A.M.S. v. W.S.
| Decision Date | 26 January 2016 |
| Docket Number | No. DA 15–0218.,DA 15–0218. |
| Parties | In the Matter of the Adoption of A.M.S., M.A.S., and A.W.S, minor children, Petitioners and Appellees, v. W.S., Respondent and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Wesley A. Schwartz, self-represented, Los Angeles, California.
For Appellees: Kevin T. Sweeney, Attorney at Law, Billings, Montana.
¶ 1 W.S. (Father) appeals from the orders of the Thirteenth Judicial District Court, Yellowstone County, terminating his parental rights to A.M.S., M.A.S., and A.W.S., and entering decrees of adoption in favor of C.J. (Grandfather). In accordance with M. R. App. P. 10(6), we have amended the caption to remove the full names of all involved parties. We restate the dispositive issues on appeal:
¶ 2 We reverse and remand for further proceedings.
¶ 3 Father and J.J. (Mother) are the biological parents of minor children, A.M.S., M.A.S., and A.W.S. Grandfather is the children's maternal grandfather. Although the record on appeal is quite limited, it is undisputed that Father and Mother married in 2005 and divorced in 2013. Mother and Grandfather currently reside in Billings, Montana, and Father resides in Los Angeles, California.
¶ 4 On July 1, 2014, Mother and Grandfather filed a joint petition for termination of Father's parental rights and for Grandfather to adopt the children. Under the petition, Mother would maintain her parental rights. The District Court issued a summons for Father on the same day the petition was filed.
¶ 5 After attempting to serve Father, whose exact whereabouts in Southern California were unknown at the time, Mother's and Grandfather's counsel submitted an affidavit on October 14, 2014, stating that Father could not be found and requesting that the District Court order publication of summons. On October 15, 2014, the Clerk of Court entered an order directing that service of the summons be made upon Father by publication in the Billings Times newspaper.
¶ 6 Father did not respond to the summons. On December 12, 2014, Mother and Grandfather filed a motion for entry of default. The Clerk of Court entered default against Father three days later on December 15, 2014.
¶ 7The District Court held a hearing on March 13, 2015. During the seven-minute hearing, Grandfather and Mother testified and submitted one exhibit. The exhibit included the following documents: a letter from Grandfather's and Mother's counsel to a California-based process server; a letter to Father at a Billings address regarding the proceedings; an e-mail to Father regarding the proceedings; and a number of pictures of Father from various social media sites. Father did not provide on appeal, and the record does not contain, a hearing transcript. At the close of the hearing, the District Court issued combined written orders terminating Father's parental rights and granting decrees of adoption for each of the children.1
¶ 8 We review a district court's decision to terminate parental rights for an abuse of discretion. In re the Matter of the Termination of the Parental Rights and Adoption of: J.W.M. & A.K.M., 2015 MT 231, ¶ 11, 380 Mont. 282, 354 P.3d 626. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. J.W.M., ¶ 11. This Court reviews a district court's interpretation and application of statutes for correctness, and its findings of fact to determine whether the findings are clearly erroneous. In re the Parenting of S.J.H. & J.B.H, 2014 MT 40, ¶ 8, 374 Mont. 31, 318 P.3d 1021.
¶ 9 It is well established that parental rights are a fundamental liberty interest that "must be protected by fundamentally fair procedures." In the Matter of K.J.B., 2014 MT 327, ¶ 18, 377 Mont. 270, 339 P.3d 824 (citing In re Adoption of A.W.S. & K.R.S., 2014 MT 322, ¶ 25, 377 Mont. 234, 339 P.3d 414 ); In re the Matter of J.N. & A.N., 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317. Accordingly, "a district court must adequately address each applicable statutory requirement before terminating an individual's parental rights." J.N., ¶ 12 (citing In re Declaring E.W., C.W., & A. W., 1998 MT 135, ¶ 12, 289 Mont. 190, 959 P.2d 951 ). Because an order terminating parental rights implicates a fundamental liberty interest, it must be supported by "clear and convincing evidence that the statutory criteria for termination have been met." J.N., ¶ 12 (citing E.W., ¶ 12).
