visit the child communicate with the child although not prevented from doing so by agency or court order into main contact maintain contact or plan for the future of the child so she had three things that she had to do want to morrow during the twelve months during the optimus proceeding interesting hearing about finance amy jo killen was on the stand and she was asked specifically about a twelve month period and about each of those three things she was asked during the period twelve months before the filing of the adoption to him which would have run from july two thousand and ten to july two thousand and eleven did you visit the child no i did not did you communicate with the child no i did not did you mean quite chain contact o ten years old i think the child was originally taken into custody by the grandmother and the sort of emergency reasons the birth mother was going into jail years past the child now ten she's lived with first the grandmother but then the and it's time to have a more permanent custody arrangement and the love of a family a permanent family situation the way we are i almost think she can't it was only a temporary custody order i don't think she can leave the situation and again i think some people want to adopt to build a family through adoption and they may do so there's a it attempts to graze as affirmative defenses matters that are outside those twelve months and the court in douglas harris says no you can't it's a line of demarcation that flow must act as a line of demarcation and  was an object to a hearing there was also grounds failure to maintain a reasonable to grieve interest concern responsibility which is a longer timeframe so i think they were relevant to the hearing as a whole not fitness as a whole but i do not think they could be used as the it no i think the evidence i was they are very good the trap but the evidence was that she had asked the child about her preferences in some of the visiting matters and the actual and last visits it's kind of was a big part of the killing headset during that whole month period i need a home and they wouldn't let me talk to her during that twelve month period i wanted to see her but they were telling her that she could make up the decision by herself and said law that would different that would relate to this twelve month period at least in the sense of time wise but that's not what happened here this trauma period is a silent and absolutely resounding silence the birthmother did nothing she admitted that nobody has raised any to forego some parental rights but not all right it has a three much theory which would be included in that there is another way in which i feel that the trunk with its interpretation of the law violates the plain meaning of that parents fail to communicate with the child although able to do so and not first prevent you from doing so by an agency form this one or court order list too and i feel that those are the kinds of excuses or i would say no it doesn't i don't think and again i don't agree and have never agreed that the petitioner created actual obstacles but with your hypothetical question agreed if the petitioner had done something that was an relevant in that d c if the us has a ton of power and it can make binding up orders and that would truly prevent communication with the child if the c f s is breathing down your neck saying you will not be near this child you probably are going to listen to the c f s same with the court order as your honour's kno but i'm your custodial on such as did you answer the phone you know and act excited to have the phone call i don't think it does fit in this list and i think it is it was meant to be excluded from the  the third way i think there's an express or expressed language plain meaning of the law is in the language of that same intention or goal parental rights grounds which says the subjective intent of the parent whether expressed or otherwise unsupported by evidence of the foregoing parental acts manifesting that intent shall not preclude a determination that the parent has intended to hold the parental rights so it says you know the intent of the parent where he even if it was i think again this makes sense now feeling to explain on the stand any juggling that the mother did explain her subject of intent i think i said some things that she said i didn't have regular contacts so i just didn't i mean it was i was wrong for doing that  es i got discouraged and i quit i was very discouraged and i didn't do anything i don't know those are subjective i don't know that they have that much excuse power but again unless there's a manifestation within the proper period in the proper manifestation i'm not sure those subjective statements and they don't mean that much have much meaning the court looked to as your own or has mentioned the the that may have cost fear of the birth mother that doesn't really hold much water there was no evidence in the actual record that there was fear they she says i just got discouraged i quit i guess i was wrong for doing that but even more so i'm not sure legal secretaries hold that kind of the forty year power such as d c s or court would hold and there's also evidence that there was sometimes when the phone wasn't picked up but there's also evidence from birth mother herself that five times a year she was allowed to talk to the child you know so i don't know how that parses out that it wasn't that she never talked to check in that last phone call in september two thousand and nine that allegedly got ugly between the two women the child didn't talk letters there said other grounds that we have an uphill battle and i imagine maybe posing council aggressive pick we have an uphill battle because of the standard of review for failure to maintain reasonable degree of interest concern responsibility which is a very common grounds on fitness used in adoptions the court found it was an extremely close call but it found that she was fit so in that case our upstream damages to show that that finding was against the month period as however you measure it there's twelve empty m you have to start empty somewhere right you can't i mean twelve months hester but anyways like it is eighteen months from september two thousand and nine when the last contact of any kind of good  some contact interest there was some interest there was some concern there was some responsibility on the part of this good mother especially early on when she first got out of prison for her methamphetamine bust she was visiting with the child because the grandmother was taking her to visit baker and amy jo killen so there was some visiting but that miles also requires that the the interest concern and responsibility be