In re BP, 99-186.

• Citation: 995 P.2d 982,2000 MT 39,298 Mont. 287
• Decision Date: 15 February 2000
• Docket Number: No. 99-186.,99-186.
• Court: United States State Supreme Court of Montana
• Parties: In the Matter of B.P. and A.P., Youths in Need of Care.

995 P.2d 982

2000 MT 39

298 Mont. 287

In the Matter of B.P. and A.P., Youths in Need of Care.

No. 99-186.

Supreme Court of Montana.

February 15, 2000.

Submitted on Briefs December 2, 1999.

Decided February 15, 2000.

Timothy J. Whalen; Whalen & Whalen, Billings, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena, Montana, Matt C. Putzier, Deputy Gallatin County Attorney; Bozeman, Montana, For Respondent.

Leanne M. Schraudner; Schraudner & Hillier, Bozeman, Montana (for father). Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Ronda Pavek (Ronda) appeals from the findings of facts, conclusions of law and order entered by the Eighteenth Judicial District Court, Gallatin County, granting the petition of the Montana Department of Public Health and Human Services (Department) for temporary investigative authority and protective services relating to her minor children, B.P. and A.P. We affirm.

¶ 2 We address the following issues:

¶ 3 1. May an appeal be taken from a district court's order granting temporary investigative authority and protective services?

¶ 4 2. Did the District Court err in ordering protective services for B.P. and A.P. and in removing them from Ronda's home?

¶ 5 3. Did the District Court err in refusing to remove the guardian ad litem?

¶ 6 4. Did the District Court violate Ronda's Fifth Amendment rights under the United States Constitution?

¶ 7 5. Did the District Court infringe on Ronda's constitutional right of religious freedom?

BACKGROUND

¶ 8 On January 15, 1999, a petition for temporary investigative authority (TIA) and protective services regarding B.P. and A.P. was filed in the District Court on the Department's behalf. The petition alleged that nine-and-one-half-year-old B.P. and five-and-one-half-year-old A.P. were being harmed or threatened with harm affecting their health or welfare. It was based on referrals from concerned citizens beginning in 1996—and increasing in seriousness and frequency— and on an attached report from social worker Joseph E. Albro (Albro). According to the petition, the referrals centered on "extremely inappropriate behavior" of both the children and Ronda, who is divorced from the children's father, Tim Pavek (Tim), and is their primary legal custodian. Specific concerns were expressed that Ronda's personal mental health issues had prevented the children from receiving adequate parenting and proper psychological and medical attention. According to the Department, the children were showing increasing signs of emotional abuse which might result in irreparable damage absent intervention by the Department.

¶ 9 The District Court appointed Mary Ann Brown (Brown) as the children's guardian ad litem. Brown was directed to monitor the situation and file a report with the court.

¶ 10 A hearing on the Department's petition was held on February 4, 1999, and, on February 8, 1999, the District Court entered its findings of fact, conclusions of law and order. In pertinent part, the court determined that—as a result of Ronda's conduct and actions—it was in the children's best interests to be immediately removed from Ronda's home and placed in therapeutic foster care to obtain an accurate assessment of their emotional and mental health. The court also found that the children should be enrolled in public schools to develop social and interaction skills and that Ronda must undergo a complete psychiatric examination before she could visit with the children. The District Court concluded, in pertinent part, that "[t]he Department has presented evidence sufficient and Ronda Pavek stipulated that sufficient evidence exists to support a probably [sic] cause finding that the youths are abused or neglected or are in danger of being abused or neglected, and for the issuance of an order for temporary investigative authority and protective services pursuant to § 41-3-403, M.C.A." Accordingly, the District Court granted the petition for temporary investigative authority and protective services for 90 days. The court also denied Ronda's request that Brown be removed as the children's guardian ad litem.

¶ 11 Ronda appeals. Additional facts necessary for resolution of the issues before us will be set forth below.

DISCUSSION

¶ 12 1. May an appeal be taken from a district court's order granting temporary investigative authority and protective services?

