AJB and OF v. 18th Judicial District

01/17/2023
OP 22-0621
Case Number: OP 22-0621
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 7A.J.B. and O.F.,
Petitioners,
v.
MONTANA EIGHTEENTH JUDICIAL
DISTRICT COURT, GALLATIN COUNTY,
HON. ANDREW J. BREUNER, Presiding,
Respondent.
ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control
In and For the County of Gallatin, Cause No. DN-16-2022-027-YC
Honorable Andrew J. Breuner, Presiding Judge
COUNSEL OF RECORD:
For Petitioners:
Ryan “Buddy” Rutzke, Office of the State Public Defender, Bozeman,
Montana
Kelly M. Driscoll, Public Defender, Missoula, Montana
For Respondent:
Austin Knudsen, Montana Attorney General, Bjorn Boyer, Assistant
Attorney General, Helena, Montana
Hon. Andrew J. Breuner, Self-represented, Bozeman, Montana
Decided: January 17, 2023
Filed:
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__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion and Order of the Court.
¶1 Petitioner A.J.B., on behalf of herself and her minor child O.F., seeks a writ of
supervisory control to reverse the October 25, 2022 Opinion and Order Re Request for EPS
Hearing of the Eighteenth Judicial District Court, Gallatin County, in its Cause No.
DN-22-27D. In that Order, the District Court denied A.J.B.’s request for an emergency
protective services (EPS) hearing to which she would otherwise be entitled under
§ 41-3-306(1)(a), MCA, because the court determined that § 41-3-306(7)(b), MCA,1 barred
such hearing in dependent-neglect cases that implicate the Indian Child Welfare Act
(ICWA). The court further denied A.J.B.’s constitutional challenge to that statute. At our
invitation, the State of Montana and the District Court have responded to A.J.B.’s petition.
¶2 We consider the following issues:
1. Is this matter appropriate for a writ of supervisory control?
2. Does § 41-3-306(7)(b), MCA, which excepts cases subject to the Indian Child
Welfare Act (ICWA) from eligibility for emergency protective services hearings in
dependent-neglect cases, violate the constitutional right to equal protection of the
law?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On October 20, 2022, the Child and Family Services Division of the Montana
Department of Health and Human Services (Department) removed O.F., a minor, from the
1
Section 41-3-306, MCA (2021), is a temporary statute that terminates June 30, 2023. On July 1,
2023, § 41-3-306, MCA (2023), becomes effective; § 41-3-306(7)(b), MCA (2021), will become
§ 41-3-306(7), MCA (2023).
2
care of his mother A.J.B. on an emergency basis. The Department alleged its reasons for
removal were “physical neglect based on domestic violence, family will flee.”
¶4 A.J.B. immediately sought counsel from the Office of Public Defender. On
October 21, 2022, A.J.B., via counsel, filed Mother’s Request for EPS Hearing, Challenge
to Constitutionality of ICWA Exemption, and Preliminary Legal Memo in the District
Court. In that filing, A.J.B. asked the court to immediately set an EPS hearing to allow her
to challenge O.F.’s removal, as provided in § 41-3-306(1)(a), MCA (“If requested by the
parents . . . a district court shall hold an [EPS] hearing within 5 business days of the child’s
removal to determine whether to continue the removal beyond 5 business days.”). A.J.B.
further alleged there was reason to believe O.F. may be an Indian child2 within the meaning
of the ICWA, a federal law that governs the removal and out-of-home placement of
American Indian children. She argued the Department was unable to meet its burden to
prove O.F.’s removal was necessary under the ICWA standard.
¶5 However, A.J.B. also acknowledged § 41-3-306(7)(b), MCA, provides that
§ 41-3-306(1)(a), MCA, does not apply to cases involving an Indian child who is subject
to ICWA. She asserted the Montana Legislature enacted § 41-3-306(7)(b), MCA, because
it misunderstood ICWA’s notice requirements and argued this provision is unconstitutional
as a violation of equal protection of the law and due process rights to fundamentally fair
2
“Indian child” means any unmarried person who is under age eighteen and is either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of
a member of an Indian tribe. 25 U.S.C. § 1903(4).
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procedures and review, without unreasonable delay, of the suspension of the fundamental
right to parent.
¶6 On October 25, 2022, the District Court issued an Opinion and Order Re Request
for EPS Hearing (Order), in which it denied A.J.B.’s request for an EPS hearing. The court
ruled A.J.B. was not entitled to an EPS hearing because of § 41-3-306(7)(b), MCA. The
court further determined the plain language of § 41-3-306(7)(b), MCA, supports ICWA’s
fundamental purposes as well as the role of Montana’s dependent-neglect statutes in
accommodating those purposes. The court concluded that holding an EPS hearing in
contravention of § 41-3-306(7)(b), MCA, would risk interfering with the mandatory notice
to tribes ICWA requires.
