Matter of S.S.

No. 00-502
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 270IN THE MATTER OF
S.S., K.C., and J.C.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Marge Johnson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vince Van Der Hagen, Office of Public Defenders, Great Falls,
Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Ilka Becker,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney; Susan Brooke,
Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: September 19, 2002
Decided: November 26, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 The natural father of J.C. appeals from the order terminating
his parental rights entered by the Eighth Judicial District Court,
Cascade County. We reverse.
¶2 The issue is whether the District Court erred in terminating
the father's parental rights to J.C. based on abandonment.
BACKGROUND
¶3 In April of 1998, the District Court granted the Department of
Public Health and Human Services (Department) protective custody of
J.C.'s older half-siblings, S.S. and K.C., due to neglect and, in
addition, possible physical abuse by the mother's boyfriend. When
J.C. was born in November of 1998, she and her mother both tested
positive for marijuana. The Department took protective custody of
J.C. the day after she was born and placed her in foster care.
J.C. subsequently was added to this youth in need of care
proceeding and she remained in foster care throughout the action.
¶4 J.C.'s natural father, who is not the father of S.S. or K.C.,
was in prison before J.C.'s birth and remained there through the
permanent legal custody hearing in April of 2000. Paternity was
established by testing in March of 1999. At a status hearing on
August 31, 1999, the District Court ordered the Department to
develop a treatment plan for J.C.'s father and appointed counsel to
represent the father.
¶5 No treatment plan was developed for the father and he did not
attend any of the hearings except the termination hearing held in
April of 2000. At the close of that hearing, at which the father
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testified, the District Court terminated the father's parental
rights on the basis that the father had abandoned J.C.
¶6 The children's mother relinquished her rights to J.C. This
appeal involves only the father's parental rights to J.C.
DISCUSSION
¶7 Did the District Court err in terminating the father's
parental rights to J.C. on the basis of abandonment?
¶8 A parent's right to the care and custody of a child is a
fundamental liberty interest which must be protected by
fundamentally fair procedures. For that reason, the State must
show by clear and convincing evidence that a parent has abandoned a
child before parental rights may be terminated. In re A.E. (1992),
255 Mont. 56, 59, 840 P.2d 572, 574 (citations omitted).
Additionally, when considering the criteria for termination of
parental rights, courts must give primary consideration to the best
interests of the child as demonstrated by the child's physical,
mental and emotional needs. In re M.W., 2001 MT 78, ¶ 4, 305 Mont.
80, ¶ 4, 23 P.3d 206, ¶ 4 (citations omitted). We review factual
findings under the clearly erroneous standard and conclusions of
law to determine if they are correct. In re W.Z. (1997), 285 Mont.
16, 21, 946 P.2d 125, 128 (citations omitted).
¶9 Abandonment is statutorily defined as "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." Section 41-
3-102(1)(a), MCA. Although a six-month time frame applies for
establishing abandonment under an alternative statutory definition
of abandonment, no express time frame applies to the definition of
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abandonment at issue here. See § 41-3-102(1)(b), MCA; A.E., 255
Mont. at 60, 840 P.2d at 575.
¶10 The father contends the District Court's finding of fact that
he left J.C. under circumstances that made reasonable the belief
that he did not intend to assume or resume her care in the future
is clearly erroneous. He states he repeatedly informed the
Department of his intent to assume care of J.C. upon his release
from prison and that he completed several programs while in prison
which demonstrated that intent.
¶11 The Department concedes that the father may not have
subjectively intended to abandon J.C. It contends, however, that
the father gave the impression to others that he did not intend to
assume her care. The record does not support the Department's
position.
¶12 The father testified that he initiated paternity testing
through the Department of Corrections when he learned of J.C.'s
birth. He was told that he would have to contact the mother to get
photographs of--or information regarding--J.C., and he did so. He
further testified that he wrote to the Department in May or June of
1999 stating his intent not to give up his rights as a father.
