In re S.S.

JUSTICE 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(l)(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 *349upon 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 ¶ 19,1 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.

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 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 *350intend 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.

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 *351were 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 bom 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 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.