¶7 After the District Court denied her motion, A.J.B. filed this petition for writ of
supervisory control in this Court.
STANDARD OF REVIEW
¶8 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). Consistent with Rule 14(3), this Court refrains from
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exercising supervisory control when the petitioner has an adequate remedy of appeal.
Volkswagen Aktiengesellschaft v. Mont. First Judicial Dist. Court, No. OP 20-0171, 401
Mont. 556, 472 P.3d 1151 (Aug. 25, 2020). Such writ is available “[o]nly in the most
extenuating circumstances.” State ex rel. Ward v. Schmall, 190 Mont. 1, 4, 617 P.2d 140,
141 (1980).
DISCUSSION
¶9 1. Is this matter appropriate for a writ of supervisory control?
¶10 As a threshold matter, we first must determine whether we should accept A.J.B.’s
petition. In its response, the State agrees with A.J.B. that this Court should accept
supervisory control. However, the District Court disagrees. The court asserts the issue is
moot as to A.J.B.’s case because more than five business days have elapsed since O.F.’s
removal and the time for an EPS hearing has passed. It argues that it is irrelevant if this
moot issue may nonetheless be appropriately considered under an exception to the
mootness doctrine because an otherwise moot matter cannot create the urgent or emergency
situation that supervisory control requires under M. R. App. P. 14(3). The court argues,
“the principle of mootness is antithetical to the writ because there is no redress to
effectively address the alleged exigency.”
¶11 In support of its argument, the court cites to five previous instances in which this
Court denied a petition for writ of supervisory control due to mootness. However, none of
those instances implicated exceptions to the mootness doctrine. Rather, in each of these
cases the controversy that spurred the petition for writ was resolved before this Court made
a determination. Benefis Hosp. Inc. v. Mont. Eighth Judicial Dist. Court, No. OP 18-0643,
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Order (Mont. Nov. 20, 2018) (dispute over deposition was moot because parties resolved
dispute after petition was filed); Mulkey v. Eighteenth Judicial Dist. Court, No.
OP 17-0598, 390 Mont. 424, 410 P.3d 173 (Oct. 24, 2017) (supervisory control denied as
moot where disputed issues were resolved prior to the Court considering the writ); First
Interstate Bank v. Mont. Fourth Judicial Dist. Court, No. OP 14-0658, 377 Mont. 434, 348
P.3d 170 (Nov. 12, 2014) (supervisory control denied as moot where district court had
already revised the judgment at issue); Evert v. State, No. OP 13-0056, Order (Mont.
Mar. 12, 2013) (supervisory control denied as moot where district court ruling resolved
issue while petition pending); Jensen v. Macek, No. OP 06-0797, Order (Mont. Dec. 20,
2006) (supervisory control denied where the underlying case was dismissed while
disposition of petition pending). None of these cases are analogous to the present case.
¶12 Conversely, we have exercised supervisory control in a matter that was reviewable
under an exception to the mootness doctrine. In Wier v. Lincoln Cty. Sheriff’s Dep’t, 278
Mont. 473, 925 P.2d 1172 (1996), Wier was convicted of two misdemeanors and sentenced
to five days in jail by a Justice of the Peace. He appealed his conviction to District Court
on the day he was sentenced, but the Justice of the Peace refused to stay execution of the
sentence. Wier, 278 Mont. at 475, 925 P.2d at 1173. The following day, after the District
Court also refused to stay execution of the justice court sentence, Wier petitioned this Court
for a writ of habeas corpus; although this Court ultimately issued an order staying the
remainder of Wier’s sentence, it did not do so until four days later, by which time Wier had
been released as he had served his sentence. Wier, 278 Mont. at 475, 925 P.2d at 1173.
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¶13 At that time, this Court requested the Attorney General respond and address Wier’s
petition. Wier, 278 Mont. at 475, 925 P.2d at 1173. In its response, the State argued the
Court should not address the substantive issues Wier had raised because he was no longer
in custody and thus his petition for writ of habeas corpus was moot. Wier, 278 Mont. at
475, 925 P.2d at 1173. Because this Court determined the issue Wier presented was
“capable of repetition, yet evading review,” and because it implicated Wier’s constitutional
rights, this Court accepted jurisdiction to review the matter by writ of supervisory control
pursuant to Article VII, Sections 2(1) and 2(2), of the Montana Constitution. Wier, 278
Mont. at 475-76, 925 P.2d at 1173-74. Wier is on point with the present matter and the
District Court’s argument to the contrary is unavailing.
