In re A.T., 05-344.

• Decision Date: 22 February 2006
• Docket Number: No. 05-344.,05-344.
• Citation: 2006 MT 35,331 Mont. 155,130 P.3d 1249
• Parties: In the Matter of A.T., Youth in Need of Care.
• Court: Montana Supreme Court

Page 1249

130 P.3d 1249

2006 MT 35

331 Mont. 155

In the Matter of A.T., Youth in Need of Care.

No. 05-344.

Supreme Court of Montana.

Submitted on Briefs November 30, 2005.

Decided February 22, 2006.

For Appellant: Carl B. Jensen, Jr., Cascade County Public Defender Office, Great Falls, Montana (Attorney for Appellant Father).

For Respondent: Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, Sarah Corbally, Deputy County Attorney, Great Falls, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 M.C. appeals the termination of his parental rights to his daughter, A.T. We affirm.

ISSUE

¶ 2 The issue on appeal is whether the District Court abused its discretion when it relied on evidence in the record rather than live testimony to terminate M.C.'s parental rights at a termination hearing for which M.C. failed to appear.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 A.T., the eight-year old child at issue in this case, has been in foster care and intensive therapy since September 2002 when she and her siblings were removed from the care of her mother, L.N. (Mother), and stepfather, B.N. (Stepfather). A.T. met her father, M.C., only once before termination proceedings began.

¶ 4 On September 18, 2002, the State petitioned for emergency protective services and temporary legal custody of A.T. and her siblings. Ultimately, Mother's parental rights were terminated by the District Court as a result of ongoing circumstances detrimental to the children, including drug abuse by Mother and Stepfather, unsanitary and unsafe conditions in the home, and exposure to explicit sexual behavior. As a consequence of the abuse and neglect, A.T. began mimicking age-inappropriate sexual behavior both at home and at school, which required she be removed from her classroom and continuously monitored so as not to victimize other children.

¶ 5 On October 4, 2002, A.T. was adjudicated a Youth in Need of Care, and the District Court granted the State temporary legal custody of her. Department of Public Health and Human Services (DPHHS) social workers then located M.C. in California. M.C. had never been involved in A.T.'s life; in fact, his relationship with Mother ended before A.T.'s birth. In initial conversations with DPHHS social workers, M.C. expressed concern about his daughter's well-being. Consequently, DPHHS developed a treatment plan for M.C., the goals of which were for M.C. to establish a relationship with A.T., and to determine whether she could be placed in his care. On October 21, 2002, the District Court ordered M.C. to complete his treatment plan.

¶ 6 Over the next two years, M.C. communicated sporadically with DPHHS social workers, and A.T.'s Guardian ad Litem (GAL) and foster parents, keeping them apprised of his whereabouts as he moved frequently. Several times M.C. sent cards and photos for A.T. In March 2003, DPHHS sent a request for a home study to California, but before it could be completed, M.C. moved to Reno, Nevada. An attempt to evaluate M.C.'s Nevada home also failed; before the Nevada home study was completed M.C. moved back to California. Then, in April 2003, A.T.'s foster parents took her to Soquel, California to meet M.C. and visit his home, a remote one-room cabin in the mountains. Throughout this period, M.C. failed to meet the goals set forth by his court-ordered treatment plan.

¶ 7 On June 4, 2004, A.T.'s social worker informed DPHHS that A.T. was beginning to dissociate, and that permanent placement for her was critical. In conversations with A.T.'s social workers and foster parents, M.C. expressed concerns about his ability to meet A.T.'s special needs, including regular therapy and supervised schooling. A.T.'s foster parents also voiced concerns that the location and spare condition of M.C.'s home would impede A.T.'s schooling and progress in therapy. These factors, combined with M.C.'s continued failure to adhere to his treatment plan, led social workers to discuss relinquishment of A.T. with M.C. on June 14, 2002. M.C. agreed that, though it would be difficult for him, relinquishment would be the best thing he could do for A.T. M.C. then assented to sign the necessary paperwork. DPHHS sent relinquishment documents by certified mail, and on June 30, 2004, obtained verification that M.C. had received them. However, the documents were not returned to DPHHS. Messages left at M.C.'s then-current phone number were not returned.

¶ 8 On August 31, 2004, M.C. left a voicemail for A.T.'s GAL saying he was moving to Sacramento, California. Then on September 14, 2004, M.C. left another message relaying his phone number there. DPHHS contacted M.C. on September 20, 2004; he gave no address when asked. This was the last communication between M.C. and anyone involved in A.T.'s case prior to this appeal. On October 8, 2004, the District Court appointed counsel to represent M.C. in termination proceedings initiated by the State.

