1, 2018, Petitioner C.F.W. ("Mother") asked this
Court to exercise supervisory control directing the
Eighteenth Judicial District Court, the Honorable John C.
Brown ("District Court"), to conduct a rehearing in
the dependency and neglect cases of In re Kaim. C.,
Cause No. DN-18-10C; In re Kaiz, C., Cause No.
DN-18-11C; In re K. W., Cause No. DN-18-12C, as it
pertains to the emergency removal and foster care placement
of C.F.W.'s minor children. This Court ordered a response
and, on June 21, 2018, the State, on behalf of the Department
of Public Health and Human Services, Child and Families
Division ("DPHHS"), filed its response.
January 2018, following allegations that C.F.W.'s
children were exposed to an unsafe living environment, long
absences from school, witnessing domestic violence and drug
use by parents, and criminal behavior by parents, DPHHS began
an investigation. On March 19, 2018, DPHHS filed petitions
for emergency protective services ("EPS") and
temporary investigative authority ("TIA") for all
three of C.F.W.'s children. The District Court found
there was probable cause supporting DPHHS' request for
EPS and TIA, pursuant to § 41-3-427(2)(a)-(g), MCA. On
March 22, 2018, the children were removed from Mother's
care by DPHHS. On April 2, 2018, Mother filed a written
request stipulating to TIA but challenging the removal of her
children and their placement in foster care. On April 5,
2018, the District Court held a show cause hearing on the
continuing EPS and TIA. At the show causing hearing, Mother
stipulated again to the continuing EPS and TIA, but Mother
testified that the children should be immediately returned to
District Court held that probable cause existed (1) to
believe the children have been abused or neglected, §
41-3-102(3), MCA; (2) for DPHHS to conduct additional
investigations into the allegations of abuse, neglect or
abandonment, § 41-3-433, MCA; and (3) for continued EPS.
The District Court denied Mother's request to immediately
return the children to her care. The District Court continued
EPS and granted TIA for a period of ninety days, beginning
April 5, 2018 and set to expire on or about July 5, 2018,
pursuant to the parents' stipulation. As part of the TIA
conditions, Mother agreed to the following conditions: (1)
obtaining/maintaining safe and stable housing; (2) completing
as assessment for Parent Child Interaction Therapy
and following recommendations of the same; (3) completing
chemical dependency and mental health evaluations and
following recommendations of the same; and (4) submitting to
random UA testing twice weekly.
1, 2018, the District Court held a status hearing during
which Mother's attorney discussed her progress and
compliance with the TIA conditions, and the District Court
agreed Mother was cooperative and on track. On June 1, 2018,
Mother petitioned this Court for a writ of supervisory
control. According to the DPHHS Status Report filed on June
14, 2018, Mother has not complied with TIA conditions: Mother
has not obtained/maintained safe and stable housing; Mother
has not completed the assessment for Parent Child
Interaction Therapy but has completed a chemical
dependency evaluation; Mother completed a mental health
evaluation and diagnosis but has not engaged in mental health
counseling; Mother indicated she is employed, but DPHHS does
not have verification of her employment; Mother has submitted
to some, but not all, of the random UA testing and has tested
positive for controlled substances on all but three tests. On
June 15, 2018, the District Court held a second status
hearing. During the status hearing, Child Protection
Specialist Donna Krause ("Krause") raised concerns
regarding the well-being of the children if they were to be
returned to Mother. Krause stated law enforcement informed
DPHHS that Mother is living in a residence where her name is
not on the lease, and the landlord indicated he does not want
Mother there and will potentially pursue eviction. Krause
recommended Mother complete all of the TIA conditions and
requested the District Court require thirty days of clean
testing with no missed tests prior to placing the children
back with Mother.
control is an extraordinary remedy that is sometimes
justified when (1) urgency or emergency factors make the
normal appeal process inadequate; (2) the case involves
purely legal questions; and (3) in a civil case, the other
court is proceeding under a mistake of law causing a gross
injustice or constitutional issues of state-wide importance
are involved. M. R. App. P. 14(3); see also In re
D.A., 2003 MT 109, ¶ 18, 315 Mont. 340, 68 P.3d 735
(the burden on petitioner to demonstrate the need for
supervisory control is not lessened in dependency and neglect
41-3-427, MCA provides, in pertinent part:
(1)(c) If from the alleged facts presented in the affidavit
it appears to the court that there is probable cause ... that
the child has been ... or is in danger of being abused or
neglected ... [the district court] shall grant [EPS] and the
relief authorized by subsection (2). . . .
(2) if the [district] court finds probable cause . . . the
court may issue an order for immediate protection of the
child. The court shall consider the parents' statements,
if any, included with the petition and any accompany
affidavit or report to the [district] court.... [i]f the
court finds probable cause... the court may issue an order
granting the following forms of relief. ..
(b) the right to place the child in temporary . . .
out-of-home care ....
41-3-427, MCA. The District Court has complied with its
statutory obligation thus far, and Mother has not convinced
this Court to exercise the extraordinary remedy of
supervisory control. First, Mother has not demonstrated
urgent or emergency factors are present, necessitating an
expedited resolution of this case. See M. R. App. P.
14(3). Mother waited two months from the April show cause
hearing to file her petition for writ of supervisory control.
Mother also did not raise objections to the out-of-home
placement at the May 1 and June 15 status hearings, other
than through counsel expressing general concern regarding the
effects of foster care on the children. Mother was provided
with (and continues to have) ample opportunity to contest the
continued out-of-home placement.
Mother has not demonstrated the District Court's rulings
constituted a mistake of law resulting in gross injustice.
See M. R. App. P. 14(3). Mother stipulated to the
EPS and TIA, agreeing to comply with the necessary
requirements. Mother has since failed to fully comply with
the TIA requirements. We see no reason to interrupt the
process at this stage. The District Court should be allowed
to proceed and is in a better position to evaluate the
individual circumstances of the case. Accordingly, IT IS
ORDERED that the petition for a writ of supervisory control
is DENIED and DISMISSED.
Clerk is directed to provide copies of this Order to all
counsel of record and to the Honorable John C. Brown.