Opinion
OP 22-0099 OP 22-0100
04-19-2022
STATE OF MONTANA, DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, CHILD AND FAMILY SERVICES DIVISION, Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT, CASCADE COUNTY, HON. ELIZABETH A. BEST, Presiding, Respondent. D.H., Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT, CASCADE COUNTY, HON. ELIZABETH A. BEST, Presiding, Respondent.
ORDER
Petitioner State of Montana, Department of Public Health and Human Services, Child and Family Services Division (CFSD), and Petitioner D.H. (Mother), via their respective counsel, have each petitioned this Court for a writ of supervisory control pursuant to Article II, Section 2(2), of the Montana Constitution and M. R. App. P. 14(3). CFSD and Mother ask this Court to vacate the District Court's January 12, 2022 Order Granting Youths' and GAL's Motion to Amend Petitions (January 12, 2022 Order) and to strike the January 20, 2022 Amended Petition to Terminate Parental Rights of Birth Mother (January 20, 2022 Petition) in the Eighth Judicial District Court, Cascade County, Cause Nos. BDN-18-208 and BDN-18-209. At our request and pursuant to M. R. App. P. 14(7), counsel for youths and the youths' guardian ad litem (GAL) have responded to the petitions.
The underlying matter is a dependent neglect proceeding under Title 41, MCA. In February 2018, Mother sought shelter with family members in Montana along with her three children, including M.H., age 10, and N.H., age 12. The children's birth father (Father) was arrested after an incident of domestic violence.
Father was ultimately convicted and incarcerated as a result of that incident. His parental rights have since been terminated, and the proceedings involving Parents' third child are not relevant to the present petitions for writ of supervisory control.
Several months later, Mother returned to Father out-of-state, leaving M.H. and N.H. with her Montana relatives. In July 2018, CFSD petitioned for emergency protective services (EPS), temporary legal custody (TLC), and adjudication as youths in need of care (YINC) for M.H. and N.H. CFSD allowed the children to remain in the care of Mother's relatives as a kinship placement. M.H. and N.H. continue to reside in this placement.
After CFSD became involved, Mother left Father and returned to Montana, living separately from the children. On September 20, 2018, the District Court adjudicated the children as YINC and granted TLC to CFSD. A short time later, the court appointed an attorney to represent the children and approved a treatment plan for Mother.
A year later, the District Court ordered that CFSD was not required to pursue further family counseling or visitation between M.H., N.H., and Mother because the children did not want to participate and did not want to reunify with Mother.
In January 2020, the court appointed an attorney guardian ad litem (GAL) for the children. On March 12, 2020, the court held a hearing on several pending issues, including a permanency plan for the children. In the resulting Order, the court asserted that Mother was progressing on her treatment plan but the children wanted her parental rights terminated, and a CFSD Child Protection Specialist (CPS) explained that CFSD was considering placing the children in a guardianship with their current kinship placement. The court approved the permanency plan that CFSD had proposed "as modified by the Court during the hearing." From the limited record before us, it appears CFSD modified its proposed permanency plan to include termination of Mother's parental rights as a permanency option.
On June 11, 2020, the District Court issued a post-status hearing order. In relevant part, the court asserted that CFSD had submitted the case for guardianship approval over the objection of the children's attorney and GAL. The court ordered CFSD to withdraw the submission and to engage in further discussions with all parties.
In September 2020, CFSD moved to extend TLC. In the accompanying affidavit in support, the CPS attested that Mother had met the conditions for reunification but CFSD intended to seek guardianship because M.H. and N.H. remained opposed to reunification. The CPS further stated, "[CFSD] does not believe termination is appropriate based on the progress and changes in Birth Mother's behaviors." The District Court granted extension of TLC.
CFSD again moved to extend TLC in April 2021. The accompanying affidavit in support of the motion was submitted by a newly assigned CPS who attested that she had conducted a full case review and interviewed the involved parties. The CPS found M.H. and N.H. wanted Mother's parental rights terminated. However, the legal criteria to petition for termination had not been met because Mother had completed her treatment plan and met all conditions for reunification except for visitation and family therapy, which the District Court had discontinued pursuant to the children's request. Because CFSD had not found sufficient grounds to support termination and because reunification could not be achieved due to the children's preferences, CFSD concluded a guardianship was appropriate.
