96-347
No. 96-347
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
IN THE MATTER OF
DECLARING P.E.,
A Youth in Need of Care.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel P. Buckley, Berg, Lilly, Andriolo &
Tollefsen, Bozeman, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Tammy Plubell,
Assistant Attorney General, Helena, Montana; Marty
Lambert, Gallatin County Attorney, Gary Balaz,
Deputy Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: February 13, 1997
Decided: March 18, 1997
Filed:
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__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Linda H. (Linda), the natural mother of P.E., appeals the
decision of the Eighteenth Judicial District Court, Gallatin
County, terminating her parental rights to P.E. due to abandonment.
We affirm.
The sole issue presented on appeal is whether the District
Court erred in terminating Lindaþs parental rights due to
abandonment.
In the summer of 1994, Linda and her thirteen-year-old
daughter P.E. were traveling through Montana in the company of Paul
Cress (Cress) and George Townsell (Townsell). All four people
lived in the van in which they were traveling or camped at various
campgrounds. In July of 1994, the four were staying at a
campground in Gallatin County when P.E. became friends with a girl
whose family lived in nearby Three Forks. The two girls began
having "sleep-overs," where either P.E.þs new friend would stay at
the campground or P.E. would go to Three Forks to stay with the
girlþs family. After one such visit to Three Forks, the family
returned to the campground with P.E. to find that Linda and her
traveling companions had checked out. The family then notified the
state authorities that P.E. had been left with them.
On July 15, 1994, Cress was arrested for misdemeanor theft in
Three Forks. Linda and Townsell were taken into custody as well.
While interviewing Linda, the Three Forks marshal informed her that
P.E. had been referred to the Department of Family Services (now
the Department of Public Health and Human Services) (the
Department). The marshal also determined that both Cress and
Townsell had extensive criminal records. After Cress bonded out on
the theft charge, he, Townsell and Linda left the area, leaving
P.E. in the custody of the Department.
On July 18, 1994, DeeAnn Diedrich (Diedrich), a Department
social worker, was assigned to investigate Lindaþs abandonment of
P.E. At the same time, the Three Forks marshal was actively
looking for Cress, who had failed to appear for his scheduled court
appearance regarding the theft charge. The marshal determined that
Linda, Cress and Townsell were still traveling together and staying
in a motel in Pocatello, Idaho.
On July 25, 1994, Diedrich met with Linda in Three Forks.
Linda denied that she was still accompanying Cress until confronted
with the information obtained by the Three Forks marshal. She then
admitted that she was in fact still traveling with him, but said
she had lied because she feared that if the Department knew she was
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still seeing him they would not return P.E. to her custody. Linda
also told Diedrich that she was looking for work and housing in
Pocatello. Another meeting was scheduled for August 3, 1994, but
Linda failed to show up. Instead she called Diedrich, advising
that she was still in Idaho but refusing to leave an address or
phone number. Linda also called four additional times in August,
and was advised that a hearing regarding P.E.þs status was
scheduled for August 22, 1994. Linda did not appear for the
hearing; instead, she traveled to Kentucky with Townsell and Cress.
Again, she refused to give Diedrich either an address or a phone
number where she might be reached. Shortly thereafter, Diedrich
transferred the case to a second Department social worker, Marsha
Brunett (Brunett).
In October of 1994, Linda and Cress traveled from Kentucky to
South Dakota. Linda twice contacted Brunett regarding P.E. during
October, but Linda still refused to disclose her location. Brunett
advised Linda that Linda needed to acquire permanent employment and
a stable home environment before P.E. could be returned to her. On
November 14, 1994, Linda called Brunett and finally reported an
address and phone number in Watertown, South Dakota. She also
advised Brunett that she had obtained employment with a local
motel. On December 7, 1994, Brunett requested the assistance of
the South Dakota Department of Social Services (South Dakota
Department) in doing a home study regarding Lindaþs living
arrangements. In making her request, Brunett notified the South
Dakota Department of the address and phone number given to her by
Linda. She was later advised, however, that the South Dakota
Department was unable to locate Linda at the address given.
Brunett then attempted to call Linda but found that the phone had
been disconnected. Nevertheless, Brunett sent Linda a proposed
treatment plan to her last known address in Watertown. Linda
testified in the District Court that she never received the
proposed plan. However, Brunett also testified that the plan was
not returned to her office by the post office as undeliverable.
