No. 92-097
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MATTER O F
A.E., C.E., S.R. and J.R.,
Youths in Need of Care.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcefl, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. June Lord, Attorney at Law, Great Falls, Montana
For Respondent:
Ross P. Richardson, ~enningsen, Vucurovich &
Richardson, Butte, Montana
For Guardian Ad Litem:
Mary Kay Starin, Attorney at Law, Butte, Montana
submitted on Briefs: July 30, 1992
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
L.D. (appellant), the mother of A.E., C.E., S.R. and J.R.
(children), appeals from two orders of the District Court for the
Second Judicial District, Silver Bow County. The first order found
the children to be youths in need of care and abandoned by their
mother and fathers. Based upon these findings, the court terminat-
ed appellant's parental rights as to each of the children and gave
permanent legal custody, including authority to consent to
adoption, to the Montana Department of Family Services (DFS).
The second order denied appellant's motion to rescind the
order terminating her parental rights and specifically reaffirmed
the termination order. We affirm the decisions of the District
Court.
We state the issues raised by appellant as follows:
1. Did the District Court err in terminating appellant's
parental rights based upon abandonment?
2. Did the District Court correctly rule the requirements of
the code had been met and that appellant was afforded due process
prior to terminating her parental rights?
3. Did the District Court properly hold appellant's motion
to rescind the order terminating her parental rights was untimely?
On November 5, 1990, DFS in Butte became involved with
appellant and her children in an attempt to ascertain whether the
children were abused or neglected or otherwise in need of care.
After a preliminary investigation, the children were placed in
foster care, and DFS petitioned the District Court for an order of
temporary investigative authority and protective services. At a
show cause hearing on November 16, 1990, the District Court issued
the temporary order which was effective until February 14, 1991.
On December 20, 1990, appellant consented to a treatment plan
in which she was to meet certain criteria aimed at eliminating her
chemical dependency and establishing a nurturing home environment
for herself and her children. Appellant did not comply with the
terms of the treatment plan. As a result, DFS petitioned the
District Court for temporary legal custody of the children on
February 11, 1991. On the same date, appellant waived her right to
a hearing on the temporary legal custody issue and consented to DFS
having temporary legal custody of her children.
Additionally, appellant entered into a second treatment plan
by court-ordered consent decree on February 11, 1991. However, by
the end of February 1991, appellant once again was not in compli-
ance with the terms of the treatment plan. The DFS social worker
continued in her attempts to work with appellant but with no
success. By April 15, 1991, appellant had ceased all contact with
DFS and her children. Efforts were made to contact appellant but
her whereabouts were unknown. DFS petitioned for termination of
appellant's parental rights on August 9, 1991.
A hearing on the petition was held on August 26, 1991.
Appellant was not present at the hearing. On August 27, 1991, the
District Court terminated the parental rights of appellant and
granted permanent legal custody and authority to consent to
adoption to DFS. Appellant's motion to rescind the termination
order was denied on February 4, 1992. This appeal followed.
It should be noted the District Court also terminated the
parental rights of the father of A.E. and C.E. and the father of
S.R. and J.R. The fathers do not appeal the District Court ruling
and are therefore not considered.
I.
Did the District Court err in terminating appellant's parental
rights based upon abandonment?
A "parent's right to care and custody of a child is a
fundamental liberty interest, which must be protected by fundamen-
tally fair procedures." Matter of R.B. (1985), 217 Mont. 99, 103,
703 P.2d 846, 848. The State must show by clear and convincing
evidence the parent(s) abandoned the children prior to parental
rights being terminated. Matter of M.W. (1988), 234 Mont. 530,
533-34, 764 P.2d 1279, 1281.
On appeal, we will affirm the District Court's decision to
terminate parental rights where substantial, credible evidence
exists to support that decision. Matter of T.M.M. (1988), 234
Mont. 283, 287, 762 P.2d 866, 869. The judge hearing oral
testimony has the advantage in determining the outcome of the
controversy. We will not disturb the District Court findings on
appeal unless there is a mistake of law, or a finding of fact not
supported by substantial, credible evidence. Matter of Henderson
(1975), 168 Mont. 329, 333, 542 P.2d 1204, 1206; Matter of S.P.
(1990), 241 Mont. 190, 194, 786 P.2d 642, 644.
Appellant contends the District Court erred in finding she had
abandoned her children. She bases her argument upon the premise
that her actions did not meet the requirements of § 41-3-102, MCA.
We disagree. The District Court applied the appropriate section of
the code applicable to termination of parental rights and made a
finding that appellant had in fact abandoned her children. This
finding is supported by the record.
Under 5 41-3-609, MCA, parental rights can be terminated when
any one of three circumstances exists. Matter of M.J.D. (1987),
225 Mont. 200, 206, 731 P.2d 937, 941. One of the circumstances in
which parental rights can be terminated is abandonment. The
applicable subsection provides:
(1) The court may order a termination of the parent-
child legal relationship upon a finding that any of the
following circumstances exist: ...
(b) the child has been abandoned by his parents as set
forth in 41-3-102 (3)(d); ...
Section 41-3-609 (1) (b), MCA.
Section 41-3-102(3)(d), MCA, defines abandonment as occurring
when the parent:
abandons the child by leaving him under circumstances
that make reasonable the belief that the parent or other
person does not intend to resume care of the child in the
future or by willfully surrendering physical custody for
a period of 6 months and during that period does not
manifest 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; ... [emphasis added].
We have previously held "[tlhe period for establishing
abandonment pursuant to § 41-3-102(3)(d), MCA, is six months."
