Adoption of H.M.O., Matter of, 97-262

• Decision Date: 16 July 1998
• Docket Number: No. 97-262,97-262
• Parties: In the Matter of the ADOPTION OF H.M.O.
• Court: Montana Supreme Court

Page 1191

962 P.2d 1191

1998 MT 175

In the Matter of the ADOPTION OF H.M.O.

No. 97-262.

Supreme Court of Montana.

Submitted on Brief March 26, 1998.

Decided July 16, 1998.

Carl White, Havre, for Appellant.

Chris Christensen, Conrad, for Respondent.

GRAY, Justice.

¶1 Barbara R. (Barbara) appeals from the order and judgment entered by the Twelfth Judicial District Court, Chouteau County, which terminated her parental rights and granted the petition of Shannen R. (Shannen) to adopt H.M.O. We reverse and remand with instructions.

ISSUES

¶2 Barbara presents the following issues on appeal:

¶3 1. Did the District Court err by applying a retroactive child support obligation to the one-year period prior to the filing of the petition for adoption for purposes of granting the petition without Barbara's consent?

¶4 2. Does § 40-8-111(1)(a)(v), MCA (1995), allow for a de minimis exception to the rule that a parent's consent to adoption is not required when a parent, although able to do so, fails to pay child support for the year preceding the petition for adoption?

¶5 3. Did the District Court err under the Indian Child Welfare Act by granting the petition for adoption absent supporting testimony from a qualified expert witness?

¶6 4. Does sufficient evidence support the District Court's finding that Barbara's continued joint custody likely would result in serious emotional or physical damage to H.M.O.?

Because our resolution of issue 3 is dispositive, we do not address Barbara's other issues.

BACKGROUND

¶7 Barbara married Randy R. (Randy) in November of 1990. They separated after six months and H.M.O. was born five and one-half months later. Sometime after H.M.O.'s birth, Randy requested a paternity test which established that he was H.M.O.'s father. Barbara and Randy's marriage was dissolved in Cascade County on July 21, 1993. They were awarded joint legal custody of H.M.O., with Barbara designated as the physical custodian. Randy was awarded reasonable visitation rights. Child support was determined and Randy paid regularly until he took physical custody of H.M.O. on April 15, 1994.

¶8 On that date, Heidi--Barbara's teenage daughter from a previous marriage--called her stepmother, Karen, and asked to be picked up from softball practice. She told Karen that she was tired of Barbara's drinking and of being H.M.O.'s care giver and wanted to stay with her father and Karen. Karen then called Shannen, Randy's live-in girlfriend, reported that Barbara was drinking again and suggested that Shannen pick up H.M.O. because she might be left unsupervised. Shannen contacted Randy, who called the Great Falls Police Department. Officer Christopher Paul Hickman (Officer Hickman) responded and met Shannen and Karen at Barbara's apartment. Barbara's babysitter arrived with H.M.O., called Barbara, and let everyone into Barbara's apartment. Officer Hickman told Karen and Shannen that it was better if Heidi and H.M.O. went to stay with their respective fathers, since both fathers had joint custody of their daughters.

¶9 Barbara did not return to her apartment and Officer Hickman tracked her down at a house party. He observed that she was highly intoxicated, and informed her that her daughters were with their fathers. Barbara responded that now maybe she could get a life.

¶10 Barbara and Randy entered into a stipulation on May 9, 1994, which gave Randy residential custody of H.M.O. with reasonable visitation rights in Barbara. The Cascade County district court adopted the stipulation by order the following day and placed restrictions on Barbara's visitation, including that she could not drink in H.M.O.'s presence and could not have overnight visitation until her continued abstinence from alcohol had been proven to the court. In addition, Randy's child support obligation was retroactively terminated as of April 15, 1994. Finally, the district court ordered that Barbara's support obligation be determined.

¶11 Barbara attempted to contact H.M.O. several times during the subsequent two and one-half years. Each time, Randy and Shannen denied Barbara any contact with H.M.O.

¶12 Randy initiated child support proceedings sometime in 1994, but Barbara could not be located and served until April of 1995. Shortly thereafter, Randy terminated the child support proceedings because he and Shannen had married in January of 1995, and Shannen wanted to adopt H.M.O. Shannen filed her petition for adoption in the Twelfth Judicial District Court, Chouteau County, on April 19, 1995, alleging that Barbara's consent to the adoption was not necessary because Barbara had not paid child support during the prior year and had abandoned H.M.O. Randy consented to Shannen's adoption of H.M.O., but Barbara refused to do so.

