NO. 87-162 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN THE MATTER OF DECLARING 

v.B., T.B., D.B. and B.B., 

Youths in Need of Care. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Farkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

O'Brien & Conrad; Barbara J. Conrad, Fissoula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Margaret Borg, Missoula, Montana 

Rruce M. Wilson, Missoula, Montana 

- - - -~ ~ 

Submitted on Briefs: Aug. 13, 1987 

Decided: November 5, 1987 

Filed: bj@'1315-19187 

*,& ;I 

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

Court. 

W. B. appeals a February 18, 1987, order of the Fourth 

Judicial District, Missoula County. The order terminated her 

parental rights but allowed contact with the children if the 

Department of Social and Rehabilitation Services (SRS) 

determines that such contact is in the children's best 

interests. We affirm. 

Appellant W. B. presents a single issue for our review: 

Did the District Court abuse its discretion in terminating 

parental rights while simultaneously maintaining the 

possibility of parental contact? 

W. B. is the natural mother of four children, ranging 

in age from six to twelve. She has been diagnosed as having 

a borderline personality disorder with marked shifts in moods 

and behavior. She also suffers from a seizure disorder with 

secondary psychosis. Prior to 1984, she was admitted to Warm 

Springs State Hospital eleven times. 

From 1984 to 1986, W. B. was admitted seven times to 

the mental health unit of St. Patrick's Hospital in Missoula. 

SRS placed her children in foster care six times due to 

W. B.'s chronic mental and emotional problems. During this 

time, the children were in their mother's care for a total of 

three months. 

On May 27, 1986, the Missoula County Attorney filed a 

petition on behalf of SRS for temporary legal custody of the 

children. On June 16, 1986, W. B. stipulated to a court 

order which found that the children were neglected within the 

meani-ng of S 41-3-102(2), MCA. The statute provides: 

An "abused or neglected child" means a 

child whose normal physical or mental 

health or welfare is harmed or 
threatened with harm by the acts or 

omissions of his parent or other person 

responsible for his welfare. 

The father of the children also stipulated to the order, and 

agreed to participate in a separate treatment plan. The 

court granted temporary legal custody of the children to SRS. 

In the same order, the District Court approved a treatment plan for W. B. under which SRS would gradually return 

the children to W. B. ' s physical care. The treatment plan 

failed within two months. W. B. was again hospitalized for 

her recurring mental problems. SRS again placed the children 

in foster homes. On September 12, 1986, the Missoula County 

Attorney filed a petition on behalf of SRS to terminate 

W. B.'s parental rights. 

The District Court heard the matter on February 6, 

1987. The court found that all of the children suffer from 

lack of appropriate affection, attention and emotional stability. In addition, the three oldest have learning disabilities. The court found that appellant's mental and emotional 

problems are too great for her to provide the structure and 

consistency the children require. Therefore, the court 

terminated the parent-child relationship. 

However, the court also found that all of the children 

have a psychological attachment to their mother. The court 

stated: 

They would benefit from contact -- with her 

if it were regular and consistent, and 

if her behavior does not upset the 

children. 

Child psychologists that have examined 

the children believe that it would be 

appropriate to allow visitation between 

[W. B.] and the children if it was in 

the best interests of the children. 
Such visitation should not be a right of --- - [W. B. ] . [Emphasis added. 1 

Rased on these findings, the court then ordered: 

[W. B.] may contact the children, as 

restricted by SRS, when SRS determines 

that such contact --- is in the children's 

best interests. 

Before SRS consents to an adoption of 

any of the children, consideration 

should be given to whether the adoptive 

parents would voluntarily allow contact 

between [W. B. 1 and the adoptive child. 

[Emphasis added. ] 

The District Court also ordered that SRS would retain legal 

custody of the children pending a determination of the 

father's rights. 

On appeal, W. R. does not request physical custody of 

the children. However, she does contend that she should 

retain her visitation rights because the court found that 

some contact with the children might be beneficial to them. 

