                                                                                            February 24 2015


                                          DA 14-0328

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 59N



IN THE MATTER OF:

J.S., J.S., and J.S.,

         Youths in Need of Care.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause Nos. DN 13-123, DN 13-124,
                        and DN 13-125
                        Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Johnna K. Baffa, Van de Wetering & Baffa, P.C., Missoula, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Missoula, Montana

                        Kirsten Pabst, Missoula County Attorney, Matthew Lowy, Deputy County
                        Attorney, Missoula, Montana



                                                    Submitted on Briefs: February 4, 2015
                                                               Decided: February 24, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(d), 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        R.S. (Father) appeals from an order of the Fourth Judicial District Court, Missoula

County, terminating his parental rights to his three children, J.S., J.S., and J.S. We

affirm.

¶3        The issue on appeal is whether substantial evidence supported the District Court’s

finding that the circumstances related to the prior termination of Father’s parental rights

to several of his other children are relevant to his ability to care for the children in the

present case.

¶4        The children involved in this proceeding are a 16-year-old boy, a 12-year-old girl,

and a 10-year-old girl. The family has an extensive history of involvement with child

protective services in multiple states. The children report that their parents have 14

children altogether, although Child Protection Specialist Taryn Kovac was able to

confirm the identities of only nine. The three children in the present case have not seen

their mother for approximately six years, and she could not be located during these

proceedings.1



          1
              Mother’s rights were also terminated, but only Father is party to this appeal.


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¶5     In 1993, the family was residing in various locations around Missoula and Ravalli

counties. The Department of Public Health and Human Services (Department) removed

four children, ranging in age from seven to three, from their parents’ care in

circumstances of severe abuse and neglect. The children had witnessed severe domestic

violence and sexually inappropriate behavior.        The oldest boy exhibited “extreme

noncompliant, destructive and manipulative behavior.” The oldest girl demonstrated “no

range of emotion,” and there were significant indications that she had been sexually

abused. The younger boy had reportedly “decided that death was preferable to being

returned” to his parents. While the children were in care, the parents had another baby, a

girl. The infant was removed from the parents’ care three days after her birth. The

parents’ rights to all five children were terminated on February 20, 1996, after testimony

indicating that the four older children all had attachment disorders and post-traumatic

stress disorder resulting from abuse and neglect. There was also testimony that the infant

girl “would be at a very high risk for sexual and emotional abuse if she were returned” to

the parents.

¶6     For the next several years, the family moved from state to state, often fleeing child

protective services. During this period, Mother and Father separated. On December 5,

2013, the three children in the present case traveled from Eagle, Alaska, a small village

where they had been living with Father, to Missoula. The purpose of the journey was to

“get the family back together,” because Father intended to marry his 19-year-old

daughter—the infant girl to whom his parental rights had previously been terminated. On

December 10, 2013, Kovac received a referral indicating that law enforcement was


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investigating reports that Father was having an incestuous relationship with his daughter,

who is apparently developmentally disabled. The report indicated that the three children

were living with Father and his 19-year-old daughter; they were aware that the young

woman was their biological sister and Father’s biological daughter; and they were aware

of and had witnessed the father-daughter sexual relationship.

¶7     Kovac observed that the 16-year-old boy exhibited “extreme oppositional

behaviors,” and “freely admit[ted] his ‘violent rages,’ his hatred of his younger sisters

and his near successful attempts to convince his mother to ‘give them away’ . . . .” He

had a “noticeable stench of urine.” When Kovac initially met the 12-year-old girl at First

Step, the girl repeated to herself and her younger sister, “they are strangers, do not talk to

them.” Both she and her older brother “demonstrate[d] anti-social behavioral traits with

flat affects.” The 10-year-old girl appeared “not grounded with reality, or able to express

herself,” which Kovac believed was “consistent with exposure to abuse, neglect, and

isolation from society.” The two girls “appeared absolutely emotionless” upon being

removed from Father’s care only five days after arriving in a strange town. Kovac

observed that the girls’ emotionless behaviors were “similar, if not identical, to the

behaviors their elder siblings displayed in psychological and behavioral evaluations in the

1990s.”

¶8     On December 17, 2013, the Department petitioned for the termination of parental

rights and a determination that reasonable efforts to provide reunification services were

not required, on the basis that the parents’ rights to the children’s siblings had previously

been involuntarily terminated under circumstances relevant to the parents’ ability to


                                              4
adequately care for the children at issue. A hearing was held April 9, 2014, at which

Kovac testified. The District Court, which had also presided over the 1996 terminations,

took judicial notice of the facts and testimony previously submitted. The District Court

found that reunification services were not required and terminated the parental rights of

Mother and Father with respect to the three children.

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

In re J.W., 2013 MT 201, ¶ 25, 371 Mont. 98, 307 P.3d 274. We review a district court’s

conclusions of law for correctness and its findings of fact for clear error. J.W., ¶ 25. A

finding is clearly erroneous if it is not supported by substantial evidence, if the district

court misapprehended the effect of the evidence, or if we are left with the definite and

firm conviction that a mistake has been made.           In re S.B.C., 2014 MT 345, ¶ 17,

377 Mont. 400, 340 P.3d 534.

¶10    A district court may order termination of the parent-child legal relationship

without requiring the Department to provide reunification services if the court finds that

the parent’s rights to another child have been involuntarily terminated under

circumstances relevant to the parent’s ability to care for the child at issue. Sections

41-3-423(2), -609(1), MCA. The record before the District Court demonstrated that the

circumstances of the previous termination included concerns about sexual abuse of one or

more of the girls in the family, significant violent and anti-social behaviors by the boys in

the family, and emotionless affect and attachment disorders present in all of the children.

The same concerns are still clearly present with respect to these three children: the

16-year-old boy exhibits extreme oppositional tendencies and violent rages; the


                                             5
12-year-old girl shows no emotion, even in circumstances that would ordinarily be

extremely distressing to a young child; and the 10-year-old girl showed signs of severe

neglect and lack of attachment. At the time of the previous termination, testimony

indicated that Father’s infant daughter would be at significant risk of sexual abuse if she

remained in his care; Father is currently charged with incest as the result of a sexual

relationship with that daughter, now a developmentally disabled adult. The condition of

the children is nearly identical to that of their older siblings almost 20 years ago. There

was substantial evidence supporting the District Court’s finding that the circumstances of

that termination remained relevant to Father’s ability to care for the children presently at

issue.

¶11      We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for memorandum opinions. The District

Court’s findings of fact are supported by substantial evidence, and there clearly was no

abuse of discretion.

¶12      Affirmed.

                                                 /S/ LAURIE McKINNON

We Concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




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