author: MEIERHENRY, Justice.

text:
    2007 SD 49
    Charles W. BROWN, Plaintiff and Appellant, v. NORTHERN HILLS REGIONAL RAILROAD AUTHORITY and State of South Dakota, Defendants and Appellees. Karl E. Eisenbacher; Douglas R. Hayes; Kristi Jo Hayes; John R. Miller; Jean Miller; Strawberry Hill Mining Company; Maurice Hoffman; Lawrence County, a political subdivision of the State of South Dakota; and all persons unknown who have or claim to have any interest or estate in or encumbrance upon the premise described in the Complaint or any part thereof, Defendants.
    No. 23989.
    Supreme Court of South Dakota.
    Argued Nov. 28, 2006.
    Decided May 16, 2007.
    Rehearing Denied June 26, 2007.

      Kenneth R. Dewell of Johnson Eiesland Law Offices, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Thomas E. Brady of Brady Pluimer, P.C., Spearfish, South Dakota, Attorneys for defendants and appellees.
   MEIERHENRY, Justice.

[¶ 1.] Charles W. Brown sued Northern Hills Regional Railroad Authority, et al. (NHRRA) to quiet title to a railroad right-of-way (ROW) running across his land in Lawrence County, South Dakota. Both the railroad ROW and Brown’s land originally were grants from the federal government.

[¶ 2.] The railroad ROW was established by the General Railroad Right-of-Way Act of 1875 (1875 Act) (codified at 43 U.S.C. § 934), which granted right-of-way corridors across public lands to several railroads including the Fremont, Elkhorn, and Missouri Valley Railroad Company (FEMV). Under the provisions of the 1875 Act, FEMV filed a plat and profile of a railroad from Whitewood to Deadwood, South Dakota in the United States Land Office in Rapid City, South Dakota on May 27, 1890. FEMV subsequently conveyed its ROW to Chicago and Northwestern Railway Company (C & NW) by an indenture dated February 28,1903.

[¶ 3.] Brown’s land was transferred from the United States of America by homestead patents in 1918 and 1919 under the Homestead Act of 1862. The patents granted the land to the homesteaders subject only to water rights and ditches or canals. The patents specifically reserved these rights as follows:

NOW KNOW YE, That there is, therefore, granted by the United States unto the said claimant the tract of land above described: TO HAVE AND TO HOLD the said tract of land, with the appurtenances thereof, unto the said claimant and to the heirs and assigns of the said claimant forever; subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts; and there is reserved from the lands hereby granted, a right of way thereon for ditches or canals constructed by the authority of the United States.

(emphasis added).

[¶ 4.] Early in the 1970s, C & NW decided to discontinue operating a railroad on the ROW traversing the Brown land. Accordingly on February 19, 1970, C & NW filed an Application for Abandonment with the Interstate Commerce Commission (ICC), which the ICC approved the following year. The ICC issued a certificate and order declaring that “the present and future public convenience and necessity permit the abandonment” of the portion of the ROW requested by C & NW. The ICC finalized the abandonment on January 18, 1971. All of the tracks were removed and the ROW area has not been used or maintained by C & NW or any other entity since 1971.

[¶ 5.] On May 30, 1972, C & NW quit-claimed any rights in the ROW to the State of South Dakota for $5000. Thirteen years later in 1985, the State quitclaimed its rights to the ROW to South Dakota Game, Fish and Parks (GF & P). Sixteen years later on May 23, 2003, GF & P transferred the ROW to NHRRA.

[¶ 6.] Brown instituted an action to quiet title in June of 2004. Brown claimed that when C & NW ceased using the ROW for railroad services, the ROW was extinguished. The trial court, relying on Barney v. Burlington N. R.R. Co., applied the Abandoned Railroad Right of Way Act of 1922 (1922 Act) (codified at 43 U.S.C. § 912), and concluded that C & NW had not officially abandoned the ROW. 490 N.W.2d 726 (S.D.1992). Following a hearing on cross-motions for summary judgment, the trial court entered an order granting NHRRA, SDDOT and GF & P’s Motions for Summary Judgment. Brown raises the following issues on appeal.

ISSUES

1. Does 43 U.S.C. § 912 apply to this action?
2. If 43 U.S.C. § 912 does apply, were all of the requirements met for abandonment in 1970-1971?
3. If 43 U.S.C. § 912 does not apply, has the ROW been abandoned in fact and in law under settled federal and state law?

STANDARD OF REVIEW

[¶ 7.] Our standard of review for a grant of summary judgment is well settled. “[W]e decide only whether genuine issues of material fact exist and whether the law was correctly applied.” Johns v. Black Hills Power, Inc., 2006 SD 85, ¶ 4, 722 N.W.2d 554, 556. If we find any legal basis to support the trial court’s decision, we affirm. Id. When the facts are undisputed, as in the present case, our review is limited to whether the trial court correctly applied the law. Id.

ANALYSIS

[¶ 8.] Brown does not dispute NHRRA’s claim that the 1875 Act established a ROW in favor of the railroad. The provision in the 1875 Act which established the railroad easements across public lands provided as follows:

The right of way through the public lands of the United States is granted to any railroad company duly organized under the laws of any State or Territory, except the District of Columbia, or by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road.

43 U.S.C. § 934. Brown acknowledges that the ROW’s encumbrance on the land remains until the ROW is extinguished. Brown’s basic argument is that the ROW was extinguished when C & NW stopped using the ROW for railroad purposes. Brown argues that 43 U.S.C. § 912 does not apply to the facts of this case because it was not in effect in 1918 and 1919 when the government patents conveyed the property to Brown’s predecessors without reserving an interest in the ROWs. Brown argues that we should adopt the reasoning of two recent federal court decisions, which determined that because the land patents were conveyed prior to the enactment of 43 U.S.C. § 912, there was no retained reversionary interest of the United States that would be subject to 43 U.S.C. § 912. See Beres v. U.S., 64 Fed.Cl. 403 (Fed.Cl.2005); Hash v. U.S., 403 F.3d 1308 (Fed.Cir.2005). Thus, Brown argues that our analysis should center on the language of the original patent and the 1875 Act rather than the language of 43 U.S.C. § 912.

