Opinion
OP 22-0137
05-04-2022
J.V., Petitioner, v. MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, HON. RIENNE McELYEA, Presiding, Respondent.
ORDER
Petitioner J.V., via counsel, seeks a writ of supervisor control to reverse the Order Granting Extension of Temporary Legal Custody Until May 4, 2022, which was entered in the Eighteenth Judicial District Court, Gallatin County, Cause No. DN-20-74-B, on February 28, 2022. The State of Montana and Hon. Rienne McElyea, presiding Judge, have each responded in opposition to J.V.'s petition.
J.V. is the birthfather of J.A., a child who was removed from his birthmother's care in October 2020 after she attempted to kill herself and the child. At that time, the Department of Public Health and Human Services, Child and Family Services Division (Department) petitioned the District Court for Emergency Protective Services, adjudication of the child as a Youth in Need of Care (YINC), and for Temporary Legal Custody (TLC). In addition to its allegations against J.A.'s birthmother, the Department also alleged J.V. had abandoned J.A. and caused J.A. physical or psychological harm. The Department further alleged it had been unable to locate J.V. J.A. was placed in the care of his adult half-sister in Bozeman.
The District Court adjudicated J. A. as a YINC and granted TLC to the Department.During these initial proceedings, appointed counsel represented J.V. although J.V. had not yet been located. The court also appointed a CASA for the child.
Although the District Court further adjudicated J.A. as a YINC "as to" J.V., this additional adjudication has no substantive effect. "A child is not determined to be a Youth in Need of Care 'as to' anyone. The child is adjudicated a Youth in Need of Care because he or she is being, or [has] been, abused, neglected, or abandoned." In re J.S.L., 2021 MT 47, ¶ 25, 403 Mont. 326, 481 P.3d 833 (quoting In re K.B., 2016 MT 73, ¶ 19, 383 Mont. 85, 368 P.3d 722).
In August 2021, the CASA located J.V. in North Dakota and informed the Department as to J.V.'s whereabouts. After the Department made contact with J.V., he promptly moved to Bozeman to become involved in J.A.'s life.
In November 2021, J.V. moved the court to rescind its adjudication of J.A. as a YINC, or alternatively to place the child in J.V.'s custody and dismiss this dependent-neglect case.
The Department responded to J.V.'s motion and advised the court that it had evaluated J.V. pursuant to § 41-3-438(3)(b), MCA, to determine if he could safely care for the child and it had concluded the court should order the placement of the child with J.V. and dismiss the proceeding pursuant to § 41-3-438(3)(d), MCA. The Department asserted that its investigation uncovered three concerns about J.V.: between 2009 and 2011, J.V.'s three older children were placed in the custody of their birthmother after allegations of abuse or neglect were raised against J.V. in North Dakota and Minnesota; J.V. has a criminal history, including an assault conviction in 2017; and J.V. had no relationship with J.A., who had been told that he had no father. However, mitigating those concerns were J.V.'s willingness to relocate to Bozeman, where he found employment and sought suitable housing; J.V.'s prior child protective services involvement, while substantiated, was remote in time; J.V.'s criminal history consisted of misdemeanor convictions; and J.V. was engaged with the Department, actively engaging in supervised visitation with J.A. and voluntarily completing recommended tasks such as participating in a parenting class.
The Department further asserted that placing J.A. with J.V. and dismissing the case was not in J.A.'s actual best interest, however it believed it was the correct result given J.V.'s fundamental right to parent. The Department largely used its response to J.V.'s motion as a vehicle to express its displeasure with the court's recent ruling that allowed J.V.'s birthmother to have unsupervised overnight visitation with J.V. The Department asserted, "Given the Court's ruling as to Mother's ability to have unsupervised parenting time, despite her recent attempted murder of J.A., the State cannot, in good faith, argue that Father is an imminent safety risk[.]" We deduce that the Department was not in favor of placing J.A. with either parent; it simply saw J.V. as the better choice given that the District Court had made rulings that furthered the goal of reunifying J.A. with his birthmother.
While J.V.'s motion was pending, the Department petitioned to extend TLC. The court held a show cause hearing on February 11, 2022. During that hearing, the court orally denied J.V.'s motion to rescind adjudication or to dismiss, asserting that the court was unable to assess J.V.'s ability to parent J.A. at this juncture and ordering the Department to develop a treatment plan for J.V. The resulting Order Granting Extension of Temporary Legal Custody Until May 4, 2022 is the subject of J.V.'s petition for writ of supervisory control before this Court.
Supervisory control is an extraordinary remedy that may be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3). The case must meet one of three additional criteria: (a) the other court is proceeding under a mistake of law and is causing a gross injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citations omitted).
This Court has previously found it appropriate to accept supervisory control in a dependent neglect matter where a parent's fundamental right to parent was in danger of termination. J.C. v. Eleventh Judicial Dist. Court, 2008 MT 358, ¶ 13, 346 Mont. 357, 197 P.3d 907. In In re Matter of D.A., 2008 MT 109, ¶ 18, 315 Mont. 340, 68 P.3d 735, we noted that a petition for supervisory control was an "appropriate mechanism to challenge an order of temporary custody." While these cases arose under a previous version of the appellate rule pertaining to extraordinary writs, we find consideration of J.V.'s petition is similarly warranted under M. R. App. P. 14(3). As he points out, without acceptance of his case via extraordinary writ, he will be denied placement of J.A. in his custody, he will be subject to a treatment plan, and he may ultimately be stripped of his parental rights.
