No. 01-886
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 293N
In Re the Matter of T.H. and C.D.F.,
Youths in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike McGrath, Attorney General, Helena, Montana
Christine Killgore-Lannan, Special Assistant Attorney General, Helena,
Montana
Fred Van Valkenburg, County Attorney; Leslie Halligan, Deputy County
Attorney, Missoula, Montana
For Respondents:
(No Respondents' briefs filed)
Submitted on Briefs: April 18, 2002
Decided: December 12, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Child and Family Services Division (CFS) of the Department of Public Health &
Human Services brought this action in District Court for the Fourth Judicial District in
Missoula County to terminate the parental rights of D.H. (the natural mother of T.H. and
C.D.F.), L.H. (the natural father of T.H.) and C.F. (the natural father of C.D.F.). The District
Court entered findings of fact and conclusions of law, denying termination of L.H.'s parental
rights and finding that CFS violated the Interstate Compact on the Placement of Children
(ICPC), § 41-4-101, MCA, and ordered CFS to pay fees resulting from the illegal placement.
CFS appeals the District Court's order. During the briefing phase of this appeal, L.H.
submitted a waiver of parental rights to T.H. We reverse the judgment of the District Court.
¶3 There are two issues that remain to be decided on appeal:
¶4 1. Did the District Court err when it found that L.H. had not
abandoned T.H.?
¶5 2. Did the District Court err when it concluded that CFS
violated the ICPC?
FACTUAL AND PROCEDURAL BACKGROUND
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¶6 D.H. is the natural mother of the two children in this case,
T.H. and C.D.F. L.H. is the natural father of T.H., and C.F. is
the natural father of C.D.F.
¶7 On March 6, 2000, D.H. and C.F. were arrested in Missoula for
alleged possession of narcotics and drug paraphernalia. Police
reports noted that drugs and paraphernalia, including syringes,
were discovered in D.H.'s motel room and that T.H., who was six
years old at that time, could access them. Three days later, D.H.
gave birth to C.D.F., who was born opiate-addicted.
¶8 On March 16, 2000, CFS petitioned the District Court for
temporary legal custody and the right to provide emergency
protective services for T.H. and C.D.F. The court found the
children in need of care, appointed a guardian ad litem for the
children, appointed counsel for the parents, and set a show cause
hearing before a special master for March 22, 2000. C.D.F. was
placed with a foster family on March 20, 2000. T.H. was initially
placed in a foster home, but was relocated to Watson Children's
Shelter after demonstrating behavioral problems.
¶9 At the show cause hearing, the Special Master learned that
J.H., T.H.'s maternal aunt who lived in Washington, was planning to
petition for guardianship of T.H., and that the mother had
consented to J.H.'s guardianship and custody of T.H. in Washington.
The court placed T.H. in the custody of her aunt. CFS was ordered
to continue its temporary investigative authority and to seek an
expedited home study of the aunt in Washington. J.H. filed a
petition for guardianship of T.H. in a separate proceeding. T.H.'s
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mother stipulated to the guardianship and the petition was granted
on April 10, 2000. After being ordered to do so by the court, CFS
initiated proceedings pursuant to the ICPC on May 9, 2000.
¶10 On July 20, 2000, CFS filed a report regarding the mother's
and C.F.'s chemical dependency evaluations. CFS requested the
court to order a second chemical dependency evaluation, but no
order to that effect was issued.
¶11 On July 17, 2000, District Judge Ed McLean extended the
guardianship of T.H. and on July 21, 2000, the District Court in
this case ordered that the case before Judge McLean be consolidated
with this case, with District Judge John Larson presiding over
both.
¶12 On August 3, 2000, the court-appointed special advocate (CASA)
reported that the mother and C.F. were again arrested on July 21,
2000, for felony possession of drugs and drug paraphernalia, and
for fraudulently obtaining prescription medication. The arrest
resulted from a probationary search of their home which revealed
several prescription bottles for narcotics, crushed or ground-up
narcotic pills, and syringes. At least one of the prescriptions
was obtained with use of a pseudonym and the narcotics were clearly
not used as prescribed.
¶13 On August 23, 2000, the District Court issued an order that
extended CFS' legal custody of T.H. and C.D.F., and modified the
father of C.D.F.'s treatment plan to permit him a second chemical
dependency evaluation. The court also approved CFS' proposed
treatment plans for the mother and father of C.D.F.
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¶14 On September, 12, 2000, CFS notified the court that the mother
and father of C.D.F. had been arrested on new drug-related charges
and that neither completed their chemical dependency evaluations as
required by the approved treatment plans. The court again extended
their treatment plans.
