IN THE MATTER OF: A.J.C., A Youth in Need of Care.
Submitted on Briefs: June 6, 2018
FROM: District Court of the Twentieth Judicial District, In
and For the County of Sanders, Cause No. DN 14-06 Honorable
James A. Manley, Presiding Judge
Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Adele Carter, Attorney at Law, Thompson Falls, Montana (for
L. Zimmerman, Attorney at Law, Thompson Falls, Montana (for
State of Montana)
Brown, Montana Legal Justice, PLLC, Missoula, Montana (for
Appellant Dennis Cromwell, the natural father of A.J.C.
(Father), appeals the September 26, 2017 Order Denying
Department's Motion to Amend the Permanency Plan and
Order of Dismissal, in which the Twentieth Judicial District
Court, Sanders County, determined it was in A.J.C.'s best
interest to reside with his maternal grandmother
(Grandmother) and denied the Department's motion to place
A.J.C. with Father.
We restate the issue on appeal as follows:
Did the District Court violate Father's
constitutional right to parent by denying Father his
fundamental right to care and custody of his child throughout
this dependent neglect proceeding and thereafter by
permanently placing A.J.C. in the primary care of his
grandmother and dismissing this proceeding?
AND PROCEDURAL BACKGROUND
On September 22, 2014, when A.J.C. was 11 years old, the
Department of Health and Human Services, Child and Family
Services Division (Department), filed a Petition for
Emergency Protective Services (EPS) and Temporary
Investigative Authority (TIA) in this dependent neglect (DN)
matter. The Department had received several reports regarding
A.J.C.'s mother (Mother) related to drug use, abuse, and
distribution, and domestic violence. Although Mother had
legal custody of A.J.C., he was frequently in
Grandmother's care. Father, who resided in Oregon, had
not participated in parenting A.J.C. to any significant
degree and had provided only limited support. Father had only
seen A.J.C. in person a few times although he occasionally
spoke to him via telephone.
After the Department became formally involved with Mother, it
formally placed A.J.C. in Grandmother's care. When Father
learned of the Department's involvement, he acted to gain
custody of A.J.C. On October 14, 2014, at the
Department's direction, Father petitioned the District
Court under an action separate from this DN action for a
parenting plan designating him as A.J.C.'s primary
On November 3, 2014, the District Court granted the
Department's petition for EPS and TIA. On November 24,
2014, Father moved for directed disposition and dismissal of
this action. Father asserted he was prepared to parent A.J.C.
and argued that as the non-custodial parent, he was entitled
to immediate placement. Father further argued that
Grandmother had failed to protect A.J.C. from Mother's
neglect. The Department objected, contending Father had an
insufficient relationship with A.J.C. and immediate transfer
of care would force A.J.C. to change schools in the middle of
the school year. The Department further expressed concern
that Father had a criminal history and a previous history of
child protective services (CPS) involvement. The Department
argued that the District Court should allow it to further
investigate the appropriateness of placement with Father
before removing A.J.C. from Grandmother's care.
The Department then petitioned for adjudication of A.J.C. as
a youth in need of care (YINC) and asked the District Court
to grant it temporary legal custody (TLC). On January 13,
2015, the District Court denied Father's motion for
directed disposition and dismissal. Shortly thereafter, the
District Court adjudicated A.J.C. as a YINC and granted TLC
to the Department.
On May 26, 2015, the District Court approved a treatment plan
for Father. The plan required three tasks: (1)
maintain regular contact with A.J.C.; (2) cooperate with an
interstate compact (ICPC) home study; and (3) maintain
regular contact with the Department. The treatment plan's
purposes were: to strengthen the parent-child relationship;
to provide the Department with the necessary information to
determine if it was safe to place A.J.C. in Father's
care; to achieve reunification and establish a permanency
plan; and to determine if Father could provide a stable
On July 17, 2015, the Department petitioned to extend TLC.
The Department acknowledged that Father had maintained
regular contact with it and with A.J.C., was cooperating with
the ICPC home study process, and was hosting A.J.C. for a
six-week visit. However, it alleged Father had not made
sufficient progress on his treatment plan for the Department
to transfer A.J.C. to his care because the ICPC home study
was not yet complete. Father objected to the extension of
TLC, noting that A.J.C. was doing well during his current
visit. Father also contended the ICPC home study was
completed without identification of any significant issues
although a written report had not yet been produced. He asked
the District Court to allow A.J.C. to remain in his care.
On July 31, 2015, the ICPC home study report approved Father
as a placement for A.J.C., noting that Father had made the
necessary changes to his lifestyle to allow him to care for
A.J.C., and that he was "ready, willing and able"
to do so. Thus, by July 31, 2015, Father had indisputably
completed all of his treatment plan's tasks.
On August 11, 2015, the District Court granted the Department
extension of TLC. Although Father had already completed his
treatment plan's tasks, the court nonetheless found that
Father needed additional time to complete his treatment plan.
Even though the ICPC home study report had been issued over a
week earlier, the court ruled, "In order for the child
to be returned home to birth father, the ICPC home study must
be completed with no concerns or any concerns in the ICPC
must be addressed."
On September 8, 2015, the District Court conducted a hearing
to determine A.J.C.'s placement. The court spoke with
A.J.C. alone and off-the-record in chambers. It then heard
the parties' arguments. The Department objected to
placing A.J.C. with Father even though the ICPC home study
had approved placement, asserting it wanted additional time
to obtain more information about Father. The Department
alleged Father had an anger management issue that ...