D.H., Matter of

• Citation: 264 Mont. 521,872 P.2d 803
• Decision Date: 28 April 1994
• Docket Number: No. 93-504,93-504
• Parties: In the Matter of Declaring D.H. and F.H., Youths In Need Of Care.
• Court: United States State Supreme Court of Montana

Page 803

872 P.2d 803

264 Mont. 521

In the Matter of Declaring D.H. and F.H., Youths In Need Of Care.

No. 93-504.

Supreme Court of Montana.

Submitted on Briefs March 31, 1994.

Decided April 28, 1994.

[264 Mont. 522] Chris P. Christensen, Kalispell, for appellant.

Joseph P. Mazurek, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Thomas J. Esch, Flathead County Atty., Randy K. Schwickert, Asst. County Atty., Kalispell, for respondent.

Robert Allison, Kalispell, for youths.

TRIEWEILER, Justice.

On behalf of the Department of Family Services, the Flathead County Attorney filed a petition to terminate the parent-child relationship of Susan H. and her natural children, D.H. and F.H., in the Eleventh Judicial District Court in Flathead County. The District Court found that the children were abused and neglected, terminated Susan's parental rights, and awarded permanent custody of the children to the Department of Family Services. Susan appeals the order of the District Court. We affirm.

Susan raises the following issues on appeal:

1. Did the District Court abuse its discretion when it concluded that Susan had abandoned D.H. and F.H.?

2. Did the District Court abuse its discretion when it concluded that a treatment plan was not required for Susan?

3. Was there substantial credible evidence to support the District Court's finding that previous efforts to counsel Susan had failed and that she was unlikely to change?

We find our resolution of the first issue dispositive, and therefore, will not address the remaining two issues.

FACTUAL BACKGROUND

Susan H. and Duaine H. are the natural parents of twin girls, D.H. and F.H., who were born March 23, 1990, in Kalispell, Montana. Susan is also the mother of J.A. Only the parent-child rights between Susan and the twins are at issue in this case.

On September 26, 1990, Susan and her mother were arrested and incarcerated at the Flathead County Detention Center for their involvement in a scheme to deliver a series of bad checks. Susan ultimately pled guilty to felony theft and accountability for issuing bad checks and was sentenced to a term of 17 years at the Women's Correctional Center in Warm Springs. She was denied parole in November 1992.

On the day of her arrest, Susan's mother telephoned an acquaintance, Susan Schraeder, to ask if Schraeder would babysit D.H. and F.H. When Schraeder went to pick up the twins, she was given a box containing a large supply of cereal, baby food, and formula. Susan and her mother did not return for D.H. and F.H. that day due to their arrest and incarceration. Susan's mother was released from jail, but was unable to care for the children. Duaine attempted to care for them, but in July 1991, having no job and no resources, he requested foster placement for D.H. and F.H. with the Schraeders, who then became licensed foster parents. Duaine was given a treatment plan and reunited with D.H. and F.H. in September 1991, but within two months, he was again relying on the Schraeders for the majority of the care and supervision of the twins. In December 1991, D.H. and F.H. were again placed with the Schraeders, where they have remained since that time.

Duaine was arrested for probation violation in February 1992. On June 19, 1992, the Flathead County Attorney, on behalf of the Department of Family Services (DFS) filed a petition for temporary investigative authority and protective services based on the allegation that the children were abused and neglected On October 19, 1992, the DFS filed a petition for permanent custody and authority to consent to adoption, and requested that D.H. and F.H. be declared youths in need of care.

                within the meaning of § 41-3-102, MCA.   With the petition, an affidavit was filed in which it was alleged that:  (1) both parents were incarcerated due to criminal convictions;  (2) the mother's lengthy prison sentence would cause her to be absent from the children's lives for a prolonged period;  and (3) the father would not be released until August 1992 and prior to his [264 Mont. 524] incarceration, had failed to provide the minimum physical, emotional, and psychosocial needs of the children
                

Based upon evidence from the June 9, 1993, hearing, the District Court declared D.H. and F.H. youths in need of care, abandoned by their mother, whose best interests would be served by termination of the parent-child legal relationship with their natural mother. On November 2, 1993, Duaine voluntarily terminated his parent-child legal relationship with D.H. and F.H., consented to their adoption, and relinquished their legal custody to the DFS.

STANDARD OF REVIEW

This Court has previously stated:

We presume the correctness of a district court's decision to terminate parental rights and we will not overturn that decision "unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion." In re S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644.

In re Custody of M.D. (Mont.1993), 864 P.2d 783, 785, 50 St.Rep. 1505, 1506. See also In re Matter of R.A.D. (1988), 231 Mont. 143, 753 P.2d 862. However, that standard of review is inadequate for the following reasons. First, we have adopted a different standard of review for nonjury findings of fact than we apply to jury verdicts. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. There, we stated:

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.P. In comparison, this Court will affirm the verdict of a jury if there is substantial credible evidence in the record to support the verdict.....

Substantial credible evidence when used to support a jury verdict is fairly well understood; however, when substantial evidence is used in the clearly erroneous standard it is less clear. If a finding is not supported by substantial evidence it is clearly erroneous. The converse proposition that a finding supported by substantial evidence cannot be clearly erroneous is not true in a non-jury case. "Substantial evidence and clearly erroneous are not synonymous and a finding may be set aside, though supported by substantial evidence if found to be clearly erroneous." W.R.B. Corp. v. Geer (C.A.5th 1963), 313 F.2d 750.

We adopt the following three-part test to determine if a finding is clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that "[a] finding is 'clearly erroneous' when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed." U.S. v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. [Citations omitted].

DeSaye, 820 P.2d at 1287. This is the appropriate standard to be applied to purely factual findings in a proceeding to terminate parental rights. The second reason the previously articulated standard of review for termination of parental...