a. Background of Land Grants to Railroads and the 1875 Act

[¶ 9.] Beginning in the 1800s, Congress enacted several bills which explicitly granted public lands to railroad companies to aid the construction of a cross-country railroad. Barney, 490 N.W.2d at 729 (citing Act of Sept. 20, 1850, 9 Stat 466). Pursuant to these bills, “Congress gave generous land grants from the public domain to the railroads to subsidize the costs of the western expansion.” Id. The expansion stretched from the 100th meridian from the middle of Nebraska to California. Id. Because of mounting public criticism, the nature of the land grants changed in 1872. Id. “[T]he House of Representatives enacted a resolution condemning its policy of outright land grant subsidies to railroads.” Id. (citing Leo Sheep Co. v. U.S., 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979)). Instead, Congress began to reserve the land for homesteads and educational purposes. Id. Notwithstanding this changed policy, Congress continued to encourage the expansion of the West by enacting the 1875 Act, which authorized ROW grants to railroads. Id. (citing 43 U.S.C. § 934). The United States Supreme Court later concluded that ROWs, granted under the 1875 Act, gave the railroad companies easements, not fee interests, across public lands. Great N. R.R. Co. v. U.S., 315 U.S. 262, 273-74, 62 S.Ct. 529, 533-34, 86 L.Ed. 836 (1942). The United States then transferred much of the underlying lands to homesteaders and others, subject to the railroads’ ROWs. In the present case, the FEMV Railroad Company was granted a ROW under the 1875 Act. Also, in 1918 and 1919, Brown’s predecessor in interest took the land subject to the ROW.

[¶ 10.] After use of the railway system declined in the early 1920s, Congress enacted statutes to distribute “all right, title, interest, and estate of the United States” in the ROWs to the fee owner of the underlying land when railroads ceased using the ROWs. 43 U.S.C. § 912. Section 912 provided for the continuation of the ROW if “embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment.” Id.

b. Recent Federal Case Law

[¶ 11.] In two recent cases cited by Brown, federal courts have determined that the federal government failed to retain a reversionary interest in the railroad ROWs authorized in the 1875 Act. Beres, 64 Fed.Cl. 403; Hash, 403 F.3d 1308. In Beres, landowners brought suit against the United States alleging that the government had effectuated an uncompensated taking when it sought to convert an abandoned railroad ROW into a recreational trail pursuant to 16 U.S.C. § 1247(d). 64 Fed.Cl. at 407. The court concluded that this was a compensable taking under the Fifth Amendment because the United States had failed to retain a reversionary interest in the ROW both under the 1875 Act and again when it conveyed the adjoining land by patent with no reservation of such interest. Id. at 428.

[¶ 12.] The government in Beres argued that easements created by the 1875 Act were tantamount to fee ownership. See id. at 411. The court rejected this argument. Id. at 427. Recognizing that “nothing passes but what is conveyed in clear and explicit language,” the court emphasized the following language from the United States Supreme Court: “the property interest granted in the rights-of-way ‘through the public lands’ to the railroads was ‘only an easement.’ ‘[T]he Act of March 3, 1875 ... clearly grants only an easement, and not a fee.... [T]he right granted is one of use and occupancy only.’ ” Id. (quoting Great N. R.R. Co., 315 U.S. at 271-72, 62 S.Ct. at 532, 86 L.Ed. 836).

[¶ 13.] The Beres court emphasized that the landowners’ successors in interest had derived title from a land patent. The court noted that a land patent that is “regular in form and for whose issuance there is statutory authority is so binding on the government that a purchaser from the patentee need make no investigation as to the details of its issuance the legal title has passed and the patent is conclusive against the government. The [government] loses its jurisdiction over the land as soon as a valid patent is issued.” Id. at 417 (quoting U.S. v. Eaton Shale Co., 433 F.Supp. 1256, 1267 (D.Colo.1977)) (alteration in the original). The land patent to Beres’ land failed to reserve an interest by the United States. Id. Consequently, the court concluded that the United States failed to retain an interest in the ROW. The court reasoned as follows:

[T]he United States Supreme Court recognizes the sanctity of land transfers, and has expressed reluctance to interfere with land rights in which no reservations were present when conferred, stating that: “Generations of land patents have issued without any express reservation of the right now claimed by the Government.... [W]e are unwilling to upset settled expectations to accommodate some ill defined power to construct public thoroughfares without compensation.”

Id. (quoting Leo Sheep Co., 440 U.S. at 687-88, 99 S.Ct. at 1414, 59 L.Ed.2d 677).

[¶ 14.] The government based its argument on the language of the 1875 Act and on the subsequent enactment of the 1922 Act, 43 U.S.C. § 912, which the government claimed demonstrated Congress’ intent to retain a reversionary interest in the ROWs. Id. at 416-19. In regard to the language of the 1875 Act, the court concluded as follows:

There are no words included in the 1875 Act to indicate that the railroad receives anything other than a right-of-way, in the nature of the right to traverse, as those words would be understood by a reasonable person. The concept of a reversionary right in the future is not included or even intimated in the 1875 Act. Nor is there in the 1875 Act any indication that the right transferred to the railroad is in the nature of a fee. Furthermore, the 1875 Act contains no restrictions on future fee simple transfers of the public land through which the railroad right-of-way is granted to other government or private parties by the United States.

Id. at 416. As to the subsequently passed 1922 legislation embodied in 43 U.S.C. § 912, the court noted that “ ‘the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.’ ” Id. at 416 (quoting U.S. v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960)). After examining the language of section 912, the court rejected the government’s argument and offered the following interpretation of the federal statute:

The 1922 Act [43 U.S.C. § 912] was restating the obvious conclusion regarding the language of the 1875 Act and other right-of-way statutes that, in the absence of additional language, a right-of-way through public lands allowed for a limited use and did not reserve any fee type interests or reversionary rights as part of that right-of-way. It would appear that the language of the 1922 Act was intended to address, clarify, and resolve issues created by the imprecise language employed by the courts on this subject in the early part of the twentieth century.... In the alternative, it has been suggested that the 1922 Act applied only to pre-1871 grants to railroad companies because prior to that date railroad companies were issued outright land grants, as opposed to the right-of-way granted to railroad companies after that date.

Id. at 419 (citing Great N. R.R. Co., 315 U.S. at 279, 62 S.Ct. at 536, 86 L.Ed. 836). Because the government failed to demonstrate that the United States retained a reversionary interest in the ROW, the court concluded that the United States’ conversion of the ROW into a public trail constituted a taking which required compensation. Id. at 428.

[¶ 15.] Similarly, in Hash, the United States Court of Appeals, Federal Circuit, examined whether the railway’s abandonment and subsequent conversion of a ROW to a public trail constituted a compensable taking. 403 F.3d at 1318. The government argued that various enactments, decisions, and current policy showed that the government had not intended to relinquish ownership of the land underlying the ROW. Id. at 1315. However, the court concluded that the landowners had originally received their land subject only to the railway’s easement and the government had failed to retain an interest in the ROW. Id. at 1318. Although the government argued that national policy favored government ownership of land for environmental and conservation purposes, the court noted that “the property rights of these early landowners [were] governed by the law in effect at the time they acquired their land.” Id. at 1315.