¶ 9 Five months later, on March 23, 2005, the District Court held a hearing to consider Termination of Parental Rights and approval of a Permanency Plan for A.T.'s care. At that time A.T. had been in foster care for two and a half years with foster parents who hoped to adopt her. M.C. had failed to meet the goals necessary to determine whether granting him custody of A.T. would be appropriate, and he had not communicated with the State for over six months. The State was unable to locate M.C. at either of his two last-known addresses, and consequently published notice of the termination hearing in keeping with statutory requirements. M.C. failed to attend the hearing. However, his court-appointed attorney was present.

¶ 10 At the termination hearing, the District Court chose not to receive live testimony. The District Court had presided over A.T.'s case from the time she was removed from Mother's care, and had its own extensive record to guide its determination. The District Court asked for M.C.'s position regarding termination, to which his counsel responded, "Your honor, we have had no contact with [M.C.] and therefore have no position."

¶ 11 The District Court concluded that based on clear and convincing evidence, M.C. had abandoned A.T. In addition, the court found that A.T. was a youth in need of care whose father had failed to complete any goal of his court-ordered treatment plan, and that conditions rendering M.C. unfit were unlikely to change within a reasonable time. Based on these findings, the District Court terminated M.C.'s parental rights to A.T.

STANDARD OF REVIEW

¶ 12 The decision to terminate parental rights is soundly within the discretion of the district court and will not be overturned absent an abuse of discretion. In re M.O., 2003 MT 4, ¶ 10, 314 Mont. 13, ¶ 10, 62 P.3d 265, ¶ 10 (citation omitted). In determining whether the district court's discretion has been properly exercised, we review the court's findings of fact to determine whether they are clearly erroneous, and its conclusions to determine whether they are correct. In re M.O., ¶ 10 (citation omitted).

DISCUSSION

¶ 13 Did the District Court abuse its discretion when it relied on evidence in the record rather than live testimony to terminate M.C.'s parental rights?

¶ 14 M.C. contends the District Court violated § 41-3-609(1), MCA, when it declined to hear live testimony before terminating M.C.'s parental rights at the March 23, 2005 termination hearing. Section 41-3-609(1), MCA, allows district courts to terminate parental rights "upon a finding established by clear and convincing evidence" that a child has been: (1) abandoned, or (2) has been adjudicated a youth in need of care, her parent has failed to comply with court-ordered treatment, and conditions rendering the parent unfit are unlikely to change in a reasonable time, among other provisions. M.C. urges this Court to require live testimony as the underpinning for a district court's finding of "clear and convincing evidence" to support termination of parental rights. M.C. cites In re M.O. for the prospect that his failure to object to termination at the termination hearing is immaterial in this case. 2003 MT 4, 314 Mont. 13, 62 P.3d 265. We disagree.

¶ 15 To properly preserve an issue for appeal, a party must notify the court at the time the objectionable conduct is at issue. In re Parenting of K.P., 2005 MT 297, ¶ 15, 329 Mont. 337, ¶ 15, 124 P.3d 1091, ¶ 15 (citation omitted). Untimely objections are not heard on appeal, as the time for correcting the error has passed. Parenting of K.P., ¶ 15 (citation omitted). Failure to make a timely objection constitutes a waiver of the party's right to appeal. Parenting of K.P., ¶ 15 (citation omitted). Here, M.C. failed to appear at the termination hearing; therefore, he waived his right to testify. Moreover, his attorney did not object to termination.

¶ 16 We distinguish the facts here from the circumstances in In re M.O., where we determined the mother's failure to object to termination of her parental rights was excusable. 2003 MT 4, 314 Mont. 13, 62 P.3d 265. The record in that case was riddled with procedural missteps by the district court. First, the district court held a hearing on April 3, 2000, to assess the need for an extension of DPHHS's temporary investigative authority (TIA) into the mother's care of her children. In re M.O., ¶ 18. The district court opened the hearing by correctly stating it was a TIA review hearing, but then proceeded beyond the scope of the review to grant DPHHS temporary custody of mother's children. The pro se mother did not object. This Court noted that had mother been represented, counsel likely would have recognized and brought to the district court's attention its mistaken shift from TIA review to custody determinations. Second, putting aside the mischaracterization of the hearing, the district court's termination of mother's parental rights...