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No. 01-283 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 131 

IN THE MATTER OF 

J.J. & C.J., 

Youths in Need of Care.

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

The Honorable Kenneth R. Neill, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl Jensen, Great Falls, Montana (mother); Ronald Bissell, Great Falls, Montana (child)

For Respondent:

Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Montana Attorney 

General, Helena, Montana; Brant S. Light, Cascade County Attorney, Susan Brooke, 

Deputy Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: June 29, 2001 

Decided: July 25, 2001

Filed:

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__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 L.B., the natural mother of J.J. and C.J., appeals an order of the District Court for the 

Eighth Judicial District, Cascade County, terminating her parental rights. We affirm.

¶2 We address the following issue on appeal: Whether the District Court erred when it 

terminated L.B.'s parental rights based on the State's argument that L.B. had abandoned 

the children.

Factual and Procedural Background

¶3 L.B. and W.J., the parents of J.J. and C.J., separated in 1993. L.B. gave custody of J.J., 

born October 5, 1990, and C.J., born April 9, 1992, to W.J. so that L.B. could begin a 

chemical dependency program. L.B. has not parented the children since February 1994. In 

fact, L.B. moved to Oregon and had no contact with her children for almost six years.

¶4 The Department of Public Health and Human Services (DPHHS) first became involved 

with the family in 1994 based on alleged physical abuse of J.J. by W.J. As a result, the 

children were removed from W.J.'s custody. A treatment plan was adopted for each parent, 

but L.B. failed to complete hers. W.J. successfully completed his treatment plan and the 

children were returned to his care in January 1996.

¶5 DPHHS commenced the present case in February 1999 when it received a report that 

the home was infested with "bed bugs" and that the children had multiple bites. It was also 

alleged that W.J. and his friends frequently used drugs in the home and that W.J. hit one of 

the children with a belt. In an interview with a social worker, the children corroborated the 

allegations of drug use by describing a "horrible smell coming from the basement" and 

finding syringes and a round bowl-like apparatus with a tube attached to it. The social 

worker notified law enforcement officers and a subsequent search of the home produced 

evidence of a methamphetamine lab. 

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¶6 W.J. was taken into custody in March 1999. He pleaded guilty to felony accountability 

for the criminal production and manufacture of dangerous drugs and was sentenced to ten 

years at Montana State Prison with six years suspended. During his incarceration, W.J. has 

maintained contact with his children including visits at the prison and weekly telephone 

calls.

¶7 When the children were taken into protective custody after their father's arrest, they 

complained of having a "hungry tummy most of the time" raising concerns of 

malnutrition. The children also disclosed that W.J. had physically abused them. 

Consequently, on June 15, 1999, the court declared the children youths in need of care, 

pursuant to § 41-3-102, MCA, and granted DPHHS legal custody of the children for six 

months. On January 4, 2000, the court approved a treatment plan for W.J. and extended 

the order for temporary legal custody for another six months.

¶8 After DPHHS filed for temporary legal custody of the children in March 1999, L.B. 

contacted DPHHS to ask if she would be considered a placement option. However, 

DPHHS had no further contact from her until April 3, 2000, more than one year after the 

children were placed in foster care. And, although there had been several hearings 

regarding the children's welfare from the time they were placed into DPHHS's custody in 

March 1999, L.B. failed to attend any of them. 

¶9 On June 18, 2000, L.B. signed a document entitled "Case Plan Recommendations." The 

"case plan" contained the following five recommendations: (1) that L.B. complete a 

psychological evaluation; (2) that L.B. attend a domestic violence support group; (3) that 

L.B. acquire her own residence; (4) that L.B. obtain a chemical dependancy evaluation; 

and (5) that L.B. complete a parenting assessment and parenting classes. 

¶10 On June 21, 2000, the State petitioned for permanent legal custody and termination of 

parental rights as to both L.B. and W.J. The State alleged that L.B. had abandoned her 

children; that the children had been in an out-of-home placement for longer than one year 

and that the parents neglected to remedy the circumstances that caused the out-of-home 

placement; and that W.J. failed to successfully complete a court-approved treatment plan.

¶11 The hearing on the State's petition for permanent legal custody and termination of 

parental rights was held on October 31, 2000. L.B. was present with her attorney. W.J. 

was not present because his attorney failed to request a transport order. The District Court 

reopened the hearing on January 9, 2001, to afford W.J. the opportunity to appear. 

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¶12 On March 12, 2001, the District Court entered an order wherein it determined that it 

would be appropriate to hold the case open as to W.J., pending his upcoming parole 

hearing, because he had substantially complied with his treatment plan and had maintained 

contact with his children while incarcerated. As to L.B., the court determined that she had 

abandoned the children and that, under the circumstances, DPHHS was not required to 

provide a treatment plan for her. Consequently, the court terminated L.B.'s parental rights. 

