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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