[¶ 16.] The government also argued in Hash that it retained a reversionary interest and cited section 912 as support. Id. at 1318. However, the court disagreed and concluded that section 912 simply “requires the United States to convey any rights it may have, to the patentee of the land traversed by the abandoned right-of-way; it does not say what rights the United States had after the land patent was granted.” Id. The court concluded that “[njeither section 912 nor 913 purported to establish governmental ownership of land that had been granted to homesteaders subject to a right-of-way easement.” Id. Accordingly, the court held that the United States failed to reserve an interest in the ROWs when it issued land patents to the adjoining lands without a specific reservation of an ownership interest in the previously granted ROWs. Id. Accordingly, the conversion of these ROWs to public trails constituted a taking. Id.

c. Barney v. Burlington N. R.R. Co.

[¶ 17.] NHRAA argues that our holding in Barney controls and that Beres and Hash are distinguishable. The question in Barney was whether the State’s conversion of a railroad ROW into a recreational trail constituted a compensable taking. 490 N.W.2d at 728. We held it was not a taking. Id. Barney centered on whether the United States had retained a rever-sionary interest in easements granted to the railroad under the 1875 Act; and if so, whether the easements had been abandoned under section 912. Id. at 729. Our takings analysis relied on statutory interpretation and congressional intent. See id. at 728-30. The language of the land patents or whether the patents reserved an interest to the ROWs was not considered or addressed in Barney.

[¶ 18.] In Barney, landowners claimed that the ROWs granted by the United States to railroads under the 1875 Act were common law easements which automatically extinguished and reverted to the underlying landowners when they ceased to be used for railroad purposes and were not subject to the provisions of section 912. Id. at 728. We rejected the landowners’ argument that the 1875 Act established common law easements. Id. at 729. We stated:

The easement granted by Congress is an easement subject to the intentions and specifications of Congress; it is not a common law easement. Congress could pre-empt or override common-law rules regarding easements, reversions, or other traditional property interests. In other words, even if the 1875 Act granted only an easement, it does not necessarily follow that Congress would or did not intend to retain an interest in that easement.... The precise nature of that retained interest need not be shoehorned into any specific category cognizable under the rules of property law.

Id. (quoting State of Idaho v. Oregon Short Line R. Co. (Idaho I), 617 F.Supp. 207, 212 (D.Idaho 1985)).

[¶ 19.] In rejecting the landowners’ argument, we examined the Congressional Record that accompanied the enactment of section 912, and concluded that “[i]t is clear from the legislative history that Congress assumed it possessed some type of reversionary or other interest in the railroad rights-of-ways.” Id. at 730. We reasoned that section 912 and related statutes would be rendered null if we were to find them inapplicable to 1875 Act ROWs because “they were specifically enacted to dispose of the United States’ retained interest in 1875 Act rights-of-way.” Id. at 731 (quoting Idaho I, 617 F.Supp. at 212). Accordingly, we determined that the United States retained a reversionary interest in the ROW and applied section 912. Id.

[¶ 20.] Today, taking into consideration the language of the patent, we revisit our rationale in Barney and our determination that the United States retained a reversionary interest in an 1875 Act railroad ROW. Under the facts of the case before us, we reach a contrary conclusion based upon the clear language of the homestead patents. By the declaration of the patent, the federal government reserved no interest in the ROW to which section 912 could apply. Any reference by Congress to reversionary interests by subsequent enactments does not change the United States’ initial divestment of its interest by patent. This conclusion also conforms to the analysis of the more recent federal cases of Beres and Hash. 64 Fed.Cl. 403, 403 F.3d 1308. It also more closely follows the Supreme Court decisions in Great N. R.R. Co. (stating that the property right created in the railroad right-of-way was only an easement granting use and occupancy, but no fee interest) and Leo Sheep Co. (expressing unwillingness to interfere with land rights in which no reservations were present when conferred). 315 U.S. at 273-74, 62 S.Ct. at 533-34, 86 L.Ed. 836; 440 U.S. at 687-88, 99 S.Ct. at 1414, 59 L.Ed.2d 677. To the extent that this holding conflicts with Barney, Barney is overruled.

d. Conclusion

[¶ 21.] We find Beres and Hash to be the more persuasive authorities. These federal cases recognize the significant role a land patent plays in establishing title to property. “A patent to land, issued by the United States under authority of law, is the highest evidence of title, something upon which the holder can rely for peace and security in his possession.” Nichols v. Rysavy, 610 F.Supp. 1245, 1254 (D.S.D.1985). The United States Supreme Court has stated that “when a patent issues in accordance with governing statutes, all title and control of the land passes from the United States.” Swendig v. Washington Water Power Co., 265 U.S. 322, 331, 44 S.Ct. 496, 499, 68 L.Ed. 1036 (1924) (citing U.S. v. Schurz, 102 U.S. 378, 396, 26 L.Ed. 167 (1880)). Our holding today recognizes the “special need for certainty and predictability where land titles are concerned. ...” Leo Sheep Co., 440 U.S. at 687, 99 S.Ct. at 1413, 59 L.Ed.2d 677.

[¶ 22.] We need not decide what interest, if any, the United States retained pursuant to the 1875 Act. Rather, our holding today is limited to the facts of this case. Therefore, whatever interest the United States retained in the ROWs through the 1875 Act was relinquished when land patents were issued without reserving a right in the ROWs. While NHRAA argues that we should follow the rationale in Barney, we decline to do so. Although section 912 and related legislation suggest that Congress “assumed” or “intended” to retain a reversionary interest in the ROWs, these statutes were passed after Congress passed the legislation establishing the ROWs and after the land patents were issued to Brown’s predecessors. Legislative goals change over the years; therefore, the “[r]esort to using subsequent congressional activity of any variety to interpret earlier legislation should be cautiously approached.... ” Beres, 64 Fed.Cl. at 416. Consequently, we agree with Brown that the language of section 912 does not apply. The determining factor in this case is the language of the patent. The patent reserved no interest in the ROW on behalf of the United States and the circuit court erred when it applied section 912 to determine whether the ROW had been abandoned. Accordingly, we remand to the circuit court for a determination of abandonment in conformity with this opinion.

[¶ 23.] Reversed and remanded.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . On February 4, 1918, a portion of the land encompassing the ROW was conveyed to William P. Stowers under the Homestead Act of 1862. Likewise on January 11, 1919, another portion of the land encompassing the ROW was conveyed to John Bonshack by a patent. At all times relevant to this litigation, Brown had legal title to both portions of the patent land originally conveyed to Bonshack and Stowers.

