Adoption of A.W.S. M.A.S. and A.M ( 2017 )

12/21/2017
DA 17-0232
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 315N
IN THE MATTER OF THE ADOPTION OF
A.W.S., M.A.S., and A.M.S., minor children,
J.M.J. and C.J,
Petitioners and Appellees,
v.
W.A.S.,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause Nos. DA 14-048, DA 14-049,
DA 14-050
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wesley A. Schwartz, Self-Represented, Los Angeles, California
For Appellees:
Kevin T. Sweeney, Attorney at Law, Billings, Montana
Submitted on Briefs: November 29, 2017
Decided: December 21, 2017
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 W.A.S. (“Father”) appeals the Findings of Fact, Conclusions of Law, and Orders1
by the Thirteenth Judicial District Court, Yellowstone County, terminating his parental
rights to his three children A.M.S., M.A.S., and A.W.S. (collectively “the Children”) and
entering Decrees of Adoption establishing the parent/child legal relationship between C.J.
(“Grandfather”) and the Children. We address whether the District Court abused its
discretion in terminating Father’s parental rights and granting Grandfather’s petitions to
adopt the Children. We affirm.
¶3 Father and J.M.J. (“Mother”) married in 2005 and divorced in 2013. They have three
children together. Mother and Grandfather live in Billings. Father resides in Los Angeles,
California. Father has had virtually no contact with the Children for at least three years.
Although he visited Montana on several occasions, he did not see the Children. On July
1, 2014, Grandfather brought an action to terminate Father’s parental rights and to adopt
the Children; Mother consented and joined the action. Father failed to answer or appear
1
The District Court entered three separate orders addressing the circumstances of each child
individually. We have consolidated the three cases for purposes of this appeal.
2
and, on December 15, 2014, the Clerk of Court entered a default against Father. On March
13, 2015, the District Court held a hearing, at which Grandfather and Mother testified. The
District Court granted Grandfather and Mother’s petitions terminating Father’s parental
rights and granting decrees of adoption for each of the Children. Father appealed and we
reversed the termination of parental rights because Father had not been properly served.
We remanded and further held:
[I]f service is effected properly on Father, the District Court may allow the
petition to proceed if it first determines that there is “good cause” for
Grandfather to be treated as a “stepparent” under § 42-4-302(2), MCA, and
that he meets the qualifications set forth in § 42-1-106, MCA. If the court so
finds, it then may move forward with proceedings on the termination of
Father’s parental rights in accordance with § 42-4-310, MCA, “prior to or
contemporaneously with the petition to adopt.”2
¶4 Following remand, the District Court held a hearing at which Mother and
Grandfather appeared personally, represented by counsel. Father did not appear. On
March 15, 2017, the District Court issued the Decrees of Adoption and Orders terminating
Father’s parental rights to the Children. The District Court found that Grandfather has
standing to adopt because “good cause” exists to treat him as a “step-parent” under the law
and he satisfies § 42-1-106(3), MCA. The District Court found that Father’s written
consent to the adoption is not required because Father is able to provide financial support
for the children but has failed to do so and, according to Montana Child Support
Enforcement Division records, Father is in arrears “well in excess of $268,000.” The
District Court found by clear and convincing evidence that Father is unfit to parent under
2
A.M.S. v. W.S., 2016 MT 22, ¶ 26, 382 Mont. 145, 364 P.3d 1261.
3
§ 42-2-608, MCA. Based on its findings, the District Court ordered the termination of
Father’s parental rights and entered a decree of adoption establishing the parent/child legal
relationship between Grandfather and the Children.
¶5 Father appeals the District Court’s decision to terminate his parental rights and to
allow for adoption of the Children by Grandfather.
¶6 We review a district court’s decision to terminate parental rights for an abuse of
discretion. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254, 301 P.3d 836; In re D.B., 2007
MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. A district court abuses its discretion when it
acts “arbitrarily, without employment of conscientious judgment or in excess of the bounds
of reason, resulting in substantial injustice.” In re M.J., 2013 MT 60, ¶ 17, 369 Mont. 247,
296 P.3d 1197 (internal citations omitted). We review a district court’s factual findings for
clear error. In re A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. A factual finding
is clearly erroneous if it is not supported by substantial evidence, if the court
misapprehended the effect of the evidence, or if review of the record convinces this Court
a mistake was made. In re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d 899. We
review a district court’s application of the law to the facts for correctness. In re K.B., ¶ 18
(internal citations omitted).
¶7 Father argues that the District Court erroneously found that Grandfather satisfies the
criteria of § 42-1-106(3), MCA. Father also argues that the District Court improperly
denied him an opportunity for a hearing when it denied his request to appear telephonically
shortly before the hearing on February 13, 2017. Father claims that he was unable to afford
travel to the hearing on such short notice, and the hearing proceeded without him. Father
4
argues that the District Court disregarded all the evidence that Father provided;
specifically, the evidence that Father was a student and unemployed. Thus, Father argues
that the District Court abused its discretion by terminating his parental rights and allowing
the Children’s adoption by Grandfather.
