                                                                                           December 6 2011


                                   DA 11-0399, DA 11-0400

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2011 MT 307



IN THE MATTER OF:

E.M.S. and C.A.S.,

         Youths in Need of Care.



APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Deer Lodge, Cause Nos. DN 09-03 and DN 09-04
                       Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Joslyn Hunt, Chief Appellate Defender, Helena, Montana


                For Appellee:

                       Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Joan Borneman, Deer Lodge County Attorney; Ellen Donohue, Deputy
                       County Attorney, Anaconda, Montana

                       Francis P. (Frank) McGee, Attorney at Law, Butte, Montana


                                                   Submitted on Briefs: October 26, 2011

                                                              Decided: December 6, 2011


Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     B.S. (Mother) appeals from an order of the Third Judicial District Court, Deer Lodge

County, that terminates her parental rights. We affirm.

¶2     Mother raises the following issue:

¶3     Did the District Court abuse its discretion when it terminated Mother’s parental

rights?

¶4     Mother and C.S. (Father) divorced in 2001. Their union produced two minor

children, E.M.S. and C.A.S. Mother originally possessed custody of the children following

the divorce.

¶5     The Department of Public Health and Human Services (the Department) removed the

two children from Mother in March 2005. The Department alleged that Mother had left the

children for days with a 16 year-old girl. Social workers found the children in a filthy home

that lacked heat or food for the children. The children themselves were filthy and emanated

a strong odor.

¶6     Mother and the Department entered into a stipulation in 2006 to avoid the Department

initiating termination proceedings against her. Mother agreed to transfer the children’s

custody to Father. The Department, in turn, ceased efforts to terminate Mother’s parental

rights. The District Court approved the stipulation in 2006.

¶7     The children remained in Anaconda with Father until the Department removed them

in 2009. The Department removed the children due to Father possessing drugs in his home.

The Department filed a petition in March 2009 for emergency protective services,
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adjudication as youths in need of care, and for temporary legal custody. The District Court

eventually dismissed the petition.

¶8     The Department again removed the children in October 2009, and petitioned to

terminate Mother’s and Father’s parental rights. Mother’s counsel attended the termination

hearing even though Mother had not been served. The District Court dismissed the petition

against Mother due to the failure of service. The District Court permitted the Department to

pursue termination of the Father’s rights. It granted the Department temporary legal custody.

Father eventually ceased efforts to complete his treatment plan. The District Court

terminated Father’s parental rights in March 2011 due to his relinquishment.

¶9     The Department struggled to locate Mother while it pursued termination of Father’s

parental rights. It eventually located her in Utah. The Department served Mother with a

petition to terminate her parental rights on February 23, 2011. The District Court held a

hearing on Mother’s termination in March 2011. The District Court determined that Mother

willfully had surrendered custody of her children for a period of six months, and made no

manifestations of intent to re-establish custody. It accordingly terminated Mother’s rights in

June 2011.

                                STANDARD OF REVIEW

¶10    We review for an abuse of discretion a district court’s termination of parental rights.

In re R.M.T., 2011 MT 164, ¶ 26, 361 Mont. 159, 256 P.3d 935. A district court abuses its

discretion when it “acts arbitrarily, without employment of conscientious judgment, or

exceeds the bounds of reason resulting in substantial injustice.” In re R.M.T., ¶ 26. The
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State must present clear and convincing evidence that the statutory circumstances allowing

the court to terminate parental rights exist. In re R.M.T., ¶ 27. We review for clear error the

district court’s findings of fact regarding the statutory criteria. In re R.M.T., ¶ 27.

                                        DISCUSSION

¶11    Did the District Court abuse its discretion when it terminated Mother’s parental

rights?

¶12    A district court may terminate parental rights if it determines through clear and

convincing evidence that the parent has abandoned her children. Section 41-3-609(1), MCA.

A parent abandons her children if she willfully surrenders physical custody of them for six

months, and does not manifest to the children and custodial person a clear intent to resume

physical custody. Section 41-3-102(1)(a)(ii), MCA.

¶13    The District Court determined that Mother had abandoned the children. Mother

transferred custody to Father in 2006 to avoid efforts by the Department to terminate her

parental rights. The District Court also noted the lack of contact between Mother and the

children. Mother had made no contact with the children since December 2008. She had not

contacted them by mail, in person, or by telephone. Mother also sent no birthday or holiday

cards. She also provided no financial support to the children during the four years before the

termination. Father testified that he and the children saw Mother driving in a car in

Anaconda in 2007. Father attempted to stop the car in which Mother was riding. Father

testified that he tried to stop the car so that Mother could see the children. Mother waved,



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but did not stop. Mother testified that she made attempts to establish contact. The District

Court found Mother’s claim incredible.

¶14    Mother contends that she could not surrender custody when she never possessed

custody. In re T.C., 2001 MT 264, ¶ 29, 307 Mont. 244, 37 P.3d 70. She relies exclusively

on this Court’s holding in In re T.C. The couple in In re T.C. were divorced. In re T.C., ¶ 5.

The mother always possessed custody of the children after the divorce. In re T.C., ¶ 6. The

Department petitioned to terminate the mother’s and father’s parental rights on the basis of

abandonment. In re T.C., ¶ 11. It specifically alleged, and the district court agreed, that

father willfully had surrendered physical custody. In re T.C., ¶¶ 11-12. This Court

reversed. It determined that the non-custodial father could not surrender physical custody

when he never possessed custody. In re T.C., ¶ 29.

¶15    Mother misplaces her reliance on In re T.C. The father in In re T.C. never possessed

custody. In contrast, Mother had physical custody until 2006. The Department sought to

terminate her parental rights at that time. Mother avoided the Department’s efforts to

terminate her parental rights by agreeing to transfer physical custody to Father. Mother

willfully surrendered custody to Father in 2006. More than four years elapsed between

Mother’s willful surrender of the children in 2006 and the termination in 2011. This period

far exceeds the six months required by § 41-3-102(1)(a)(ii), MCA.

¶16    Mother likewise made no manifestation of an intent to resume custody of the children.

The District Court’s numerous findings regarding Mother’s lack of contact with the children

since 2006 catalogue her indifference. It specifically noted that Mother had made no contact
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since December 2008 despite sufficient opportunity to do so. The District Court’s finding on

the Mother’s lack of contact satisfies the second criteria for abandonment under § 41-3-

102(1)(a)(ii), MCA. The District Court did not abuse its discretion when it determined that

Mother abandoned her children under the circumstances.

¶17    Affirmed.

                                                 /S/ BRIAN MORRIS


We Concur:


/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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