      .When securing an easement over his property for a neighbor, Brown attempted to use the former ROW as part of a legal description. However, he was informed by the Lawrence County Register of Deeds that the ROW did not exist and Lawrence County refused to acknowledge this former ROW for any platting or boundary purposes. Brown subsequently traveled to Washington, D.C. to recover the complete ICC abandonment file for the C & NW ROW that crossed his property. Brown learned that C & NW had completed the abandonment with the ICC, but had failed to comply with 43 U.S.C. § 912, which requires either a declaration or decree of abandonment by a court of competent jurisdiction or an act of Congress.

      . Brown named the following defendants in his complaint: NHRRA, State of South Dakota, Karl E. Eisenbacher, Douglas H. Hayes, Kristi Jo Hayes, John R. Miller, Jean Miller, Strawberry Hill Mining Company, Maurice Hoffman, Lawrence County, and all persons unknown who have or claim to have any interest or estate in or encumbrance upon the premises described in the Complaint, or any part thereof.

      . NHRAA argues that 43 U.S.C. § 937 supports its argument that the United States intended to retain an interest in the railroad ROWs. However, NHRAA fails to cite any statutory language or authority to support this argument.

      . The relevant portion of section 912 provides:
      Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying of purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind....

      . The landowners’ predecessors in title had acquired the land from the United States via land patent. See Barney, 490 N.W.2d at 727. However, this fact is not discussed in our analysis.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2007 SD 50
    In the Matter of the TERMINATION OF PARENTAL RIGHTS OVER T.E.L.S., Minor Child.
    No. 24289.
    Supreme Court of South Dakota.
    Considered on Briefs April 23, 2007.
    Decided May 16, 2007.

      John R. Frederickson, Frederickson Law Office, Deadwood, South Dakota, Attorney for appellants J.H.T. & C.T.
    Erin Pier Osborn, Attorney at Law, Rapid City, South Dakota, Attorney for appellee R.S.
   GILBERTSON, Chief Justice.

[¶ 1.] On November 2, 2005, J.H.T. (Mother) and C.T. (Husband) filed a petition in the South Dakota Fourth Judicial Circuit to terminate the parental rights of R.S. (Father) contemporaneous with Husband’s petition for adoption of T.E.L.S. under SDCL 25-6-4. The matter was heard on February 27, 2006. Judgment denying the petitions was entered on September 12, 2006. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Mother and Father met in 1996, while both were living in Ft. Collins, Colorado. At the time, Mother was eighteen and Father was twenty-two. After they had dated for about eight months, the two discovered that Mother was pregnant. In September 1996, the couple moved to Oceanside, California to live with Father’s parents. Before leaving Ft. Collins, Father and Mother became engaged. In October 1996, Mother was diagnosed with myasthenia gravis. T.E.L.S. was born on January 28, 1997. In February 1997, the couple and new baby moved to an apartment in Vista, California, about 1.5 miles from their previous address. In July 1997, Mother took T.E.L.S. and went back to her parent’s home in Nisland, South Dakota, never to return. Father has lived in California and Mother has lived in South Dakota since that time. The couple never married.

[¶ 3.] Mother had surgery related to her medical condition in August 1997. In late summer or early fall 1998, Father and his mother (Grandmother) were in Ft. Collins, Colorado. While in Ft. Collins, Mother invited Father to travel to Nisland to see T.E.L.S. Father declined and returned to California.

[¶ 4.] Mother began dating Husband in early 2001. Later that year, Mother and T.E.L.S. moved in with Husband at his home in Whitewood, South Dakota. Father began paying mandatory child support in 2002. Father moved home with his parents in Oceanside shortly thereafter. Mother and Husband married on June 18, 2005. The next day, Father’s Day, while Mother and Husband were away from home, Father called and spoke to T.E.L.S. for the first time. In August 2005, Father informed Mother and Husband that he intended to come to South Dakota to see T.E.L.S. Mother and Husband filed for a protection order, which was granted on September 9, 2005.

[¶ 5.] Father has not seen T.E.L.S. since 1997, when she was an infant. Between 2003 and 2005, there were twenty-one verifiable telephone calls, lasting sixty-one minutes in aggregate, from a number belonging to Father to the number belonging to Mother and Husband. In and around August of 2005, Father considered allowing Husband to adopt T.E.L.S. On November 2, 2005, Mother and Husband filed a petition to terminate Father’s parental rights and Husband filed a petition to adopt T.E.L.S. The foregoing skeletal facts are not in dispute.

[¶ 6.] At trial Mother testified that both she and Father considered their relationship over in the summer of 1997, when Mother and T.E.L.S. went to South Dakota to be closer to her family and to have surgery for myasthenia gravis in Rapid City, South Dakota. On the other hand, Father testified that he always believed Mother would return to California because they planned to marry following her recuperative period in South Dakota. He indicated that she was “absolutely” wearing her engagement ring when she left California. Father, who works as a construction laborer, stated that he began sending Mother $50-$150 at a time, on an irregular basis, and would call her regularly to check on her condition and T.E.L.S.

[¶ 7.] Father and Grandmother testified that in 1998, the two of them drove to Ft. Collins pulling a U-Haul trailer. They had planned to continue on to Nisland to load up Mother’s things and bring her and T.E.L.S. back to California. According to Father, he and Mother had been making arrangements for her to move back to California for the preceding five to six weeks.

[¶ 8.] While in Ft. Collins the two stayed with Mother’s aunt. According to Father, before continuing on to Nisland, Mother called the aunt’s house and told him that she was not returning to California. When Mother invited him to continue on to Nisland to see T.E.L.S., Father refused stating to the circuit court:

I was emotionally crippled [by the unexpected turn of events]. ... I was losing two people at that moment. I didn’t know if I could look at both [T.E.L.S.] and [Mother] and just walk away. I just couldn’t do it.

Father and Grandmother returned to California. Father indicated that he continued to call Mother on a regular basis to inquire about how she and T.E.L.S. were doing and that he continued to make voluntary, albeit irregular, support payments.

[¶ 9.] Mother testified that sometime about February 2001, in or around “dart season,” she began dating Husband. Father stated that sometime thereafter in 2001, he arranged with Mother for a visitation with T.E.L.S. Father said that the anticipated visitation was the culmination of about three months of planning and saving money.

[¶ 10.] Father testified that he rented a car in California and drove to Nisland for the visit with T.E.L.S. Mother and T.E.L.S. were still living with her parents. According to Father, he arrived at the parents’ home at the appointed time, knocked on the door, and got no response. Father stated that after waiting at the parents’ house for about an hour, he left to check into a motel. Father said he called the parents’ home repeatedly before finally reaching one of Mother’s sisters. The sister told Father that Mother had left with T.E.L.S. to go on a camping trip with a friend and had no idea when she would be returning.

