Matter of T.H. C.D.F.

2002 MT 293N

• Court: Montana Supreme Court
• Decided: December 12, 2002
• Docket: 01-886
• Status: Published

Opinion

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

2 ¶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

3 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.

4 ¶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

5 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

6 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

¶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

7 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

8 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

9 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

10 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.

11 ¶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