¶14 The District Court next argues, even if this Court may exercise supervisory control
under the mootness doctrine, it has no cause to do so here because this case does not
implicate exceptions to the mootness doctrine. This Court has recognized three
circumstances as exceptions to mootness: (1) voluntary cessation, (2) capable of repetition,
yet evading review, and (3) public interest. In re Big Foot Dumpsters & Containers, LLC,
2022 MT 67, ¶ 15, 408 Mont. 187, 507 P.3d 169. Pertinent to the present case, this Court
has explained the third exception, public interest, applies when (1) the case presents an
issue of public importance; (2) the issue is likely to recur; and (3) an answer to the issue
will guide public officers in the performance of their duties. In re Big Foot, ¶ 18 (citation
and internal quotation omitted).
¶15 Although the District Court admits the constitutionality of § 41-3-306(7)(b), MCA,
is an issue of public importance and that a ruling from this Court determining its
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constitutionality would provide guidance to Montana’s courts, the District Court argues the
likelihood of recurrence is “uncertain” because the constitutionality of ICWA is currently
before the U.S. Supreme Court. See Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021),
cert. granted, 142 S. Ct. 1205 (Feb. 28, 2022).
¶16 Regardless of how the U.S. Supreme Court may rule in the future, ICWA currently
remains applicable to dependent-neglect cases in Montana that involve an Indian child. As
such, the situation that affected A.J.B. and her son may recur—and we know it has occurred
in at least one other instance where the Second Judicial District Court considered the same
legal issue in August 2022 and concluded the statute was unconstitutional. Thus, with this
District Court’s ruling in A.J.B.’s case, it is apparent that parents affected by
§ 41-3-306(7)(b), MCA, are obtaining different results depending on where their case is
heard in this state. We are also cognizant the Legislature could amend the statute in the
future. However, with fundamental constitutional rights directly at issue in
dependent-neglect cases concerning Indian children throughout Montana, we will not
refrain from considering the matter on speculation that the applicability of our ruling will
be of limited duration.
¶17 Finally, the District Court argues this matter does not meet the threshold criteria for
a writ of supervisory control because no urgent or emergency factors make appeal an
inadequate remedy. The court alleges that in this case, it was later determined that O.F. is
not an Indian child, and A.J.B. and O.F. have been “conditionally reunited.” However, as
A.J.B. asserts in her petition, she does not appear to have any remedy on appeal for the
8
denial of her right to an EPS hearing, and the potentially erroneous loss of the right to
parent, even for a short time, is a matter of great urgency.
¶18 In State v. Mont. Eighth Judicial Dist. Court, Nos. OP 22-0099, 22-0100, Order
(Mont. Apr. 19, 2022), we held supervisory control was appropriate in a dependent-neglect
case where allowing a possible instance of reversible legal error to go unchecked would
prolong the litigation, which was not in the best interest of the subject child. In that case,
the Department argued a delay in permanency goes against a child’s best interest. Here,
A.J.B. argues it is not in O.F.’s, or any child’s, best interest to be kept out of the care of
their natural parents unnecessarily.
¶19 We have adopted the presumption a child’s best interests are served in the custody
of the natural parents. In re J.H., 2016 MT 35, ¶ 23, 382 Mont. 214, 367 P.3d 339 (citing
In re Guardianship of J.R.G., 218 Mont. 336, 342, 708 P.2d 263, 267 (1985)). In a case
where a statute may act to unnecessarily delay a child’s reunification with their natural
parent or parents, urgency renders the normal appeal process inadequate.
¶20 We therefore conclude that it is appropriate to consider this petition for writ of
supervisory control.
¶21 2. Does § 41-3-306(7)(b), MCA, which excepts cases subject to the Indian Child
Welfare Act (ICWA) from eligibility for emergency protective services hearings in
dependent-neglect cases, violate the constitutional right to equal protection of the
law?
¶22 Having determined this matter may be susceptible to a writ of supervisory control,
we next consider the substantive question of whether the statute at issue is unconstitutional.
A.J.B. argues the statute violates the right to equal protection of the law to parents and
9
children subject to dependent-neglect proceedings under ICWA. The State agrees the
provision should be stricken as unconstitutional, while the District Court takes no position
beyond its procedural argument that we should not accept the petition for writ.