[¶ 11.] Father returned to California the next day without getting to see T.E.L.S. When asked why he did not stay longer to see if Mother would return Father said, “I guess it was a — -just a feeling of being let down ... I just wanted to go back home. I was sad, stressed, upset.” Father went on to state: “I was just blown away that I had traveled so far, that we had planned this trip for so long, that she knew I was coming, that I had called her nights before and now she was gone.”

[¶ 12.] Father testified that the result of the attempt to see T.E.L.S. was the culminating event in what he sensed was an attempt to secret T.E.L.S. away from him that started sometime after the 1998 trip to Ft. Collins. Father stated that during this time he would call and “ask for photos and mementos and anything I could get, and I was told that those things just didn’t exist or she couldn’t send them.” At other times Father indicated that he would start by making small talk and then ask Mother how she and T.E.L.S. were doing followed by attempts to arrange contact:

I would ask if I could please come and visit, if I could please see her, if I could have some pictures, if I could have some hair clippings, if I could have any connection, if I could visit her, if I could— like [Husband] said [during his testimony], you know be an uncle, call me an old friend, call me whatever you want. I just wanted to see her.

[¶ 13.] Grandmother testified to overhearing conversations between Mother and Father during this time:

Well, it’s heart-breaking ... I personally have been in the room, I can’t tell you how many times ... that he’s called and said “Could I just have a picture? Could I just have a little Crayola picture? ... Could we meet in a park? Could I just sit at the other end of the park and look at her? You don’t have to let me touch her, talk to her, just let me see her.”

[¶ 14.] At trial, Mother disputed Father’s claims of having attempted to make contact with T.E.L.S. or arrange any visitation. She also indicated that there had been “[n]o gifts, no cards, there’s never been a letter” from Father. She conceded that she had received one gift from Grandmother in or around 1999. In contradiction to Mother, Grandmother testified that she and Father had shopped together for various articles of clothing and toys for T.E.L.S. that they had sent to Mother at different times. With specific reference to the 1999 gift acknowledged by Mother, Grandmother stated:

The one gift ... that bothers me the most ... second Christmas we sent her a whole little kitchen set for a little girl from her dad. From me, it was dolls, these two little twin dolls.... When she received them, [Mother] did call me and ask me, “[Grandmother], are these from you, are they from [Father]?” And I said, “Well, the kitchen is from [Father], but the dolls are from me.” She said, “I just want to send the kitchen back. I don’t want his stuff.”

According to Grandmother she eventually had a falling out with Mother, but that she continued to try and send things to T.E.L.S. by shipping them to Mother from different zip codes in hopes that she would open them and accept the items for the child. Father also testified that between 1997 and 2002, he had sent T.E.L.S. gifts and cards for birthdays, Valentine’s Days and Christmases that he addressed to Mother at her parents’ home.

[¶ 15.] Father stated that for about two and a half years, beginning in or around the end of 2001, he lost track of Mother and T.E.L.S. By Mother’s own account, she moved from her parents’ home through a progression of locations including several in Rapid City and then Vale, South Dakota before finally moving in with Husband, in Whitewood sometime late in 2001. Father testified that he received no forwarding address or telephone number from Mother. He said that although he knew where her parents lived and attempted to contact Mother through them, he was always told “she wasn’t there and ... nobody knew where she was.... ”

[¶ 16.] Father stated that in 2002, about six months after he lost track of Mother and T.E.L.S., he was contacted by the State of California, informing him that South Dakota was initiating a child support enforcement action against him. Father moved home with his parents and began making mandatory child support payments in 2002. He submitted verification from the San Diego County Superior Court, which indicated a monthly child support obligation of $390.00 per month with arrearage payments of $50.00 per month. Father submitted ledger reports, from the South Dakota Department of Social Services and the San Diego County Department of Child Support Services, indicating that 148 payments totaling $16,-421.33 were collected between July 2002 and August 2005. Father testified that when possible he would pay in excess of the required $440.00 payment in order to “pay down the arrears, and ... because she [T.E.L.S.] needs [the money].”

[¶ 17.] While the number and frequency of telephone calls from Father to Mother was uncertain, evidence was submitted that twenty-one telephone calls were made for sixty-one minutes in aggregate between October 2003 and August 2005. The call records submitted to the circuit court showed calls to a number belonging to Mother and Husband. While it was brought out during Father’s cross-examination that most of the calls lasted no more than one minute in duration, it was also brought out that Mother and Husband had caller ID and that Father had left messages. At the end of Father’s testimony, the circuit court asked him if he had ever received a call back after leaving a message to which he replied that he had not. The court also asked if Mother, without prompting, had ever called him. Father replied:

I believe [it] must have been more than a year ago, and I was just so upset about being told, no, you can’t see her, that I hung up, sir. And I received a phone call immediately right back from her. As far as I know, that’s the only phone call I’ve ever received from [Mother].

[¶ 18.] In August 2005, Father contacted Mother to inform her that he was going to come to South Dakota to see T.E.L.S. Father stated in his October 31, 2005 affidavit that he and Grandmother then flew to South Dakota in hopes that Father might be able to see T.E.L.S. Instead, Father was served with a protection order barring him from any contact with T.E.L.S.

[¶ 19.] Mother testified that on several occasions Father called and asked for Husband to adopt T.E.L.S. She stated that these requests began in 2002, shortly after she started receiving mandated child support payments from Father. She said that she told Father that Husband could not adopt T.E.L.S. until she and Husband were married. Whitewood Chief of Police Jerry Davidson testified from his notes that sometime after the protection order was served, Father called and left a message asking him to advise Mother to “send him the adoption papers and he would sign the adoption papers.”

[¶ 20.] According to Father, Mother and Husband had pressed for the adoption. However, Father acknowledged that in or around the time that he was served with the protection order, he “considered] allowing [Husband] to adopt [T.E.L.S.], for her sake, for [T.E.L.S.’s] best interest, [Father was] hoping that he was an honorable man, hoping that he was just a good guy.” Father stated that ultimately he decided he could not go through with the adoption.

[¶ 21.] Instead, Father enrolled in classes designed for reuniting family members. Father submitted evidence of having completed seven class sessions in foster, adoptive and kinship care education during September and October 2005. The classes were completed prior to October 21, the date on which Mother and Husband signed their petitions to terminate Father’s parental rights. Mother testified that she had never told T.E.L.S. that Father existed. Recognizing this in discussing why he took the classes Father stated:

These aren’t parenting classes like how you’re supposed to set bedtimes. These are classes that are designed for foster parents, adoptive families, or ... newly reunited kin. [A]ny time a relationship is changed or started with a child, it can be really traumatic, it’s not an easy thing, especially if I was just brought in right off the bat and said, hey look you got a new Daddy. I might be absolutely thrilled, about that, but [T.E.L.S.] might be scared to death. She never got to know me.