maintained and that it be reasonable so there's some judgment calls and  e impact of whether it was maintained and there again we get to the september two thousand and nine everything stops no contact no thinking about contact and  if if visits are somehow impractical then you can write letters or gifts or hearts there were no letters or gifts or card since since two thousand and five the only letter was in two thousand and five that in entered into evidence it was the same address that and there was never another letters so phone calls were never impractical they may or may not have been unpleasant at times but there were five a year until she stopped trying that reached the child and no phone number has taking drugs as she said made it through her criminal convictions now she may have taken other drugs you only admit what you have to for your criminal guilty plea you don't go on tell him everything but she took drugs in may two thousand and one to two thousand and four cobra two thousand and eight it was  because the twelve month period ought to begin and it's our position begins at the moment the telephone i sit down for twenty third was handed back to something to the effect of and don't ever call here again that infests the future in the following way it causes a your daughter have a benzo what you mean by occasion is that phone call she did she did speak to her daughter that the only adult in the room took the telephone back and told the she sometimes is employed she maintains i think some contact with other children has provided support for one of them is still growing and is still interested in her daughter despite that resolve and personal story she's put off by i'm asking a telephone call from doing anything for the next twelve eighteen she clearly said don't call here again and left my client with the impression that it would be a fruitless enterprise to ever do so if you it reminds me of  something that might happen all the time in this courthouse building you folks will enter an order and that water may change the law and exist into perpetuity and it may invade sist into a twelve the interest that she claims to have this try to give you my best response and that is that even though you're told to follow the law it's easy easily breakable even though you're told not to use drugs you can use drugs again but if you're told not to call here it's you don't call you don't pick up the phone and think this time i'll trip her and chill and war is there any evidence that the answer to our correspondence not given to the child immediately my recollection of the evidence and that was later given to the child after the after the appellant decided if it was time to give it to the child that you see your daughter i believe in my client believes that the appellant in this case acted as an intermediary in the tween purse and no vicious intermeddler telephone operator at times deciding whether to place call or inform the eight year old child of communication from her mother and in that way she held the mother daughter relationship in the palm of her hand and it's our position that she was so i actually agree with you in regard to the manner in which communication should have been handled i think it's poorly done by the but i also think that it's not appropriate to call cursory an addictive or a serious abuser well for long periods of time as i think everyone in the room will agree the trial court did find this was a very close call yes on a number of and the trial court was in the best position to weigh the evidence and come to a final conclusion and the trial court found that there just wasn't enough evidence to terminate the french all rights responsibility of victual addition to drugs these are fact intensive findings they're just blocking was in the best position to make a determination and he did so very clearly  and i believe that leaves very little room for reversal on those counts so what should happen next there is some confusion based on my reading of the about what seems to have occurred it's one thing if you're looking at a twelve month period say this gentleman and this woman did have a car and her driver's license suspended got to an accident day caused her to have a long hospital stay what's the things you can save those occurred on july first or those occurred on christmas day but when point told amy jo killen don't ever call and hung up the phone for the sixth time i would argue that's not something that just occurred in that moment it occurred the same little resources little where with all the real world she knew apart work for a local law firm and resources had more money than she did and told her basically you  have me go don't bother us anymore and that left any job killing feeling the source and that explains the reasonable finding of the trial court that she did not intend to forego can call something that this is the her pet now is emergency temporary custody correct which is all seven years old usually pages order from the trial court that really doesn't solve the situation i think you are right i think some kind of solution like that may be in the future but i do not because i'm an adoption attorney and i'm actually adoptive mother i do custody that exists here ike i don't know i wasn't the least the ground rules for everybody to play by exactly and it may well have to be to want to say something about it this is something opposing counsel said and also answers your honour's question about the real world and just disconnect have one more point i want to make before my time runs out and again to what was said by opponent in as to the real world here there is i don't think that the it is a correct to say that any job killing has stopped taking drugs what happened was she violated her parole in june of two thousand and eleven with cocaine and marijuana that was one month before the adoption protection was filed she did that in violation of her parole when she knew her gruber liberty was at stake the shit criminal conviction for drugs and she did that when she was living in the house with a fourteen year old child so i don't think it's at i think it goes against the manifest weight of the evidence to say she somehow has shown to have dilatation she has shown that she went through two different terrible problem to fight i don't wish it on anybody but i don't think that i am wrong to say that the evidence was really tricky because she had cocaine in her system and violated her probation one month before this  petition was filed a yes i think you can say why wasn't she showing attention to the child why wasn't she showing interest in the child was graded gina shreeves ability to pick up the phone and and be somewhat nasty or was she doing