Matter of M.j.w.6/9/1998
clusion relating to abandonment. It is well settled that a district court's decision is presumed correct. In re Marriage of Clyatt (1994), 267 Mont. 119, 122, 882 P.2d 503, 505 (citation omitted). It is equally well settled that an appellant bears the burden of establishing error by the trial court. See, e.g., Small v. Good (1997), 284 Mont. 159, 163, 943 P.2d 1258, 1260; Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1127. Joe having failed to challenge the District Court's abandonment determinations and, as a consequence, necessarily having failed to meet his burden of proving error, we hold that the District Court's findings of fact regarding abandonment are not clearly erroneous and that the District Court did not abuse its discretion in concluding that Joe abandoned M.J.W.
19
Finally, Joe correctly contends that a determination that he abused or neglected M.J.W. is required before the District Court can terminate his parental rights. Section 41-3-602, MCA, states that " he termination of the parent-child legal relationship provided for in this part is to be used in those situations when there is a determination that a child is abused or neglected, as defined in 41-3-102." See also In re A.E. (1992), 255 Mont. 56, 61-62, 840 P.2d 572, 576. Joe is incorrect in contending, however, that no such abuse or neglect determination was made in this case.
20 Section 41-3-102(2), MCA (1995), defines "abused or neglected" as "the state or condition of a child who has suffered child abuse or neglect." Section 41-3-102(5)(a), MCA (1995), then defines "child abuse or neglect," in part, as harm to a child's health or welfare. Finally, "harm to a child's welfare" is the harm which occurs when one of the statutory circumstances set forth in § 41-3-102(7), MCA (1995), exists. One of those statutory circumstances is abandonment. Section 41-2-102(7)(e), MCA (1995). As discussed above, the District Court found that Joe had abandoned M.J.W. Pursuant to the referenced statutes, therefore, the District Court implicitly made a determination of abuse or neglect.
21 We have not previously held that abandonment falls within the definition of "abuse or neglect;" however, we have implicitly recognized that it does. In Matter of D.H., 264 Mont. at 525-26, 872 P.2d at 806, for example, the district court made an abuse and neglect determination based on a finding that the mother had abandoned her children. The mother challenged the abuse and neglect determination and we limited our analysis to whether the district court abused its discretion in determining the mother had abandoned her children. Matter of D.H., 264 Mont. at 525-26, 872 P.2d at 806. After reviewing the record, we concluded that the district court had not abused its discretion in determining that the mother had abandoned her children and that they were abused and neglected. Matter of D.H., 264 Mont. at 527, 872 P.2d at 807. While we did not specifically address the statutory requirement for a determination of abuse or neglect in Matter of D.H., our conclusion implicitly recognized that abandonment was the legal equivalent of abuse or neglect.
22 Here, we conclude that the District Court's determination that Joe abandoned M.J.W. satisfies the § 41-3-602, MCA, requirement of a determination that the child has been abused or neglected as defined in § 41-3-102, MCA. We hold, therefore, that the District Court did not err in terminating Joe's parental rights pursuant to § 41-3-601(1)(b), MCA (1995).
23 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, REGNIER and HUNT concur.
|