M.J.D., 731 P.2d at 940. Matter of M.W. (l988), 234 Mont. 530,
534, 764 P.2d 1279, 1282. Both of these cases involved facts which
warranted application of the second clause in 5 41-3-102 (3) (d),
MCA, regarding willful surrender of physical custody of the child.
The first part of 41-3-102(3)(d), MCA, applies where a
parent abandons a child under circumstances that make reasonable
the belief the parent does not intend to resume care of the child.
No time frame is specified for this particular clause. We now
clarify our previous rulings and hold the six-month requirement is
applicable only to the subsection of 5 41-3-102(3) (d) regarding
willful surrender of physical custody of the child.
In the case at bar, substantial, credible evidence supports
the District Court's decision to terminate appellant's parental
rights. The record indicates appellant's last contact with any of
her four children was March 19, 1991. It was at this time that DFS
once again removed appellant's daughters from her home because of
appellant's continued failure to follow the treatment plan.
Despite a letter from DFS to appellant requesting she contact DFS
to continue with efforts aimed at reuniting her with her children,
appellant did not contact DFS until April 15, 1991. Upon contact-
ing DFS, appellant informed her social worker she had just returned
to the Butte area and was planning to move to Dillon.
Appellant requested DFS send her children to Dillon to set up
foster care there. The DFS social worker informed appellant that
the treatment plan had to be complied with in Butte, and that all
visitation with her children had to occur in Butte. It was at this
time that appellant ceased all contact with her children and DFS.
Substantial efforts by DFS to ascertain the whereabouts of
appellant from the middle of April 1991, until the termination
hearing in August 1991, were fruitless.
We hold there was no mistake of law or finding by the District
Court not supported by substantial credible evidence. We affirm
the District Court's holding that appellant abandoned her children
by leaving them under circumstances that made reasonable the belief
she did not intend to resume care of them.
11.
Did the District Court correctly rule the requirements of the
code had been met and that appellant was afforded due process prior
to terminating her parental rights?
Appellant next contends she was deprived of her fundamental
right to fair procedure because the District Court did not afford
her proper procedural safeguards. Specifically, appellant argues
because she was not personally served with notice of the termina-
tion proceedings, her due process rights were violated. In the
alternative, appellant argues she should have been served by
publication. However, appellant's reliance upon § 41-3-401(4) and
(5), MCA, in support of these propositions is misplaced. Section
41-3-401, MCA, dictates the procedures to be followed when the
State moves for a determination that children are abused, neglect-
ed, or dependent. These procedural aspects do not apply to
termination proceedings.
The proper procedure to be followed when petitioning for
termination of a parent-child legal relationship is found in Title
41, Chapter 3, Part 6, MCA:
This part provides procedures and criteria by which the
parent-child legal relationship may be terminated by a
court if the relationship is not in the best interest of
the child. The termination of the parent-child legal
relationship provided for in this part is to be used in
those situations where there is a determination that a
child is abused, neglected, or dependent, as defined in
41-3-102.
Section 41-3-602, MCA.
In November 1990, the District Court found that the children
were abused, neglected, or dependent pursuant to 5 41-3-102, MCA.
The record is clear that all procedural requirements were met in
making this determination. It was only after appellant's failure
to comply with two treatment plans and her failure to keep DFS
comprised of her whereabouts for over ninety days that the
termination proceedings were initiated. Upon the DFS petition for
termination of the parent-child relationship, Title 41, Chapter 3,
Part 6, MCA, controlled.
Section 41-3-608, MCA, outlines the notice requirements
applicable to parent-child relationship termination proceedings:
Before a termination of the parent-child legal relation-
ship based on abandonment may be ordered, the court shall
determine whether the rules of civil procedure relating
to service of process on the parents have been followed.
If the parents were not served personally, the petitioner
must file an affidavit stating what efforts have been
made to locate the parent or parents of the child. The
affidavit must be filed at least 10 days prior to the
hearing.
The record indicates DFS made substantial efforts to locate
and serve appellant. Notwithstanding this fact, it is apparent
appellant did not want to be found. It was after this unproductive
search for appellant that DFS filed its affidavit outlining the
efforts undertaken to locate appellant. The District Court found
the notification efforts "were appropriate and that nothing further
could have been done in order to obtain service of process onN
appellant.
Additionally, appellant knew what was required of her to
retain custody of her children. She was under actual notice from
the onset of DFS involvement that her parental rights could be
terminated should she fail to follow the court-ordered treatment
plans. Due process requires notice and the opportunity to be
heard. Byrd v. Columbia Falls Lions Club (1979), 183 Mont. 330,
332, 599 P.2d 366, 367. We hold the District Court properly held
these elements to have been satisfied.
111.
Did the District Court properly hold the appellant's motion to
rescind the order terminating her parental rights was untimely?
Finally, appellant contends she was not notified of the
termination of her parental rights and it was improper for the
District Court to deny her motion for rescission of the termination
order. This argument is without merit. At the hearing on the
motion to rescind the termination order, appellant testified she
learned of the termination of her parental rights the same day the
District Court orally entered the termination order, August 26,
1991. However, nearly six months passed before appellant filed her
motion to rescind.
The record supports the District Court's findings that the
motion to rescind was untimely. The District Court did not abuse
its discretion in denying appellant's motion.
We find no error with the District Court's rulings. According-
ly, judgment is affirmed.
We concur:
October 8, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
E. June Lord
Attorney at Law
600 Central Plaza, Ste. 400
Great Falls, MT 59401
Ross Richardson
Attorney at Law
P.O. Box 399
Butte, MT 59703-0399
Mary Kay Starin
Attorney at Law
1100 Utah
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA