NO. 88-54 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN THE MATTER OF DECLARING 

M.W., a Youth in Need of Care. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Mi.ssoula, 

The Honorable Jack L. Green, Judge presiding. 

COI.TWSEL OF RECORD: 

For Appellant: 

Diana P. Leibinger, Missoula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Peter Funk, Asst. Atty. General, Helena 

Martha McClain, Missoula, Montana 

Robert L. Deschamps, 111, County Attorney; Diane 

Conner, Courthouse, Missoula, Montana 

Submitted on Briefs: Sept. 1, 1988 

Decided: November 29, 1988 

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Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

R.Wrs parental rights as father of M.W., a child, were 

terminated on October 23, 1987, in the District Court, Fourth 

Judicial District, Missoula County. The District Court 

awarded the Montana Department of Social Rehabilitative 

Services custody of the child with authority to assent to 

adoption. R.W. appeals. This Court affirms the decision of 

the District Court. 

The issues are these: 

1. Did the District Court abuse its discretion by 

terminating the father's parental rights? 

2. Is 41-3-609(b), MCA (1985), unconstitutional as 

applied to non-custodial parents? 

M.W. was born October 21, 1976. C.M. (mother) and R.W. 

(father) were living in California at the time of the child's 

birth. Mother left California in Zanuary, 1978, and came to 

Montana to visit her family. On April 2, 1979, mother filed 

a petition for dissolution of her marriage to R.W. in 

Missoula County. A default decree was entered on December 

10, 1979. Custody of the child was awarded to mother and 

father was granted reasonable visitation and ordered to pay 

child support in the amount of $100 per month through the 

office of the Clerk of Court of Missoula County. 

From 1978 to 1983, father had no contact with M.W. He 

attempted to see the child in 1980 but mother would not 

cooperate. In 1983, father moved to Missoula and again tried 

to establish contact with the child. After problems with 

visitation, father retained an attorney in Missoula to have 

his visitation rights specified by the court. During this 

time, father paid child support beginning May, 1983, at the 
advice of his attorney. Part of the problem was mother's 

boyfriend, who demanded that all visitation arrangements be 

made through him. Father, father's wife and M.W.'s 

grandmother all found mother's boyfriend to be intimidating 

and physically threatening. Father complied for the most 

part with mother's boyfriend's demands, although father had 

to obtain law enforcement assistance on two occasions. 

Father discontinued child support payments in December, 1983. 

In February, 1985, father moved to Glendive, Montana, 

with his girlfriend and her three daughters. He eventually 

married his girlfriend. When he left Missoula, he made no 

attempt to notify mother of his whereabouts. During this 

time, father made several trips to Missoula but was unable to 

locate mother. In one instance, he saw M.W. on the street 

but he did not approach the child. 

In November, 1985, father and his wife and her children 

moved to Anacortes, Washington. Father made no effort to 

contact or locate mother and M.W. In December, 1986, M.W.'s 

maternal grandmother contacted father to inform him that his 

and mother's parental rights had been terminated. Father 

immediately contacted the Missoula County Attorney seeking 

custody of K.W. 

The SRS placed M.W. in foster care in February, 1985, at 

mother's request. SRS had received referrals regarding M.W. 

from 1979 to 1985. Mother was supposed to take medication 

for epilepsy but failed to take the medication regularly. 

SRS learned she was not taking her medication, and that she 

and M.W. were living in a house with no hot water, 

electricity or heat. There was no food in the house and 

mother was being evicted. Other earlier referrals to SRS 

about M.W. concerned lack of food and inappropriate clothing. 

Throughout the process, mother claimed to have no 

knowledge of father's whereabouts and was vague about his 
identity. On September 18, 1986, after mother's failure to 

comply with a treatment plan, the District Court terminated 

mother's and "unknown father's" parental rights. 

M.W. is mildly mentally retarded and has been placed in 

special education classes at school. M.W. has been treated 

by Dr. Cook, a child psychologist, since she was 2 years old. 

Dr. Cook opines that M.W. has been adversely affected by the 

combined effects of the absence of one parent and the neglect 

by the other parent. M.W. has demonstrated anxiety and fear 

because of the lack of a stable home environment and she 

becomes very fearful at the mention of any change in her 

current living arrangements. 

On January 8, 1987, father filed a petition for custody 

claiming paternity. January 9, father filed motions pursuant 

to Rule 60(b) (1) - (4) of the Montana Rules of Civil 

Procedure seeking relief from that part of the September 18, 

1986, judgment terminating his parental rights. On March 24, 

1987, the District Court set aside its order of September 18, 

1986, as applied to father and awarded him custody. On March 

27, 1987, SRS filed a petition for temporary investigative 

authority and order for protective services which was issued 

that same day. On April 7, 1987, the State filed a petition 

to terminate parental rights alleging the father had 

abandoned M. W. On October 23, 1987, the District Court 

terminated father's parental rights on grounds of 

abandonment, § 41-3-609 (1) (b) , MCA. 

I. 

Did the District Court abuse its discretion by 

terminating father's parental rights? 

