Lead Opinion
delivered the Opinion of the Court.
¶1 M.C. appeals the termination of his parental rights to his daughter, A.T. We affirm.
ISSUE
¶2 The issue on appeal is whether the District Court abused its discretion when it relied on evidence in the record rather than live testimony to terminate M.C.’s parental rights at a termination hearing for which M.C. failed to appear.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 A.T., the eight-year old child at issue in this case, has been in foster care and intensive therapy since September 2002 when she and her siblings were removed from the care of her mother, L.N. (Mother), and stepfather, B.N. (Stepfather). A.T. met her father, M.C., only once before termination proceedings began.
¶4 On September 18, 2002, the State petitioned for emergency protective services and temporary legal custody of A.T. and her siblings. Ultimately, Mother’s parental rights were terminated by the District Court as a result of ongoing circumstances detrimental to the children, including drug abuse by Mother and Stepfather, unsanitary and unsafe conditions in the home, and exposure to explicit sexual behavior. As a consequence of the abuse and neglect, A.T. began mimicking age-inappropriate sexual behavior both at home and at school, which required she be removed from her classroom and continuously monitored so as not to victimize other children.
¶5 On October 4,2002, A.T. was adjudicated a Youth in Need of Care, and the District Court granted the State temporary legal custody of her. Department of Public Health and Human Services (DPHHS) social workers then located M.C. in California. M.C. had never been involved in A.T.’s life; in fact, his relationship with Mother ended before A.T.’s birth. In initial conversations with DPHHS social workers, M.C. expressed concern about his daughter’s well-being. Consequently, DPHHS developed a treatment plan for M.C., the goals of which were for M.C. to establish a relationship with A.T., and to determine whether she could be placed in his care. On October 21, 2002, the District Court ordered M.C. to complete his treatment plan.
¶6 Over the next two years, M.C. communicated sporadically with DPHHS social workers, and A.T.’s Guardian ad Litem (GAL) and foster parents, keeping them apprised of his whereabouts as he moved frequently. Several times M.C. sent cards and photos for A.T. In March
¶7 On June 4,2004, A.T.’s social worker informed DPHHS that A.T. was beginning to dissociate, and that permanent placement for her was critical. In conversations with A.T.’s social workers and foster parents, M.C. expressed concerns about his ability to meet A.T.’s special needs, including regular therapy and supervised schooling. A.T.’s foster parents also voiced concerns that the location and spare condition of M.C.’s home would impede A.T.’s schooling and progress in therapy. These factors, combined with M.C.’s continued failure to adhere to his treatment plan, led social workers to discuss relinquishment of A.T. with M.C. on June 14, 2002. M.C. agreed that, though it would be difficult for him, relinquishment would be the best thing he could do for A.T. M.C. then assented to sign the necessary paperwork. DPHHS sent relinquishment documents by certified mail, and on June 30, 2004, obtained verification that M.C. had received them. However, the documents were not returned to DPHHS. Messages left at M.C.’s then-current phone number were not returned. ¶8 On August 31, 2004, M.C. left a voicemail for A.T.’s GAL saying he was moving to Sacramento, California. Then on September 14, 2004, M.C. left another message relaying his phone number there. DPHHS contacted M.C. on September 20, 2004; he gave no address when asked. This was the last communication between M.C. and anyone involved in A.T.’s case prior to this appeal. On October 8,2004, the District Court appointed counsel to represent M.C. in termination proceedings initiated by the State.
¶9 Five months later, on March 23, 2005, the District Court held a hearing to consider Termination of Parental Rights and approval of a Permanency Plan for A.T.’s care. At that time A.T. had been in foster care for two and a half years with foster parents who hoped to adopt her. M.C. had failed to meet the goals necessary to determine whether granting him custody of A.T. would be appropriate, and he had not communicated with the State for over six months. The State was unable to locate M.C. at either of his two last-known addresses, and consequently published notice of the termination hearing in keeping with statutory requirements. M.C. failed to attend the hearing.
¶10 At the termination hearing, the District Court chose not to receive live testimony. The District Court had presided over A.T.’s case from the time she was removed from Mother’s care, and had its own extensive record to guide its determination. The District Court asked for M.C.’s position regarding termination, to which his counsel responded, “Your honor, we have had no contact with [M.C.] and therefore have no position.”
¶11 The District Court concluded that based on clear and convincing evidence, M.C. had abandoned A.T. In addition, the court found that A.T. was a youth in need of care whose father had failed to complete any goal of his court-ordered treatment plan, and that conditions rendering M.C. unfit were unlikely to change within a reasonable time. Based on these findings, the District Court terminated M.C.’s parental rights to A.T.
STANDARD OF REVIEW
¶12 The decision to terminate parental rights is soundly within the discretion of the district court and will not be overturned absent an abuse of discretion. In re M. O.,
DISCUSSION
¶13 Did the District Court abuse its discretion when it relied on evidence in the record rather than live testimony to terminate M.C.’s parental rights?
