NO. 87-162

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

IN THEMATTER OF DECLARING v.B., T.B., D.B. and B.B., Youths inNeed of Care.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for the County of Missoula, The Honorable DouglasG. Farkin,Judge presiding.

COUNSEL OF RECORD:
ForAppellant: O'Brien & Conrad; Barbara J. Conrad,Fissoula,Montana
For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana Robert L. Deschamps, 111,CountyAttorney, Missoula, Montana Margaret Borg,Missoula,Montana Rruce M. Wilson, Missoula,Montana

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~ Submitted on Briefs: Aug. 13, 1987 Decided: November 5, 1987

Filed: 

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ClerkMr. 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 terminatedher 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. AppellantW. B. presents a single issue for our review: Did the District Court abuse its discretion in terminating parental rights while simultaneously maintaining the possibility ofparental contact? W. B. is the natural mother of four children,ranging in age from six to twelve. She has been diagnosed as having

aborderlinepersonality disorder withmarked shifts inmoods and behavior. She also suffers from a seizure disorder with secondarypsychosis. Prior to 1984, shewas admitted toWarm Springs State Hospital eleven times. From 1984 to 1986, W. B. was admitted seven times to themental health unit of St. Patrick's Hospital inMissoula. SRS placed her children in foster care six times due to W. B.'s chronic mental and emotional problems. During this time,the childrenwere in their mother's care for a totalof threemonths. 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 orderwhich found that the childrenwere neglectedwithin the meani-ngof S 41-3-102(2),MCA. The statuteprovides: An "abused or neglected child" means a child whose normal physical or mental health or welfare is harmed orthreatened with harm by the acts or omissions of his parent or other person responsible for hiswelfare.
The father of the children also stipulated to the order, and agreed to participate in a separate treatment plan. The courtgranted 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 againplaced 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 oldesthave learningdisabilities. 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: Theywould benefit from contactwith 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.Suchvisitation should not be a rightof --- - [W. B.]

# . [Emphasisadded.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.

[Emphasisadded.] The District Court also ordered that SRS would retain legal custody of the children pending a determination of the father'srights. 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 inpertinent 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



# . .. [Emphasisadded.]
W. B. contends that the parent-child relationship in Montana is an "all-or-nothingprinciple." 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 ensureher right tovisitation. W. B. also asserts that substantial evidence does not support the court's finding that her lack of fitnesswould 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), 187Mont. 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 erraticand volatile. The three psychologistswho 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 ifwe 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 compliedwith by theparents or has not been successful;and(ii) the conduct or condition of the parents rendering themunfit isunlikely 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 terminatedW. B.'s parental rights. Regarding visitation, we have often held that when parental rights are terminated, the naturalparent 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 rightsbe 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'sbest 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 acknowledgedboth W. B.'s lack of fitness as amother and the children's affection for her. The District Court distinguished contact from visitation. The court's order granted no right of visitationbut simply allowed thepossibility 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 parentalresponsibilities for said child and have no rights over such adopted child or to his property by descent and distribution.
The restricted contactallowed 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, thatwhenparental 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 discretionand in accordancewith the custody statutes. Affirmed.