Statutory law governing the termination of parental 

rights is found in Title 41, Chapter 3, MCA. Parental rights 

of the father were terminated pursuant to S 41-3-609 (1) (a) , 

MCA, which states parental rights may be terminated upon a 
rights. Section 40-6-102, MCA, defines the parent and child 

relationship as follows: 

"Parent and child. relationship" means the legal 

relationship existing between a child and his 

natural or adoptive parents incident to which the 

law confers or imposes rights, privileges, duties 

and obligations. It includes the mother and child 

relationship and the father and child relationship. 

(Emphasis added. ) 

The legal relationship between father and M.W. did not 

change despite the fact mother was awarded custody. Father 

continued to have the obligation of support, § 40-6-211, MCA; 

he continued to have the right to obtain records regarding 

the child, § 40-4-225, MCA; he continued to have the right to 

visit the child., 5 40-4-217, MCA, and the right to reciprocal 

support, § 40-6-214, MCA. Section 41-3-102 (3) (d) , MCA, 

considers the action of "the parent responsible for the 

child's welfare," not the action of the custodial or 

noncustodial parent. Father had continuing responsibilities 

for the child that did not disappear when he and mother 

divorced. However, father failed to continue in his 

obligations to this child and thus, abandoned the child 

within the meaning of § 41-3-609 (b) . In the Matter of R.B. Jr., Youth in Need of Care (Mont. 

1985), 703 P.2d 846, 42 St.Rep. 1055, this Court emphasized 

the procedural aspect: 

We emphasize that the termination in Montana of a 

natural parent's right to care and custody of a 

child is a fundamental liberty interest, which must 

be protected by fundamentally fair procedures . . . 

R.B., 703 P.2d at 848. 

Father argues he was not afforded adequate due process. 

We disagree. Although father was not properly notified of 

the first proceeding in which mother's and "unknown father's" 

rights were terminated, the District Court rectified the 
finding that the child has been abandoned as set forth in S 

41-3-102 (3) (d) , MCA: 

" (3) Harm to the child's health or welfare" means 

the harm that occurs whenever the parent or other 

person responsible for the child1 s 

welfare: . . . (dl 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; . . . 

This Court has stated that due to the presumption of 

correctness of the determinations of the District Court 

regarding custody of children, findings will not be disturbed 

unless a finding of fact is not supported by substantial 

credible evidence. In Re the Matter of C.G. (Mont., ~ecided 

January, 1988), 45 St.Rep. 63. This Court has also stated 

that the State is required to meet its burden of proof by 

clear and convincing evidence in the termination of parental 

rights. In the Matter of JLB, Youth in Need of Care (1979) , 

182 Mont. 100, 594 P.2d 1127; In the Matter of MSM, Youth in 

Need of Care (Mont. 1982), 654 P.2d 994, 39 St.Rep. 2191. 

This standard was adopted by this Court after the U.S. 

Supreme Court mandated this higher standard in Sandusky v. 

Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 Ll.Ed.2d 599. 

In the present case, father had no contact with M.W. for 

three years and at no time indicated his intention to resume 

custody of the child until he learned his parental rights had 

been terminated. By this time, M.W. had been in foster care 

almost two years. Father's failure to make contact with M.W. 

for three years supports a finding by the District Court that 

father abandoned M.W. within the meaning of the statute. 
This Court found a father had abandoned his children in the 

case of In the P4atter of MJD, CKD, ARD, Youths in Need of 

Care (Mont. 1987), 731 P.2d 937, 44 St.Rep. 167, when the 

noncustodial father had minimal contact with his children for 

two years. This Court noted in that case that the period for 

e~tablish~ng abandonment is six months. MJD, 731 P.2d at940. Father's lack of contact for three years clearly 

establishes abandonment under the controlling statute. 

Other evidence that establishes father's abandonment of 

the child incl-udes the fact that father was well aware of 

mother's mental retardation and the fact she suffered from 

epileptic seizures because she failed to regularly take her 

medication. He testified that when they were married, mother 

refused to take her medication regularly and did not care for 

M.W. properly but yet he made no attempt to prevent mother 

from gaining custody in the dissolution of their marriage. 

It was this failure by mother to take her medicine that 

eventually caused SRS to proceed with termination of mother's 

parental rights. It was reasonable for the District Court to 

assume that an interested father would not leave a child in 

the hands of a clearly incompetent mother. 

11. 

Is S 41-3-609(b), MCA (1985), unconstitutional as 

applied to noncustodial parents? 

Father contends that because he was the noncustodial 

parent, he could not have abandoned his daughter and the 

procedure terminating his parental rights because of 

abandonment is fundamentally unfair. The guardian ad litem 

contends that this argument fails to consider the ongoing 

nature of the rights and obligations of the noncustodial 

parent. This Court agrees with the guardian ad litem. The 

noncustodial parent continues to have obligations as well as 
situation by reinstating father's rights. Father was given 

proper notice of the second proceeding in which his rights 

were terminated. The District Court appointed counsel on 

behalf of the father in order to protect his rights at the 

beginning of the procedure to have his parental rights 

reinstated. Father personally appeared at all subsequent 

hearings with his attorney. Procedural due process means 

notice and opportunity to appear. This Court concludes that 

father was afforded adequate due process. 

This Court finds there is substantial evidence in the 

record to support the District Court's findings of fact and 

order terminatinq father's parental rights. 

Affirmed. 

Justice 

Chief Justice