Adoption of L. J.

11/01/2016
DA 16-0107
Case Number: DA 16-0107
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 277N
IN THE MATTER OF THE ADOPTION OF
L.J., a minor child,
TAYLOR JOHNS,
Petitioner and Appellee,
v.
KASSANDRA HILL,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DA-15-041B
Honorable Robert B Allison, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Scott G. Hilderman, Attorney at Law, Kalispell, Montana
For Appellee:
Tiffany B. Lonnevik, Lonnevik Law Firm, P.C., Kalispell, Montana
Submitted on Briefs: September 28, 2016
Decided: November 1, 2016
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 Kassandra Hill (Kassandra) appeals the January 26, 2016 order of the Eleventh
Judicial District Court, Flathead County, granting Taylor Johns’s (Taylor) petition for
termination of parental rights. We affirm.
¶3 L.J. is the biological child of Kassandra and McKeag Johns (McKeag), born in
2005. Kassandra and McKeag were married in 2003 and divorced in 2008. The Eleventh
Judicial District Court finalized the divorce decree and approved the original parenting
plan. Initially, Kassandra was the primary residential parent under the plan while
McKeag spent alternating weekends plus one mid-week evening with the child. McKeag
and Taylor began dating around this time.
¶4 In June 2009, Kassandra and McKeag amended the original parenting plan,
increasing McKeag’s parenting time to a minimum of one week per month. In December
2009, McKeag started L.J. in therapy due to concerns over his behavior. Kassandra was
aware of L.J.’s counseling, but did not speak to the therapist about his treatment or
progress. In February 2010, Kassandra relinquished primary residential custody of L.J. to
McKeag for a consecutive six-month period, as reflected in a written agreement between
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the parents. In March 2010, McKeag and Kassandra agreed to, and the court approved,
an amended residential agreement which afforded Kassandra parenting time of one
weekend per month. Kassandra married Loren Hill (Loren) the same month. In May
2010, McKeag married Taylor. One month later, L.J. began seeing psychiatric social
worker Shawn Trontel to address his severe emotional problems. At the same time,
McKeag moved to amend the parenting plan in order to modify child support and reflect
that he was now L.J.’s primary parent.
¶5 Between February 2010 and August 2010, Kassandra exercised her parenting time
five times and did not contact Ms. Trontel regarding L.J’s emotional well-being. In
September 2010, Kassandra attended a contested hearing on McKeag’s motion to amend.
Ms. Trontel also testified at the hearing and subsequently submitted letters to the court
when she became concerned about L.J.’s mental status. In December 2010, the court
granted McKeag’s motion and placed L.J. in his primary residential care. Kassandra was
afforded monthly, holiday and summer parenting time and was ordered to pay McKeag
$185 per month in child support. Over the next six months, Kassandra did not exercise
her monthly and holiday parenting time, and did not inquire about L.J.’s counseling.
¶6 On May 11, 2011, Ms. Trontel submitted a letter to the court, outlining L.J.’s
emotional difficulties and recommending that Kassandra’s visits cease until she could
establish a more consistent visitation schedule. Based on these recommendations,
McKeag moved for, and the District Court granted, an order restricting Kassandra’s time
with L.J. to Flathead County, the child’s place of residence. McKeag and Kassandra
negotiated a stipulated parenting plan, wherein Kassandra agreed that if she saw L.J. in
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Montana for six consecutive months, her parenting time would extend to her state of
residence (Idaho). Kassandra also agreed to call L.J. every Sunday. During her visits to
Montana, Ms. Trontel encouraged Kassandra to meet with her to talk about L.J.’s
treatment. Kassandra and Ms. Trontel met for the first time in June 2011. The meeting
became contentious when Ms. Trontel asked Kassandra about Loren hitting L.J. on more
than one occasion. After Ms. Trontel made two unsuccessful attempts to arrange
additional meetings with Kassandra, the two finally met for a second and final time in
September 2011.
¶7 On September 28, 2011, Ms. Trontel wrote another letter to the District Court after
becoming concerned that L.J. was having a psychotic break. She recommended that
L.J.’s contact with Kassandra and Loren be discontinued due to the couple’s inability to
understand L.J.’s needs. Kassandra objected to the letter three months later and the
District Court entered an order denying her objection in January 2012. The court
temporarily suspended Kassandra’s parenting time until she and Loren attended monthly
in-person sessions with Ms. Trontel. Kassandra and Loren failed to do so and, over the
next four years, Kassandra made no effort to see, telephone, or otherwise contact her son.
¶8 In January and June 2015, McKeag and Taylor asked Kassandra to voluntarily
relinquish her parental rights. After she refused the second request, Taylor filed a
Petition for Termination of Parental Rights and for Stepparent Adoption on September 1,
2015, which she personally served on Kassandra. On December 21, 2015, the court held
a hearing on the matter. Kassandra was represented by counsel and testified at the
hearing.
