IN RE THE ADOPTION OF: K.P.M., Minor Child, S.J.D., Petitioner and Appellee, and B.J.M., (n/k/a B.J.S.), Respondent and Appellant.
No. DA 08-0168.
Supreme Court of Montana
Decided February 10, 2009.
2009 MT 31; 349 Mont. 170; 201 P.3d 833
Submitted on Briefs December 30, 2008.
For Appellee: Terrance L. Wolfe, Sol & Wolfe Law Firm, Missoula.
JUSTICE WARNER delivered the Opinion of the Court.
¶1 S.J.D., who is K.P.M.‘s stepmother, petitioned the Fourth Judicial District Court, Missoula County, for termination of the parental rights of K.P.M.‘s biological mother, B.J.M., and to adopt K.P.M. The District Court ordered B.J.M.‘s parental rights terminated. B.J.M. appeals.
¶2 The sole issue B.J.M. raises on appeal is whether the District Court erred in terminating B.J.M.‘s parental rights because B.J.M. was unfit as provided in
BACKGROUND
¶3 In December 2003, B.J.M. gave birth to K.P.M. Until a paternity test was conducted in summer 2004, it was unclear who K.P.M.‘s father was. When it was confirmed that I.J.C. was K.P.M.‘s father, he and B.J.M. maintained an informal parenting plan for about a year where they shared custody of K.P.M. During this time, B.J.M. was living a transient lifestyle and was unreliable in keeping her commitments to or maintaining contact with I.J.C. and K.P.M.
¶4 In March 2005, B.J.M. transferred primary parenting responsibility to I.J.C. A month later, I.J.C. filed a petition in the District Court to determine that he was K.P.M.‘s father and to establish a parenting plan. The District Court granted the petition, determined that I.J.C. was K.P.M.‘s father, and established a parenting plan, making I.J.C. K.P.M.‘s primary parent and giving
¶5 The parenting plan ordered B.J.M. to pay $103 per month in child support to begin several months later, so she could attempt to achieve greater financial stability. By the time S.J.D. commenced this action, B.J.M. had paid only $12.94 in child support.
¶6 For about half of 2006, B.J.M. was incarcerated or in residential treatment for problems related to illegal drug use. In November 2006, after being released from treatment, B.J.M. contacted I.J.C. to arrange a visit with K.P.M. At the visit, K.P.M. did not know who B.J.M. was at first, but after playing for an hour in the park, he warmed up to her. However, because of the sporadic nature of B.J.M. and K.P.M.‘s contacts, K.P.M. never bonded with B.J.M.
¶7 S.J.D., I.J.C.‘s wife, filed a petition to adopt K.P.M. in March 2007. Two months later, she filed a petition to terminate B.J.M.‘s parental rights in the same district court action as her petition for adoption.
¶8 At the hearing on the petition to terminate B.J.M.‘s parental rights, the District Court found that B.J.M. provided an unsuitable environment for K.P.M. because her home was unkempt, she associated with known drug dealers and users, and she was involved with abusive partners and exposed K.P.M. to such abuse. The District Court further found S.J.D. was a constant in K.P.M.‘s life and is the only mother that K.P.M. has known. The District Court found any attempt to establish a relationship between B.J.M. and K.P.M. would not be in K.P.M.‘s best interest.
¶9 Based on its findings of fact, the District Court concluded that clear and convincing evidence established B.J.M. abandoned K.P.M. and also that she failed to support him, financially and otherwise, when she was able to do so for a period of over one year. The District Court concluded B.J.M. was unfit and ordered her parental rights terminated.
STANDARD OF REVIEW
¶10 A district court‘s findings are clearly erroneous if they are not supported by substantial evidence, if the district court misapprehended the evidence, or if we come away from our review with a definite and firm conviction that the district court made a mistake. Interstate Production Credit v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). Because parental rights are a fundamental
¶11 Finally, we review the district court‘s conclusions of law to determine whether those conclusions are correct. In re C.R.N., ¶ 7.
DISCUSSION
¶12 Relating to adoption,
A child is not legally free for adoption until the parental rights of the birth parent or parents have been terminated by a court:
(1) as provided in this title;
(2) pursuant to Title 41, chapter 3; or
(3) of competent jurisdiction in another state or country.
