*1 No. 97-371
IN THE SUPREME COURT OF THE STATE OF MONTANA
For Appellant: Kirk D. Krutilla, Attorney at Law, Superior, Montana For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Stephen C. Bullock, Assistant Attorney General, Helena, Montana M. Shaun Donovan, Mineral County Attorney, Superior, Montana
Submitted on Briefs: December 23, 1997 Decided: June 9, 1988
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1 In its findings of fact, conclusions of law and order, the Fourth Judicial District Court, Mineral County, terminated the parental rights of Bonnie D. (Bonnie) and Joe W. (Joe) to M.J.W. Joe appeals, contending that certain of the court's findings of fact are clearly erroneous and that the District Court
incorrectly interpreted the law. We affirm.
¶2 The dispositive issue on appeal is whether the District Court erred in terminating Joe's parental rights.
BACKGROUND
¶3 The Department of Public Health and Human Services (Department), formerly the Department of Family Services, became involved with Bonnie prior to M.J.W.'s birth due to concern about Bonnie's parenting capabilities. M.J.W. was born on September 9, 1992, and lived with Bonnie for most of the first eighteen months of her life. Throughout that period, Joe saw M.J.W. only intermittently. Although Joe and Bonnie lived together for short periods before and after M.J.W.'s birth, they never married.
¶4 The Department removed M.J.W. from Bonnie's care on several occasions prior to February 25, 1994. Joe had physical custody of M.J.W.
briefly, but she was removed by the Department when Joe went on a rafting trip leaving M.J.W. in the care of a fifteen-year-old babysitter. The Department subsequently returned M.J.W. to Bonnie's care.
¶5 M.J.W. was placed in foster care again on February 25, 1994, at age eighteen months, when Bonnie was jailed as a result of her third conviction for driving under the influence of alcohol and for resisting arrest, driving without a valid driver's license, and child endangerment. The Department petitioned for temporary investigative authоrity and protective services for M.J.W.
shortly thereafter. The District Court granted the petition and vested specific rights in the Department, including the right to require Joe and Bonnie to attend individual counseling. The court also ordered M.J.W.'s parents to comply with the order or appear on March 16, 1994, to show cause why they had not done so. Neither parent complied with the order or appeared at the show cause hearing. The Department moved for temporary legal custody of M.J.W. for six months and for apрroval of proposed treatment plans for Bonnie and Joe. The District Court granted that motion on July 27, 1995, and ordered the parents to complete the goals listed in their treatment plans.
¶6 The Department moved to terminate the parental rights of both Bonnie and Joe on September 12, 1996, alleging alternative statutory grounds. The District Court appointed counsel for both parents and an evidentiary hearing on the motion was held on April 10, 1997. Thereafter, the District Court issued its findings of fact, conclusions of law and order terminаting the parental rights of both parents and requiring the Department to establish a plan for permanent placement of M.J.W. Joe appeals.
STANDARD OF REVIEW
¶7 In a termination of parental rights case, we review a district court's
findings of fact to determine whether they are clearly erroneous. Matter of
W.Z. (Mont. 1997),
DISCUSSION
¶8 Did the District Court err in terminating Joe's parental rights?
¶9 A number of statutory bases exist for a court's termination of parental rights in Montana. In terminating Jоe's parental rights in the present case, the District Court concluded that termination was appropriate under §§ 41-3-609(1)(b), 41-3-609(1)(c), 41-3-609(1)(d), 41-3-410(1), and 41-3-410(2),
MCA (1995).
¶10 Joe argues that the District Court erred in terminating his parental rights pursuant to § 41-3-609(1)(c), MCA (1995), because its findings relating to his abuse and neglect of M.J.W. were bаsed on an inadmissible hearsay report and, therefore, the threshold determination for termination under that statute-- namely, that M.J.W. was an adjudicated youth in need of care--is lacking. The Department responds that the youth in need of care designation was made at an earlier stage of the proceedings and, in that regard, directs our attention to the District Court's conclusion that M.J.W. "was properly designated by prior Order of this Court as a Youth in Need of Care as that term is defined by section 41-3-102(17) M.C.A." Therefore, accоrding to the Department, the foundational determination was present and the District Court correctly terminated Joe's parental rights pursuant to § 41-3-609(1)(c), MCA (1995).
We disagree.
¶11 A district court may terminate the parent-child legal relationship under § 41-3-609(1)(c), MCA (1995), upon finding that the child has been adjudicated a youth in need of care, the parent has not complied with an appropriate court-approved treatment plan or the treatment plan was unsuccessful, and the conduct or condition of the parent rendering him unfit is unlikely to change within a reasonable time. Thus, the threshold requirement for termination under § 41-3-609(1)(c), MCA (1995), is the youth in need of care adjudication. Absent such an adjudication, parental rights cannot be terminated pursuant to that statute.
¶12 Here, the record does not support the District Court's conclusion that it previously had designated M.J.W. a youth in need of care. In its order granting the Department's petition for temporary investigative authority and protective services, the District Court found that "there is probable cause to believe that [M.J.W.] is abused or neglected or in danger of being abused or neglected. . . ." Clearly, a "probable cause" finding does not constitute a finding that M.J.W. was abused or neglected. The District Court also found that M.J.W. was removed from her mother's home because she was in immediate or apparent danger of harm. This finding arguably is sufficient to meet the definition of child abuse or neglect contained in § 41-3-102(5), MCA (1995). It is not sufficient, however, to constitute an adjudication that M.J.W. was a youth in need of care. That adjudication can be made only after the *4 adjudicаtory hearing mandated by § 41-3-404, MCA (1995). No such hearing was held prior to the District Court's March 9, 1994, order for protective services. Indeed, that order clearly reflects that it was based solely on the Department's petition and accompanying report.
