In re Declaring V.B.

744 P.2d 1248, 229 Mont. 133, 44 State Rptr. 1838, 1987 Mont. LEXIS 1046
CourtMontana Supreme Court
DecidedNovember 5, 1987
DocketNo. 87-162
StatusPublished
Cited by14 cases

This text of 744 P.2d 1248 (In re Declaring V.B.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Declaring V.B., 744 P.2d 1248, 229 Mont. 133, 44 State Rptr. 1838, 1987 Mont. LEXIS 1046 (Mo. 1987).

Opinion

MR. CHIEF JUSTICE 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 meaning of Section 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.”

[135]*135The 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 right of [W.B.]." [Emphasis added.]

Based 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.] 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.B. 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 Section 41-3-611(1), MCA, which states in pertinent part:

[136]*136“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), [221 Mont. 180,] 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 W.B.’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 Court made specific findings, in accordance with Section 41-3-609(l)(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 [137]*137and 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.,

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Bluebook (online)
744 P.2d 1248, 229 Mont. 133, 44 State Rptr. 1838, 1987 Mont. LEXIS 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-declaring-vb-mont-1987.