¶13 Therefore, parental rights may be terminated as provided in Title 42, MCA. The general provisions of the Montana Adoption Act (Title 42) set forth who may be adopted:
(1) A child is legally free for adoption if:
(a) the child does not have a living parent;
(b) the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or
(c) the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.
(2) An adult may be adopted as provided in 42-4-401 through 42-4-405.
(3) A stepchild may be adopted as provided in 42-4-301 through 42-4-304 and 42-4-309 through 42-4-312.
(1) A stepparent has standing to file a petition for adoption of a minor child of the stepparent‘s spouse if:
(a) the spouse has legal and physical custody of the child and the child has been in the physical custody of the spouse and the stepparent during the 60 days preceding the filing of a petition for adoption;
...
(3) A petition for adoption by a stepparent may be joined with a petition for termination of parental rights.
¶14 Under
¶15
A stepparent who desires to adopt a stepchild shall obtain an order of termination of parental rights of the child‘s noncustodial parent prior to or contemporaneously with the petition to adopt. Any necessary consents must be filed with the petition for adoption. Notice of the hearing on the petition must be given, and the stepparent shall attend the hearing conducted by the court.
¶16 The most reasonable interpretation of
¶17 In compliance with
¶18 Sua sponte, the dissent posits that S.J.D. has no standing to petition to terminate B.J.M.‘s parental rights, asserting that only those included in the categories listed in
¶19 If
¶20 Nowhere, in either party‘s pleadings, in their proposed findings of fact and conclusions of law, in the evidence at the hearing, in the post-hearing briefing, in the District Court‘s order, or in the briefing to this Court, is there any contest to the fact that S.J.D. has standing to petition to terminate B.J.M.‘s parental rights and to adopt K.P.M. This is understandable. This Court has approved previous applications of Title 42 that are consistent with our interpretation today. E.g. In re Adoption of C.W.D., 2005 MT 145, 327 Mont. 301, 114 P.3d 214 (affirming the grant of the stepfather‘s petition to terminate the natural father‘s parental rights); See e.g. Matter of Adoption of J.B.T., 250 Mont. 205, 819 P.2d 178 (1991) (analyzing whether the stepfather carried his burden to justify terminating the natural father‘s parental rights, pursuant to
¶21 Returning to the issues briefed by the parties, a district court may terminate a parent‘s rights to a child if it determines by clear and convincing evidence that a parent is unfit.
willfully surrendering physical custody for a period of 6 months and during that period, not manifesting to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child.
¶22 B.J.M., citing Matter of Adoption of Doe, 277 Mont. 251, 921 P.2d 875 (1996), argues that the District Court erred in including the time she spent incarcerated when calculating the time period to establish abandonment. In Adoption of Doe, the hearing testimony clearly established that both parties understood the custody arrangement was temporary when the mother went to prison. The mother repeatedly and firmly refused to grant permanent custody and she made contacts with her children monthly while in prison. Adoption of Doe, 277 Mont. at 257-58, 921 P.2d at 879. Thus, we concluded that the district court‘s finding of abandonment, based on its finding that the mother did not intend to resume caring for her children in the future, was not supported by clear and convincing evidence. Adoption of Doe, 277 Mont. at 258, 921 P.2d at 879-80.
¶23 The circumstances of this case are readily distinguishable from Adoption of Doe. Unlike Adoption of Doe, there was no understanding between I.J.C. and B.J.M. that she would resume custody of K.P.M. in the future. I.J.C. may have known that the particular parenting arrangement was temporary at first, but “that it went downhill” after they started sharing custody. He then did not hear from B.J.M. for over a year.
¶24 Although Adoption of Doe did establish that involuntary separations due to incarceration do not necessarily rise to the level of abandonment in every case, the Court‘s decision there hinged on the determination that even though she was in prison, the mother clearly intended to resume care of her children in the future. Adoption of Doe, 277 Mont. at 258, 921 P.2d at 879-80. Here, B.J.M. did not manifest the intention to resume custody, or even maintain contact with K.P.M. while she was incarcerated. Under the circumstances of this case, the District Court did not err in considering B.J.M.‘s time in prison and residential drug treatment—during which she had no contact with her son—as evidence she abandoned K.P.M.