Father then relayed his own experience with foster children gained through his parents.

[¶ 22.] Father was asked why he had not, prior to these proceedings, retained legal counsel to pursue establishing visitation with T.E.L.S. He stated that he had contacted a number of attorneys in San Diego who told him he would need to find one that was licensed in both states. He testified he had not been able to find a California attorney licensed in South Dakota. In addition, he stated that he was also told the cost would be between $5,000~$10,000 and he did not have that kind of money because he was borrowing money from his parents to oppose the current petitions.

[¶ 23.] On May 5, 2006, the circuit court entered its memorandum decision denying the petitions of Mother and Husband. On August 1, 2006, findings of fact and conclusions of law were entered incorporating the memorandum decision by reference. The circuit court entered judgment on September 12, 2006, deferring its decision on visitation pending appeal.

[¶ 24.] Mother and Husband raise the following issue on appeal:

Whether the circuit court was clearly erroneous in deciding that Father did not abandon T.E.L.S. pursuant to SDCL 25-6-4(2).
STANDARD OF REVIEW
Whether a parent has abandoned a child within the meaning of SDCL 25-6-4 is a question of fact to be decided by the trial court, a decision that will not be overturned unless the finding is clearly erroneous. Findings of fact are clearly erroneous when, after a careful review of the record, ‘we are left with a firm conviction that a mistake has been made.’

In re Adoption of C.D.B., 2005 SD 115, ¶ 10, 706 N.W.2d 809, 814 (internal citations omitted). In reviewing a circuit court’s ruling on whether a parent has abandoned a child for purposes of adoption, “ ‘we are in no position to reweigh the evidence [and] ... must defer to the judge’s firsthand perception of the witnesses and the significance the judge gave to their testimony.’ ” Id. ¶ 16 (quotation omitted) (alteration in original).

ANALYSIS AND DECISION

[¶ 25.] Whether the circuit court was clearly erroneous in deciding that Father did not abandon T.E.L.S. pursuant to SDCL 25-6-4(2).

[¶ 26.] Mother and Husband argue that Father abandoned T.E.L.S. pursuant to SDCL 25-6-4(2) alleging that he disputed he was the child’s father; he has not seen the child since her infancy; he declined to continue on to Nisland to visit the child in 1998, when Mother called him in Ft. Collins and extended an offer; he failed to provide consistent monetary support prior to the imposition of court mandated child support in 2002; he indicated an interest in being known to the child as something other than her father, such as an uncle; and, on three occasions Father made an overture to Husband that he should adopt the child. Thus, they contend that the parental consent requirement is waived under the statute and in the best interest of the child, Husband should be allowed to proceed with the adoption.

[¶ 27.] SDCL 25-6-4 provides in pertinent part:

No child may be adopted without the consent of the child’s parents. However, if it is in the best interest of the child, the court may waive consent from a parent or putative father who:
(2) Has, by clear and convincing evidence, abandoned the child for six months or more immediately prior to the filing of the petition....

“We have previously determined that ‘[t]o constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child.’” C.D.B., 2005 SD 115, ¶ 12, 706 N.W.2d at 814 (quoting Mastrovich v. Mavric, 66 S.D. 577, 287 N.W. 97, 97-98 (1939)) (additional citation omitted). “There must be a showing of an intent on the part of the parent to abandon and to relinquish parental obligations; this intent may be inferred from conduct. In establishing abandonment, factors to be considered include a parent’s presence, love, care and affection, and monetary support. The trial court may consider the subjective statements of the parents in addition to objective factors.” Matter of Adoption of Sichmeller, 378 N.W.2d 872, 873-74 (S.D.1985) (internal citations omitted). “To conclude that evidence is clear and convincing, ‘the witnesses must be found to be credible, ... the facts to which they have testified [must be] distinctly remembered and the details thereof narrated exactly and in due order, and ... their testimony [must be] so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’ ” C.D.B., 2005 SD 115, ¶ 15, 706 N.W.2d at 815 (quoting In the Matter of the Adoption of Bellows, 366 N.W.2d 848, 851 (S.D.1985) (quoting Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780 (1965))).

[¶ 28.] The circuit court found that the relationship between Mother and Father ended in 1997, when Mother left California and returned to South Dakota; Father believed Mother intended to return to California in 1998, when during his stopover in Ft. Collins, Mother called to inform him that she would not be returning to California; and under the circumstances Father was unable emotionally to continue on to South Dakota to see T.E.L.S. The circuit court found that later, when Father drove to Nisland, planning to visit T.E.L.S., he arrived to find that Mother had taken T.E.L.S. camping instead. The court also found that Father and Grandmother were more credible than Mother as to the number and frequency of gifts sent to T.E.L.S. over the years.

[¶ 29.] There was a finding that Father lost track of Mother and T.E.L.S. for about two and a half years and that his efforts to find where they were living, including repeated inquiries with Mother’s parents, were unsuccessful. The circuit court found that during this period Father began making child support payments through August 2005, which totaled 148 in number amounting to $16,431.33 in aggregate. It also found that Father made twenty-one phone calls from and after 2001; he made several calls in 2003, requesting that Husband adopt T.E.L.S.; Father ultimately could not go through with adoption; and on one occasion in 2005, he had asked Husband to identify him as T.E.L.S.’s uncle. In addition the circuit court found that Father did not retain legal counsel to assist him in obtaining visitation; he had not been able to see T.E.L.S. since she was an infant; she had no knowledge of him; and his most recent request for visitation was met with a protection order.

[¶ 30.] In concluding that Mother and Husband had not met their burden to show abandonment by clear and convincing evidence, the circuit court stated in its incorporated memorandum opinion that the evidence presented is too conflicting and contradictory to support a conclusion that Father intended to abandon T.E.L.S. In so stating it found that while Father and Grandmother had sent gifts and made efforts to stay in contact, Mother made no effort to encourage any relationship between Father and T.E.L.S. See Claymore v. Serr, 405 N.W.2d 650, 652 (S.D.1987) (reversing the finding of abandonment below and recognizing that the mother’s failure to encourage contact with the father and slight hostility to the same was a factor in the father’s absence from the minor child’s life).

