In re S.S.

CHIEF JUSTICE 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 bom 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 of2000. At the close of that hearing, at which the father 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(l)(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 abandonment at issue here. See § 41-3-102(l)(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. tmder 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 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.”

¶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 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 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.

JUSTICES NELSON, REGNIER and TRIEWEILER concur.