¶25 The District Court found that B.J.M. failed to make any contact with K.P.M. for fifteen months. This time exceeds the six month requirement for application of
¶26 In light of the record showing that during her periods of absence, B.J.M. was struggling with an abusive relationship, was using illegal drugs, and was running with known criminals, and because B.J.M. previously failed to follow through on her commitments to care for and visit with K.P.M., it was reasonable for the District Court to find that she did not intend to resume care of K.P.M. in the future, regardless of any understanding that the initial informal parenting plan was temporary. See
¶27 We conclude the District Court‘s finding that B.J.M. abandoned her son, as defined by
¶28 We defer to the District Court‘s ability to judge the credibility of
¶29 S.J.D. initially filed her petition for adoption under the impression that she had B.J.M.‘s consent to do so. As soon as S.J.D. knew B.J.M. would not consent, she followed the statutory mandate and filed her petition to terminate B.J.M.‘s parental rights, pursuant to
¶30 Lastly, B.J.M. argues that the District Court erred when it found B.J.M. failed to support K.P.M. when she was able to do so for one year prior to the filing of the petition for adoption. See
CONCLUSION
¶31 We conclude the District Court‘s finding that B.J.M. was an unfit parent, pursuant to
JUSTICES LEAPHART, MORRIS and RICE concur.
JUSTICE NELSON dissents.
¶32 I dissent from the Court‘s Opinion in this case because S.J.D. did not have standing to bring a petition for termination of B.J.M.‘s parental rights, and because S.J.D. did not follow the required
¶33 The Majority complain that “[n]owhere, in either party‘s pleadings, in their proposed findings of fact and conclusions of law, in the evidence at the hearing, in the post-hearing briefing, in the District Court‘s order, or in the briefing to this Court, is there any contest to the fact that S.J.D. has standing to petition to terminate B.J.M.‘s parental rights and to adopt K.P.M.” Opinion, ¶ 20. However, the Majority ignore the fact that standing is a doctrine involving justiciability and, as such, it is a threshold requirement in every case which we must address and decide sua sponte even if it is not raised by a litigant. See Matter of Paternity of Vainio, 284 Mont 229, 235, 943 P.2d 1282, 1286 (1997). The standing requirement cannot be waived by failure to, or agreement not to, object. Armstrong v. State, 1999 MT 261, ¶¶ 3-5, 296 Mont. 361, 989 P.2d 364 (internal citations omitted); Jones v. Montana University System, 2007 MT 82, ¶ 48, 337 Mont. 1, 155 P.3d 1247, cert. denied, 128 S. Ct. 401 (2007). If a party seeking to invoke the jurisdiction of the court does not meet the minimum constitutional requirements for standing, the court must dismiss the action for lack of jurisdiction. See In re Parenting of D.A.H., 2005 MT 68, ¶ 8, 326 Mont. 296, 109 P.3d 247; Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103-04, 118 S. Ct. 1003, 1017 (1998); Raines v. Byrd, 521 U.S. 811, 818-20, 829-30, 117 S. Ct. 2312, 2317-18, 2322-23 (1997); Warth v. Seldin, 422 U.S. 490, 501-02, 95 S. Ct. 2197, 2206-07 (1975).
¶34 The Montana Adoption Act (Title 42, MCA) was enacted in 1997 as part of a general revision and recodification of Montana‘s adoption statutes. See 1997 Mont. Laws, chapter 480. The Adoption Act sets forth specific procedures to be followed in the adoption of a child. For example,
¶35
¶36 An “agency” is defined in
¶37
¶38 In the case sub judice, S.J.D. claimed in her Petition for Adoption that B.J.M. had executed a Consent to Adoption, however, no Consent to Adoption by B.J.M. was filed with the petition, nor was one ever filed. B.J.M. did not voluntarily relinquish her parental rights, nor did she consent to the adoption. Thus, S.J.D. does not have standing to petition for termination of parental rights under this provision of the statute.
