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In re G.S.

Supreme Court of Montana

April 11, 2017

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

          Submitted on Briefs: February 1, 2017

         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

          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.



         ¶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.

         ¶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 certificate[1] 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.

         ¶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 ...

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