¶13 The father also testified that he talked with the Cascade
County prosecuting attorney in May of 1999 and informed him that he
would like to participate in the hearings by telephone. He
testified that the attorney gave him the impression that J.C.'s
mother was following the Department's recommendations. The father
testified he received only after-the-fact notice of six hearings
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prior to the termination hearing, and had difficulty contacting his
attorney.
¶14 The father further testified that he wrote to Judy Hartelius,
the Department community social worker assigned to J.C.'s case,
twice but received no response from her. In addition to sending
the Department documentation of his participation in church and
completion of chemical dependency, parenting and anger management
classes, he provided documentation showing his prison discharge
date, his parole status and his prerelease status. At the time of
the termination hearing in April of 2000, the father was scheduled
to discharge his sentence in October of 2000 and had been accepted
to prerelease.
¶15 J.C.'s mother testified that the father was incarcerated weeks
after she became pregnant and, as a result, was not available to
take her to neonatal care or for J.C.'s birth. She testified he
had contacted her and asked her for photographs of J.C., which she
sent him.
¶16 Hartelius testified that the father had written to her stating
he would like to be considered for parenting, but she had made no
efforts to set up a treatment plan for him. She had suggested to
the father that he take parenting and chemical dependency classes
and, upon her request, he sent her several diplomas he earned while
in prison: GED, church attendance, anger management, and chemical
dependency. She testified that "[h]e would basically have
fulfilled any treatment plan that we would have requested."
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¶17 Hartelius further testified that she received a letter from
the father in October of 1999, in which he requested an address so
he could send J.C. a birthday card and possibly receive some
photographs of her. Hartelius testified that she did not respond
to the father's letter, explaining that she could not give out
J.C.'s address. On cross-examination, she admitted she could have
acted as a go-between to get a birthday card from the father to
J.C. and she had no excuse for failing to do so.
¶18 J.C.'s foster mother testified that the father had no contact
with her, but that he could have contacted her only through
Hartelius. She testified that Hartelius had not asked her to
provide the father with any information regarding J.C.'s health or
progress.
¶19 J.C.'s guardian ad litem wrote in an October 12, 1999 report
to the court that she spoke with J.C.'s father in October of 1999, at which time he
reported he was taking a parenting class, was scheduled to go before a pre-release screening
committee later that month, and "definitely want[ed] to be a part of [J.C.'s] life." The father
told the guardian ad litem he did not wish to break a promise he had made to the mother that
he would not take her child away from her or use the child against her, and it was his
impression that the mother would be able to do the things she needed to do to get her children
back, so he had "backed off . . . waiting to see what would happen."
¶20 The Department attempts to fault the father for failure to
communicate with it. On this record, however, the failures were
the Department's in not developing a treatment plan for the father
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as ordered by the District Court, and in not responding to the
father's communications. Contrary to the Department's assertions,
the father communicated with J.C.'s mother, the county attorney's
office, the guardian ad litem, and Hartelius concerning J.C. and
his intent to parent her if the mother was unable to do so.
¶21 Before closing, it is appropriate to respond to several matters addressed in Justice
Rice's heartfelt dissent. First, while it is true that the father did nothing until J.C. was four
months old, the reason--as stated above--is that his paternity was first established at that time.
Indeed, the father himself initiated the paternity testing through the Department of
Corrections.
¶22 In addition, while faulting the father for his lack of "enduring" contacts with Hartelius,
the assigned social worker, Hartelius testified--as also mentioned above--that the father did
contact her and express his interest in being considered for parenting, but she made no effort
to set up a treatment plan for him. Indeed, Hartelius and the Department failed to develop a
treatment plan for the father even after being ordered to do so in August of 1999. Thus,
while Justice Rice places the fault on the father, he totally overlooks the fact that the
Department did not follow through with the father, even after being ordered to do so. One
could speculate that the Department may have already chosen to "go for" the abandonment
theory with regard to the father, but the fact remains that it is the Department's obligation to
provide a treatment plan when the parent expresses interest and, at the very latest, when the
District Court orders it to do so. Justice Rice's approach essentially would require a parent to
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affirmatively ensure that the Department does not violate his or her constitutional rights with
regard with his or her parenting. The law is clearly, and properly, to the contrary.