¶39 In addition,
(21) “Guardian” means an adult:
(a) who is responsible for a youth and has the reciprocal rights, duties, and responsibilities with the youth; and
(b) whose status is created and defined by law. [Emphasis added.]
Similarly, “custody” is not defined in the Adoption Act, nor does
(29) (a) “Legal custody” means the legal status created by order of a court of competent jurisdiction that gives a person the right and duty to:
(i) have physical custody of the youth;
(ii) determine with whom the youth shall live and for what period;
(iii) protect, train, and discipline the youth; and
(iv) provide the youth with food, shelter, education, and ordinary medical care.
(b) An individual granted legal custody of a youth shall personally exercise the individual‘s rights and duties as guardian unless otherwise authorized by the court entering the order. [Emphasis added.]
¶40 Under these statutory definitions, although S.J.D. has “physical custody” of K.P.M. by virtue of the fact that she is married to and living with I.J.C. who has “legal custody” of K.P.M., S.J.D. is not the actual “guardian” of K.P.M. with “status created and defined by law.” Rather, that position is held by I.J.C., and, although S.J.D. asserted in her petition to terminate that she was filing the petition in conjunction with I.J.C., I.J.C. did not sign the petition.
¶41 Consequently, because S.J.D. was not one of the parties authorized to bring a petition for termination of parental rights under
¶42 The Majority claim that ”
¶43 In addition, while a stepparent has standing to file a petition for adoption under the criteria set forth in
¶44 The Majority contend that this interpretation of the statutes would mean that no one would have standing to petition to terminate B.J.M.‘s parental rights because there is no guardian. Opinion, ¶ 19. This is entirely untrue. The Uniform Parentage Act (Title 40, chapter 6, part 1, MCA) defines the parent and child relationship as “the legal relationship existing between a child and the child‘s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations.”
¶45 I also disagree with the Majority‘s position that because S.J.D. had standing to petition for adoption of K.P.M., she also had standing to petition to terminate B.J.M.‘s parental rights. Opinion, ¶ 14. While
¶46 The Majority also contend that previous applications of Title 42 are consistent with the Majority‘s interpretation. Opinion, ¶ 20. The Majority fail to point out however that all but one of the cases cited in the Opinion as a “previous application” of Title 42 actually pre-date Title 42 as it exists today. Title 42 was completely revised in 1997, see 1997 Mont. Laws, chapter 480, and the statute providing the criteria for termination of parental rights was added at that time long after most of the cases cited by the Majority were decided. Prior to 1997, it was only necessary for a stepparent to bring a petition for adoption; a petition for termination of parental rights was not required. See Title 40, chapter 8, MCA (1995) (repealed 1997 Mont. Laws, chapter 480, § 171).
¶47 Furthermore, one of the cases the Majority cite, Matter of Adoption of J.B.T., 250 Mont. 205, 819 P.2d 178, runs counter to the Majority‘s argument as the petition in that case was brought by both the natural mother and the stepfather. This Court also stated in that case that “[b]ecause the natural parent can forever lose parental rights, this Court requires strict compliance with the statute.” Adoption of J.B.T., 250 Mont. at 208, 819 P.2d at 179 (emphasis added). As to the only case cited by the Majority that was decided after the 1997 revisions to the Adoption Act, In re Adoption of C.W.D., 2005 MT 145, 327 Mont. 301, 114 P.3d 214, the issue of standing was not raised or decided by this Court. However, our failure to sua sponte raise the question of standing in that case does not permit this Court to perpetuate that error.
¶48 Based on the foregoing, I would hold that the District Court lacked jurisdiction to grant S.J.D.‘s petition to terminate B.J.M.‘s parental rights to K.P.M. because S.J.D. did not have standing to bring such a petition. I dissent from the Court‘s failure to so hold.
¶49 I also dissent from the Opinion in this case because S.J.D. did not follow the required statutory procedure in petitioning to adopt K.P.M.