Linda also testified that her understanding was that she only had
to obtain adequate housing and a steady job as prerequisites for
P.E.þs return to her custody. Brunett testified that, to the
contrary, she had advised Linda that she would also need to obtain
a mental health assessment and family counseling before P.E. could
be returned to her. On February 5, 1995, Brunett transferred the
case to another Department social worker, Joe Albro (Albro). On
February 9, 1995, the Department petitioned the District Court for
temporary legal custody of P.E. The District Court scheduled a
hearing in the matter for February 23, 1995.
At the time Albro took over P.E.þs case, the Department did
not know Lindaþs whereabouts; it only knew that she apparently had
left the Watertown area. After the February 23, 1995 hearing,
which Linda did not attend, the Department was granted temporary
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custody of P.E. for six months.
On March 2, 1995, Linda contacted Albro and advised him that
she was living and working in Sioux Falls, South Dakota. Albro
informed Linda that, if she wished to have P.E. returned to her,
she had to have suitable housing and gainful employment. Linda
testified, again, that she understood these two conditions to be
the only prerequisites to P.E.þs return. Like Brunett, Albro
testified that he informed Linda that she had to obtain a mental
health assessment and counseling as well. It is undisputed,
however, that Linda made an appointment to see a counselor in Sioux
Falls but then did not keep that appointment.
Albro and Linda arranged for a home study with a South Dakota
social worker to evaluate Lindaþs living arrangements. The social
worker found Lindaþs apartment to be inadequate because it had only
one exit, which presented a fire hazard. Linda then moved to a new
apartment and, in May of 1995, the home study was readministered.
This time, the South Dakota social worker found the housing to be
adequate and recommended that P.E. be returned to Linda. The
social worker acknowledged, however, that the determination
regarding whether P.E. would be returned to Linda had to be made by
the Montana Department, which had temporary custody of the child.
On June 13, 1995, Albro informed Linda that P.E. could not be
returned to her care until Linda obtained a mental health
assessment and counseling. He further explained that P.E. had been
placed in foster care pursuant to the order of the District Court
and, therefore, she could not be summarily sent to South Dakota
without the prior approval of the court. Albro also advised Linda
that the District Court had set a hearing in the matter for August
23, 1995, which he encouraged her to attend.
Linda did not contact Albro again before the August hearing,
nor was Albro able to contact her. After checking with her
employer, Albro concluded that Linda had again disappeared. She
did not attend the August 23, 1995 review hearing, at which the
Department advised the District Court that it intended to petition
to terminate Lindaþs parental rights to P.E. The District Court
scheduled another hearing in the case for February 23, 1996.
On September 21, 1995, Linda called Albro and told him that
she was in the Bozeman area and wanted to regain custody of P.E.
Linda thereafter acquired an apartment and a job in Bozeman and
visited P.E. in person for the first time in over fourteen months.
P.E. apparently found the meeting very distressing; she informed
Albro that she did not want to see Linda again. Thereafter and in
accordance with P.E.þs wishes, Albro did not allow visitation
despite Lindaþs repeated requests. On October 15, 1995, Albro
attempted to contact Linda at her place of work and was advised
that she had taken an indefinite leave of absence. Again, her
whereabouts were unknown. On November 1, 1995, the Department
petitioned the District Court to terminate Lindaþs parental rights
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to P.E. due to abandonment.
On December 15, 1995, Linda again contacted Albro, informing
him that she was again in Bozeman, back at work, and interested in
regaining custody of P.E. Albro advised her that the Department
had petitioned to terminate her parental rights and urged her to
obtain an attorney and attend the hearing. Albro also scheduled
another visitation between Linda and P.E. Again, the visitation
did not go well and P.E. afterwards said that she did not want to
see her mother again.
After rescheduling, a hearing was held on February 28, 1996,
regarding the Departmentþs petition to terminate Lindaþs parental
rights to P.E. After hearing extensive testimony from all the
social workers involved, Linda, and others, the District Court
determined that Linda had in fact abandoned P.E. and, on that
basis, terminated her parental rights. It should also be noted
that, at the same hearing, the District Court terminated the
parental rights of P.E.þs natural father. The father never
appeared in this action and did not appeal the determination of the
District Court.
The standard of review of a district courtþs findings of fact
in a parental termination case is whether the findings in question
are clearly erroneous. In the Matter of J.L., D.L. and A.G.