Shortly after CFSD filed the motion and affidavit, the parties submitted briefing addressing the question of whether anyone other than CFSD may petition for termination of parental rights. While CFSD asserted that under Title 41, Chapter 3, MCA, it had the sole legal authority to petition for termination of a parent's rights, the children argued that the court could in its discretion modify that petition to a petition for termination.
On July 29, 2021, the District Court convened a status and permanency plan hearing at which CFSD asserted that it could find no legal grounds to petition for termination. Mother did not oppose guardianship. The children's counsel argued that termination was in their best interests. The court ordered the parties to further brief the issue of whether it could order termination over CFSD's objection.
On September 17, 2021, the District Court issued Findings of Fact and Conclusions of Law regarding the permanency plan. In part, the court found that Mother had completed her treatment plan, but the court concluded that termination of parental rights was in the children's best interest.
On October 7, 2021, the court ordered the Department to petition for termination within 45 days, further asserting, "If counsel for the Department continues to believe that she cannot ethically file for termination . . . [she] shall determine whether other qualified counsel . . . who do not share that conclusion are available to file the petitions. If she cannot locate such counsel, she shall advise this Court... which will make other procedural arrangements within its express or implied authority for the effectuation of this approved permanency plan." After this order, new counsel was substituted for the Department. The new counsel likewise concluded there was insufficient evidence to petition for termination and advised the court of such during a hearing in December 2021.
The children's counsel then orally moved the court to amend "the initial petition" to a petition for termination. The District Court ordered the children's counsel to file a written motion to amend. Counsel did so, with CFSD and Mother responding in opposition to the motion.
After the motion was fully briefed, the District Court issued the January 12, 2022 Order, in which the court found probable cause for the filing of a petition for termination. The court then filed the January 20, 2022 Petition, signed by Hon. Elizabeth A. Best. These petitions for writ of supervisory control followed.
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).
In this case, the purely legal question is whether a District Court Judge may sign and file a petition for termination of parental rights over CFSD's objection. Although the children's GAL asserts that this case as a whole contains factual issues yet to be resolved, those factual disputes are irrelevant to the present legal issue and are therefore not a bar to consideration of this petition. Furthermore, while the children's counsel alleges that the issue of whether a petition for relief should be modified under § 41-3-422(1)(b), MCA, is a discretionary issue and therefore not susceptible to writ of supervisory control, the issue here is not whether the petition should be modified but whether the petition can be modified when the court amended, signed, and filed the petition over the objection of the original petitioner. The issue is not a question of abuse of discretion but rather a question of legal error.
To be susceptible to review via writ of supervisory control, the issue must also have no adequate remedy on appeal. M. R. App. P. 14(3). Here, CFSD asserts that appeal will not provide an adequate remedy because a delay in permanency is against the children's best interests. Mother also argues that no remedy exists on appeal if this matter is allowed to proceed because the District Court is acting outside its authority by attempting to serve as both prosecutor and factfinder. The GAL asserts that the normal appeal process is not inadequate because no emergent or urgent factors exist. The children's counsel also asserts that no emergency exists because the children's placement will not be affected by the resolution of this dispute as they will remain with their kinship placement regardless of whether Mother's parental rights are terminated.
In S.P. v. 6th Judicial Dist. Court, OP 21-0194 (Mont. June 22, 2021), we considered a petition for writ of supervisory control where the petitioner was a parent faced with involuntary termination of parental rights under Title 42 and the District Court had refused to appoint her counsel because it determined she was not eligible. In considering whether S.P. had an adequate remedy on appeal, we found that "grounds beyond merely conserving resources allow this petition to proceed because prolonging this litigation would not be in the child's best interest and it would unquestionably be reversible error if the District Court erred in denying Mother appointed counsel." Similarly in the present case, if the District Court erred by signing a petition for termination of parental rights over the Department's objection, this would be reversible error. Prolonging the present litigation- including conducting a termination hearing-would not be in N.H. and M.H.'s best interests, the arguments of their attorney and their GAL notwithstanding. See also J.C. v. Eleventh Judicial Dist. Court, 2008 MT 358, ¶ 13, 346 Mont. 357, 197 P.3d 907 (supervisory control appropriate where allowing case to proceed could result in termination of a parent's fundamental constitutional right to parent their child). We therefore consider whether the District Court operated under a mistake of law when it amended CFSD's petitions for EPS, TLC, and YINC adjudication to be petitions for termination, and whether the District Court erred in signing and filing a petition for termination of Mother's parental rights over CFSD's objection.
