

The record indicates DFS made substantial efforts to locate 

and serve appellant. Notwithstanding this fact, it is apparent 

appellant did not want to be found. It was after this unproductive 

search for appellant that DFS filed its affidavit outlining the 

efforts undertaken to locate appellant. The District Court found 

the notification efforts "were appropriate and that nothing further 

could have been done in order to obtain service of process onN 

appellant. 

Additionally, appellant knew what was required of her to 

retain custody of her children. She was under actual notice from 

the onset of DFS involvement that her parental rights could be 

terminated should she fail to follow the court-ordered treatment 

plans. Due process requires notice and the opportunity to be 

heard. Byrd v. Columbia Falls Lions Club (1979), 183 Mont. 330, 
332, 599 P.2d 366, 367. We hold the District Court properly held 

these elements to have been satisfied. 

111. 

Did the District Court properly hold the appellant's motion to 

rescind the order terminating her parental rights was untimely? 

Finally, appellant contends she was not notified of the 

termination of her parental rights and it was improper for the 

District Court to deny her motion for rescission of the termination 

order. This argument is without merit. At the hearing on the 

motion to rescind the termination order, appellant testified she 

learned of the termination of her parental rights the same day the 

District Court orally entered the termination order, August 26, 

1991. However, nearly six months passed before appellant filed her 

motion to rescind. 

The record supports the District Court's findings that the 

motion to rescind was untimely. The District Court did not abuse 

its discretion in denying appellant's motion. 

We find no error with the District Court's rulings. Accordingly, judgment is affirmed. 
We concur: 
October 8, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

E. June Lord 

Attorney at Law 

600 Central Plaza, Ste. 400 

Great Falls, MT 59401 

Ross Richardson 

Attorney at Law 

P.O. Box 399 

Butte, MT 59703-0399 

Mary Kay Starin 

Attorney at Law 

1100 Utah 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA