In re T.H.

• Decision Date: 20 September 2005
• Docket Number: No. 04-427.,04-427.
• Citation: 328 Mont. 428,2005 MT 237,121 P.3d 541
• Parties: In the Matter of T.H. and C.D.F., Youths in Need of Care.
• Court: Montana Supreme Court

121 P.3d 541

2005 MT 237

328 Mont. 428

In the Matter of T.H. and C.D.F., Youths in Need of Care.

No. 04-427.

Supreme Court of Montana.

Submitted on Briefs April 19, 2005.

Decided September 20, 2005.

Judith A. Loring, Stevensville, for Appellant.

Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Fred Van Valkenburg, Missoula County Attorney; Leslie Halligan, Deputy County Attorney, Missoula, for Respondent.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 D.H. (Mother), the biological mother of T.H. and C.D.F., appeals from the orders entered by the Fourth Judicial District Court, Missoula County, terminating her parental rights and from subsequent orders. The Department of Public Health and Human Services (Department) moves to dismiss this appeal as untimely or barred by laches. We deny the motion to dismiss and affirm.

¶ 2 We address the following restated issues on appeal:

¶ 3 1. Is Mother's appeal untimely or barred by laches?

¶ 4 2. Given the undisputed findings of fact, did the District Court abuse its discretion in terminating Mother's parental rights based on abandonment?

¶ 5 3. Did the proceedings comport with relevant statutory and constitutional due process requirements?

BACKGROUND

¶ 6 Mother and L.H. are the biological parents of T.H., and Mother and C.F. are the biological parents of C.D.F. On August 2, 2001, the District Court entered an order terminating the parent-child legal relationship between Mother and T.H., withdrawing its previous orders regarding L.H. and holding the Child and Family Services Division of the Department financially responsible for the costs of placing T.H. in Washington state with her maternal aunt. The August 2 order included findings and conclusions that the Department failed to provide Mother with an appropriate treatment plan or necessary services, a finding that Mother had abandoned T.H. and a conclusion — Conclusion # 3 — that her parental rights to T.H. should be terminated pursuant to § 41-3-609(1)(b), MCA (1999), based on abandonment.

¶ 7 On August 7, 2001, the District Court amended its order regarding T.H., including an amended Conclusion # 17 that reads, "[Mother's] parental rights should not be terminated, pursuant to § 41-3-604(1)(b), MCA, in as much as [the Department] has not provided the services considered necessary for the date return of [T.H.]." The amendment did not alter any of the court's findings or Conclusion # 3 about the propriety of termination due to abandonment. Also on August 7, the court entered a separate order terminating Mother's and C.F.'s parental rights to C.D.F. That order included a finding that Mother abandoned C.D.F. and a conclusion that her parental rights should be terminated based on abandonment.

¶ 8 The Department appealed with regard to issues not involving Mother. We reversed and remanded for entry of judgment in an unpublished opinion, In re T.H. and C.D.F., 2002 MT 293N, 313 Mont. 422, 63 P.3d 513. On remand, the District Court entered an amended order in April of 2003 which, in pertinent part, retained from the 2001 order both the finding of abandonment of T.H. by Mother and Conclusion # 3, that termination of Mother's parental rights to T.H. based on abandonment was appropriate. The order on remand also replaced the above-referenced Conclusion # 17 regarding § 41-3-604(1)(b), MCA, with a conclusion that reads "[a]s noted abvoe [sic], but for her abandonment of [T.H.], [Mother's] parental rights could not be terminated." C.D.F.'s foster parents have since adopted her, and T.H.'s maternal aunt has guardianship of her and plans to adopt her. The record reflects that no one served Mother with notice of entry of judgment regarding the termination of her parental rights to either child at any time.

¶ 9 On November 18, 2003, Mother filed a verified petition to terminate planned permanent living arrangements, in which she requested the District Court to vacate or void its previous orders placing the children away from her, granting the Department temporary legal custody (TLC) and terminating her parental rights. The District Court denied the petition. Mother then moved the court to vacate its order denying her petition, set aside the termination order regarding T.H. and hold a new hearing regarding C.D.F. or, alternatively, certify its order as a final determination from which she could appeal. The District Court also denied that motion.

¶ 10 In May of 2004, Mother filed a notice of appeal from the District Court's orders terminating her parental rights and denying her subsequent petition and motion. The Department moved to dismiss the appeal as untimely or barred by laches, and Mother responded. We took the motion under advisement.

DISCUSSION

¶ 11 Is Mother's appeal untimely or barred by laches?