In the January 12, 2022 Order, the District Court found that probable cause existed for the filing of a petition to terminate Mother's parental rights because it had approved a permanency plan that included termination as an option, even though the court acknowledged that CFSD believed there were insufficient grounds to petition for termination. The District Court then ruled that § 41-3-422(1)(b), MCA, granted it the power to amend the initial petition. It granted the children's motion to amend and ordered their counsel to prepare and submit a proposed amended petition for termination of Mother's parental rights. After counsel did so, the court signed and filed the January 20, 2022 Petition. The court asserted that, pursuant to § 41-3-422(1)(b), MCA, it was modifying and amending CFSD's September 18, 2018 Petition for Adjudication of the children as YINC to be a Petition to Terminate Parental Rights of Birth Mother.
Section 41-3-422(1)(b), MCA, provides that a petition filed to initiate abuse or neglect proceedings under Title 41, Chapter 3, MCA, "may be modified for different relief at any time within the discretion of the court." In their respective petitions before this Court, CFSD and Mother each argue that the District Court misinterpreted § 41-3-422(1)(b), MCA. CFSD points out that § 41-3-422(2), MCA, provides that only the county attorney, attorney general, or an attorney hired by the county shall file petitions under Title 41, Chapter 3, MCA. It argues that while § 41-3-422(1)(b), MCA, provides for the modification of the relief sought within a petition filed under the statute within the court's discretion, the court cannot modify the petition over the objection of the petitioner. Mother concurs, further asserting that § 41-3-422(3), MCA, provides that an abuse and neglect petition is "a civil action brought in the name of the state of Montana" and therefore only the executive branch may bring such petition.
The children rely on three cases in support of their assertion that the District Court had the authority to modify CFSD's initial petitions: In re C.L.R., 211 Mont. 381, 685 P.2d 926 (1984); In re S.P., 241 Mont. 190, 786 P.2d 642 (1989); and In re B.S., 2009 MT 98, 350 Mont. 86, 206 P.3d 565.
In In re C.L.R., the child's parents stipulated to YINC adjudication. However, evidence at the adjudication hearing revealed that the father would be unavailable to parent because he was incarcerated and expected to remain so for at least 18 more years. Because the court concluded that no treatment plan was feasible for him, it amended the petition to a petition for termination of father's parental rights-and ultimately terminated his parental rights. In re C.L.R., 241 Mont, at 383, 685 P.2d at 927. On appeal, this Court upheld termination. In re C.L.R., 241 Mont, at 3 86, 685 P.2d at 926.
In re S.P., "certain procedural irregularities" occurred at the District Court level: Among these irregularities, CFSD initially petitioned for temporary investigative authority (TIA) and did not request TLC or that the children at issue be adjudicated as YINC. However, the District Court allowed CFSD to amend its pleadings and it granted TLC and YINC adjudication. No party objected to CFSD's request to amend its pleadings and this Court found no error on appeal. In re S.P., 241 Mont, at 194-95, 196, 786 P.2d at 644-45, 646.
In In re B.S., CFSD initially petitioned the court for TIA and EPS for two children. In re B.S., ¶ 9. During a hearing regarding the TIA status, the District Court sua sponte found probable cause to adjudicate the children as YINC. CFSD then moved the court to enter an order finding that CFSD had made reasonable efforts to prevent removal of the children and the court did so. In re B.S., ¶ 11. On appeal, this Court concluded that the District Court did not err in adjudicating the children as YINC because. it was one type of relief that could be sought in a petition filed under § 41-3-422(1)(a), MCA; a petition filed under Title 41, Chapter 3, MCA, can be modified for different relief at any time within the court's discretion under § 41-3-422(1)(b), MCA; and § 41-3-432(9), MCA, allows a court to adjudicate a child as a YINC at the initial show cause hearing. In re B.S., ¶ 19. Analogous to the present matter, CFSD had not petitioned for adjudication of the children as YINC because it believed it did not have sufficient evidence to establish that the children were youths in need of care. However, the District Court found that sufficient evidence existed to support adjudication. In re B.S., ¶ 23. On appeal, this Court determined that the District Court did not err in finding that CFSD had presented sufficient evidence to support adjudication. In re B.S., ¶24.