¶23 Furthermore, while Justice Rice quotes the father's statement
at the hearing that it "would be cruel" to wait until he was ready
to parent J.C., the fact remains that the statement is irrelevant
to the basis on which the District Court terminated the father's
parental rights, namely, abandonment. Abandonment is retrospective
in nature, and requires evidence from the past to support a
reasonable belief that the parent has left a child under
circumstances indicating that the parent does not intend to resume
care of the child.
¶24 Finally, Justice Rice is--unfortunately--entirely correct in his belief that the system has
failed in this case. He also is correct that the delays from the time the notice of appeal was
filed until the case reached this Court for decision are insufferable and inexcusable; sadly,
there is plenty of "blame" to be shared. We cannot, however, make legal decisions based on
who is most to "blame" for delays in getting an appeal to this Court. Our job is to apply the
law.
¶25 We conclude the District Court's finding that the father left
J.C. under circumstances making reasonable the belief that he did
not intend to resume or assume her care in the future, thereby
abandoning her, is not supported by substantial credible evidence
and is clearly erroneous. As a result, we reverse the District
Court's order terminating the parental rights of J.C.'s father and
remand for further proceedings consistent with this Opinion.
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/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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Justice Jim Rice dissenting.
¶26 I respectfully dissent. I believe there is substantial evidence in the record to support
the District Court’s finding of abandonment.
¶27 “Abandonment” is defined in relevant part as “leaving a child
under circumstances that make reasonable the belief” the parent
does not intend to resume care of the child. Section 41-3-
102(1)(a), MCA. In large part, finding the “reasonableness of a
belief” is a subjective determination which a district court must
draw from the evidence before it and the credibility of the
witnesses.
¶28 There is no evidence that Father did anything whatsoever in
regard to J.C. until March 1999, four months after she was born,
when he simply requested pictures from J.C.’s mother. Although
Father asserted that this lack of involvement during this period
was premised upon an understanding he had with Mother, the District
Court was free to accept or reject Father’s offered rationale for
his noninvolvement by assessing his credibility on the witness
stand. The District Court did not accept Father’s explanation.
Although this Court endorses Father’s explanation in ¶ 19, I see no
reason to substitute our judgment for that of the District Court.
¶29 The Court then rejects the State’s argument that Father failed
to communicate with the Department by stating at ¶ 20:
Contrary to the Department’s assertions, the father
communicated with J.C.’s mother, the county attorney’s
office, the guardian ad litem, and Hartelius concerning
J.C. and his intent to parent her if the mother was
unable to do so.
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Consideration of the substance and timing of these various actions,
however, reveals that the father’s efforts were not as enduring as
might be implied.
¶30 After Father’s request for pictures of J.C. in March 1999,
another two months lapsed wherein he did nothing on behalf of J.C.
In May 1999, now six months after J.C. was born, Father called
Deputy County Attorney Harris and expressed his interest in
fathering J.C. Significantly, Harris advised Father that it was
critical that Father stay in touch with Social Worker Hartelius.
The urgency of Harris’ advice was most appropriate, because, by
then, Father had failed to express his interest in caring for J.C.
for the first six months of her life.
¶31 Thereafter, Father mustered the effort to write two letters and make one phone call in
the next five months, as J.C. approached one year of age. The Department filed a petition in
October 1999.
¶32 Father engaged in all of the referenced actions noted by the
Court, and quoted above, in or before October 1999, at least six
months prior to the termination hearing. Thus, at the time of the
hearing in April 2000, the District Court had no evidence before it
indicating that Father had made any effort in regard to J.C. for
the preceding six months. This failure of effort occurred despite
prosecutor Harris’ admonition to Father to maintain contact with
the social worker and his receipt of all notices of the proceeding.