L.B. appeals the District Court's order terminating her parental rights. 

Discussion

¶13 Whether the District Court erred when it terminated L.B.'s parental rights based on 

the State's argument that L.B. had abandoned the children.

¶14 We review a district court's decision to terminate parental rights for whether the 

court's findings of fact are clearly erroneous and whether the court's conclusions of law are 

correct. In Re J.H., 2000 MT 11, ¶ 20, 298 Mont. 41, ¶ 20, 994 P.2d 37, ¶ 20 (citations 

omitted). Findings of fact are clearly erroneous if they are not supported by substantial 

evidence, the court misapprehends the effect of the evidence, or this Court's review of the 

record convinces it that a mistake has been made. In Re M.J.W., 1998 MT 142, ¶ 7, 289 

Mont. 232, ¶ 7, 961 P.2d 105, ¶ 7 (citations omitted).

¶15 We have long recognized that 

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. Consequently, 

prior to terminating an individual's parental rights, the district court must adequately 

address each applicable statutory requirement. Further, the party seeking termination 

of an individual's parental rights has the burden of proving by clear and convincing 

evidence that the statutory criteria for termination have been met.

In Re C.A., 2000 MT 227, ¶ 5, 301 Mont. 233, ¶ 5, 8 P.3d 116, ¶ 5 (internal quotations 

and citations omitted).

¶16 To terminate the parent-child legal relationship, a district court must determine that 

one of the criteria in § 41-3-609(1), MCA, exists. M.J.W., ¶ 16 (citing In Re Declaring D.

H. (1994), 264 Mont. 521, 526, 872 P.2d 803, 806). Section 41-3-609(1), MCA, provides 

in pertinent part as follows:

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Criteria for termination. (1) The court may order a termination of the parent-child 

legal relationship upon a finding that any of the following circumstances exist:

(a) the parents have relinquished the child pursuant to 42-2-402 and 42-2-412;

(b) the child has been abandoned by the parents;

(c) the parent is convicted of a felony in which sexual intercourse occurred or is a 

minor adjudicated a delinquent youth because of an act that, if committed by an 

adult, would be a felony in which sexual intercourse occurred and, as a result of the 

sexual intercourse, the child is born;

(d) the parent has subjected the child to any of the circumstances listed in 41-3-403

(2)(a) through (2)(e);

(e) the putative father meets any of the criteria listed in 41-3-403(3)(a) through (3)

(c); or

(f) 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. [Emphasis added.]

"Abandoned" is defined in § 41-3-102(1), MCA, as:

(1) "Abandon", "abandoned", and "abandonment" mean:

(a) leaving a child under circumstances that make reasonable the belief that the 

parent does not intend to resume care of the child in the future;

(b) willfully surrendering physical custody for a period of 6 months and during that 

period not manifesting 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; or

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(c) that the parent is unknown and has been unknown for a period of 90 days and 

that reasonable efforts to identify and locate the parent have failed. [Emphasis 

added.]

¶17 In its order terminating L.B.'s parental rights, the District Court determined that L.B. 

had not manifested to DPHHS or the children's caretaker any intention of resuming care or 

custody of the children. The court also determined that because L.B. had abandoned the 

children, DPHHS was not required to provide a treatment plan for her.

¶18 L.B. argues that the District Court erred in terminating her parental rights on the basis 

of abandonment. She maintains that she had resumed her involvement with her children 

and had begun a treatment plan. She argues that once she became involved, using 

abandonment to terminate her parental rights was in error. She maintains that she signed a 

treatment plan on June 18, 2000, but that she was not given the opportunity to complete 

the plan before the State moved for termination of her parental rights. She contends that 

the State conceded that it would take a minimum of six months to complete the plan, but 

that she was given only four months to do so. 

¶19 Contrary to L.B.'s contentions, the District Court terminated her parental rights not 

because she did not complete a treatment plan, but because she had abandoned her 

children pursuant to § 41-3-609(1)(b), MCA. A treatment plan is not required upon a 

finding by the court that the parent has abandoned the child. Section 41-3-609(4)(a), MCA.

¶20 In addition, L.B.'s contention that she had begun a treatment plan but was not given 

the opportunity to complete it is in error. The "case plan" that she signed and returned to 

DPHHS in June 2000, was not a treatment plan that had been approved by a court as 

contemplated by § 41-3-609(1)(f), MCA. Moreover, L.B. acknowledged that it was not a 

treatment plan when her attorney asked the District Court to continue the termination 

hearing so that a treatment plan could be prepared for her. 