However, the critical fact distinguishing the present matter from In re C.L.R., In re S.P., and In re B.S. is that CFSD did not object to the courts' modification of CFSD's petitions for different relief pursuant to its statutory authority and the petitions, although modified or amended in the court's discretion, remained CFSD's petitions. In this case, the District Court acted over CFSD's objection and ultimately signed the amended petition when CFSD would not.
The present situation is more akin to State ex rel. Fletcher v. Dist. Court, 260 Mont. 410, 859 P.2d 992 (1993). In Fletcher, 24 individuals petitioned this Court for a writ of supervisory control over a District Court that denied motions to dismiss their criminal cases, which the petitioners alleged warranted dismissal because of "outrageous government conduct." Fletcher, 260 Mont, at 412-13, 859 P.2d at 993. The District Court cases were stayed, and after the petition for writ of supervisory control was fully briefed, this Court lifted the stay for the limited purpose of allowing the District Court to consider motions, to dismiss which had been filed by the county attorney at the direction of the. Attorney General. After that hearing, the District Court dismissed two of the cases but denied dismissal of the remaining 22. Fletcher, 260 Mont, at 413, 859 P.2d at 994. With leave of the District Court, the Attorney General then filed a brief in support of the motions to dismiss, in which the Attorney General asserted that insufficient untainted evidence supported prosecuting the 22 remaining cases and he asked the District Court to dismiss those cases without prejudice. The court denied dismissal. Fletcher, 260 Mont, at 413, 859 P.2d at 994.
This Court ordered additional briefing on the pending petition. We held that in denying the lawful motions to dismiss, the District Court abused its discretion by intruding upon the prosecutorial discretion of the county attorney and Attorney General, and it violated separation of powers. Fletcher, 260 Mont, at 417, 859 P.2d at 996. We concluded that the Attorney General and county attorney had legitimately exercised their respective authority in moving to dismiss the cases and the lack of sufficient, untainted evidence gave them good cause to do so. We stated, "When they are acting lawfully and within their constitutional and statutory authority, the district court may not interfere in the prosecutorial functions of the Attorney General and the county attorney - the executive branch - without violating the separation of powers embodied in Article III, Section 1 of the Constitution of the State of Montana." Fletcher, 260 Mont, at 418, 859 P.2d at 997.
In the present matter, § 41-3-422(2), MCA, provides the pertinent authority for petitions under Title 41, Chapter 3, MCA: "The county attorney, attorney general, or an attorney hired by the county shall file all petitions under this chapter." The District Court erred as a matter of law when it concluded that someone other than the aforementioned may file a petition to terminate parental rights, and it violated Mont. Const, art. Ill. § 1, when it filed the January 20, 2022 petition ostensibly under its own authority.
Having considered the petitions and responses filed, we conclude the District Court erred as a matter of law in amending the initial petitions filed in its Cause Nos. BDN-18-208 and BDN-18-209. We conclude that the District Court erred in filing its own petition to terminate Mother's parental rights. Therefore, supervisory control is warranted pursuant to M. R. App. P. 14(3).
IT IS THEREFORE ORDERED that this Petition for a Writ of Supervisory Control is ACCEPTED and GRANTED.
IT IS ORDERED that the District Court's January 12, 2022 Order Granting Youths' and GAL's Motion to Amend Petitions is VACATED.
IT IS ORDERED that the District Court's January 20, 2022 Amended Petition to Terminate Parental Rights of Birth Mother is STRICKEN from the record.
IT IS ORDERED that this matter is REMANDED to the District Court for further proceedings consistent with this Order.
The Clerk is directed to provide immediate notice of this Order to counsel for each Petitioner, all counsel of record in the Eighth Judicial District Court, Cascade County, Cause Nos. BDN-18-208 and BDN-18-209, and the Honorable Elizabeth A. Best, presiding.