¶23 While A.J.B. and the State both assert § 41-3-306(7)(b), MCA, is unconstitutional,
the statute nonetheless carries the presumption of constitutionality and A.J.B. thus bears
the burden of proving, beyond a reasonable doubt, that it is unconstitutional. City of Great
Falls v. Morris, 2006 MT 93, ¶ 12, 332 Mont. 85, 134 P.3d 692. Here, she asserts
§ 41-3-306(7)(b), MCA, explicitly treats families whose child is an Indian child, as defined
by ICWA, less favorably than the families of children not subject to ICWA and it is thus
impermissibly discriminatory under the U.S. and Montana Constitutions.
¶24 The Fourteenth Amendment to the U.S. Constitution provides the state shall not
make or enforce laws which deny any person the equal protection of the laws. Similarly,
Article II, Section 4, of the Montana Constitution provides, “The dignity of the human
being is inviolable. No person shall be denied the equal protection of the laws. Neither
the state nor any person, firm, corporation, or institution shall discriminate against any
person in the exercise of his civil or political rights on account of race, color, sex, culture,
social origin or condition, or political or religious ideas.” These provisions “embody a
fundamental principle of fairness: that the law must treat similarly-situated individuals in
a similar manner.” Snetsinger v. Mont. Univ. Sys., 2004 MT 390, ¶ 15, 325 Mont. 148, 104
P.3d 445 (quoting McDermott v. Mont. Dep’t of Corr., 2001 MT 134, ¶ 30, 305 Mont. 462,
29 P.3d 992). Article II, Section 4, of the Montana Constitution provides even more
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individual protection than does the Fourteenth Amendment to the U.S. Constitution.
Snetsinger, ¶ 15 (citation omitted).
¶25 Equal protection guarantees that persons similarly situated with respect to a
legitimate government purpose of a law receive like treatment. Rausch v. State Comp. Ins.
Fund, 2005 MT 140, ¶ 18, 327 Mont. 272, 114 P.3d 192. This Court evaluates potential
equal protection violations under a three-step process: (1) we identify the classes involved
and determine if they are similarly situated; (2) we determine the appropriate level of
scrutiny to apply to the challenged statute; and (3) we apply the appropriate level of
scrutiny to the statute. Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶¶ 15,
17-18, 353 Mont. 265, 222 P.3d 566.
¶26 To identify the classes, we isolate the factor allegedly subject to impermissible
discrimination. If the two classes are equivalent in all other respects, they are similarly
situated. Goble v. Mont. State Fund, 2014 MT 99, ¶ 29, 374 Mont. 453, 325 P.3d 1211(citing Snetsinger, ¶ 27). In the present case, A.J.B. asserts the classes—families whose
children are removed by the Department on an emergency basis who are subject to ICWA
and families whose children are removed by the Department on an emergency basis who
are not subject to ICWA—are equivalent in all respects other than the factor that subjects
them to discrimination. In the context of emergency proceedings, we agree, these classes
are similarly situated.
¶27 Next, we determine the appropriate level of scrutiny to apply to § 41-3-306(7)(b),
MCA. A.J.B. asserts we should apply strict scrutiny review because § 41-3-306(7)(b),
11
MCA, impacts the fundamental right of familial integrity. In In re B.H., 2020 MT 4, ¶ 36,
398 Mont. 275, 456 P.3d 233, we held:
In addition to the presumption the custody of a natural parent is in the child’s
best interests, the natural parent’s right to the care and custody of his or her
children is a fundamental constitutional interest protected by both the United
States Constitution and the Montana Constitution. See In re A.S.A., 258
Mont. 194, 197, 852 P.2d 127, 129 (1993) (citing Article II, § 17, of the
Montana Constitution); In re R.B., 217 Mont. 99, 102-03, 703 P.2d 846, 848
(1985); Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95,
71 L. Ed. 2d 599 (1982) (citing the Due Process Clause of the Fourteenth
Amendment); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13,
31 L. Ed. 2d 551 (1972) (citing the Due Process Clause of the Fourteenth
Amendment, the Equal Protection Clause of the Fourteenth Amendment, and
the Ninth Amendment to the United States Constitution). The United States
Supreme Court “has frequently emphasized the importance of the family.
The rights to conceive and to raise one’s children have been deemed
‘essential,’ ‘basic civil rights of man,’ and ‘rights far more precious . . . than
property rights.’” Stanley, 405 U.S. at 651, 92 S. Ct. at 1212 (internal
citations omitted). Both natural parents have the constitutional right to
custody of their children. See Stanley, 405 U.S. at 651, 92 S. Ct. at 1212(“The private interest here, that of a man in the children he has sired and
raised, undeniably warrants deference and, absent a powerful countervailing
interest, protection.”).
