                                                                                          August 17 2010


                                   DA 10-0122 and DA 10-0123

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2010 MT 184N



T.G.C and M.C.,

              Petitioners and Appellees,

         v.

M.C.M.,

              Respondent and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause Nos. BDA-2009-13 and
                        BDA-2009-14
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Lori A. Harshbarger, JD Law Firm, P.C., Whitehall, Montana

                For Appellees:

                        Charles A. Smith, Attorney at Law, Helena, Montana



                                                    Submitted on Briefs: July 28, 2010

                                                               Decided: August 17, 2010


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court's quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     M.C.M. appeals an Order of the District Court for the First Judicial District, Lewis

and Clark County, terminating her parental rights to her two minor children and

approving the adoption of the children by M.C., the paternal grandmother of the children,

and M.C.’s husband, T.G.C. We affirm.

¶3     M.C.M. raises the following three issues on appeal:

¶4     1. Whether the District Court erred in terminating her parental rights based on its

conclusion that she was unfit and had abandoned the children.

¶5     2. Whether the District Court erred in terminating her parental rights based on its

conclusion that she failed to support the children.

¶6     3. Whether the District Court erred in granting the Decree of Adoption of her

children by M.C. and T.G.C.

¶7     Having reviewed the record, the District Court’s decision and the parties’

arguments on appeal, we have determined to decide this case pursuant to Section I,

Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006, which

provides for memorandum opinions.


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¶8     When M.C.M. and her husband, R.M.,1 divorced in 2007, the District Court

awarded M.C. legal guardianship over the children because the court found that neither

M.C.M. nor R.M. was fit to parent the children based on the fact that M.C.M. had a

serious drug problem and that R.M. had engaged in assaultive behavior toward the

children. The court ordered both parents to pay 50% of the children’s medical expenses

and to contribute funds as they were able for the care and upbringing of their children.

The court also concluded that within one year of the date of the Decree of Dissolution,

either parent could petition to have a hearing to determine whether either of them should

be awarded custody of the children.

¶9     In its January 2010 Order terminating M.C.M.’s parental rights, the court found

that M.C.M. did not pay any support for the children as ordered by the 2007 Decree of

Dissolution, nor did she petition the court within one year to regain custody of the

children. Furthermore, the District Court found that the children have lived almost

exclusively with M.C. and T.G.C. since 2002, and that M.C.M. has not provided any

financial support for the children during the entire time the children have lived with M.C.

Consequently, the court concluded that M.C.M. abandoned her children. The court also

concluded that M.C.M. is unfit to parent her children because, although she currently is

working and able to contribute to the support of the children, she has failed to do so.

¶10    M.C.M. argues on appeal that the District Court erred in terminating her parental

rights because she did not willfully abandon the children as she never intended to give

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  R.M.’s parental rights are not at issue here since he already agreed to the termination of
his parental rights to both children and to the adoption of the children by M.C. and
T.G.C.

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M.C. permanent custody of the children.          She maintains that even though she was

incarcerated part of the time because of her drug use, she corresponded with the children

and spoke with them by phone. She also points out that she was unable to support her

children because of her incarceration.

¶11    Section 42-2-608, MCA, sets forth the findings needed to declare a parent unfit:

              (1) The court may terminate parental rights for purposes of making
       a child available for adoption on the grounds of unfitness if:
              (a) the court makes a determination that the parent has been
       judicially deprived of custody of the child on account of abuse or neglect
       toward the child;
              (b) the parent has willfully abandoned the child, as defined in
       41-3-102, in Montana or in any other jurisdiction of the United States;
              (c) it is proven to the satisfaction of the court that the parent, if able,
       has not contributed to the support of the child for an aggregate period of
       1 year before the filing of a petition for adoption;
              (d) it is proven to the satisfaction of the court that the parent is in
       violation of a court order to support either the child that is the subject of
       the adoption proceedings or other children with the same birth mother . . . .
       [Emphasis added.]

A n d , f o r p u r p o s e s o f § 4 2-2-608(1)(b), MCA, “abandonment” is defined in

§ 41-3-102(1)(a), MCA, as

               (i) 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;
               (ii) 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 . . . .
       [Emphasis added.]

¶12    It is manifest on the face of the briefs and the record before us that this appeal is

without merit because the findings of fact are supported by substantial evidence, the legal

issues are clearly controlled by settled Montana law which the District Court correctly


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interpreted, and the record supports the District Court’s conclusion that M.C.M. is an

unfit parent and that she abandoned her children.

¶13   Accordingly, we affirm the District Court’s Order terminating M.C.M.’s parental

rights and approving the adoption of her two minor children by M.C. and T.G.C.

¶14   Affirmed.


                                                               /S/ JAMES C. NELSON


We Concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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