¶14 M.C. contends the District Court violated § 41-3-609(1), MCA, when it declined to hear live testimony before terminating M.C.’s parental rights at the March 23,2005 termination hearing. Section 41-3-609(1), MCA, allows district courts to terminate parental rights “upon a finding established by clear and convincing evidence” that a child has been: (1) abandoned, or (2) has been adjudicated a youth in need of care, her parent has failed to comply with court-ordered treatment, and conditions rendering the parent unfit are unlikely to change in a reasonable time, among other provisions. M.C. urges this Court to require live testimony as the underpinning for a district court’s finding of “clear and convincing evidence” to support termination of parental rights. M.C. cites In re M.O. for the prospect
¶15 To properly preserve an issue for appeal, a party must notify the court at the time the objectionable conduct is at issue. In re Parenting of K.P.,
¶16 We distinguish the facts here from the circumstances in In re M.O., where we determined the mother’s failure to object to termination of her parental rights was excusable.
¶17 Throughout the muddied proceedings in In re M. O., mother failed to object to the district court’s missteps, and therein arguably failed to preserve her right to appeal. Given the extraordinarily confusing
¶18 Here, however, the record reflects that the District Court adhered to the procedural requirements necessary to properly terminate M.C. parental rights. Further, M.C. had every reason to know the consequences of the March 23,2005 termination hearing. The District Court had previously adjudicated A.T. a youth in need of care based on testimony presented at trial in keeping with statutory requirements. M.C. was represented by counsel during termination proceedings where, with counsel’s assistance, he could have asserted his rights and ability to parent A.T. The nature of the March 23, 2005 termination hearing was neither misrepresented to M.C., nor confused by the District Court or the parties involved. Instead, every effort was made to contact M.C. so as to provide him opportunity to assert his parental rights. M.C. failed to avail himself of that opportunity. We therefore decline to allow M.C. the extraordinary relief we extended to the mother in In re M. O.
¶19 In In re T.E., we recognized that requiring litigants to object to asserted statutory violations in the district court not only preserves issues for appeal, but also serves the “greater” purposes of preserving the integrity of district court proceedings and discouraging prolonged litigation in child cases.
¶20 Finally, we note that A.T.’s best interests and need for permanent placement in a loving and stable home supersede M.C.’s interests here. “In determining whether to terminate parental rights, the district court is bound to give primary consideration to the physical, mental, and emotional conditions and needs of the [child], thus, the best interests of the [child] are of paramount concern in a parental rights termination proceeding and take precedence over the parental rights.”
¶21 We conclude that, by failing to appear at the termination hearing, and failing to object either in person or by counsel to the manner in which the District Court conducted the termination hearing, M.C. has waived his right to appeal the District Court’s decision to terminate his parental rights without taking evidence at the termination hearing. We stress that this decision is premised upon the unique circumstances presented here, and does not diminish the requirement that termination of parental rights rest on a finding of clear and convincing evidence.
CONCLUSION
¶22 For the foregoing reasons, we affirm.
Dissenting Opinion
dissenting.
¶23 I respectfully, but strenuously, dissent from the Court’s opinion. The Court concludes, in ¶ 21, that M.C. waived his right to appeal from the termination of his parental rights based on his failure to object “in person or by counsel to the manner in which the District Court conducted the termination hearing.” The sad fact is that no termination hearing occurred. The even sadder fact is that no one seems to care.
¶24 The District Court terminated M.C.’s parental rights based on findings of fact not supported by any testimony or other evidence presented at the so-called termination hearing. Rather than requiring DPHHS and the District Court to meet their statutory obligations prior to terminating parental rights, the Court creates yet another “exception” in what I perceive to be a long line of cases placing DPHHS in a “power” position. See, e.g., In re S.C.,
¶25 In my view, this case boils down to M.C.’s assertion that the District Court’s findings are clearly erroneous because they are not supported by substantial credible evidence. The Court sets forth the “clearly erroneous” standard for reviewing findings in child abuse and neglect cases in ¶ 12, but does not apply it. Instead, the Court concludes, in ¶ 21, that M.C. waived his right to appeal from “the District Court’s decision to terminate his parental rights without taking evidence[.]” I am unaware of any authority requiring a party to assert at a hearing or trial that the evidence is insufficient to support findings the district court has yet to make. In an “ordinary” civil case, I am convinced this Court would readily review-absent any objection at trial-an assertion that a district court’s findings are clearly erroneous because the trial court did not first receive evidence. Meaningful review of such an error is even more critical in a child abuse and neglect case, where both the parent’s rights and the child’s best interests are at stake.
¶26 A parent’s right to the care and custody of his or her child is a fundamental liberty interest which must be protected by fundamentally fair procedures. In re T.H.,
¶27 Section 41-3-422(5)(a)(iv), MCA, requires that “the person filing the abuse and neglect petition has the burden of presenting evidence required to justify the relief requested” and establishing “clear and convincing evidence for an order terminating the parent-child legal relationship.” (Emphasis added.) “‘Proof is the establishment of a fact by evidence.” Section 26-1-101(4), MCA. “‘Evidence’ is the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical objects, or other things presented to the senses.” Section 26-1-101(2), MCA. (Emphasis added.)
