NO. 88-54

IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

IN THEMATTER OF DECLARING M.W., a Youth inNeed of Care.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMi.ssoula, The Honorable Jack L. Green,Judgepresiding.

COI.TWSELOF RECORD:

ForAppellant: 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, CountyAttorney; Diane Conner, Courthouse, Missoula,Montana

Submitted on Briefs: Sept. 

### 1, 1988 Decided: November 29, 1988

Filed-: tPZ C3 3 C _ r --' m C>
IL1

-7 t



### ... :' ts UZ +- 

## ./s,

W L, 

### =! m L,,, Clerk CU



### .: 1 - L C3 -=i. 

### z IrsMr. Justice John C. Sheehy delivered the Opinion of the Court.

R.Wrsparental rights as father of M.W., a child,were terminated onOctober 23, 1987, in the DistrictCourt,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 DistrictCourt. The issues are these: 1. Did the District Court abuse its discretion by terminating the father'sparental rights? 2. Is 41-3-609(b), MCA (1985), unconstitutional as applied to non-custodialparents? 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 contactwith M.W. He attempted to see the child in 1980 but mother would not cooperate. In 1983, fathermoved 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 theadvice 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. Fatherdiscontinued child supportpayments 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, fathermade several trips toMissoula 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 locatemother and M.W. In December, 1986,M.W.'s maternal grandmother contacted father to informhim that his and mother's parental rights had been terminated. Father immediately contacted the Missoula County Attorney seeking custody ofK.W. The SRSplaced 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 aboutM.W. concerned lack of food and inappropriateclothing. Throughout the process, mother claimed to have no knowledge of father's whereabouts and was vague about hisidentity. On September 18, 1986, after mother's failure to comply with a treatment plan, the District Court terminated mother's and "unknownfather'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 2years old. Dr. Cook opines thatM.W. has been adversely affected by the combined effects of the absence of oneparent 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 claimingpaternity. January 9,father filedmotionspursuant to Rule 60(b)(1) 

### - (4) of the Montana Rules of Civil Procedure seeking relief from thatpart of the September 18, 1986, judgment terminating his parental rights. On March 24, 1987,the District Court setaside 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 arights. Section 40-6-102, MCA, defines the parent and child relationshipas 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 relationshipand the father and child relationship.

(Emphasisadded.) The legal relationship between father and M.W. did not change despite the fact mother was awarded custody. Father continued to have the obligationof 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 themeaning 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 adequatedue process. We disagree. Although father was not properly notified of the firstproceeding inwhichmother's and "unknown father's" rights were terminated, the District Court rectified thefinding 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, findingswill 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)

### , 182Mont. 100, 594 P.2d 1127; In the Matter ofMSM, 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 thepresent case, fatherhad 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 rightshad been terminated. By this time,M.W. had been in foster care almost twoyears. Father's failure tomake contact withM.W. for threeyears supports a findingby 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 fatherhad minimal contact with his children for twoyears. This Courtnoted in that case that theperiod for e~tablish~ng abandonment is six months. MJD, 731 P.2d at940. Father's lack of contact for three years clearly establishesabandonmentunder the controlling statute. Other evidence that establishes father's abandonment of the child incl-udesthe 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 theyweremarried,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 toproceed with termination ofmother's parental rights. Itwas reasonable for the District Court to assume that an interested fatherwould not leave a child in the hands of a clearly incompetentmother. 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 aswell assituation 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 fatherwas afforded adequatedue 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