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In re S.Y.

Supreme Court of Montana

August 20, 2019

IN THE MATTER OF: S.Y., A Youth in Need of Care.

          Submitted on Briefs: July 24, 2019

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN-15-25 Honorable Karen Townsend, Presiding Judge

          For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Santa Fe, New Mexico

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Kelly Henkel, Deputy County Attorney, Missoula, Montana


          Mike McGrath Chief Justice

         ¶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 K.P. (Putative Father) appeals from an order of the Fourth Judicial District Court, Missoula County, terminating his parental rights to S.Y. (Child). We affirm.

         ¶3 Child was born in May 2013 in Great Falls, Montana. At the time of Child's birth, Mother was married to A.C.Y. (Presumptive Father), who was in prison. Presumptive Father's name appears on Child's birth certificate. The Montana Department of Health and Human Services, Child and Family Services Division (Department), initially petitioned for the termination of Presumptive Father's parental rights. However, at a September 5, 2017 hearing, the Department learned that Presumptive Father was not Child's biological father. A paternity test later confirmed that K.P. (Putative Father) was Child's biological father.

         ¶4 Prior to Child's birth, Mother began dating Putative Father, and Mother and her son, A.Y., [1] moved in with Putative Father in Great Falls. In July 2012, the Department received a report that Mother and Putative Father were using drugs in front of A.Y. The report additionally alleged that Putative Father hit A.Y. in the face. As a result, A.Y. lived with his maternal grandparents for a short time while Mother and Putative Father worked with the Department. A.Y. eventually returned to live with Mother and Putative Father.

         ¶5 In October 2012, Mother became pregnant with Child. Putative Father went with Mother to get a blood test confirming her pregnancy, learned Child's expected due date, and attended prenatal appointments with her. Putative Father told his mother he was excited to be a father.

         ¶6 In April 2013, Mother ended the relationship and told Putative Father that she and A.Y. were moving to Missoula, Montana, because her father was dying. Thereafter, Putative Father tried calling Mother, but she did not return his calls. Putative Father began dating another woman. Mother remained in Great Falls until Child was born.

         ¶7 A mutual friend informed Putative Father when Mother gave birth to Child in Great Falls. Putative Father testified that he went to the Department. The Department sent him to the Great Falls Police Department, which provided him with no assistance. Putative Father did not return to the Department. In August 2013, Putative Father sent eight messages to Mother through social media. Putative Father did not register with the Putative Father's Registry, stating he did not know it existed.[2] While Putative Father knew Mother's maiden name and shared a mutual friend with Mother, he admitted he did not try harder to contact Mother because he did not wish to upset his new girlfriend or disrupt Child's life. Putative Father made no other efforts to locate Mother or Child and made no financial contributions to help support Child over the next five years.

         ¶8 Following Child's birth, Mother, A.Y., and Child, moved to Missoula to live with Mother's parents. When Presumptive Father was released from prison one year later on parole, Presumptive Father, Mother, A.Y., and Child lived together. The Department became involved with Mother and Presumptive Father when Presumptive Father missed a parole appointment. His parole officer went to the house and found hypodermic needles, baggies with methamphetamine residue, and drug paraphernalia. The Department removed Child and A.Y., citing active methamphetamine use in the house and neglect of the children. Presumptive Father returned to prison, and Child has not been in Presumptive Father's care since that time. Presumptive Father has spent the vast majority of this proceeding in custody. On February 25, 2015, the Department filed a petition for Emergency Protective Services (EPS), adjudication as a youth in need of care (YINC), and temporary legal custody (TLC) of Child. The Department placed Child and A.Y. with their maternal grandparents.

         ¶9 Mother and Presumptive Father stipulated to TLC on March 16, 2015, and on May 5, 2016, respectively. The Department developed and the District Court approved treatment plans for Mother and Presumptive Father to complete. On September 9, 2015, the District Court extended TLC and began a trial home visit with Mother. Initially, things went well. However, in February 2016, A.Y. exhibited serious behavioral problems and returned to live with his maternal grandparents. The Department requested two additional extensions of TLC while Mother worked on her treatment plan. The Department's permanency plan was to reunify Child with Mother and to establish guardianship for A.Y. with his maternal ...

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