¶ 13 The parties in the present case did not directly raise the issue of whether an appeal may be taken from an order granting temporary investigative authority and protective services. Since the issue involves the threshold question of whether we have jurisdiction to entertain an appeal, however, and for the purpose of clarifying that jurisdiction, we examine the issue sua sponte.

¶ 14 This Court's jurisdiction is set forth in Article VII, Section 2 of the 1972 Montana Constitution. Specifically, Article VII, Section 2(1), vests us with appellate jurisdiction and Article VII, Section 2(3), authorizes us to make rules governing appellate procedure.

¶ 15 Pursuant to the referenced constitutional authority, we adopted the Montana Rules of Appellate Procedure, which govern appeals to this Court from Montana district courts. See Matter of Litigation Relating to Riot (1997), 283 Mont. 277, 280, 939 P.2d 1013, 1015

. Rule 1(b)(1), M.R.App.P., expressly provides that an appeal may be taken from a final judgment entered in a district court action. A final judgment is one which constitutes a final determination of the rights of the parties; any judgment, order or decree leaving matters undetermined is interlocutory in nature and not a final judgment for purposes of appeal. Litigation Relating to Riot,

283 Mont. at 280,

939 P.2d at 1015-16 (citation omitted).

¶ 16 Subsections (2) and (3) of Rule 1(b), M.R.App.P., on the other hand, provide for appeals from specified interlocutory orders. Accordingly, an appeal from an order delineated in those subsections is properly before this Court. An appeal from an interlocutory order not specified in subsection (2) or (3) of Rule 1(b), M.R.App.P., is premature, however, and must be dismissed for lack of jurisdiction to entertain it. Litigation Relating to Riot, 283 Mont. at 281, 939 P.2d at 1016 (citations omitted).

¶ 17 In an Opinion and Order in Matter of K.H. (1985), 216 Mont. 267, 268, 701 P.2d 720, 721,

we indicated that an order for temporary investigative authority may be appealable under Rule 1, M.R.App.P. We also stated, however, that relief "should properly be pursued through a writ of certiorari, habeas corpus, or supervisory control." Matter of K.H., 216 Mont. at 268, 701 P.2d at 721.

¶ 18 Our statement in Matter of K.H. that an order for temporary investigative authority may be appealable under Rule 1 was not accompanied by analysis or explanation. Thus, it is appropriate to review Rule 1, M.R.App.P., to determine whether orders granting temporary investigative authority and protective services are appealable. Moreover, since Rule 1 has been amended only once since Matter of K.H. and the amendments did not relate to the question before us here (see Sup.Ct. Order amending Rule 1, M.R.App.P., dated June 16, 1986, effective January 19, 1987), we review the current version of Rule 1, M.R.App.P.

¶ 19 Rule 1(b), M.R.App.P., sets forth the judgments and orders from which an appeal may be taken in civil cases and provides as follows:

(b) In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases:

(1) From a final judgment entered in an action or special proceeding commenced in a district court, or brought into a district court from another court or administrative body.

(2) From an order granting a new trial; or refusing to permit an action to be maintained as a class action; or granting or dissolving an injunction; or refusing to grant or dissolve an injunction; or dissolving or refusing to dissolve an attachment; from an order changing or refusing to change the place of trial when the county designated in the complaint is not the proper county; from an order appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver; from an order directing the delivery, transfer, or surrender of property; from any special order made after final judgment; and from such interlocutory judgments or orders, in actions for partition as determine the rights and interests of the respective parties and direct partition to be made. In any of the cases mentioned in this subdivision the supreme court, or a justice thereof, may stay all proceedings under the order appealed from, on such conditions as may seem proper.

(3) From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary,or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking or refusing to revoke the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition, sale, or conveyance of real property, or settling an account of an executor, or administrator, or guardian; or refusing, allowing, directing the distribution or partition of any estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive share; or confirming or refusing to confirm a report of an appraiser setting apart a homestead.

Beginning with Rule 1(b)(1), it is clear that an order for temporary investigative authority and protective services is not a "final judgment." Indeed, it is ordinarily the first order entered in an abuse and neglect proceeding which ultimately may encompass numerous orders and culminate in an order terminating parental rights. See §§...