¶15 On November 28, 2000, the mother and father of C.D.F. withdrew
from their outpatient chemical dependency treatment facilities and
moved to Washington. They represented that they would enroll in an
inpatient facility in Seattle. CFS directed the court's attention
to the parts of the treatment plan that the mother and father of
C.D.F. had failed to meet. On January 16, 2001, the District Court
ordered CFS to petition for the termination of each parent's
parental rights, and on February 7, 2001, CFS petitioned to
terminate the parental rights of the mother and father of C.D.F. ,
and father of T.H.
¶16 After commencement of the termination proceedings on or about
February 8, 2001, CFS located the father of T.H. at Kitsap County
Jail in Washington, where he was then incarcerated. CFS served him
with the petition to terminate his parental rights. He was
released from jail on March 12, 2001, but did not appear at the
hearing on the petition to terminate his parental rights on April
23 and April 24, 2001, nor did he otherwise participate in these
proceedings until this appeal. CFS could not locate or personally
serve the mother or father of C.D.F., and served the petition for
termination of their parental rights by publication. At the
hearing on the petition for termination, the mother and father of
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C.D.F. did not personally appear. All three parents were
represented by counsel at the hearing.
¶17 On August 2, 2001, and August 7, 2001, the District Court
entered its findings of fact, conclusions of law, and orders in
this case. The court denied termination of the parental rights of
the mother and father of C.D.F. for failure to comply with a
treatment plan, but did terminate their rights based on
abandonment. The court denied termination of L.H.'s rights after
concluding that CFS did not make "reasonable efforts" to contact
L.H., provide a treatment plan for him, or otherwise encourage
reunification. Neither did the court find sufficient evidence of
abandonment by L.H. The court also found that CFS' placement of
T.H. in Washington with her aunt violated the ICPC and ordered CFS
to pay costs of the illegal placement.
¶18 During this appeal, no party filed a brief in opposition to
CFS' opening brief or otherwise notified this Court of their
position in this matter. On April 3, 2002, L.H.'s attorney filed a
"Notice to the Court," which stated that she had not filed a brief
because she was expecting a waiver of parental rights from L.H.
She stated that in the past "several weeks" she had sent three sets
of documents to L.H., one that he apparently did not receive, one
that he returned without signing, and the third that she submitted
along with the Notice. L.H.'s attorney informed this Court that
L.H.'s signature on the waiver was not notarized because he has no
photo identification, lives in a half-way house, and was unable to
find a notary willing to notarize his signature. L.H.'s attorney
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further explained that she could not notarize L.H.'s signature
because she did not witness his signature in person, but that the
signature on the waiver appears to be his when compared to a
previous letter signed by him.
STANDARD OF REVIEW
¶19 When reviewing a district court's termination of parental
rights, we determine "whether the court's findings of fact are
clearly erroneous and whether the court's conclusions of law are
correct." In re J.J., 2001 MT 131, ¶ 14, 305 Mont. 431, ¶ 14, 28
P.3d 1076, ¶ 14. The court's findings of fact are clearly
erroneous where they are not supported by substantial evidence,
where the court misconstrues the effect of the evidence, or where
review of the record convinces this Court that the District Court
made a mistake. J.J., ¶ 14.
DISCUSSION
ISSUE 1
¶20 Did the District Court err when it found that L.H. had not
abandoned T.H.?
¶21 This matter comes to this Court in an unusual procedural
posture. The District Court found and concluded that L.H. had not
abandoned T.H. The State, through CFS, appealed. L.H. did not
respond to the appeal but instead submitted a signed Waiver of
Parental Rights, Relinquishment of Child and Consent to Adoption.
The waiver was not notarized.
¶22 Section 42-2-408, MCA, sets forth the requirements for the
valid execution of relinquishment and consent to adoption. Section
42-2-408(5), MCA, requires that "a relinquishment and consent to
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adopt must be a separate instrument executed before a notary
public." L.H. does not fit within any noted exceptions to the
notarization requirement. See § 42-2-408(6), MCA (permits
alternate method for members of the armed services and prisoners.)
Nor does his attorney offer authority for departing from the
statutory requirements.
¶23 Therefore we conclude that L.H.'s waiver is not conclusive but
may be considered with other information in the record that L.H.
has abandoned T.H. Section 41-3-609(1), MCA, provides that a court
may terminate the parent-child legal relationship where it finds
that the parents have relinquished the child pursuant to the
provisions in §§ 42-2-402 and 42-2-412, MCA, or where "the child
has been abandoned by the parents . . . ." Section 41-3-102(1),
MCA, defines "abandoned" 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 . . . ." (Emphasis added).
We conclude that the record clearly demonstrates that L.H. has
abandoned T.H. and that the District Court's finding to the
contrary is clearly erroneous. He has not meaningfully
participated in these proceedings since he was personally served in
February 2001; he has had limited telephonic contact with T.H. over
the course of the proceedings, and has not otherwise fulfilled the
parental role necessary for T.H.'s proper care; he has previously
expressed a lack of interest in parenting T.H., unless the only
other option was for T.H.'s mother to do so; and he has signed the
written waiver submitted by his attorney in lieu of a brief. We,
therefore, reverse that part of the District Court's judgment which
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held that T.H. had not been abandoned by her father, L.H., and
remand to the District Court for entry of judgment terminating
L.H.'s parental rights.