[¶ 31.] The circuit court’s finding that Father had not previously retained legal counsel to establish visitation with T.E.L.S. was supported by undisputed evidence and is relied on in part by Mother and Husband to support their claim of abandonment. However, witness testimony and Father’s payroll information evince a man of very limited financial resources. See Matter of Adoption of Bellows, 366 N.W.2d at 851 (reversing the determination below and holding that a mother had not abandoned her children, while also observing that her failure to seek a legal opinion as to a restrictive provision in the divorce stipulation was in part due to her lack of financial resources).

[¶ 32.] We find that the circuit court’s conclusion is not in error because it is supported by the findings of fact, for which there is evidentiary support. Mother and Husband had the burden to show Father’s intent to abandon T.E.L.S. by clear and convincing evidence. However, we conclude that the circuit court could reasonably infer, from the evidence underlying its findings, the absence of an evidentiary basis for the same factors that when established by clear and convincing evidence are supportive of a determination of abandonment. See Sichmeller, 378 N.W.2d at 873-74.

[¶ 33.] That Father made $16,431.33 in child support payments, is supported by ledger reports from the States of California and South Dakota and is tangible evidence of monetary support. See id. While there was evidence to support the circuit court’s finding that Father had asked Husband to adopt T.E.L.S., the circuit court could also reasonably infer in this the presence of Father’s love and care for the child from his testimony that he was considering the best interest of the child while contemplating this act. See In re Romero, 73 S.D. 564, 568, 46 N.W.2d 108, 110 (1951) (restoring a mother’s parental rights to a child that she had earlier surrendered to an agency, with power to consent to adoption, where before any adoption had been arranged, she changed her mind when her circumstances changed).

[¶ 34.] That Father attempted to stay in contact with T.E.L.S. is supported by evidence of his attempts to send gifts to the child and arrange visitation with Mother on the phone; his attempts to obtain from Mother small mementos or keepsakes of the child; his trip from California to see T.E.L.S. in 2001, only to discover when he arrived that Mother had taken the child away camping; his attempt to visit T.E.L.S. in August 2005, that resulted in Mother filing for a protection order; and his completion of courses designed to reunite parents with children in the least traumatic way. We conclude that the circuit court could reasonably infer from this evidence the presence of Father’s love, care, and affection for T.E.L.S. See Sichmeller, 378 N.W.2d at 873-74. Therefore, we find no basis upon which to conclude that the circuit court was clearly erroneous when it determined that Father had not abandoned T.E.L.S., and accordingly, no error in its judgment denying the petitions.

[¶ 35.] Affirmed.

[¶ 36.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Mother testified that myasthenia gravis is a neurological disorder that causes muscle weakness and that treatment for her disorder involved open-thoracic surgery to remove her thymus gland.

      . Grandmother testified that Father moved in with them because once mandated child support commenced, Father could not afford to pay rent elsewhere.

      . The South Dakota Department of Social Services, Division of Child Support ledger totals $16,966.27 in payments received and includes one additional payment in August 2005, not recorded in the San Diego County Ledger.

      . The ledgers are dated August 26, 2005 and were requested by Father, prior to the commencement of litigation, in response to a conversation he stated that he had with Husband wherein Husband claimed child support was not being received.

      .Both Mother and Father testified that no child support modification had been sought since mandatory payments began in 2002. The record indicates, and Father acknowledges, a payment lapse of four months in 2003. The San Diego County Ledger indicates that after payments resumed in September 2003, the county collected $440.00 per month in each September and October 2003. Over the course of the next twenty-one full months of data, the San Diego County Ledger indicates collections of $401.49, $526.32 and $526.39 in each of three separate months with at least $535.32 paid in each of the remaining months including monthly collections of $640.00, $669.00, $960.00, $1,039.10 and $1,054.98.
      Evidence was also submitted, and testimony was given by Father, to substantiate that support payments continued during the interval between the most recent date on the ledgers and the date of the hearing. Father's pay stubs from January and February 2006 indicated that he had had $280.00 per weekly pay period withheld from his paycheck for child support. The pay stubs indicate gross earnings of $720.00 with gross net before child support of $473.15 leaving take-home pay of $193.15 per week.

      . While Mother disputed that Father made any additional calls, Father indicated that there were other calls that could not be verified since he was unable to obtain call records prior to 2003.

      . Grandmother testified that for sixteen years her home has been licensed by the State of California to provide foster care for “special needs and medically fragile children’’ as well as to act as "an emergency shelter home.’’ Grandmother indicated that during that time they have adopted two children and provided foster care to about 125.

      . This allegation is based on his request that Mother provide a DNA sample when he was notified by the State of California that Mother had instituted a child support enforcement action against him. In responding to this allegation Father indicated that he requested the DNA test because her pattern of behavior related to his attempts to have contact with T.E.L.S. caused him to have doubts about his paternity. He further indicated that several people with the child support division in California had advised him that under the circumstances, he should request a DNA test before voluntarily submitting to the enforcement action.

      . While Mother and Husband do not deny that Father has been paying court mandated child support and that he is current with his obligation, they argue that since the support is non-stipulated, Father’s payment should not be considered in determining whether Father has abandoned T.E.L.S. However, Mother and Husband cite no authority to support this position.


author: CADY, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Keith Glenn THOMPSON, Respondent.
    No. 06-2046.
    Supreme Court of Iowa.
    April 20, 2007.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    Keith Glenn Thompson, George, respondent, pro se.
   CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) charged Keith G. Thompson with numerous violations of the Iowa Code of Professional Responsibility for Lawyers. The Grievance Commission of the Supreme Court of Iowa (Commission) found Thompson violated the Iowa Code of Professional Responsibility for Lawyers. It recommended Thompson be suspended from the practice of law for a period not less than eighteen months. Upon our review, we find Thompson violated the Iowa Code of Professional Responsibility for Lawyers, and we suspend his license to practice law for an indefinite period of time, with no possibility of reinstatement for nine months.

I. Background Facts and Proceedings.

Keith G. Thompson is an Iowa lawyer. He has practiced law in several communities in the state, and is currently located in George, Iowa.

In 2004, Thompson served as an assistant county attorney in O’Brien County. As a part of his duties, he prepared a juvenile delinquency petition, motion for waiver of juvenile court jurisdiction and order for hearing on the motion. He then signed the name of a district court judge to the order for hearing, without knowledge or authorization of the judge. Thompson filed the documents with the clerk of court, and arranged to have copies served on the parties.

Within a short period of time, the fabricated signature on the order was discovered. Thompson was instructed by the judge whose signature was forged to report the matter to the attorney disciplinary board. He notified the Board by letter thirty-nine days later.