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¶9 On January 26, 2016, the District Court issued its findings of fact, conclusions of
law, and order, granting Taylor’s petition. The court found Kassandra to be unfit as a
parent, based on her willful abandonment of L.J. and delinquency in child support
payments. The court also took into account Ms. Trontel’s opinion regarding L.J.’s
progress since his mother’s absence; namely, that his condition had improved with
medication and the safe, structured environment provided by McKeag and Taylor. The
court agreed with Ms. Trontel’s assessment that resuming contact between Kassandra and
L.J. would be disruptive to his progress and that terminating Kassandra’s parental rights
would be in L.J.’s best interest. Finally, the District Court relied on Ms. Trontel and
Taylor’s testimony that L.J. had told them of his wish to be adopted by Taylor.
¶10 We review a district court’s decision to terminate parental rights for an abuse of
discretion. In re Adoption of B.W.Z.-S., 2009 MT 433, ¶ 10, 354 Mont. 116, 222 P.3d
613. A district court must make findings of fact and conclusions of law to support any
decision to terminate parental rights. Adoption of B.W.Z.-S., ¶ 10. We review any
findings of fact made by a district court to determine whether they are clearly erroneous
and we review conclusions of law made by a district court to determine if they are
correct. Adoption of B.W.Z.-S., ¶ 10.
¶11 Kassandra argues that the District Court abused its discretion when it deemed her
unfit because the court relied upon inapplicable case law, failed to accurately apply the
statutory requirements for involuntary termination of parental rights, and failed to
recognize Kassandra’s fundamental liberty interest in the care and custody of her child.
We disagree.
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¶12 “A natural parent’s right to the care and custody of a child is a fundamental liberty
interest.” In re R.A.J., 2009 MT 22, ¶ 15, 349 Mont. 100, 201 P.3d 787. As such, a party
seeking termination of parental rights on the basis that a parent is unfit must prove, by
clear and convincing evidence, that the statutory criteria of § 42-2-608, MCA, have been
met. See In re R.A.J., ¶ 15. Under § 42-2-607(2), MCA, a parent’s right to a child
subject to an adoption proceeding may be terminated if the court makes an unfitness
determination under § 42-2-608, MCA.
¶13 For purposes of making a child available for adoption, a parent’s rights may be
terminated on unfitness grounds if the parent has willfully abandoned the child. Section
42-2-608(1)(b), MCA. Under § 41-3-102(1)(a), MCA, “abandoned” is defined in
relevant part 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; [or]
(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[.]
¶14 A court may also terminate parental rights in adoption proceedings if the parent
has violated a court order to support the child. Section 42-2-608(1)(d), MCA. However,
the permissive nature of the statute means that a court is not required to terminate
parental rights on this basis alone; instead, the failure to comply with a court order should
be analyzed “tak[ing] into account the totality of the circumstances relevant to a given
case.” Adoption of B.W.Z.-S., ¶¶ 19, 24.
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¶15 Before a termination finding is made, the respondent parent must be given proper
notice and a hearing and, pursuant to the relevant statutory factors found in
§ 42-2-608(h), MCA, the court must find:
(i) by a preponderance of the evidence, it is found that termination is
in the best interests of the child; and
(ii) upon clear and convincing evidence, it is found that one of the
following grounds exists:
. . .
(B) if the child is in the legal and physical custody of the other
parent and a stepparent who is the prospective adoptive parent, that the
respondent is not able or willing to promptly establish and maintain contact
with the child and to pay for the child’s support in accordance with the
respondent’s financial means;
(C) placing the child in the respondent’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
well-being of the child because . . . the respondent’s behavior . . . since the
child’s birth . . . indicates that the respondent is unfit to maintain a
relationship of parent and child with the child; or
(D) failure to terminate the relationship of parent and child would be
detrimental to the child.
¶16 Based on the factors the court considered in this case, we cannot say that the
District Court abused its discretion in terminating Kassandra’s parental rights in order to
allow L.J. to be adopted by his stepmother. The record demonstrates that Kassandra did
not attempt to see or speak to L.J. for over four years prior to Taylor’s petition for
termination. Nor did she attempt or evidence an intent to resume physical custody of her
son after she relinquished custody to McKeag. Because her actions meet the definition of
abandonment under § 41-3-102(1)(a)(i)-(ii), MCA, the District Court did not abuse its
discretion when it terminated Kassandra’s parental rights on unfitness grounds.
Additionally, given that Kassandra was in arrears in her child support payments at the
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time of the termination proceedings, the court also correctly found her to be in violation
of a court order and unfit on this basis.
¶17 We also conclude that the District Court did not abuse its discretion when it found
that termination was in L.J.’s best interest. The record contains clear and convincing
evidence to support the court’s findings as it pertains to Kassandra’s extended absence,
lack of financial support, and the detrimental effect Kassandra’s reappearance would
have on L.J.’s physical and psychological well-being. In light of the circumstances of
this case and considering the fundamental liberty interest at stake, we conclude that the
court acted within its discretion in granting Taylor’s petition to terminate Kassandra’s
parental rights.
¶18 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, this case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s ruling was not an
abuse of discretion, its findings of fact were not clearly erroneous, and its interpretation
and application of the law was correct.
¶19 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
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