¶24 In spite of L.H.'s waiver and relinquishment of his parental
rights, CFS requests that this Court consider the remaining issues
raised by its appeal. CFS contends that the actions complained of
are "capable of repetition, yet evading review."
¶25 Issues of mootness must be resolved prior to addressing the
underlying dispute. Grabow v. Montana High School Ass'n, 2000 MT
159, ¶ 14, 300 Mont. 227, ¶ 14, 3 P.3d 650, ¶ 14. "A matter is
moot when, due to an event or happening, the issue has ceased to
exist and no longer presents an actual controversy. A question is
moot when the court cannot grant effective relief." Shamrock
Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, ¶
19, 974 P.2d 1150, ¶ 19.
¶26 While there is no longer a controversy regarding several
issues raised by CFS, we conclude that there remains a controversy
regarding its alleged violation of the ICPC because it has been
ordered to pay costs for doing so. Therefore, we will address that
one additional issue.
ISSUE 2
¶27 Did the District Court err when it concluded that CFS violated
the ICPC?
¶28 The District Court concluded that CFS violated the ICPC, § 41-
4-101, MCA, when it participated in the placement of T.H. in
Washington with her aunt prior to notifying Washington and
complying with their placement laws. The District Court, in its
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Order, ¶ 6, stated that "[t]he placement of [T.H.] violated Article
III, §4 of the conditions for placement of ICPC set forth at § 41-
4-101, et. seq., MCA (1999)." In ¶ 9 of its Order, the District
Court ordered that "[t]he Court's Order of 3/22/00 in this cause as
well as in Cause No. DG-00-40 which authorizes the placement in
violation of ICPC is hereby invalidated and declared void." The
court further ordered in ¶ 11 that "[a]s a consequence of the
illegal placement, Montana CFS shall bear all necessary and
appropriate costs which may be caused or result from that illegal
placement."
¶29 CFS contends that the District Court erred because CFS was not
responsible for the transfer of T.H. to her aunt in Washington, and
that if there was any violation of the ICPC, it was the District
Court that ordered the illegal placement. CFS contends that it
should not be held financially responsible for the illegal
placement. CFS also contends that the placement itself was not a
placement within the provisions of the ICPC, and was therefore
entirely legal.
¶30 The ICPC provides that "sending agencies" (such as CFS) shall
not send or place a child into another state without complying with
the requirements of the ICPC, which include providing prior notice
to public authorities in the receiving state. See § 41-4-101, Art.
III, MCA. It is not disputed that T.H. was moved to Washington to
live with her aunt prior to compliance with the ICPC. Article VIII
of the ICPC, however, provides:
This compact shall not apply to:
(1) the sending or bringing of a child into a receiving
state by his parent, stepparent, grandparent, adult
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brother or sister, adult uncle or aunt, or his guardian
and leaving the child with any such relative or nonagency
guardian in the receiving state . . . . [Emphasis added.]
Section 41-4-101, MCA. In its order on March 22, 2000, Brenda
Desmond, a special master for the District Court ordered:
[T.H.] shall be placed with [J.H.], her maternal aunt,
pending further order of this Court. By this Order,
[J.H.] shall have authority to transport [T.H.] to
Washington State; and shall have full authority to make
all necessary medical, educational, financial and any
other decisions necessary to provide for the care and
welfare of [T.H.].
The record shows that T.H. left the children's center with her aunt
shortly after this order, moved with her aunt to Washington, and
her aunt was appointed guardian shortly after on April 10, 2000.
Based on these facts, we conclude that the District Court erred
when it concluded that CFS violated the ICPC. The District Court–
not CFS–authorized T.H.'s placement with her aunt and the ICPC
restriction relied on to sanction CFS does not apply when children
go to another state to live with an adult aunt. The placement of
T.H. with her aunt was consistent–not inconsistent–with the
authority that the District Court relied upon when it held that an
ICPC violation had occurred. It states: "[p]lacements genuinely
made between close relatives of the child are clearly outside the
purview of the ICPC." SECRETARIAT TO THE ASSOCIATION OF ADMINISTRATORS OF THE
INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN, THE INTERSTATE COMPACT ON THE
PLACEMENT OF CHILDREN: A MANUAL AND INSTRUCTIONAL GUIDE FOR JUVENILE AND FAMILY
COURT JUDGES 268 (1998). Therefore, we reverse that part of the
District Court's conclusions of law and order that concluded CFS
violated the ICPC and imposed costs against CFS for that violation.
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¶31 This case is remanded to the District Court for entry of
judgment consistent with this Opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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