¶21 Nevertheless, L.B.'s testimony regarding the "case plan" merely reinforces the court's 

conclusion that she abandoned the children. She signed the case plan in June 2000, but 

testified at the October 31, 2000 termination hearing that she had not begun work on any 

of the five recommendations. As the State pointed out in its brief on appeal, L.B.'s 

argument that she was not given sufficient time to complete the case plan is disingenuous. 

While the almost five months from the time L.B. signed the case plan on June 18, 2000, 

until the termination hearing on October 31, 2000, was not long enough to complete each 

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of the five recommendations, it was certainly long enough to begin work on some of the 

recommendations. L.B. failed to show that she had begun any work on the case plan.

¶22 In M.J.W., we concluded that the father's failure to parent his daughter for any 

extended period of time, including his failure to visit her regularly while in foster care, 

made reasonable the belief of DPHHS that he did not intend to resume care of the child in 

the future. M.J.W., ¶ 17. Similarly, L.B.'s failure to parent her children or even visit them 

for more than six years, particularly the last year when they were in the care of DPHHS, 

made reasonable the belief that L.B. did not intend to resume care of the children. 

¶23 L.B. failed to meet her burden of establishing error by the trial court. In fact, her own 

testimony at the termination hearing supported the court's findings. L.B. testified that she 

had not had regular contact with the children since 1994; that she was aware of the 

criminal charges against W.J. and that the children were in the custody of DPHHS; that 

the October 31, 2000 termination hearing was the first court hearing she attended; that she 

had not previously come to Montana to discuss the children's situation with the social 

worker, the attorney, or the children's caretakers; and that she had no contact with the 

children's therapist. L.B.'s minimal efforts to contact DPHHS after termination 

proceedings had been initiated were not sufficient to show that she intended to resume the 

care of her children.

¶24 Accordingly, we hold that the District Court did not err when it terminated L.B.'s 

parental rights on the basis that she had abandoned her children.

¶25 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

Chief Justice Karla M. Gray specially concurring: 

¶26 I agree with the Court's analysis of the abandonment issue before us and with the 

result reached. I write separately, as I have on previous occasions, to express concerns 

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with the conduct of DPHHS in this case. See Matter of F.H. (1994), 266 Mont. 36, 878 

P.2d 890 (Gray, J., dissenting); Inquiry into M.M., (1995), 274 Mont. 166, 906 P.2d 675 

(Gray, J., dissenting). I also want to comment on several of the Court's statements.

¶27 The record reflects that L.B. contacted DPHHS on April 3, 2000, at which point the 

children had been in DPHHS' temporary legal custody, and in foster care, for over one 

year. On June 18, 2000, L.B. signed DPHHS' "Case Plan Recommendations" and was told 

she would need six months to complete the five recommendations. Three days later,

DPHHS petitioned for permanent legal custody and termination of L.B.'s parental rights 

on the basis of abandonment.

¶28 Why in the world did DPHHS present the case plan which would take six months to 

complete on June 18 when it clearly intended to move quickly to terminate L.B.'s parental 

rights on abandonment grounds? Was it make-work for DPHHS personnel? Was it a 

"game" of some sort being played with L.B.? It strikes me that, whatever the reasons may 

have been, presenting the case plan under such circumstances was cruel and abusive to L.

B., when there was no intent on DPHHS' part to give L.B. a real chance to complete the 

recommendations.

¶29 Nor do I agree with the Court's notion that the case plan, and L.B.'s failure to begin 

work on it prior to the hearing, "merely reinforces the [trial] court's conclusion that she 

abandoned the children." The Court joins DPHHS in characterizing L.B.'s argument that 

she was not given time to complete the case plan as "disingenuous" because she did not 

begin to work on the plan. What rational person would begin work on a plan designed to 

take six months when the petition to terminate her parental rights on the basis of 

abandonment was filed only three days later? Given the basis of the petition, it surely was 

clear to L.B., as it is to me, that any efforts on her part to work on the case plan would be 

futile and for naught. What kind of cruel hoax was being perpetrated on L.B., and why is it 

necessary or appropriate for this Court to join in it?

¶30 The law on abandonment as a basis for terminating a parent's rights is clear. The facts 

of this case with regard to abandonment are clear and clearly render the District Court's 

decision to terminate L.B.'s parental rights to J.J. and C.J. correct. For these reasons, 

notwithstanding my continuing concerns over DPHHS' conduct in some of the cases 

which come before us, I join the Court in affirming the District Court. 

/S/ KARLA M. GRAY

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Justice Terry N. Trieweiler specially concurring: 

¶31 I join in Chief Justice Gray's specially concurring opinion. 

/S/ TERRY N. TRIEWEILER

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