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In re K.G.

Supreme Court of Montana

December 3, 2013

IN THE MATTER OF: K.G., K.G., and K.G., Youths in Need of Care.

Submitted on Briefs: November 13, 2013

APPEAL FROM District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADN 12-59 Honorable Julie Macek, Presiding Judge

For Appellant: Kathryn McEnery, McEnery Law Office, PLLCA; Kalispell, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General; Helena, Montana John Parker, Cascade County Attorney, Jennifer L. Quick, Deputy Cascade County Attorney; Great Falls, Montana

OPINION

Michael E Wheat Justice

¶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 D.G., the Birth Father, appeals from the Order of Montana Eighth Judicial District Court, Cascade County, terminating his parental rights to his children, K.G.1, K.G.2, and K.G.3 (collectively, the Children). We affirm.

¶3 On July 26, 2011, the Birth Mother called Benefis Hospital in Great Falls with concerns about K.G.2. At the time, K.G.2 was two months old. K .G.2 has Down Syndrome, as well as medical conditions that require her to have a colostomy bag and a feeding tube. When the Birth Mother brought K.G.2 in to be examined, the examining physician found that she had bruising on her chin consistent with someone grabbing the chin with the thumb and point finger and holding hard. She had "significant" circular-shaped burns on her abdomen and right upper shoulder extremity that had scabbed over. X -rays revealed that she had four broken ribs on her left side and a broken left femur. Her injuries caused severe respiratory failure and she had to be transferred from the Benefis Hospital to Salt Lake C ity. In the expert opinion of the Great Falls examining physician, Dr. Gerrity, it was lucky to get K.G.2 to Salt Lake City alive.

¶4 D.G. eventually confessed to having caused most of the injuries and pled guilty to assault on a minor. He was sentenced to the Department of Corrections for ten years, with five suspended.

¶5 K.G.1 and K.G.2 were removed from their parents' care and adjudicated Youths in Need of Care (YINC) on November 10, 2011. At that time, D.G. testified, he believed that if he did a "boot camp" his parental rights would not be terminated; and that the Department of Public Health and Human Services (the Department) planned to set in place a treatment plan for him. D.G. completed boot camp, anger management classes, parenting classes and a substance abuse course in connection with his sentence.

¶6 The court granted Temporary Legal Custody (TLC) of K.G.1 and K.G.2 to the Department on December 8, 2011. K .G.3 was born in 2012. K .G.3 was adjudicated a YINC almost immediately and the court granted the Department TLC in July, 2012. The State petitioned for termination of parental rights of both parents and for permanent legal custody, as to all three Children.

¶7 The District Court held a hearing on the matter on December 7, 2012. At that hearing, the State requested that D.G.'s rights be terminated pursuant to §§ 41-3-609(1)(d) and 41-3-423(2)(c), MCA. Section 41-3-609(1), MCA, provides, in pertinent part:

(1) The court may order a termination of the parent-child legal relationship upon a finding established by clear and convincing evidence . . . that any of the following circumstances exist: . . .
(d) the parent has subjected a child to any of the circumstances listed in 41-3-423(2)(a) through (2)(e). Section 41-3-609(1)(d), MCA (emphasis added). Section ...

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