Matter of A.J.
This text of 2015 MT 17N (Matter of A.J.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
January 20 2015
DA 14-0366 Case Number: DA 14-0366
IN THE SUPREME COURT OF THE STATE OF MONTANA 2015 MT 17N
IN THE MATTER OF: A.J.,
A Youth in Need of Care.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDN 11-06 Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Julie Brown, Montana Legal Justice, PLLC; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Brenda K. Elias, Assistant Attorney General; Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney; Tara Harris, Deputy County Attorney; Helena, Montana
Submitted on Briefs: December 17, 2014 Decided: January 20, 2015
Filed:
__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 J.J. (Father) appeals from the order entered by the First Judicial District Court,
Lewis and Clark County, terminating his parental rights to minor child, A.J., and granting
legal custody to the Department of Public Health and Human Services (Department).
The issue on appeal is whether the District Court erred by finding that Father voluntarily
relinquished his parental rights.
¶3 Father and J.F. (Mother) are the biological parents of A.J. In his early years, A.J.
lived in Wisconsin with Father, and had visitation with Mother. He then began living
with Mother and moved to Montana with her. In December 2010, the Department
received a report that A.J. and his younger half-brother had been subjected to physical
neglect while in Mother’s care. The Department removed A.J. and his half-brother and
placed them in a licensed kinship foster home in Helena.
¶4 On February 16, 2011, the District Court conducted a show cause hearing. Father
appeared telephonically and was represented by counsel. Father stipulated to emergency
protective services, temporary investigative authority, and indicated that he intended to
relinquish his parental rights to A.J.
2 ¶5 On June 23, 2011, the court conducted a disposition hearing and, upon the
Department’s motion, approved a treatment plan for Father. The treatment plan required
Father to participate in an Interstate Compact Home Study to determine if A.J. could
safely reside with him, and undergo a psychological evaluation. While Father did not
attend the hearing, Father’s counsel stated that Father “made it clear that he’s not going to
participate in a treatment plan.” The Department’s child protection specialist, Kristie
Mannix, testified that she had contacted Father and discussed the possibility of returning
A.J. to him. Mannix noted that Father was “very inconsistent” in his desire to parent A.J.
and stated several times that he wanted to relinquish custody of the child.
¶6 After Father’s treatment plan was ordered, Father sent the District Court two
letters expressing frustration with the Department. In the letters, Father alleged an order
from a Wisconsin court gave him custody and that A.J. should be returned to him.
Father, though represented by counsel, filed a pro se motion further asserting that a
Wisconsin order granted him custody and the Department was guilty of kidnapping and
custodial interference.
¶7 The District Court conducted a hearing on Father’s motion. Father maintained
that Wisconsin had jurisdiction over the proceedings and that he would not follow the
court ordered treatment plan. The State explained that Montana law was controlling
because the child resided in Montana. The court and the State both urged Father to
address his jurisdictional concerns with his counsel.1
1 Father’s jurisdictional concerns are not the subject of this appeal and Father does not contend this Court is without jurisdiction. 3 ¶8 On February 3, 2012, the Department requested the court to extend temporary
legal custody of A.J. The Department noted that Mother had made efforts in her
treatment plan, but Father had failed to successfully complete any task on his treatment
plan. Although the District Court continued to extend the Department’s temporary legal
custody over the course of the next two years, Father steadfastly refused to work his
treatment plan.
¶9 On February 7, 2014, the Department filed a petition for permanent legal custody
and for the termination of Father’s parental rights. The Department alleged that “[Father]
has failed to complete his court ordered treatment plan and his actions indicate that he
will not work [with] the Department on any plan to try and reunify him with his son.”
¶10 On May 6, 2014, Father signed a sworn affidavit stating: “After carefully
considering the best interests of my minor child, I hereby relinquish care, custody, and
control of [A.J.] . . . . I knowingly, unequivocally and voluntarily transfer permanent
legal and physical custody of [A.J.] to the Department.” In addition to the affidavit,
Father submitted a letter indicating that he voluntarily relinquished his parental rights, but
was displeased with the Department.
¶11 On May 9, 2014, the District Court entered an order terminating the parent-child
relationship between Father and A.J. The court noted that Father “failed to follow
through on any of the requests that were made through this Court, with regard to parental
his rights,” and that the “only thing he’s been consistent about is that he’s been angry at
the Department and acted angrily and uncooperatively.” The court accepted Father’s
4 sworn affidavit “as a voluntary statement on his behalf of waiver of all of his parental
rights.”
¶12 Father argues that his relinquishment of parental rights was not voluntary under
§ 42-2-417, MCA, though the record does not indicate Father petitioned the District
Court for relief under that provision. Section 42-2-417, MCA, states, in relevant part,
that the “court shall set aside a relinquishment and consent to adopt if the individual who
executed the relinquishment and consent establishes: (a) by clear and convincing
evidence, before a decree of adoption is issued, that the consent was obtained by fraud or
duress . . . .”
¶13 Father did not comply with his treatment plan, signed an affidavit explicitly stating
that he knowingly and voluntarily was relinquishing his parental rights, submitted a letter
indicating that he voluntarily relinquished his parental rights, and made several
statements during the course of the proceedings that he was going to relinquish his rights.
Substantial evidence supports the District Court’s finding that Father’s relinquishment of
his parental rights was voluntary and the not the result of fraud or duress.
¶14 Father also argues the court erred by not providing a hearing to ensure that Father
voluntarily terminated his parental rights. Father contends that “[i]n order to ensure a
parent’s right to fundamental fairness in dependency and neglect proceedings, a district
court should, when there is a question about the voluntariness of a relinquishment, hold a
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