¶13 The only othеr substantive District Court order of record prior to the Department's petition to terminate parental rights was entered on July 27, 1995. In that order, the District Court awarded temporary legal custody of M.J.W. to the Department, approved treatment plans for Joе and Bonnie and ordered them to complete the goals in their treatment plans. Nothing in that order addresses abuse or neglect or adjudicates M.J.W. a youth in need of care. Moreover, as was the case with the District Court's March 9, 1994, order, the statutorily required adjudicatory hearing prior to a youth in need of care designation was not held before the July 27, 1995, order.
¶14 The record before us is devoid of an order adjudicating M.J.W. a youth in need of care. As a result, we hold that the District Court erred in concluding it previously had designated M.J.W. a youth in need of care and in terminating Joe's parental rights pursuant to § 41-3-609(1)(c), MCA (1995). ¶15 As set forth above, however, the District Court terminated Joe's parental rights on five different statutory grounds. In this regard, the Department contends that termination was proper under § 41-3-609(1)(b), MCA (1995), which permits a district court to terminate parental rights upon a finding that the parent abandoned the child as defined in § 41-3-102(7)(e), MCA (1995).
¶16 To terminate the parent-child legal relationship, a district court must
determine that one of the criteria in § 41-3-609(1), MCA, exists. Matter of
D.H. (1994),
¶17 The District Court addressed abandonment in its Finding of Fact No. 5 and specifically found as follows:
During the approximately eighteen months between the child's birth and her long term foster care placement, the natural father had intermittent contact with the child and her mother on a basis sufficient to make a general assessment concerning the care being givеn the child. Since her placement in foster care on February 25, 1994 the child has had minimal contact with [Joe] as specified in Petitioner's Exhibit 2, as well as further contact neither authorized nor approved by the Department. The father has neglected to take advantage of opportunities to visit his child during the past three years and at *5 present [M.J.W.] identifies him as one of several transient father figures. [Joe's] failure to parent his daughter for any extended period of time, including
his failure to visit her regularly while in foster care, made reasonable the belief
by the Department that he does not intend to resume care of the child in the future.
Joe challenges only the first sentence of the finding, contending that it was based solely on
the testimony of Nancy Smith, a social worker who did nоt have personal knowledge of his
relationship with M.J.W. prior to February 25, 1994, when M.J.W. was again placed in foster
care. Because the findings pertinent to abandonment relate to the three-year period beginning February 25, 1994, however, we need not address whether the challenged portion
of the finding is clearly erroneous.
¶18 Joe does not challenge the District Court's specific findings or conclusion relating to
abandonment. It is well settled that a district court's decision is presumed correct. In re
Marriage of Clyatt (1994),
equally well settled that an appellant bears the burdеn of establishing error by the trial court.
See, e.g., Small v. Good (1997),
the District Court's abandonment determinations and, as a consequence, necessarily having
failed to meet his burden of proving error, we hold that the District Court's findings of fact
regarding abandonment are not clearly erroneous аnd that the District Court did not abuse
its discretion in concluding that Joe abandoned M.J.W.
¶19 Finally, Joe correctly contends that a determination that he abused or neglected M.J.W. is required before the District Court can terminate his parental rights. Section 41-3-602, MCA, states that "[t]he termination of the parent-child legal relationshiр provided for
in this part is to be used in those situations when there is a determination that a child is
abused or neglected, as defined in 41-3-102." See also In re A.E. (1992), 255 Mont.
56, 61-62,
determination was made in this case.
¶20 Section 41-3-102(2), MCA (1995), defines "abused or neglected" as "the state or condition of a child who has suffered child abuse or neglect." Section 41-3-102(5) (a), MCA
(1995), then defines "child abuse or neglect," in part, as harm to a child's health or welfare.
Finally, "harm to a child's welfare" is the harm which occurs when one of the statutory
circumstances set forth in § 41-3-102(7), MCA (1995), exists. One of those statutory circumstances is abandonment. Section 41-2-102(7)(e), MCA (1995). As discussed above,
the District Court found that Joe had abandoned M.J.W. Pursuant to the referenced statutes,
therefore, the District Court implicitly made a determination of abuse or neglect. ¶21 We have not previously held that abandonment falls within the definition of "abuse
or neglect;" however, we have implicitly recognized that it does. In Matter of D. H., 264
Mont. at 525-26,
determinatiоn based on a finding that the mother had abandoned her children. The mother
challenged the abuse and neglect determination and we limited our analysis to whether the
district court abused its discretion in determining the mother had abandoned her children.
Matter of D.H.,
had abandoned her children and that they were abused and neglected. Matter of D.H., 264
Mont. at 527,
satisfies the § 41-3-602, MCA, requirement of a determination that the child has been abused
or neglected as defined in § 41-3-102, MCA. We hold, therefore, that the District Court did
not err in terminating Joe's parental rights pursuant to § 41-3-601(1)(b), MCA (1995).
¶23 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ WILLIAM E. HUNT, SR.