Matter of D.S. B.A.S.W. YINC , 2017 MT 158N ( 2017 )

06/27/2017
DA 17-0053
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 158N
IN THE MATTER OF:
D.S. and B.A.S.W.,
Youths in Need of Care.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause Nos. DN 15-109 and DN 16-27
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Craig Shannon, Attorney at Law, Missoula, Montana (for Father K.S.)
Julie Elizabeth Brown, Attorney at Law, Missoula Montana (for Youths)
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Jessica Finley, Deputy County
Attorney, Missoula, Montana
Submitted on Briefs: June 7, 2017
Decided: June 27, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 In DA 17-0053, Appellant K.S. (Father) appeals the District Court’s termination of
his parental rights to his son, D.S., challenging the voluntariness of his relinquishment of
his rights. Likewise, in DA 17-0054, Father challenges the voluntariness of his
relinquishment that served as the basis for the District Court’s termination of his parental
rights to his son, B.A.S.W. The appeals raise the same issue and make the same arguments.
We hereby consolidate the appeals for issuance of an opinion applicable in both cases.
¶3 The Department of Public Health and Human Services, Child and Family Services
Division (Department), filed a petition for emergency protective services regarding D.S. in
August 2015, when he was three years old, and regarding B.A.S.W. in March 2016, shortly
after his birth. Father was represented by counsel throughout the proceedings for each
child. Based upon a sequence of stipulations entered by the parties, both children were
adjudicated youths in need of care, Phase I treatment plans were approved, and temporary
legal custody was extended through the time the Department filed petitions for termination
of Father’s parental rights to both children in September 2016, and until the resolution of
those petitions. The parental rights of the children’s Mother, H.S., were also terminated,
but Mother’s rights are not before the Court in this proceeding.
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¶4 During the pendency of the termination proceedings, Father signed affidavits
waiving his parental rights and relinquishing the children for adoption. Father waived his
right to notice of proceedings regarding the children, including any hearing for termination
of his parental rights and awarding permanent legal custody to the Department, with the
right to consent to adoption. Father’s affidavit acknowledged that, prior to signing the
relinquishment, he was fully advised of his legal rights and had been represented by
counsel. He indicated that he had received at least three hours of personal counseling,
conducted by Permanency Planning Specialist Kelly Slattery, at the Montana State Prison,
where he was incarcerated, including receiving an explanation of the legal and personal
consequences of his relinquishment, his options and legal rights, available resources, and
the rights of his children to access records about him or to search for him. Father stated he
knowingly, freely, unequivocally, and voluntarily transferred the custody of his children to
the Department, and understood “that this relinquishment will remain valid whether or not
any agreement for visitation or communication with the child is later performed.” The
Department signed agreements accepting custody of the children.
¶5 The District Court found: (1) the Department had made reasonable efforts to avoid
protective placement of the children and to return the children to their home, but that
dismissal of the termination petitions would create a substantial risk of harm to the children
or would be a detriment to the children’s physical or psychological well-being; and
(2) custody of the children by Father was not in their best interest. Father has been
incarcerated since the removal of the children from the home.
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¶6 On appeal, Father argues that § 41-3-609(1), MCA, when read in conjunction with
§ 42-2-402, MCA, the relinquishment statute, requires a district court “to examine whether
the father’s relinquishment was voluntary” by such means as a “meaningful relinquishment
colloquy” with Father. Father argues that the District Court failed to properly analyze the
voluntariness of his relinquishment, and therefore, the District Court’s findings and
conclusions of voluntariness were clearly erroneous and incorrect.
¶7 We review a district court’s findings of fact to determine whether they are clearly
erroneous. In re A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. We review the
district court’s conclusions of law for correctness. In re K.B., 2013 MT 133, ¶ 18, 370
Mont. 254, 301 P.3d 836 (citation omitted). “We review for an abuse of discretion the
district court’s decision to terminate parental rights.” In re K.B., ¶ 18.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court’s findings of fact are supported by
substantial evidence and are not clearly erroneous, and its interpretation and application of
the law were correct. The District Court did not abuse its discretion by terminating Father’s
parental rights to D.S. and B.A.S.W.
¶9 Affirmed.
/S/ JIM RICE
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We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
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