Thompson has a history of prior discipline as an Iowa lawyer, including prior conduct involving the alteration of a court document. In 1989, he was admonished for correcting a typographical error on an original document in a court file without authorization. In 1997, he received a public reprimand for accepting employment involving a conflict of interest. In that matter, Thompson agreed to represent a party in an action to modify the visitation provisions of a dissolution decree after he had met and conferred with the current spouse of the other party about the dispute. In 2005, he was suspended from the practice of law for failing to comply with the continuing legal education requirements.

Thompson also has an unspecified history of depression. He has taken antidepressant medication in the past.

II. Board’s Complaint.

The Board charged Thompson with violating DR 1 — 102(A)(1), (4), (5), and (6). It alleged his conduct was dishonest and deceitful, prejudicial to the administration of justice, and adversely reflected on his fitness to practice law. Thompson eventually stipulated that his conduct violated the Iowa Code of Professional Responsibility for Lawyers. He also acknowledged in a stipulation that the violation should result in a suspension of his license to practice law for three months.

The Commission found the Board established the violations. It recommended Thompson be suspended from the practice of law for eighteen months. It also recommended that any reinstatement be conditioned on the submission of a mental health evaluation and the successful completion of the ethics portion of the Iowa Bar Examination (the Multistate Professional Responsibility Examination, or MPRE).

III. Scope of Review.

We review attorney disciplinary matters de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002). We give the findings of the Commission weight, but are not bound by them. Id.

IV. Violation.

A lawyer who forges a signature on a court documents violates DR 1-102(A)(4), (5), and (6). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90, 92-93 (Iowa 2001) (finding the lawyer’s “deceit and misrepresentation,” which included forging signatures on court documents, violated these rules and others). Forging a signature involves dishonesty, fraud, deceit, and misrepresentation. See DR 1-102(A)(4). It is prejudicial to the administration of justice. See DR 1-102(A)(5). Finally, it adversely reflects on the fitness of a lawyer to practice law. See DR 1-102(A)(6). Honesty is a fundamental, base line requirement to the practice of law. Comm. on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990).

V.Discipline.

We focus on a variety of factors in determining the level of discipline, including the nature of the underlying violation, need to deter, public protection, protection of the reputation of the legal profession, and the respondent’s fitness to practice law. low a Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 646 N.W.2d 111, 113-14 (Iowa 2002). We consider both aggravating and mitigating circumstances. Id. Prior disciplinary history can be an aggravating factor. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 14 (Iowa 2000). Ultimately, the particular facts in each case drive the resulting discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 563 (Iowa 2004).

Other Iowa lawyers have been disciplined in the past for forging court documents. While the facts and circumstances of each of these prior cases are unique and involve other violations, they reveal the seriousness of the conduct and the general range of discipline. In Rylaarsdam, an attorney forged the signature of an administrator of an estate on several documents. 636 N.W.2d at 91. He was suspended from the practice of law for a period of not less than six months. Id. at 93. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 286, 288 (Iowa 1998), an attorney who falsely notarized a signature was suspended for a period not less than six months. In In re Rickabaugh, 661 N.W.2d 130, 133 (Iowa 2003), a reciprocal disciplinary action, an attorney was suspended for three years for conduct that included forgery of a judge’s signature on a fictitious document. In a later case, the same attorney’s license was revoked after committing forgery and other violations again. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007). Numerous other cases demonstrate the seriousness of forging a person’s signature. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 331 (Iowa 2000) (“[W]e note that Lyzenga’s felony forgery conviction ... [is] alone sufficient reason to suspend or revoke her license.”); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 192 (Iowa 1997) (suspending lawyer’s license for three years for conduct that included knowledge of a forgery); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 454 (Iowa 1995) (suspending lawyer’s license for three years for conduct that included forging a signature and notarizing it). Clearly, all forms of dishonesty and misrepresentation are serious violations, and impact many of the factors used in determining the appropriateness of discipline. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 294 (Iowa 2002) (“Considering the importance of honesty to our profession, we have stated that misrepresentation by a lawyer ‘constitutes a grave and serious breach of professional ethics’ and generally results in ‘a lengthy suspension.’ ” (Citation omitted.)).

In this case, we identify two aggravating factors that impact the imposition of discipline. First, the forgery was a bold, clear and calculated act of dishonesty. Unlike cases involving the forged signature of a client where a lawyer may feel a false sense of justification as a representative agent, it is hard to imagine how a lawyer could ever possess even a momentary sense of justification in forging the signature of a judge on a court order. See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Hall, 728 N.W.2d 383, 385-87 (Iowa 2007) (signing client’s name to a bankruptcy petition). Second, the history of discipline in this case involves similar conduct. See Lemanski, 606 N.W.2d at 14 (noting the similarity between a lawyer’s previous disciplined conduct and current charge, and stating it “is a factor we consider in fixing the appropriate discipline”); Comm. on Prof'l Ethics & Conduct v. Gill, 479 N.W.2d 303, 305-06 (Iowa 1991) (suspending a lawyer’s license for three months and noting the lawyer had been publicly reprimanded for similar conduct in the past).

On the other hand, we find only one mitigating circumstance. Generally, depression can be a mitigating factor in the imposition of discipline. However, depression cannot be fully understood as a mitigating factor without evidence of the relationship between the depression and the unethical conduct. See Grotewold, 642 N.W.2d at 295 (“[T]he full extent of depression as a mitigating circumstance in the imposition of discipline necessarily relates to the relationship between the unethical conduct and the depression.”). In this case there was no evidence to establish a relationship between the depression and the unethical conduct, or that the depression was otherwise a mitigating factor. Id. at 297 (finding a relationship between lawyer’s depression and his unethical conduct). However, “[a] mitigating factor is the attorney’s recognition of some wrongdoing.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Tofflemire, 689 N.W.2d 83, 93 (Iowa 2004). Thompson self-reported his conduct to the Board and stipulated to the Commission that he violated our disciplinary rules.

Under all the circumstances, we conclude Thompson should be suspended from the practice of law for an indefinite period of time, with no possibility of reinstatement for nine months. His conduct was serious and fraudulent. With his prior history of a similar violation, this discipline comports with our prior cases. This rationale supports the recommendation of the Commission to condition any application for reinstatement upon successful completion of the MPRE.

VI. Conclusion.

We suspend Thompson’s license to practice law in Iowa indefinitely, with no possibility of reinstatement for a period of nine months from the filing of this opinion. In addition, Thompson must successfully complete the MPRE prior to reinstatement. See Iowa Ct. R. 31.3(2) (requiring a scaled score of at least 80 for admission to the bar). The suspension imposed applies to all facets of the practice of law as provided by Iowa Court Rule 35.12(3), and requires notification to clients as provided in Iowa Court Rule 35.21. The costs of these proceedings are taxed against Thompson pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.

All justices concur except STREIT, J., who takes no part.