¶28 We apply strict scrutiny review if a fundamental right is affected. Snetsinger, ¶ 17.
The right to parent one’s child is a fundamental right, and we therefore apply strict scrutiny
where the right to parent is implicated. A.W.S. v. A.W., 2014 MT 322, ¶ 16, 377 Mont. 234,
339 P.3d 414 (citing Snetsinger, ¶ 16). We thus apply strict scrutiny here.
¶29 When the government intrudes upon a fundamental right, any compelling state
interest for doing so must be closely tailored to effectuate only that compelling interest.
State v. Pastos, 269 Mont. 43, 47, 887 P.2d 199, 202 (1994). Whether a compelling state
interest exists is a question of law. Pastos, 269 Mont. at 47, 887 P.2d at 202. Neither
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A.J.B., the State, nor the District Court have identified a compelling state interest to justify
the disparate treatment § 41-3-306(7)(b), MCA, imposes upon families subject to ICWA.
¶30 Both A.J.B. and the State assert the Legislature enacted this provision because it
misunderstood ICWA’s notice requirements. The State explains while § 41-3-306(1)(a),
MCA, allows a parent to request an EPS hearing to occur within five business days of the
child’s removal, § 41-3-306(7)(b), MCA, excludes cases involving a child subject to ICWA
from that requirement because the Legislature believed the courts could not hold an EPS
hearing within five business days of removal of an Indian child since 25 U.S.C. § 1912provides the tribe must be given notice at least ten days before a foster care placement
hearing. Mont. House Jud. Comm., 2021 Mont. Laws, ch. 529, Hearing on HB 503, 67th
Leg., Reg. Sess. 1 (Feb. 22, 2021).
¶31 Both A.J.B. and the State contend the Legislature incorrectly believed ICWA’s
notice requirements also applied to emergency hearings, which are distinct from foster care
placement proceedings. See In re H.T., 2015 MT 41, ¶ 38, 378 Mont. 206, 343 P.3d 159(explaining ICWA allows emergency custody proceedings in emergency circumstances).
As A.J.B. explains, the foster care placement hearing notice requirements do not apply to
emergency proceedings such as an EPS hearing: 25 U.S.C. § 1922 governs emergency
removal or placement of an Indian child, while 25 U.S.C. § 1912 governs child custody
proceedings, and the former does not contain a notice requirement. A.J.B. argues
preventing the families of Indian children from requesting and obtaining an EPS hearing
within five business days of removal impermissibly denies them the opportunity to
promptly challenge the necessity of an emergency removal. A.J.B. contends the
13
Legislature enacted § 41-3-306(7)(b), MCA, in good faith but inadvertently violated ICWA
and equal protection requirements.
¶32 The State further draws our attention to 25 U.S.C. § 1922, which directs the
responsible government agent to “insure that the emergency removal or placement
terminates immediately when such removal or placement is no longer necessary to prevent
imminent physical damage or harm to the child,” and notes the federal code supports
allowing the parents of Indian children to request an EPS hearing.
¶33 Having determined: in the context of emergency proceedings, the parents of Indian
children are similarly situated to other parents whose children were removed by the
Department on an emergency basis; § 41-3-306(7)(b), MCA, treats these similarly situated
classes differently; § 41-3-306(7)(b), MCA, implicates a fundamental right and is therefore
subject to strict scrutiny review; and no compelling state interest has been identified to
justify the disparate treatment of these similarly situated classes, we therefore conclude
A.J.B. has met her burden of proving, beyond a reasonable doubt, § 41-3-306(7)(b), MCA,
unconstitutionally violates the right to equal protection of the law under both the U.S. and
Montana Constitutions.
CONCLUSION
¶34 This Petition for a Writ of Supervisory Control is ACCEPTED and GRANTED.
¶35 The District Court’s October 25, 2022 Opinion and Order Re Request for EPS
Hearing is REVERSED.
¶36 The State SHALL NOT ENFORCE § 41-3-306(7)(b), MCA.
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¶37 This matter is REMANDED to the District Court for further proceedings consistent
with this Opinion and Order and as necessary.
¶38 The Clerk is directed to send a copy of this Opinion and Order to all counsel of
record in this matter and in Eighteenth Judicial District Court Cause No. DC-22-27D, and
to the Honorable Andrew J. Breuner, presiding District Judge.
Dated this 17th day of January, 2023.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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