¶ 10 1. Whether Father was properly served by publication.
¶ 11 Title 42, MCA, governs the termination of parental rights when a child is the subject of an adoption proceeding. Sections 42–2–601 to –620, MCA. Under § 42–2–605(1), MCA, notice of a hearing on a petition for termination of parental rights "must be served in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct...." The notice must inform the individual whose rights will be terminated "that failure to appear at the hearing constitutes a waiver of the individual's interest in custody of the child and will result in the court's termination of the individual's rights to the child." Section 42–2–605(2), MCA.
¶ 12 Father argues that the clerk's order for publication was improper and that service may not be made by publication in a proceeding to terminate parental rights. Mother and Grandfather respond that service by publication is proper under § 42–2–605(1), MCA. They further contend that they "followed both the letter and the spirit of this law."
¶ 13 The Montana Rules of Civil Procedure authorize service by publication in four enumerated situations. M. R. Civ. P. 4(o )(1)(A)–(D). A parental rights termination proceeding is not one of the listed situations. Nevertheless, service by publication is permitted by statute in parental rights termination proceedings brought under both Title 41 and Title 42. Sections 41–3–428 and –429, MCA, authorize service by publication in child abuse and neglect cases and specify the requirements for service in those cases. Section 42–2–605(1), MCA, provides for service of a notice of hearing on a petition for termination of parental rights brought in conjunction with an adoption proceeding "in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct on ... a person who is recorded on the child's birth certificate as the child's father; ... or ... a parent ... of the child in question who has not waived notice." We have observed that this statute allows a district court to order service by publication even though that method of service is not otherwise allowed by M. R. Civ. P. 4(o ). M.B.J. v. Fourth Judicial Dist. Ct., 2010 Mont. LEXIS 515, *8, No. OP 10–0345 Or. (Mont. Oct. 6, 2010) (granting petition for writ of supervisory control and directing district court to order service of putative father(s) by publication).
¶ 14 Because § 42–2–605(1), MCA, provides for alternate service "in any manner that the court may direct" (emphasis added), publication may not be ordered by the clerk in the manner provided by M. R. Civ. P. 4(o )(3)(B). Rather, the court must direct the manner of alternate service in order for it be sufficient under § 42–2–605(1), MCA. Here, the Clerk of Court, not the District Court, entered the order directing service by publication. Service therefore was improper.
¶ 15 Service by publication further was insufficient because the publication did not put Father on notice that his parental rights would be terminated as required by § 42–2–605(2), MCA. The affidavit of publication in the record contains a copy of the published notice:
Although the notice informed Father that if he did not respond "judgment [would] be taken against [him] by default for the relief requested in the petition," it did not specify the relief requested. The notice therefore failed to inform Father "that failure to appear at the hearing constitutes a waiver of [his] interest in custody of the child and will result in the court's termination of [his] rights to the child." Section 42–2–605(2), MCA.
¶ 16 The District Court incorrectly applied the statutes governing service of the petition and notice of the hearing on Father. We conclude that Father was not properly served by publication.
¶ 17 2. Whether the District Court erred in granting the petition for adoption and termination.
¶ 18 Although our holding on Issue 1 requires reversal of the District Court's orders and decrees, we address Father's legal challenges to the termination and adoption in the event that service is perfected on remand.
¶ 19 Father relies on K.J.B. to assert that Mother and Grandfather were not permitted to bring the petition to terminate and adopt "in the first instance." He argues that Grandfather and Mother are not parties who may bring a petition for termination under § 42–2–603(2), MCA, and that Grandfather is not a stepparent who may bring a petition for termination of parental rights in conjunction with a petition for adoption. Father therefore contends that the District Court lacked authority to terminate his parental rights.
¶ 20 K.J.B. does not...
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