¶50 This Court has repeatedly held that “a natural parent‘s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317 (quoting In re E.W., 1998 MT 135, ¶ 12, 289 Mont. 190, 959 P.2d 951; Matter of R.B., 217 Mont. 99, 103, 703 P.2d 846, 848 (1985)). Hence, each applicable statutory requirement must be adequately addressed before a district court may terminate an individual‘s parental rights. In re J.N., ¶ 12 (citing In re E.W., ¶ 12; Matter of R.B., 217 Mont. at 103, 703 P.2d at 848). Moreover, “[t]he party seeking to terminate an individual‘s parental rights has the burden of proving by clear and convincing evidence that the statutory criteria for termination have been met.” In re J.N., ¶ 12 (citing In re E.W., ¶ 12; Matter of J.L., 277 Mont. 284, 288, 922 P.2d 459, 461 (1996)) (emphasis added).
¶51 Of particular relevance to the instant case are
¶52 The Majority assert that following the correct statutory procedure is not a matter that was raised in the appellate briefs, nor was it an issue before the District Court in its consideration of the petition to terminate parental rights. Opinion, ¶ 19. On the contrary, the record shows that B.J.M. raised this issue in her “Hearing Brief” filed in the District Court on January 23, 2008. There B.J.M. argued that S.J.D.‘s petition was “deficient” because S.J.D. did not follow the criteria set forth by the Legislature in Title 42. In support of her argument, B.J.M. specifically cited to
¶53 Moreover, B.J.M. stated at page 11 of her Appellant‘s Brief:
The party seeking to terminate parental rights must demonstrate by clear and convincing evidence that the statutory
requirements for termination have been met. In re the Matter of A.S., Youth in Need of Care, 2006 MT 281, ¶ 6, 334 Mont. 280, 146 P.3d 778. [Emphasis added.]
B.J.M. also stated at page 19 of her Appellant‘s Brief and again at page 8 of her Reply Brief that S.J.D. “has failed to provide clear and convincing evidence that the statutory requirements for termination have been met.” Even so, whether the correct statutory procedures have been followed is a threshold issue in every case.
¶54 In addition,
(2) There must be attached to or accompanying the petition [for adoption]:
(a) any written consent required by 42-2-301;
(b) a certified copy of any court order terminating the rights of the child‘s parents .... [Emphasis added.]
Although S.J.D. claimed in her Petition for Adoption that B.J.M.‘s written consent was attached to the petition, that was not the case as B.J.M never consented to the adoption. Because B.J.M.‘s parental rights had not been terminated at the time the Petition for Adoption was filed, S.J.D. did not and could not attach “a certified copy of any court order terminating the rights of the child‘s parents,” as provided for in
¶55 Consequently, I would reverse the District Court‘s decision to terminate B.J.M.‘s parental rights because S.J.D. did not follow the statutory requirements for bringing her petitions and I dissent from this Court‘s failure to so hold.
¶56 Furthermore, while the Court places great emphasis on B.J.M.‘s lifestyle at the time she placed K.P.M. in I.J.C.‘s care, no mention is made of the fact that B.J.M. has worked hard to turn her life around. She is now married, has another child and a steady job. The Court also does not mention that the death of her first child, while she was pregnant with K.P.M., sent B.J.M. into a depression that contributed to her inability to properly care for K.P.M. Although I do not condone the path she chose to take after the loss of her child, I do recognize the fact that she had the sense to place K.P.M. in a stable environment.
¶57 The District Court terminated B.J.M.‘s parental rights on the basis that she had abandoned K.P.M. While I applaud I.J.C. and S.J.D. for the love and care they have given K.P.M. in the intervening years, I cannot help but note that some small part of the blame for B.J.M.‘s abandonment of K.P.M. was caused by I.J.C.‘s continued refusal to allow B.J.M. to see him—facts conveniently left out of the Opinion in this case.
¶58 I make one final observation. The Legislature adopted significant amendments to the Adoption Act in 1997. If one reviews the legislative history to those amendments, one is struck by the Legislature‘s intent to preserve the parental rights of the biological parents to a child. Indeed, this follows the policy of this State “to support and preserve the family as the single most powerful influence for ensuring the healthy social development and mental and physical well-being of Montana‘s children.”
¶59 I dissent.
JUSTICE COTTER joins the Dissent of JUSTICE NELSON.