(1996), 922 P.2d 459, 461, 53 St.Rep. 649, 650 (citing In the
Matter of J.S. and P.S. (1994), 269 Mont. 170, 173, 887 P.2d 719,
720). The standard of review of a district courtþs conclusions of
law in such cases in whether the conclusions are correct. Matter
of J.L., 922 P.2d at 461 (citing Matter of J.S., 887 P.2d at 720).
Furthermore, "because the termination of parental rights involves
a fundamental liberty interest, a decree which purports to
terminate such rights must be supported by clear and convincing
evidence." In the Matter of the Adoption of Doe (1996), 921 P.2d
875, 878, 53 St.Rep. 631, 632 (citing In the Matter of the Adoption
of S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d 297, 298).
Montana statutes provide that consent is not required from a
father or mother who has willfully abandoned the child. Section
40-8-111(1)(a)(iii), MCA. Abandonment is defined as
leaving the child 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 willfully surrenders 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 . . . .
Section 41-3-102(7)(e), MCA. Under this definition, the period for
establishing abandonment is six months if the parent willfully
abandons the child. Adoption of Doe, 921 P.2d at 879; Adoption of
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S.P.M., 880 P.2d at 299.
In arguing that the District Court erred in finding that she
had abandoned P.E., Linda points out that she remained in contact
with both the Department and P.E. throughout the fourteen-month
period following her separation from her daughter in Three Forks.
She also argues that her efforts in obtaining employment and
housing in Sioux Falls, South Dakota and later in Bozeman, Montana,
as well as the home study conducted in Sioux Falls, indicated her
intention to reclaim custody of P.E. and her willingness to work
with the Department in order to do so.
In addition, it is undisputed that Linda repeatedly requested
visitation with P.E. once Linda returned to Montana. She argues
that such requests were inconsistent with a finding of abandonment.
Lastly, Linda expressed at trial, and again on appeal, her
willingness to work with the Department to implement and follow a
treatment program in order to regain custody of P.E. She argues
that this, too, is inconsistent with a finding of abandonment. For
these reasons, Linda argues that the District Court erred in
terminating her parental rights to P.E. based on abandonment.
In response, the State argues that Lindaþs words conflicted
with her actions during the fourteen-month period prior to its
petition to terminate her parental rights. While acknowledging
that Linda made sporadic attempts to contact the Department and
P.E. and occasionally expressed an interest in regaining custody of
her daughter, the State contends that she took few, if any,
concrete steps to accomplish that goal. Instead, the State argues
that every step Linda took forward, such as completion of the home
study, was followed by a larger step back, such as her then leaving
Sioux Falls and disappearing for another three months. The State
contends that the circumstances of this case, taken as a whole,
confirm that Linda abandoned P.E.
Therefore, this case rests on a factual determination of what
actions are sufficient to constitute the manifestation of "a firm
intention to resume physical custody." Section 41-3-102(7)(e),
MCA. Such factual determinations are properly left to the District
Court and, as noted above, will be upheld unless clearly erroneous.
Adoption of S.P.M., 880 P.2d at 298. Here, the District Court
found that Lindaþs sporadic attempts to remain in contact with P.E.
did not constitute a firm intention to resume physical custody. On
the contrary, the District Court found that the Department had made
reasonable efforts to facilitate a reunion between Linda and P.E.,
but that Lindaþs actions had frustrated those efforts. The
District Court noted that Lindaþs claimed concern for P.E. did not
prevent her from traveling at length with individuals she knew to
have criminal records nor from disappearing for extended periods
with no warning or notification to either the Department or her
daughter. The District Court further noted that P.E. has had an
extremely difficult time dealing with the fact that her mother
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simply left her with virtual strangers and then did not return to
claim her for well over a year. Despite this profound emotional
trauma, P.E. is currently thriving in foster placement and, at
fifteen, exhibits little desire to see her mother.
This Court has held that "[a]bandonment is not an ambulatory
thing the legal effects of which a parent may dissipate at will by
token efforts at reclaiming a discarded child." In the Matter of
the Adoption of C.R.D. (1989), 240 Mont. 106, 110, 782 P.2d 1280,
1283 (quoting In the Matter of the Adoption of David C. (Pa.1978),
387 A.2d 804, 811; In the Matter of the Adoption of Simonton
(Neb.1982), 320 N.W.2d 449, 454). In this case, the record is
replete with evidence to support the District Court findings that
Lindaþs efforts at reclaiming P.E. were sporadic and unsubstantial,
and did not constitute a firm intention to reclaim physical custody
of P.E. These findings are not clearly erroneous and, therefore,
the decision of the District Court is affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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