Under § 40-6-221, MCA, both the father and mother of a minor child are equally entitled to parent that child, and if one is unable to parent, the other is entitled to do so. It is the Department's policy to consider a noncustodial parent as the first placement option when it removes a child from the care of the custodial parent, unless it has documented evidence of safety concerns with the noncustodial parent. In re E.Y.R., 2019 MT 189, ¶ 28, 396 Mont. 515, 446 P.2d 117 (citing Child and Family Services Policy Manual, § 304-1 (DPHHS 2014), https://perma.cc/95CE-7DBY).
All Child and Family Services Policy Manual provisions cited within this Order remained in effect at all times pertinent to the issues before this Court in the present petition for writ of supervisory control.
In this case, J.V. was not located until months after J.A.'s removal from the care of the custodial parent and after J.A. was adjudicated as a YINC. In In re E.Y.R., ¶ 31, we explained that if a child has been adjudicated a YINC, and no objective demonstrable circumstances of imminent safety risk to the child have been identified, the court may order the temporary placement of the child with the noncustodial parent while keeping the proceeding open to allow the custodial parent to complete a treatment plan or the court may order the placement of the child with the noncustodial parent and dismiss the proceeding. (Emphasis added.) J.V. argues that the District Court erred in this case by failing to place the child with him.
In its response to J.V.'s petition for writ of supervisory control, the District Court asserts that J.V. mischaracterizes himself as a "non-offending" parent, and he fails to appreciate that at the February 11, 2022 hearing, the court heard evidence that demonstrable circumstances of imminent safety risks to J. A. may exist if he is immediately placed in J.V.'s care. The Department likewise asserts that J.V. is not a "non-offending" parent, which it defines, in part, as "a parent whose-child is the victim of abuse or neglect, however this parent did not inflict the abuse or neglect upon the child." Child and Family Services Policy Manual, § 101 (DPHHS 2015), https://perma.cc/Z24C-CDZA. Moreover, it argues that the District Court heard sufficient evidence to support its conclusion that demonstrable circumstances of imminent safety risks to J.A. may exist if he is placed with J.V. at this time.
We review conclusions of law to determine whether the District Court interpreted the law correctly. In re J.B., 2016 MT 68, ¶ 9, 383 Mont. 48, 368 P.3d 715. We agree with the District Court and the Department that the court did not err in determining that J.V. was not a "non-offending" parent and that there were demonstrable circumstances of imminent safety risks to J.A. First, the District Court did not err in determining that J.V. was not a "non-offending" parent as the Department's initial petition alleged that J.V. had abandoned J.A. Section 41-3-102(1)(a)(i), MCA, defines "abandon," "abandoned," and "abandonment" as "leaving a child under circumstances that make reasonable the belief that the parent does not intend to resume care of the child in the future." In this case it is undisputed that J.V. had no contact with J.A. at any point prior to August 2021 and J.A. did not know of J.V.'s existence. Thus the District Court had ample support for its conclusion that J.V. was not a "non-offending" parent.
Second, among the evidence the District Court heard regarding J.V.'s ability to parent was that J.V. had a substantiated history of abuse and/or neglect of his older children that resulted in the involvement of child protective services agencies in North Dakota and Minnesota, with those children ultimately being placed in the care of another parent. While this history was somewhat remote in time, having occurred between 2009 and 2011, there is no evidence before this Court that the circumstances which made J.V. unfit to parent at that time have been addressed and mitigated in the interim. In In re B.H., we pointed out that the Department's Child and Family Services Policy Manual delineated seven circumstances under which it may determine that "good cause to the contrary" exists that a child's safety cannot be assured if the child is immediately placed with the noncustodial parent. Those enumerated circumstances include, ''Child Protective Services history which poses risk to the child[.]" In re B.H., 2020 MT 4, ¶ 43, 398 Mont. 275, 456 P.3d 233 (citing Child and Family Services Policy Manual, § 304-1 (DPHHS 2012), https://perma.cc/8FXV-62VS. That policy further provides that documentation of good cause "result[s] in immediate implementation of a Treatment Plan for the non-custodial parent to address current and past issues.'' In re B.H., ¶ 43 (citing Child and Family Services Policy Manual, § 304-1 (DPHHS 2012), https://perma.cc/8FXV-62VS. In denying J.V.'s motion and ordering the Department to prepare a proposed treatment plan for J.V., the District Court acted in accordance with the applicable statutes and case law. Since the court is not proceeding under a mistake of law, supervisory control is not warranted in this case.
IT IS THEREFORE ORDERED that J.V.'s Petition for Writ of Supervisory Control is DENIED.
The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel of record in the Eighteenth Judicial District Court, Gallatin County, Cause No. DN-20-74-B, and the Honorable Rienne McElyea, presiding.