She argues that the order providing for limited contact 

conflicts with 5 41-3-611(1), MCA, which states in pertinent 

part: 

An order for the termination of the 

parent-child relationship divests the 

child and the parents of all legal 

rights, powers, immunities, duties, and 

obligations with respect to each other . . . [Emphasis added. ] 

W. B. contends that the parent-child relationship in 

Montana is an "all-or-nothing principle." She argues that the 

only way for the court to act in her children's best interests is to not terminate the parent-child relationship and 

thus ensure her right to visitation. W. B. also asserts that 

substantial evidence does not support the court's finding 

that her lack of fitness would continue. 
On review of this issue, we will not disturb the 

District Court's decision unless the findings of fact are not 

supported by substantial, credible evidence, or the 

conclusions of law amount to a clear abuse of discretion. 

Matter of C. P. (Mont. 1986), 717 P.2d 1093, 1095, 43 St.Rep. 

728, 730. 

In analyzing a custody issue, the best interests of the 

children are paramount. Matter of C.M.S. (1980), 187 Mont. 

115, 123, 609 P.2d 240, 244. The record shows that W. B. 

cannot provide basic care, such as shelter and supervision, 

for her children because of her repeated hospitalization. 

W. B.'s behavior toward her children is erratic and volatile. 

The three psychologists who treated the children agreed that 

it would be in the children's best interests for 97. R. 's 

legal rights to be terminated. One of the psychologists who 

observed W. B.'s interaction with her children testified: "I 

would like to emphasize that if we do not provide the stable 

environment for these children, that we can say that the 

three older children are going to be institutionalized and 

under the care of the State of Montana throughout their 

lifetime." 

The District Coiurt made specific findings, in 

accordance with 5 41-3-609(1) (c), MCA, on W. B.'s failed 

treatment plan and lack of fitness. The statute allows the 

District Court to order a termination of the parent-child 

legal relationship upon a finding that: 

(c) the child is an adjudicated youth 

in need of care and both of the following exist: 

(i) an appropriate treatment plan that 

has been approved by the court has not 

been complied with by the parents or has 

not been successful; and 
(ii) the conduct or condition of the 

parents rendering them unfit is unlikely 

to change within a reasonable time. 

The District Court's findings were fully supported by the 

testimony and documents. We find that the District Court 

properly terminated W. B.'s parental rights. 

Regarding visitation, we have often held that when 

parental rights are terminated, the natural parent no longer 

has any rights over the child. This includes visitation 

rights. Matter of C. P., 717 P.2d at 1095; 5 41.-3-611(1), 

MCA. However, in W. B.'s case the same psychologists who 

advised that her parental rights be terminated also attested 

to the close relationship between W. B. and her children. 

The psychologists recommended some contact with the children 

under appropriate conditions. 

Focusing on the children's best interests, the District 

Court had the delicate task of defining the scope of contact 

within a warm but erratic family relationship. The District 

Court carefully fashioned a conciliatory order which 

acknowledged both W. B.'s lack of fitness as a mother and the 

children's affection for her. The District Court distinguished contact from visitation. The court's order granted 

no right of visitation but simply allowed the possibility of 

contact conditioned upon SRS approval. In view of the 

respective ages of the children, 12, 11, 9 and 6, such an 

order is reasonable. 

The court also limited SRS to mere consideration of 

contact in the event of the adoption of the children. Such 

consideration was further conditioned on the consent of the 

adoptive parents to any contact with W. B. This limitation 

accords with 5 40-8-125(2), MCA, which states: 

After a final decree of adoption is 

entered, the natural parents . . . shall 

be relieved. of all parental 
responsibilities for said child and have 

no rights over such adopted child or to 

his property by descent and 

distribution. 

The restricted contact allowed by the court falls short 

of a visitation right. We find no inherent conflict within 

the findings of fact and conclusions of law. We caution, 

however, that when parental rights are terminated, continuing 

contact is allowable only in exceptional cases. In the event 

of an adoption, continuing contact cannot be court-ordered 

even with SRS approval. 

We hold that the District Court acted within its discretion and in accordance with the custody statutes. 

Affirmed.