                            No.    93-504

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994




APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Michael H. Keedy, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Chris P. christensen, Attorney at Law,
               Kalispell, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Jennifer Anders, Assistant Attorney General,
               Helena, Montana
               Thomas J. Esch, Flathead County Attorney,
               Randy K. Schwickert, Assistant County
               Attorney, Kalispell, Montana
         For Youths:
               Robert Allison, Attorney at Law,
               Kalispell, Montana


                              Submitted on Briefs:     March 31, 1994
                                            Decided:   April 28, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     On behalf of the Department of Family Services, the Flathead
County Attorney filed a petition to terminate the parent-child
relationship of Susan H. and her natural children, D.H. and F.H.,
in the Eleventh Judicial District Court in Flathead County.     The
District Court found that the children were abused and neglected,
terminated Susan's parental rights, and awarded permanent custody
of the children to the Department of Family Services.         Susan
appeals the order of the District Court.     We affirm.
     Susan raises the following issues on appeal:
     1.   Did the District Court abuse its discretion when it
concluded that Susan had abandoned D.H. and F.H.?
     2.   Did the District Court abuse its discretion when it
concluded that a treatment plan was not required for Susan?
     3.   Was there substantial credible evidence to support the
District Court's finding that previous efforts to counsel Susan had
failed and that she was unlikely to change?
     We find our resolution of the first issue dispositive, and
therefore, will not address the remaining two issues.
                        FACTUAL BACKGROUND
     Susan H. and Duaine H. are the natural parents of twin girls,
D.H. and F.H., who were born March 23, 1990, in Kalispell, Montana.
Susan is also the mother of J.A.     Only the parent-child rights
between Susan and the twins are at issue in this case.
     On September 26, 1990, Susan and her mother were arrested and
incarcerated at the Flathead County Detention Center for their
involvement in a scheme to deliver a series of bad checks.   Susan
ultimately pled guilty to felony theft and accountability for
issuing bad checks and was sentenced to a term of 17 years at the
Women's Correctional Center in Warm Springs. She was denied parole
in November 1992.
     On the day of her arrest, Susan's mother telephoned an
acquaintance, Susan Schraeder, to ask if Schraeder would babysit
D.H. and F.H.   When Schraeder went to pick up the twins, she was
given a box containing a large supply of cereal, baby food, and
formula.   Susan and her mother did not return for D.H. and F.H.
that day due to their arrest and incarceration, Susan's mather was
released from jail, but was unable to care for the children.
Duaine attempted to care for them, but in July 1991, having no job
and no resources, he requested foster placement for D.H. and F.H.
with the Schraeders, who then became licensed foster parents.
Duaine was given a treatment plan and reunited with D.H. and F.H.
in September 1991, but within two months, he was again relying on
the Schraeders for the majority of the care and supervision of the
twins.   In December 1991, D.H. and F.H. were again placed with the
Schraeders, where they have remained since that time.
     Duaine was arrested for probation violation in February 1992.
On June 19, 1992, the Flathead County Attorney, on behalf of the
Department of Family Services (DFS) filed a petition for temporary
investigative authority and protective services based on the
allegation that the children were abused and neglected within the
meaning of 5 41-3-102, MCA.   With the petition, an affidavit was
filed in which       it was alleged that:       (1) both parents were
incarcerated due to criminal convictions; (2) the mother's lengthy
prison sentence would cause her to be absent from the children's
lives for a prolonged period; and (3) the father would not be
released until August 1992 and prior to his incarceration, had
failed to provide the minimum physical, emotional, and psychosocial
needs of the children.
        On October 19, 1992, the DFS filed a petition for permanent
custody and authority to consent to adoption, and requested that
D.H. and F.H. be declared youths in need of care,
        Based upon evidence from the June 9, 1993, hearing, the
District Court declared D.H. and F.H.       youths in need of care,
abandoned by their mother, whose best interests would be served by
termination of the parent-child legal relationship with their
natural mother. On November 2, 1993, Duaine voluntarily terminated
his parent-child legal relationship with D.H. and F.H., consented
to their adoption, and relinquished their legal custody to the DFS.
                           STANDARD OF REVIEW
        This Court has previously stated:
        We presume the correctness of a district court's decision
        to terminate parental rights and we will not overturn
        that decision lgunless  there is a mistake of law ar a
        finding of fact not supported by substantial credible
        evidence that would amount to a clear abuse of
        discretion.It In r S.P. (1990), 241 Mont. 190, 194, 786
                          e
        P.2d 642, 644.
In re CustodyofM.D. (Mont. l993), 864 P.2d 783, 785, 50 St. Rep. 1505,

1506.    Seealso 1nreMatterofRA.D. (1988), 231 Mont. 143, 753 P.2d 862.
However, that standard of review is inadequate for the following
reasons. First, we have adopted a different standard of review for
nonjury findings of fact than we apply to jury verdicts.        Interstate