¶13 By the time the adoption petition was filed, Barbara had completed inpatient chemical dependency treatment in Butte and moved to Missoula, where she enrolled in outpatient treatment at the Missoula Indian Center. Barbara is an enrolled member of the Chippewa-Cree Tribe (Tribe) of the Rocky Boy Reservation. Neither H.M.O. nor Heidi is enrolled. In June of 1995, Heidi went to stay with Barbara in Missoula for the summer and decided to stay with her while attending high school.

¶14 During the course of the adoption proceedings, the District Court requested home studies of both Barbara and Shannen. Star Jackman (Jackman), a family resource specialist for the Department of Public Health and Human Services (the Department), issued a report recommending that H.M.O. remain permanently with Randy and Shannen. Jackman's report, which contained numerous inaccuracies, focused more on Barbara's failure to visit H.M.O. during Randy's custody than on the suitability of Shannen and Randy's home. She concluded that H.M.O. had become an integral part of the family unit--consisting of Shannen, Randy, H.M.O., an older stepbrother, and a younger half-sister--and, as a result, that everyone but Barbara would suffer loss if Randy and Shannen did not retain permanent custody of H.M.O.

¶15 Martha Vaughan Crago (Crago), another family resource specialist for the Department, submitted a report regarding the suitability of Barbara's home after meeting with Barbara and Heidi. The report focused on Barbara's recent success in controlling her alcoholism and Shannen's negative attitude toward Barbara. Crago concluded that, although there was no guarantee that Barbara would remain alcohol-free, there was no basis to deny her unsupervised visitation or terminate her parental rights without her consent.

¶16 Reba McCracken (McCracken), Shannen's mother, was deposed during the course of the adoption proceedings. McCracken, a teacher with an endorsement in special education, testified that H.M.O. had not developed the social skills of the average child of a similar age when Randy and Shannen initially took custody of H.M.O. McCracken also testified that Shannen is an "excellent" parent and worked extensively with H.M.O. to help H.M.O. develop social skills.

¶17 At the beginning of the hearing on Shannen's petition, the District Court concluded that H.M.O. would be treated as an Indian child for purposes of the Indian Child Welfare Act (the ICWA) and, therefore, that the ICWA applied to the adoption proceedings. It further noted that the Tribe was notified of the adoption proceedings, as required by the ICWA, but did not respond. Shannen, Randy, Barbara, and various friends and family members testified. In addition, Carol Richard (Richard), a chemical dependency counselor, testified on Barbara's behalf. Shannen's accounting expert also testified that, if Barbara's support obligation had been determined, she would have owed $43 per month in child support to Randy.

¶18 The District Court concluded that Barbara's consent to the adoption was not required because, although she was able, Barbara had not paid child support for the year prior to Shannen's initiation of the adoption proceedings, but that Barbara had not willfully abandoned H.M.O. The District Court also concluded beyond a reasonable

                doubt, based on what it characterized as the expert testimony of Jackman, McCracken and Richard, that custody of H.M.O. by Barbara likely would result in serious emotional or physical damage to H.M.O.;   that H.M.O.'s custody should be with Randy;  that Barbara's parental rights should be terminated;  and that Shannen's petition for adoption should be granted.  Barbara appeals from the order and judgment entered on the District Court's findings of fact and conclusions of law
                

STANDARDS OF REVIEW

¶19 We review a district court's findings of fact to determine whether the findings are clearly erroneous. Matter of P.E. (1997), 282 Mont. 52, 56, 934 P.2d 206, 209 (citations omitted). Findings of fact are clearly erroneous "if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made." In re Marriage of Nevin (1997), 284 Mont. 468, 472, 945 P.2d 58, 61 (citation omitted). We review a district court's conclusions of law to determine whether they are correct. Matter of P.E., 282 Mont. at 56-57, 934 P.2d at 209 (citations omitted).

¶20 Determinations regarding the qualifications and competency of an expert witness are within the discretion of the trial court. Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citation omitted). We will not overturn such determinations absent a showing of an abuse of that discretion. Cottrell, 261 Mont. at 301, 863 P.2d at 384 (citation omitted).

DISCUSSION

¶21 Did the District Court err under the ICWA by granting the petition for adoption absent supporting testimony from a qualified expert witness?

¶22 At the beginning of the hearing, the District Court determined that H.M.O. would be treated as an Indian child and, therefore, that the ICWA applied to the proceedings; neither party...