C.B. and G.S. v. 2nd Judicial District ( 2023 )

0 ;
IGINAL 01/17/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0718
OP 22-0718
FILED
C.B. and G.S., Parents of A.B.,
JAN 17 2023
Bowen Greenwood
Petitioners, Clerk of Supreme
Court
Stattzt of Montane
v.
ORDER
MONTANA SECOND JUDICIAL DISTRICT
COURT, SILVER BOW COUNTY,
HON. ROBERT WHELAN, Presiding,
Respondent.
Petitioners C.B. and G.S., Parents of A.B. (Parents), petitioned for a writ of
supervisory control to vacate the November 28, 2022 Order Extending Temporary Legal
Custody Until Hearing of the Second Judicial District Court, Silver Bow County, in its
Cause No. DN-20-68. In that Order, the District Court granted a motion filed by the
attorney and guardian ad litem (GAL) of A.B., the youth in need of care who is the subject
of the dependent-neglect action. Parents assert that the District Court erred in extending
temporary legal custody on motion of the GAL because the Department of Health and
Human Services is the only entity that is authorized by statute to file such motions. On
Parents' filing, we requested responses and stayed the District Court proceedings pending
consideration of their petition. The District Court, the GAL, and the Department have
responded and urge denial of the petition. Counsel for Father C.B. also submitted a notice
to this Court, clarifying certain filings and notices in the District Court referenced in the
GAL's response. The Court has considered all filings from the District Court, the parties,
and the GAL, including record materials attached to the parties' submissions.
The Parents' petition comes to this Court after more than two years of
dependent-neglect proceedings in the District Court. The Department removed the child
at issue from Mother's care during a time when Father was incarcerated. The court granted
Temporary Legal Custody (TLC) to the Department and ordered treatment plans for both
parents. Without objection, the District Court extended TLC several times, the last time
being a six-month extension ordered in June 2022. Father, in the meantime, had been
released from prison, had relocated to Butte, and sought placement of the child with him.
On November 1, 2022, Father moved to dismiss the dependent-neglect case
pursuant to § 41-3-424, MCA, and submitted a proposed parenting plan. On November 23,
2022, before the six-month extended TLC period expired, the GAL filed a Motion for
Bridge Order Extending Temporary Legal Custody Until Hearing. That same day the
District Court signed an order extending TLC "until this matter can be set for hearing."
Father then moved to amend the Bridge Order to "dismiss this matter upon expiration of
TLC on December 3, 2022." The GAL submitted a written report and recommendations
on December 2, 2022, requesting the court to set a hearing on the Department's pending
petition to terminate Mother's parental rights. Father filed a Notice of Issue on
December 6, advising the court that his motions to dismiss and to amend the Bridge Order
were fully briefed and ready for ruling. The following week, Parents filed their petition
with this Court.
Supervisory control is an extraordinary remedy that is sometimes justified when
urgency or emergency factors exist making the normal appeal process inadequate, when
the case involves purely legal questions, and when the other court is proceeding under a
mistake of law and is causing a gross injustice, constitutional issues of state-wide
importance are involved, or, in a criminal case, the other court has granted or denied a
motion to substitute a judge. M. R. App. P. 14(3). We determine on a case-by-case basis
whether supervisory control is appropriate. Stokes v. Mont. Thirteenth Judicial Dist. Court,
2011 MT 182, 455. 361 Mont. 279, 259 P.3d 754 (citations omitted).
Parents assert that supervisory control is warranted here because the Department did
not petition for extension of TLC, the GAL lacked legal authority to do so, and the District
Court is proceeding under a mistake of law by extending TLC on the GAL's request. The
Department points out that TLC had not expired at the time the GAL filed her motion and
argues that the GAL 's motion was not a petition to extend TLC but filed to alert the court
2
that it had not yet set a hearing on Father's motion to dismiss and that TLC would soon
expire. The Department asserts that the GAL acted appropriately within her statutory
duties to advocate for the child's best interests and welfare and to facilitate moving the
proceedings forward, including resolution of Father's pending motion to dismiss and the
Department's pending petition to terminate Mother's parental rights. The District Court
adds that it issued the Bridge Order to preserve temporary legal custody until the court
could hear oral arguments and address all pending issues and that the Parents filed their
writ petition before the court set a hearing. Both the Department and the GAL assert that
Parents' petition to this Court has only delayed resolution in the District Court. The
Department further represents that the child currently is placed with Father, vitiating the
urgency required for supervisory control.
Having reviewed the various submissions, we conclude that Parents are not entitled
to an extraordinary writ under M. R. App. 14(3). The District Court has before it Father's
motion to dismiss, the Department's petition to terminate Mother's rights, and the report
and recommendation of the GAL. Although Father is correct that the Department is
responsible under the law to request an extension of TLC, we are not persuaded under the
procedural circumstances of this case that the District Court's "Bridge Order" is a mistake
of law that will cause a gross injustice. Further, there are factual matters still to be
determined, including whether the Department will withdraw its petition to terminate
Mother's parental rights or seek a hearing and whether it intends to seek further TLC
extensions and involvement with the family. Parents retain a right of appeal from any final
adverse rulings in the case.
IT IS THEREFORE ORDERED that the stay of proceedings is LIFTED and the
petition for writ of supervisory control is DENIED and DISMISSED.
The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioner, all counsel of record in the Second Judicial District Court, Silver Bow County,
Cause No. DN-20-68, and the Honorable Robert Whelan, presiding.
DATED this /111day ofJanuary, 2023.
3
• 4 ) ,
Justices
4