Prod. CreditAssln. v DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. There,
                   .
we stated:
          This Court will affirm the findings of a trial court
     sitting without a jury unless the findings are clearly
     erroneous. Rule 52(a), M.R.Civ.P.    In comparison, this
     Court will affirm the verdict of a jury if there is
     substantial credible evidence in the record to support
     the verdict.   ....
          Substantial credible evidence when used to support
     a jury verdict is fairly well understood: however, when
     substantial evidence is used in the clearly erroneous
     standard it is less clear. If a finding is not supported
     by substantial evidence it is clearly erroneous. The
     converse proposition that a finding supported by
     substantial evidence cannot be clearly erroneous is not
     true in a non-jury case.      "Substantial evidence and
     clearly erroneous are not synonymous and a finding may be
     set aside, though supported by substantial evidence if
     found to be clearly erroneous."         KRB. Corp. v. Geer
     (C.A. 5th 1963), 313 F.2d 750.
          We adopt the following three-part test to determine
     if a finding is clearly erroneous. First, the Court will
     review the record to see if the findings are supported by
     substantial evidence.      Second, if the findings are
     supported by substantial evidence we will determine if
     the trial court has misapprehended the effect of
     evidence. Third, if substantial evidence exists and the
     effect of the evidence has not been misapprehended the
     Court may still find that "[a] finding is 'clearly
     erroneousv when, although there is evidence to support
     it, a review of the record leaves the court with the
     definite and firm conviction that a mistake has been
     committed." ~ S . Vus. Gypsumco. (1948), 333 U . S . 364, 68
                         .
     S.Ct. 525, 92 L.Ed. 746. [Citations omitted].
DeSaye, 820 P.2d at 1287.    This is the appropriate standard to be

applied to purely factual findings in a proceeding to terminate
parental rights.    The second reason the previously articulated
standard of review for termination of parental rights is inadequate
is that, as a general rule, we review conclusions of law to
determine whether they are correct.    In re Mam'age of Bu?ris (1993), 258

Mont. 265, 269, 852 P.2d 616, 618.     This is also the appropriate
basis for reviewing most conclusions of law in a termination
proceeding.
     However, we find that the conclusion that a child is abused
and neglected involves a decision that is neither purely factual
nor purely    legal, and    is analogous to      a   district    court's
determination of    conscionability when     reviewing marital        and
property settlement agreements.
          When it determines the conscionability of a marital
     and property settlement agreement, a district court
          engage[s] in discretionary action which cannot be
          accurately characterized as a finding of fact or a
          conclusion of law. These discretionary judgments
          made by the t r i a l court are presumed t o be correct
          and will not be disturbed by this Court absent an
          abuse of discretion by the lower court.
InreMam'ageofCaras (Mont. 1994), 868 p.2d 615, 617, 51 st. Rep. 98,

99 (citing In re Mam'age ofHamilton (l992), 254 Mont. 31, 36, 835 P.2d



     In this case, Susan challenges the District Court's decision
that her children were abused and neglected. Therefore, we review
the District Court's decision to determine whether there was an
abuse of discretion.
                               ABANDONMENT
       Did the District Court abuse its discretion when it concluded
that Susan had abandoned D.H. and F.H.?
       A district court must determine the presence of at least one
of the threshold requirements set forth at S 41-3-609(1), MCA, to
terminate a parent-child legal relationship.         In satisfaction of
that     requirement,    the    District     Court    concluded   under
S 41-3-609(1)(b),   MCA, that Susan abandoned D.H. and F.H.
       Section 41-3-102(8) (d), MCA, states that a child is abandoned
when the child is left
       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    ....
       Although Susan contends that she and Duaine intended to resume
custody of the children, the statute requires that the parent
"manifest a firm intention1'to resume custody. The District Court
found that the children have not lived with their mother since
October 1990 (a period over two and one-half years by the time of
the hearing) and that during this time, Susan "has never expressed
an intention to the Schraeders or to the Department of Family
Services to resume custody or make permanent legal arrangements for
the care of the [~hildren].~~
       The District Court also found:
            Since her transfer to the Women's Correctional
       Center in Warm Springs, Susan has never requested from
      the Department or the Schraeders any visitation with the
      girls, nor has she initiated any telephone calls to
      [them]. She has, however, on occasion, sent them cards
      on holidays and one telephonic contact between Susan and
      the girls was initiated by Susan's mother on their second
      birthday.
These findings are supported by substantial evidence, are not
clearly erroneous, and must be affirmed on appeal.
      The evidence established that Susan willfully surrendered
physical custody of her six-month-old twins to Susan Schraeder with
the representation that it would be for the day.            Three and
one-half years later, the twins continue to reside with the
Schraeders.   There is no evidence in the record that Susan ever
indicated to the persons having physical custody of the twins, that
she intended to resume physical custody or attempted to make any
permanent legal arrangements for the care of the children.
      We have previously affirmed a finding of abandonment under
similar circumstances. In re Matter0fM.J.D. (1987), 225 Mont. 200, 205,

731 P.2d 937, 940.     In that case, we concluded it was significant
that the father had not informed his family or social workers of
his   intention   to   acquire   custody   until   after   termination
proceedings had begun.    M J D 731 P.2d at 940.
                           ...  ,
      We conclude that the District Court did not abuse its
discretion when it concluded that Susan's children had been
abandoned by her, were "abused and neglected," and on that basis,
terminated her parental rights.
      Because we affirm the District Court's conclusion that Susan
abandoned D.H. and F.H., and because abandonment is a sufficient
basis for termination of parental rights under 5 41-3-609(1) (b),
MCA, we need not determine whether there was a sufficient basis for
termination under L 41-3-609(1) (c), MCA.
                  i                         The order of the District
Court is affirmed.




We concur:
                                      April 28, 1994

                              CERTIFICATE OF SERVICE

1 hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:


Chris Christensen
Attorney at Law
P.O. Box 1954
Kalispell, MT 59901

Hon. Joseph P. Mazurek, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620

Thomas Esch, County Attorney
Randy K. Schwickert, Deputy
P.O. Box 1516
Kalispell, MT 59901-1516

Robert Allison
Attorney at Law
130-5th St. E.
Kalispell, MT 59901


                                                 ED SMITH
                                                 CLERK OF THE SUPREME COURT
                                                 STATE OF MONTANA