¶ 12 The Department moves to dismiss Mother's appeal on grounds that it is untimely pursuant to § 42-2-620, MCA, or, alternatively, barred by the doctrine of laches. Section 42-2-620, MCA, provides that

[s]ubject to the disposition of a timely appeal, upon expiration of 6 months after an order terminating parental rights has been issued, the order may not be questioned by any person, in any manner, or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or the subject matter.

¶ 13 In the usual situation where the Department serves a parent whose parental rights have been terminated with notice of entry of judgment, a parent's appeal long after the termination order is issued is untimely. Rule 5(a)(1), M.R.App.P., requires a party to a civil case to file a notice of appeal within 60 days of service of notice of entry of judgment when such service is required by Rule 77(d), M.R.Civ.P., and the State of Montana is a party. Thus, Rule 5(a)(1), M.R.App.P., ordinarily would preclude an appeal such as Mother's. The Department properly concedes, however, that Rule 77(d), M.R.Civ.P., mandates our conclusion that the prevailing party in a child abuse and neglect case must serve notice of entry of judgment on other parties. It further concedes it did not serve notice of entry of judgment on Mother at any time.

¶ 14 The Department maintains, however, that the relationship between § 42-2-620, MCA, and the rules of civil and appellate procedure applicable to child abuse and neglect proceedings is analogous to the postconviction relief context. It urges that our analysis in a case involving a petition for postconviction relief, State v. Garner, 1999 MT 295, 297 Mont. 89, 990 P.2d 175, also "should hold true for abuse and neglect cases."

¶ 15 In Garner, ¶¶ 22-25, we determined the 60-day period for appeal from the entry of an order on a petition for postconviction relief, as set forth in § 46-21-203, MCA, is a specific statutory requirement which controls over the general provision in Rule 77(d), M.R.Civ.P., requiring service of notice of entry of the judgment or order. We also noted that, pursuant to § 46-21-201(1)(c), MCA, civil procedure rules apply in postconviction proceedings only if not inconsistent with postconviction statutes. Garner, ¶ 26. On those bases, we concluded Rule 77(d), M.R.Civ.P., does not apply in postconviction proceedings. Garner, ¶ 27.

¶ 16 Here, unlike in Garner, it is undisputed that Rule 77(d), M.R.Civ.P., applies. Moreover, unlike the statute at issue in Garner, § 42-2-620, MCA, does not alter the filing period for timely appeals; it merely sets a 6-month time limit for all other challenges to orders terminating parental rights — a time limit, which, by its terms, is "subject to the disposition of a timely appeal." Pursuant to Rule 5(a)(1), M.R.App.P., Mother's 60-day time limit for appeal does "not begin to run until service of notice of entry of judgment." As a result, the § 42-2-620, MCA, 6-month limit on other challenges does not apply to Mother's timely appeal from the District Court's orders terminating her parental rights and the underlying proceedings.

¶ 17 As a final matter regarding § 42-2-620, MCA, we address our recent opinion in In re P.D.L., 2004 MT 346, 324 Mont. 327, 102 P.3d 1225. There, we recognized § 42-2-620, MCA, "attempts to provide finality to the termination of parental rights proceedings so that a child may be safely adopted without the threat of the adoption being set aside at some future date." We concluded § 42-2-620, MCA, rendered an order terminating a father's parental rights "immune to any collateral attacks" made more than six months after the order was issued, including the father's Rule 60(b), M.R.Civ.P., motion for relief from judgment. P.D.L., ¶ 14. Here, Mother's appeal from the termination orders is not a collateral attack. It is the direct appeal to which she is entitled pursuant to Rule 5, M.R.App.P., as well as the "timely appeal" recognized in § 42-2-620, MCA.

¶ 18 We conclude § 42-2-620, MCA, does not bar Mother's appeal from the District Court's orders terminating her parental rights. For that reason, we need not address Mother's appeal from the court's later orders on her petition and motion.

¶ 19 The Department also contends, however, that the equitable doctrine of laches bars Mother's appeal. It relies on In re Marriage of Deist, 2003 MT 263, ¶ 17, 317 Mont. 427, ¶ 17, 77 P.3d 525, ¶ 17, and Cole v. State ex rel. Brown, 2002 MT 32, ¶ 24, 308 Mont. 265, ¶ 24, 42 P.3d 760, ¶ 24, for the proposition that laches applies when a party is actually or presumptively aware of his or her rights and fails to act until such a delay has occurred as to render enforcement of the asserted right inequitable. The Department asserts letters from the District Court to Mother indicate she was aware in 2002 that her parental rights had been terminated, and she took no action until November of 2003. The letters from the District Court first appeared in the record as attachments to Mother's motion to vacate the denial of her post-...