P.E., Matter of

• Decision Date: 18 March 1997
• Docket Number: No. 96-347,96-347
• Citation: 934 P.2d 206,282 Mont. 52
• Parties: In the Matter of Declaring P.E., A Youth in Need of Care.
• Court: Montana Supreme Court

Page 206

934 P.2d 206

282 Mont. 52

In the Matter of Declaring P.E., A Youth in Need of Care.

No. 96-347.

Supreme Court of Montana.

Submitted on Briefs Feb. 13, 1997.

Decided March 18, 1997.

Daniel P. Buckley, Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Appellant.

Joseph P. Mazurek, Attorney General, Tammy Plubell, Assistant Attorney General, Helena, Marty Lambert, Gallatin County Attorney, Gary Balaz, Deputy Gallatin County Attorney, Bozeman, for Respondent.

HUNT, Justice.

Linda H. (Linda), the natural mother of P.E., appeals the decision of the Eighteenth Judicial District Court, Gallatin County, terminating her parental rights to P.E. due to abandonment. We affirm.

The sole issue presented on appeal is whether the District Court erred in terminating Linda's parental rights due to abandonment.

In the summer of 1994, Linda and her thirteen-year-old daughter P.E. were traveling through Montana in the company of Paul Cress (Cress) and George Townsell (Townsell). All four people lived in the van in which they were traveling or camped at various campgrounds. In July of 1994, the four were staying at a campground in Gallatin County when P.E. became friends with a girl whose family lived in nearby Three Forks. The two girls began having "sleep-overs," where either P.E.'s new friend would stay at the campground or P.E. would go to Three Forks to stay with the girl's family. After one such visit to Three Forks, the family returned to the campground with P.E. to find that Linda and her traveling companions had checked out. The family then notified the state authorities that P.E. had been left with them.

On July 15, 1994, Cress was arrested for misdemeanor theft in Three Forks. Linda and Townsell were taken into custody as well. While interviewing Linda, the Three Forks marshal informed her that P.E. had been referred to the Department of Family Services (now the Department of Public Health and Human Services) (the Department). The marshal also determined that both Cress and Townsell had extensive criminal records. After Cress bonded out on the theft charge, he, Townsell and Linda left the area, leaving P.E. in the custody of the Department.

On July 18, 1994, DeeAnn Diedrich (Diedrich), a Department social worker, was assigned to investigate Linda's abandonment of P.E. At the same time, the Three Forks marshal was actively looking for Cress, who had failed to appear for his scheduled court appearance regarding the theft charge. The marshal determined that Linda, Cress and Townsell were still traveling together and staying in a motel in Pocatello, Idaho.

On July 25, 1994, Diedrich met with Linda in Three Forks. Linda denied that she was still accompanying Cress until confronted with the information obtained by the Three Forks marshal. She then admitted that she was in fact still traveling with him, but said she had lied because she feared that if the Department knew she was still seeing him they would not return P.E. to her custody. Linda also told Diedrich that she was looking for work and housing in Pocatello. Another meeting was scheduled for August 3, 1994, but Linda failed to show up. Instead she called Diedrich, advising that she was still in Idaho but refusing to leave an address or phone number. Linda also called four additional times in August, and was advised that a hearing regarding P.E.'s status was scheduled for August 22, 1994. Linda did not appear for the hearing; instead, she traveled to Kentucky with Townsell and Cress. Again, she refused to give Diedrich either an address or a phone number where she might be reached. Shortly thereafter, Diedrich transferred the case to a second Department social worker, Marsha Brunett (Brunett).

In October of 1994, Linda and Cress traveled from Kentucky to South Dakota. Linda twice contacted Brunett regarding P.E. during October, but Linda still refused to disclose her location. Brunett advised Linda that Linda needed to acquire permanent employment and a stable home environment before P.E. could be returned to her. On November 14, 1994, Linda called Brunett and finally reported an address and phone number in Watertown, South Dakota. She also advised Brunett that she had obtained employment with a local motel. On December 7, 1994, Brunett requested the assistance of the South Dakota Department of Social Services (South Dakota Department) in doing a home study regarding Linda's living arrangements. In making her request, Brunett notified the South Dakota Department of the address and phone number given to her by Linda. She was later advised, however, that the South Dakota Department was unable to locate Linda at the address given. Brunett then attempted to call Linda but found that the phone had been disconnected. Nevertheless, Brunett sent Linda a proposed treatment plan to her last known address in Watertown. Linda testified in the District Court that she never received the proposed plan. However, Brunett also testified that the plan was not returned to her office by the post office as undeliverable. Linda also testified that her understanding was that she only had to obtain adequate housing and a steady job as prerequisites for P.E.'s return to her custody. Brunett testified that, to the contrary, she had advised Linda that she would also need to obtain a mental health assessment and family counseling before P.E. could be returned to her. On February 5, 1995, Brunett transferred the case to another Department social worker, Joe Albro (Albro). On February 9, 1995, the Department petitioned the District Court for temporary legal custody of P.E. The District Court scheduled a hearing in the matter for February 23, 1995.

At the time Albro took over P.E.'s case, the Department did not know Linda's whereabouts; it only knew that she apparently had left the Watertown area. After the February 23, 1995 hearing, which Linda did not attend, the Department was granted temporary custody of P.E. for six months.

On March 2, 1995, Linda contacted Albro and advised him that she was living and working in Sioux Falls, South Dakota. Albro informed Linda that, if she wished to have P.E. returned to her, she had to have suitable housing and gainful employment. Linda testified, again, that she understood these two conditions to be the only prerequisites to P.E.'s return. Like Brunett, Albro testified that he informed Linda that she had to obtain a mental health assessment and counseling as well. It is undisputed, however, that Linda made an appointment to see a counselor in Sioux Falls but then did not keep that appointment.

Albro and Linda arranged for a home study with a South Dakota social worker to evaluate Linda's living arrangements. The social worker found Linda's apartment to be inadequate because it had only one exit, which presented a fire hazard. Linda then moved to a new apartment and, in May of 1995, the home study was readministered. This time, the South Dakota social worker found the housing to be adequate and recommended that P.E. be returned to Linda. The social worker acknowledged, however, that the determination regarding whether P.E. would be returned to Linda had to be made by the Montana Department, which had temporary custody of the child.

On June 13, 1995, Albro informed Linda that P.E. could not be returned to her care until Linda obtained a mental health assessment and counseling. He further explained that P.E. had been placed in foster care pursuant to the order of the District Court and, therefore, she could not be summarily sent to South Dakota without the prior approval of the court. Albro also advised Linda that the District Court had set a hearing in the matter for August 23, 1995, which he encouraged her to attend.

Linda did not contact Albro again before the August hearing, nor was Albro able to contact her. After checking with her employer, Albro concluded that Linda had again disappeared. She did not attend the August 23, 1995 review hearing, at which the Department advised the District Court that...