¶8 It is the duty of a party seeking review of a judgment, order, or proceeding to present
this Court with a record sufficient to enable it to rule upon the issues raised. M. R. App.
P. 8(3), M. R. App. P. 9; see also Reese v. Reese, 196 Mont. 101, 104–05, 637 P.2d 1183,
1184–85 (1981) (citing M. R. App. P. 9 and reiterating that failure to present this Court
with sufficient record may result in dismissal of the appeal). As the appellant, Father has
the “burden of showing error by reference to matters of record,” and “[u]nless the record
he brings before the court of appeals affirmatively shows the occurrence of the matters
upon which he relies for relief, he may not urge those matters on appeal.” Huffine v.
Boylan, 239 Mont. 515, 517, 782 P.2d 77, 78 (1989) (citing Yetter v. Kennedy, 175 Mont.
1, 7, 571 P.2d 1152, 1156 (1977)) (internal citations omitted). The record is the “only
evidence of which this Court can rely in making a determination on the issues at bar.”
Huffine, 239 Mont. at 517, 782 P.2d at 78; Giambra v. Kelsey, 2007 MT 158, ¶ 36, 338
Mont. 19, 162 P.3d 134 (this Court declined to rule on the merits of an appellant’s pain and
suffering claim after combing through a district court record and determining the only
evidence supporting appellant’s claim was likely to be found in the unattached trial
transcript). As in his first appeal, A.M.S., ¶ 7, Father has failed to provide a record adequate
to support his contentions on appeal. Father did not provide transcripts of the proceedings.
Therefore, we are limited in our consideration to what was transmitted.
5
¶9 Regarding Father’s claim that he was denied the opportunity to attend the hearing
because the District Court denied his request to attend by telephone, and he claimed that
he could not afford to travel to Montana to attend the hearing in person, we previously
noted the District Court’s incredulity at Father’s claims of indigence in In re Jardine, 2016
MT 321N, ¶ 5, 386 Mont. 396, 384 P.3d 1068, when we affirmed the District Court’s denial
of Father’s motion to participate telephonically in the hearing on his motion to reduce his
child support obligation. Father has presented nothing in this appeal that would cause us
to revisit this issue. Father was not denied the right to attend this hearing in person, and
the District Court did not abuse its discretion by denying Father the right to participate in
this hearing telephonically.
¶10 Father contends that the District Court erred because it disregarded “all evidence
provided by [Father].” Father did not appear at the hearing and, thus, presented no evidence
at the hearing. Father references some exhibits that he attached to his brief in opposition
to the Second Amended Petition for Termination, which he contends was evidence the
District Court disregarded; he goes on at length in his brief about his financial condition
and takes issue with the District Court’s rejection of his contentions; and he makes a
number of unsupported assertions in his brief as to his relationship with his Children. To
a great extent, Father confuses contentions with evidence. Even to the extent that we might
liberally construe Father’s contentions as “evidence,” however, this does not provide a
basis for reversal. “We will defer to a district court’s resolution of conflicting evidence if
the evidence sufficiently supports a factual finding, even where evidence in the record
supports a contrary finding.” Vintage Constr., Inc. v. Feighner, 2017 MT 109, ¶ 15, 387
6
Mont. 354, 394 P.3d 179. Based on the record that has been made available to us, the
evidence sufficiently supports the District Court’s factual findings.
¶11 In its Findings of Fact, the District Court found that “[t]he evidence was strong that
[Grandfather] has served as an important adult figure in [the Children’s] li[ves].” The
District Court found that Grandfather and his wife regularly care for the Children. The
District Court found that Grandfather has a strong bond with the Children and has served
as a father figure and de facto father for years. Conversely, the District Court found that
Father “has abdicated any semblance of fatherhood,” that Father was more than a quarter
of a million dollars delinquent in his child support obligations, and that Father was unfit to
parent under § 42-2-608, MCA.
¶12 The District Court’s Findings of Fact support the District Court’s dispositive
determinations that Grandfather be treated as a “stepparent” under § 42-4-302(2), MCA,
and that Grandfather has standing to adopt the Children under § 42-1-106, MCA. See
Feighner, ¶ 15. The District Court did not abuse its discretion in terminating Father’s
parental rights and allowing Grandfather to adopt the Children. See e.g., In re D.B., ¶ 16.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled
I by settled law or by the clear application of
applicable standards of review. The District Court’s Findings of Fact are not clearly
erroneous, its Conclusions of Law are correct, and its ruling was not an abuse of discretion.
7
¶14 The District Court’s Findings of Fact, Conclusions of Law, and Orders are affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE
8