Consequently, two six-month periods of time in J.C.’s life passed
by with no involvement of Father.
¶33 I would find that Father’s minimal inquiries between May and
October 1999, and his failure of effort for the other, substantial
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periods of J.C.’s life, constitute substantial evidence to support
the District Court’s finding of abandonment. The District Court
was convinced that these circumstances made it reasonable to
believe that Father did not intend to resume care of J.C., and I
would not reverse that conclusion. As we have said:
In determining whether to terminate parental rights, “the
district court is bound to give primary consideration to
the physical, mental, and emotional conditions and needs
of the children,” thus “the best interests of the
children are of paramount concern in a parental rights
termination proceeding and take precedence over the
parental rights.” In re J.W., ¶ 8 (citation omitted). We
will presume that a district court's decision is correct
and will not disturb it on appeal unless there is a
mistake of law or a finding of fact not supported by
substantial evidence that would amount to a clear abuse
of discretion. In re E.W., ¶ 14 (citations omitted).
In re E.K., 2001 MT 279, ¶ 33, 307 Mont. 328, ¶ 33, 37 P.3d 690, ¶
33 (emphasis added).
¶34 Appropriately, the District Court was very concerned about the best interests of J.C.
The District Court discussed this issue with Father at the hearing:
THE COURT: . . . This case is about you’re [sic] daughter. Do you really
think it’s in the best interest of that child to have to wait until you can get
ready to parent her and to take her from the parents she had been bonded with
since her birth? Is that what you think?
FATHER: That would be cruel.
....
THE COURT: . . . [T]he law has come to recognize as many, many studies
have shown, I think you probably appreciate, that children can’t always wait.
They’re growing, they’re changing, and they’re needing someone right
there all the time for them. There’s no doubt in the case of your daughter that
the [foster parents] have been those people. They have been providing good
care, and I think if you get to know them you would like them.
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The District Court then terminated Father’s rights and recommended that the adoption of J.C.
would be an “open” adoption which would allow for communication with Father and Mother.
In so doing, I believe the District Court reached a valid conclusion. Time moves on, a child
continues to grow, and a permanent parental presence is vital. A parent must do more than
simply express an interest in a child, and then fail to act for substantial periods of the child’s
life. For the reasons set forth above, I believe that the District Court’s findings were not
clearly erroneous and were supported by substantial evidence. I would affirm.
¶35 The Court endorses and relies upon the various excuses offered by Father for his
failure to be involved, as if the District Court somehow overlooked them. Father testified
that he was not initially involved because of an agreement with Mother (¶ 19), that
prosecutor Harris “gave him the impression” that Mother was completing the Department’s
recommendations (¶ 13), and that he had difficulty contacting his attorney (¶ 13). The
District Court did not buy these excuses, and this Court should not buy them either.
¶36 A review of the register of action in this case reveals that
J.C.’s parents were not the only ones who failed to act in J.C.’s
best interests. The appeal from the District Court’s order was
filed June 7, 2000. The case then suffered one delay after
another, due to the fault of many, before being forwarded to this
Court for decision on September 5, 2002–some two and one-half years
after the District Court’s decision. This delay is insufferable
and inexcusable. J.C. was born on November 22, 1998. Thus, she
was four years old this month and still resides with her foster
parents. Four years after J.C.’s birth, the legal issues
surrounding her future are not yet resolved, and she has no
permanent home. And now, we reverse this case and require J.C. to
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start all over again. The parents, the lawyers, the judges, the
imperfect system–we have all failed J.C. Although I find herein
that Father was guilty of abandonment, truly the same could be said
for all of us in the system. I am grateful for the dedication and
patience of J.C.’s foster parents, who are the solitary source of
light in this matter, and in the life of J.C.
/S/ JIM RICE
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