In re GS

• Decision Date: 07 November 2002
• Docket Number: No. 02-282.,02-282.
• Citation: 2002 MT 245,59 P.3d 1063
• Court: Montana Supreme Court
• Parties: In the Matter of G.S., Jr., and S.S., Youths in Need of Care.

59 P.3d 1063

2002 MT 245

In the Matter of G.S., Jr., and S.S., Youths in Need of Care.

No. 02-282.

Supreme Court of Montana.

Submitted on Briefs August 8, 2002.

Decided November 7, 2002.

Daniel Minnis, Montana Legal Services Association, Billings, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General, Helena, Montana; Tara Depuy, Park County Attorney, Brett D. Linneweber, Deputy Park County Attorney, Livingston, Montana; Dee Killion, Eastern Shawnee Tribe, Seneca, Missouri (Tribal Representative); Vuko Voyich, Livingston, Montana (Guardian ad Litem), for Respondent.

Kristine C. Lizdas, Battered Women's Justice Project, Minnesota Program Development, Inc., Minneapolis, Minnesota, for Amicus.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 After a domestic violence incident between the natural parents of G.S. and S.S. and allegations the father assaulted G.S., the Department of Public Health and Human Services (DPHHS) removed G.S. and S.S. from the custody of their natural mother. The State petitioned the Sixth Judicial District Court for temporary legal custody, and since G.S. and S.S. are Indian children as defined under the Indian Child Welfare Act (ICWA), ICWA was applied. Following the hearing, the District Court found G.S. and S.S. to be youths in need of care and granted DPHHS temporary legal custody of the children for a period of 180 days. The children's natural mother, Jaime, appeals from this order. We affirm.

¶ 2 We restate the issues on appeal as follows:

1. Whether the District Court erred in determining DPHHS employed active efforts to prevent breaking up the Indian family;

2. Whether the District Court's order granting DPHHS temporary legal custody of the two Indian children was supported by clear and convincing evidence; and

3. Whether § 41-3-438, MCA (2001), is constitutional as applied in this matter.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 This case involves two minor children, G.S., now six years old, and S.S., now five, who were declared youths in need of care by the District Court and ultimately placed in therapeutic foster care. The children's natural father, Gary, and the oldest child, G.S., are enrolled members of the Eastern Shawnee Tribe of Oklahoma (Eastern Shawnee Tribe), while S.S. is eligible for enrollment with the Tribe. Therefore, ICWA is applicable to this matter. A representative of the Eastern Shawnee Tribe participated in the disposition of this case in accordance with ICWA.

¶ 4 G.S. and S.S. came to the attention of DPHHS, following a report of domestic violence in Livingston, Montana. Gary, Jaime, and the children were on their way from Missouri to Washington, and stopped in Livingston for the night on November 20, 2001. Later that evening, the couple and their children were visiting downtown Livingston, when Gary allegedly assaulted Jaime outside a local bar, and the police were called. In the mean time, Gary, Jaime, and the children returned to their motel, where Gary again allegedly assaulted Jaime.

¶ 5 Livingston Police Officer, Eric Severson (Severson), responded to the report and located the family at a local motel. When Severson arrived, Jaime answered the motel room door, appearing quiet and subdued and Severson noted her shirt was torn at the right shoulder. Severson observed two small children in the room and described Gary as agitated. Although Jaime was reluctant to report what happened, both children told Severson that Gary had choked Jaime. Severson arrested Gary and transported him to the county jail, while Jaime and the two children remained at the motel. Gary was charged with Partner Family Member Assault, to which he later plead guilty.

¶ 6 The day after the assault, Detective Michelle Morris (Morris) and social worker, Barbara Broughton (Broughton) interviewed the children. During the interview, G.S. explained that the previous night, after Gary assaulted Jaime outside the bar, Gary also grabbed G.S. by the throat and choked him when G.S. attempted to let his mother into the car. Morris observed that G.S. had remnants of a black eye, bruising on his neck, and blotchy red spots on the whites of his eyes. Based upon these observations and G.S.'s statements, Morris concluded G.S. was being truthful. Upon examining G.S. that same day, a physician observed bruising consistent with choking or strangulation.

