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C.F.W. v. Brown

Supreme Court of Montana

June 26, 2018

C.F.W., Petitioner,


         On June 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.

         In 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 her care.[1]

         The 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.

         On May 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.

         Supervisory 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 cases).

         Section 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 ....

         Section 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.

         Second, 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.

         The Clerk is directed to provide copies of this Order to all counsel of record and to the Honorable John C. Brown.


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