In re N.A.

2002 MT 303, 59 P.3d 1135, 313 Mont. 27, 2002 Mont. LEXIS 577
Montana Supreme Court·Decided December 12, 2002·No. No. 02-359·Published·Cited by 13 cases

Opinion

JUSTICE RICE

delivered the Opinion of the Court.

¶1 Steven, the natural father of B.A. and A.A., appeals from the findings of fact and conclusions of law entered by the Sixteenth Judicial District Court, Custer County, terminating his parental rights and awarding permanent legal custody to the Montana Department of Public Health and Human Services (Department) with the right to consent to adoption. Steven also appeals the District Court’s denial of his request for post-termination visitation with the children. We affirm.

¶2 Steven raises the following issues on appeal:

¶3 1. Did the District Court err in terminating the parental rights of Steven?

¶4 2. Did the District Court err when it denied Steven visitation with the children after terminating his parental rights?

BACKGROUND

¶5 Shelly is the natural mother of B.A., A.A. and N.A (children), currently ages 7, 4, and 14 respectively. Shelly does not appeal the termination of her parental rights. Ross is the natural father of N.A. Ross did not appear in the District Court nor complete any court-ordered requirements. Ross does not appeal the termination of his parental rights. Steven is the natural father of B.A. and A.A. Although Steven is not the natural father of N.A., Steven requested that the District Court allow him post-termination visitation and contact with all three children. Shelly and Steven were never married and have had only an intermittent relationship over approximately eight years. Steven has never taken an active role in parenting the children.

¶6 The Department first became involved with Shelly’s children in early 1990 and substantiated a report of physical neglect related to her severe intoxication. In 1991, the Department documented a second, similar incident involving physical neglect, excessive use of alcohol, and interpersonal problems with family members. Five years later, in 1996, the Department received four additional reports of physical abuse by Shelly. Subsequent to the fourth report, the Department removed the children from Shelly’s home and placed the children in foster care. Shortly thereafter, the children were returned to Shelly’s care with family based services for ninety days. In December 1996, Shelly stipulated and agreed to consent to the Department’s Petition for Temporary Investigative Authority and Protective Services (TIA).

¶7 The Department again became involved with Shelly in March [30]*301997, and again placed N.A. and B.A. in licensed foster care because of another incident of severe intoxication. The District Court continued the Department’s TLA through June 1997. It granted temporary legal custody (TLC) to the Department in that same month. The children were again returned to Shelly’s home with family based services in May 1998. The District Court subsequently dismissed the TLC in September 1998.

¶8 The Department did not become involved with Shelly and her children again until February 1999 when both the Department and the Miles City Police Department responded to a call of possible domestic abuse between Shelly and her Mend Sam. Because of her condition, Shelly was admitted to Deaconess Psychiatric Center for the third time in March 1999. Also in March, because of concern that Shelly’s condition did not make it possible for her to properly take care of the children, Shelly’s mother and stepfather took the children to their home in Mobridge, South Dakota.

¶9 In July 1999, the Miles City Police Department charged Shelly with a DUI and careless driving after she became severely intoxicated and drove her car over a dike. Because of her condition, the Police Department transported Shelly to Deaconess Psychiatric Center. By August 1999, the Department had begun working in conjunction with Shelly’s therapist in an attempt to stabilize Shelly’s living situation.

¶10 By October, Shelly was seeing her therapist and taking her medications on a regular basis. She obtained appropriate housing and felt she was stable enough to begin parenting her children again. She thus went to Mobridge to pick up the children from her mother and stepfather and returned with them to Miles City.

¶11 The Department thereafter attempted to provide the developmental assessment, educational, and support services necessary to keep the children safely in Shelly’s home, including arranging and paying for daycare and enrolling B.A. in the Headstart program. However, on October 21, 1999, the Miles City Police Department arrested Kurt Kiltie, a Mend of Shelly, and charged him with a DUI. B.A. was found in his vehicle. After an investigation, the Department determined that Shelly had known that Kiltie had been drinking all day when she allowed four-year-old B.A. to ride in the car with him.

¶12 In January 2000, Shelly did not allow the Department to transport A.A. to an evaluation that had been planned weeks in advance. The Department also received another report of physical abuse of B.A. by Shelly and two additional reports of A.A.’s [31] developmental delays and lack of routine medical care. After further investigation of these reports, the Department removed the children from Shelly’s home and placed them in foster care.

¶13 The Department filed its petition for TLC on January 18, 2000. Both Shelly and Steven were present at the scheduled hearing. The minutes of the hearing reflect that the parties reached an agreement wherein Shelly and Steven stipulated to temporary legal custody of the children. The record reflects, however, that Steven did not sign the written stipulation. The Department requested a continuance of TLC on October 6,2000. Shelly attended the November 9 hearing with her attorney. Steven, although legally served, did not attend the hearing and did not sign his court-ordered treatment plan. Shelly again stipulated to temporary legal custody.

¶14 The Department again petitioned for continuance of TLC on February 9, 2001. In an affidavit attached to the petition, Tere Gabel (Gabel), a social worker with the Department, stated that she had sent three letters to Steven, on December 4 and 14, 2000, and on January 8, 2001, requesting that Steven come to Gabel’s office to discuss his court-ordered treatment plan. Steven eventually met with Gabel on January 9,2001, and January 12,2001. According to Gabel’s affidavit, Steven stated that he did not feel he could parent the children, even with the help of Shelly, but that he does want to visit the children on occasion. The affidavit also noted that Steven was comfortable with the children being in foster care and that he did not feel he could complete the court-ordered treatment plan. Steven had not to that point requested any visitation with the children.

¶15 On March 12, 2001, two days prior to the hearing on the Department’s motion to extend TLC, Steven filed a motion with the court for visitation of B. A. andA.A., asking to see them every weekend, every other holiday, and one-half of the summer. After the March 14 hearing, at which Shelly and Steven were both present with counsel, the District Court ordered, in part, that Steven should exercise supervised visitation. Steven signed the treatment plan.

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In re N.A., 2002 MT 303, 59 P.3d 1135, 313 Mont. 27, 2002 Mont. LEXIS 577 (Mo. 2002).

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