¶ 7 Morris also interviewed Jaime, who was uncooperative at first. Morris explained there were inconsistencies in Jaime's statements, particularly about prior incidents of Gary assaulting her. Morris also observed behavior consistent with lying (fidgeting, breathing heavily, no eye contact, acting nervous), and when she confronted Jaime about her untruthfulness, Jaime began to cry and then admitted that Gary had previously assaulted her on numerous occasions, including when she was pregnant with G.S. According to Morris, Jaime minimized Gary's abuse, explaining he was violent only when he was drunk or on drugs. While Jaime would not admit Gary abused the children, she did tell Morris he was a little overboard in punishments and would slap and drag the children.

¶ 8 Broughton, who had sixteen years of social work experience, was the initial social worker involved with the case. On November 21, 2001, after learning the family was traveling from Joplin, Missouri, Broughton inquired with social services in Missouri before she interviewed Jaime and the children. While she discovered there were no records of child abuse or neglect in Joplin, she did learn that Gary and Jaime had left the area without contacting the office of public assistance, from which they had received assistance. Like Morris, Broughton interviewed both Jaime and the children. Broughton testified that in addition to the incident in the car, G.S. told her that at the motel, Gary threw food at them, locked Jaime out of the room, and also grabbed and scratched G.S. Broughton observed bruising on G.S.'s neck and scratch marks on his arm, and G.S. said he was scared of Gary when he threw things and choked him.

¶ 9 Broughton ultimately removed the children after concluding that Jaime had failed to protect the children. This decision was based on the children's presence during a domestic violence incident as well as Gary's physical abuse of G.S. In addition, Broughton noted there was an increased risk to the children considering they were under five years old at the time. Although Broughton knew Gary was incarcerated, after interviewing the children and Jaime, she decided to remove G.S. and S.S. from Jaime's care because of the children's exposure to unreasonable risk and Jaime's failure to protect them. Broughton also considered the fact that Jaime and Gary had left Missouri without notifying the public assistance office of their departure to be a risk factor, and an indication they may flee again. Broughton testified that she initially looked into the local battered women's shelter for Jaime, and admitted the children could have stayed with Jaime at the shelter. However, Broughton was informed that while the shelter may have been secured, there was nothing preventing the residents from leaving, and given the flight risk Jaime posed, Broughton chose to remove the children.

¶ 10 On November 26, 2001, the State filed a Petition for temporary legal custody, and the next day, the District Court signed a temporary order, granting temporary legal custody to DPHHS and set a hearing on the petition for December 7, 2001. After learning G.S. and S.S. were either enrolled or eligible for enrollment with the Eastern Shawnee Tribe, the State filed an amended petition for temporary legal custody on December 3, 2001, and gave notice of the proceedings to the Tribe. The Eastern Shawnee Tribe filed an entry of appearance on December 18, 2001, and the hearing was rescheduled for January 15, 2002.

¶ 11 At the hearing, the State presented testimony from the arresting officer, the emergency room doctor who examined G.S., Morris, Broughton, Stacey Jesson (Jesson), the social worker assigned to the case, and two representatives from the Eastern Shawnee Tribe, Christy Mulholland (Mulholland), and Dee Killion (Killion). Jaime testified on her own behalf and called her counselor, Diane Boehm (Boehm), and Sandra Glenn (Glenn), who worked at the women's shelter, to testify. Gary neither testified, nor called any witnesses.

¶ 12 Jesson, who was assigned to the case after the children were removed, worked on finding placement for the children, and explained there were no family members in the Livingston area with whom she could place the children. Upon discovering that G.S. and S.S. may be Indian children, she contacted their Tribe and also inquired with specialists and resource workers around the state in an attempt to locate a suitable Native American home. According to Jesson, when she informed the Eastern Shawnee Tribe that she was unable to place the children with other tribal members, the Tribe told her that as long as the children were safe, DPHHS was in compliance with ICWA.

¶ 13 Jesson also testified about her interactions with Jaime, and explained that she did not feel Jaime was forthright with her, noting that Jaime initially told Jesson there was absolutely no history of abuse, leaving Jesson to later discover Gary's extensive history of domestic violence. She also noted that Jaime would change her story within minutes of giving a different story. Jesson explained that when she asked Jaime if the family had any previous involvement with Child Family Services, Jaime replied that they had not. However, Jesson discovered that family services in Maine and Florida, where several abuse and neglect allegations had been substantiated, had been involved with the family. Jesson described some of the specific instances of abuse, which included Gary assaulting Jaime when she was pregnant with G.S., and Gary choking Jaime,...