¶29 In this regard, the statement in the District Court’s order that the court made findings “[biased upon the evidence and testimony presented” is, at the very least, an outright misrepresentation. DPHHS presented no evidence or testimony at the hearing. The representations by the attorney for DPHHS-that M.C. had been served by publication and the last contact between M.C. and DPHHS occurred in June-were not evidence. See State v. Stuart,
¶30 DPHHS filed various reports and affidavits throughout the coruse of the case, but did not present these documents in a maimer affording M.C. the opportunity to cross-examine the documents’ authors or register objections based on the Montana Rules of Evidence-an opportunity that, in my view, the statutes governing termination proceedings clearly contemplate. Consequently, I reiterate my previously expressed position with respect to findings made at a different stage of the proceedings, that statements in an affidavit supporting a petition “simply are not evidence upon which a trial court can rely in making findings of fact” when a hearing is required. See In re D.A., ¶ 38 (Gray, C. J., concurring and dissenting). Moreover, in this case, facial inconsistencies and significant delays between the execution and filing of some documents make it especially clear that the documents cannot be considered “evidence.”
¶31 Regarding the Court’s discussion of A.T.’s best interests, I do not believe our recognition of a district court’s obligation to give paramount consideration to the child’s best interests is a legitimate basis for this Court to conclude a parent has waived the right to appeal from findings made without the presentation of evidence. Nor is
¶32 I also am very troubled by the reliance of DPHHS and this Court on M.C.’s failure to personally appear at the hearing. The District Court did not enter, nor did DPHHS request, default judgment pursuant to § 41-3-429(4)(b)(vii), MCA, which requires service by publication to include notification of the possibility of default judgment. Indeed, I am unpersuaded that a default judgment could be authorized when, as here, counsel appears on behalf of a parent who does not personally appear.
¶33 In any event, this termination purportedly was based on the merits, and the petitioner-not the parent-has the burden of establishing whether the facts justify termination under § 41-3-609(1), MCA. Thus, contrary to the Court’s statements in ¶ 18, M.C. was not required to “assert” his fundamental constitutional right to parent. Furthermore, neither the statutory definition of abandonment set forth in § 41-3-102(l)(a), MCA, nor the “treatment plan” criteria set forth in § 41-3-609(l)(f), MCA, provides that a parent’s failure to personally appear constitutes a basis for involuntary termination. Those statutes clearly require a petitioner to “present” more than a parent’s failure to personally appear in order to meet the requisite burden of proof.
¶34 I also disagree with the Court’s statement, in ¶ 15, that counsel “did not object to termination.” After the attorneys identified themselves, the entire termination proceeding consisted of the following:
[DPHHS attorney]: Your Honor, just for the record, the mother’s parental rights to this child have been previously terminated by this court. And the state did have to publish notice for [M.C.], and we did publish that. And that was filed with the court.
So at this time we would just ask the court to terminate his parental rights based upon abandonment as well as failure of court ordered treatment. Court had ordered a treatment plan for him.
The state has had no contact with [M.C.] since-the last time the social worker spoke with him was June of 2004. We could not locate him to serve him at the two addresses that he had provided in the past. So that’s why we ended up publishing. We can provide testimony if required.
The Court: Mr. Cushman?
*165 [M.C.’s counsel]: You: Honor, we have had no contact with [M.C.] and therefore have no position.
The Court: State’s motion is granted.
[DPHHS attorney]: Thank you, Your Honor.
First, the District Court’s query to M.C.’s counsel did not seek a response to anything concrete. For the reasons stated above, the court’s reply to the statements by the attorney for DPHHS should have been, “Proceed with your case, counsel.” Read in context, M.C.’s counsel’s response to the court is most reasonably construed as precisely what it was-a statement that, due to the lack of instruction on whatever the court’s query was intended to be, he simply had “no position” on that query.
¶35 In any event, the Court advances no authority for the proposition that, absent a parent’s actual relinquishment of parental rights pursuant to § 42-2-402(1), MCA, an attorney may “waive” a client’s parental rights or the statutory requirements that a petitioner present evidence and meet the requisite burden of proof for involuntary termination, as set forth in §§ 41-3-422(5)(a)(iv) and -609(1), MCA. The notion that attorneys have such power is, in my view, inconceivable. ¶36 Finally, I note DPHHS’s argument-in response to M.C.’s request for a hearing complying with statutory requirements-that “[t]he purpose of a remand is to remedy a substantial injustice, not to elevate form over substance.” As I have in the past, I observe again that this type of statement reflects “the untenable attitude which seems to permeate DPHHS, or at least its counsel, in these appeals.” See In re Custody and Parental Rights of D.S.,
¶37 I would conclude the District Court’s findings are clearly erroneous and M.C. did not waive the right to appeal. I would remand for a termination hearing.
¶38 I dissent.