                                                                                            04/11/2017


                                          DA 16-0483

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 85N



IN THE MATTER OF:

G.S. and A.S.,

            Youths in Need of Care.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause Nos. DN 15-242 and
                        DN 15-256
                        Honorable Ingrid Gustafson, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Madison L. Mattioli,
                        Assistant Attorney General, Helena, Montana

                        Scott D. Twito, Yellowstone County Attorney, Billings, Montana



                                                    Submitted on Briefs: February 1, 2017

                                                               Decided: April 11, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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     M.S. (Mother) appeals the Thirteenth Judicial District Court’s termination of her

parental rights to G.S. and A.S. We affirm.

¶3     Mother and D.S. (Father) are the biological parents of minor children G.S. and A.S.

G.S. is currently four years old and A.S. is twenty-two months old. Mother and Father are

also the parents of twins, Z.L.S. and D.P.S., born in 2012. The State asserts that Mother

and Father are the parents of J.L., born in 2014, as well. Mother denies giving birth to J.L.

but DNA testing shows Mother and Father are the natural parents of G.S. and A.S. and that

the DNA of J.L., G.S., and A.S. are a 99 percent match. J.L. was abandoned at a hospital

when he was nine days old and has lived in foster care since that time. The hospital took

a photograph of the woman who left him at the hospital and it was later confirmed to be

Mother, although she identified herself as someone else at the time.

¶4     Between 2000 and 2010, Mother gave birth to four other children with four different

fathers. Mother’s rights to those four children, as well as her rights to Z.L.S. and D.P.S.,

were terminated involuntarily through multiple proceedings between 2003 and 2013.

Father’s rights to Z.L.S. and D.P.S. were terminated in 2013 as well.


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¶5     On July 7, 2015, after receiving a report regarding the welfare of children living

with Mother and Father, a Child Protective Specialist (CPS) with the Department of Public

Health and Human Services (DPHHS or Department) Child and Family Services Division

(CFSD) made an unannounced visit to their home. The CPS learned during this visit that

both G.S. and infant A.S. had been born at home without medical or midwife assistance.

Neither child had a birth certificate1 or Social Security number nor had they received

recommended immunizations. A.S. had not seen a doctor since her birth a few weeks

earlier. As both parents were known to the Department as drug users, the CPS asked the

parents to submit to drug testing. Father agreed and tested positive for amphetamine and

methamphetamine. Mother refused to be tested.

¶6     Based upon the unsafe conditions of the home, Father’s positive drug test, and the

parents’ past terminations, the children were taken into emergency protective custody and

placed into kinship care with their twin siblings, Z.L.S. and D.P.S. G.S. and A.S. were

adjudicated as youths in need of care in July 2015. Following multiple delays, multiple

hearings, and the short-term incarcerations of both parents, in March 2016 DPHHS filed

an amended petition based upon § 41-3-423(2)(e), MCA, seeking a ruling that the

Department was not required to provide reunification services. It indicated that it was

seeking permanent legal custody and termination of parental rights to all three children:

G.S., A.S. and J.L.




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         DPHHS obtained birth certificates for both children after parents’ DNA testing confirmed
that they were the natural parents.
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¶7     Following a May 2016 hearing, the District Court issued its July 20, 2016 order

determining that reunification services were not necessary, terminating the parental rights

of both parents and granting permanent legal custody to DPHHS with the right to consent

to adoption or guardianship of G.S., A.S., and J.L.

¶8     Mother appeals the orders pertaining to G.S. and A.S. Father does not appeal.

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

In re J.W., 2013 MT 201, ¶ 25, 371 Mont. 98, 307 P.3d 274. A district court abuses its

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

excess of the bounds of reason, resulting in substantial injustice.” In re M.J., 2013 MT 60,

¶ 17, 369 Mont. 247, 296 P.3d 1197. We review a district court’s factual findings for clear

error. In re A.K., 2015 MT 116, ¶ 20, 379 Mont. 41, 347 P.3d 711. We review a district

court’s application of law for correctness. In re K.B., 2013 MT 133, ¶ 18, 370 Mont. 254,

301 P.3d 836 (internal citations omitted).

¶10    Mother argues on appeal that the District Court abused its discretion when it

interpreted and applied § 41-3-423(2)(e), MCA, and found that the circumstances related

to her prior involuntary parental rights terminations were relevant to her present ability to

parent G.S. and A.S.

¶11    Section 41-3-609, MCA, sets forth the criteria for terminating the “parent-child legal

relationship.” Section 41-3-609(1)(d), MCA, authorizes a court to terminate a parent’s

rights if “the parent has subjected a child to any of the circumstances listed in

41-3-423(2)(a) through (2)(e).”



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¶12    Section 41-3-423, MCA, requires the Department to make reasonable efforts,

among other things, to reunify families that have been separated by the State. The statute

provides exceptions, however. Section 41-3-423(2)(e), MCA, provides, in relevant part:

              (2) Except in a proceeding subject to the federal Indian Child Welfare
       Act, the department may, at any time during an abuse and neglect proceeding,
       make a request for a determination that preservation or reunification services
       need not be provided. . . . A court may make a finding that the department
       need not make reasonable efforts to provide preservation or reunification
       services if the court finds that the parent has:

                                           .   .     .

              (e) had parental rights to the child’s sibling or other child of the parent
       involuntarily terminated and the circumstances related to the termination of
       parental rights are relevant to the parent’s ability to adequately care for the
       child at issue.

¶13    Mother does not dispute that her rights to six previous children were involuntarily

terminated. She asserts that the State failed to establish that the circumstances related to

her earlier terminations are relevant to her current ability to adequately care for the

children. She maintains that she has been drug-free for several years but for two “relapses.”

She claims that she is willing to undergo drug testing and undertake a treatment plan. The

record establishes, however, that while Mother agrees to drug testing, she has refused every

attempt the Department has made since July 2015. The State maintains this is evidence

that Mother continues to be uncooperative with the services provided by DPHHS just as

she was with the other six terminations.

¶14    During the multiple hearings and filings in this case, the State established that:

(1) the condition of Mother and Father’s home was unsuitable and unsafe for children due,

in part, to large quantities of chemicals and cleaning supplies being accessible to the

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children; (2) at the time G.S. was removed from the house, a hair follicle test revealed “high

levels of methamphetamine”; (3) two months after A.S. was removed from the home, and

DPHHS was able to obtain a sufficient hair sample from the infant, A.S.’s hair follicle test

revealed high levels of methamphetamine; (4) Mother repeatedly refused drug testing and

refused to undergo a required psychological assessment; (5) Mother refused to sign releases

allowing DPHHS to access records of counseling attendance and refused to see a licensed

counselor as required by DPHHS; and (6) Mother and Father kidnapped G.S. and A.S. after

a visitation session and were subsequently captured, arrested, and incarcerated. Mother

also was awaiting further criminal proceedings on a charge of possession of

methamphetamine.

¶15    Additionally, the State presented evidence from Mother’s past termination

proceedings, including, but not limited to:             (1) Mother’s long-term use of

methamphetamine; (2) Mother’s failure to make good decisions concerning her children

and to provide a safe environment; and (3) her consistent refusal to take all of the actions

necessary to work the required treatment plans designed to achieve reunifications. DPHHS

representatives familiar with Mother’s case history testified that throughout this proceeding

involving G.S. and A.S., and the previous termination proceedings, Mother was (1)

uncooperative with the services offered by DPHHS, participating in services solely on her

terms or not at all; (2) unable or unwilling to stabilize her environment and learn parenting

skills to provide for the physical, emotional, and medical needs of her children; (3) unable

or unwilling to establish her sobriety; and (4) unwilling to undertake and perform the

necessary actions to successfully complete a treatment plan. The District Court correctly

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ruled that the circumstances related to the terminations of Mother’s rights in earlier

proceedings were relevant to her ability to adequately care for G.S. and A.S.

¶16    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 District Court’s findings of fact are not clearly erroneous. Its interpretation and

application of the law are correct and the court’s ruling was not an abuse of discretion.

¶17    We affirm.


                                                  /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




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