In re J.S.L.

• Citation: 2021 MT 47, 481 P.3d 833, 403 Mont. 326
• Case Date: February 23, 2021
• Court: United States State Supreme Court of Montana

403 Mont. 326
481 P.3d 833
2021 MT 47

In the MATTER OF: J.S.L. and J.R.L., Youths in Need of Care.

DA 20-0254

Supreme Court of Montana.

Submitted on Briefs: December 9, 2020
Decided: February 23, 2021

For Appellant: Laura Reed, Attorney at Law, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Ivy Garlow, Deputy County Attorney, Missoula, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

403 Mont. 327

¶1 S.M. (Mother) appeals the Order for Placement with Father and Dismissal Without Prejudice issued by the Fourth Judicial District Court, Missoula County, on April 9, 2020. The District Court's Order dismissed pending abuse and neglect proceedings and placed Mother's children, J.S.L. and J.R.L. (Children), with their non-custodial biological parent, S.L. (Father).

¶2 We restate the issue on appeal as follows:

Whether the District Court erred by dismissing the abuse and neglect proceedings and placing the children with the non-custodial parent pursuant to § 41-3-438(3)(d), MCA.

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Mother and Father are the biological parents of J.S.L. (born in 2013) and J.R.L. (born in 2014). In September 2016, the Montana Department of Public Health and Human Services, Child and Family

403 Mont. 328

Services Division (Department) received a referral that Mother was arrested for assaulting Father. Mother and Father each spoke with Child Protection Specialist (CPS) Jarvis about this incident. In October 2016, the Department received a new incident report regarding domestic violence in the home. The Department learned the Children were staying with their maternal grandparents and did not intervene at that time. In November 2016, Mother and Father separated and filed for dissolution. Mother was granted primary custody of the Children in a parenting plan action.

¶5 On March 18, 2017, an incident with Father occurred when he arrived intoxicated to pick up the children from Mother and the maternal grandparents outside of the Missoula police station. The Department investigated the incident and determined intervention was not necessary despite Father being criminally charged. Ultimately, Father entered into a plea agreement and pled guilty to a misdemeanor aggravated DUI in December 2017. Father received a 12-month sentence with all but 72 hours suspended and was placed under misdemeanor supervision.

¶6 In August 2018, Father moved to Colorado. The Children remained in Missoula with Mother. In October 2018, the Department received a new report Mother was intoxicated when picking the Children up from daycare. In addition, Mother was involved in a domestic altercation with her then-boyfriend, now husband, P.M., and was incarcerated for Partner or Family Member Assault (PFMA). Due to these incidents, as well as mother's history of alcohol abuse and unaddressed mental health issues, the Department implemented a 30-day out-of-home protection plan and placed Children with their maternal grandparents. Mother began seeing an addictions counselor and the Children continued to see their own therapist. The Children were thereafter transitioned back to Mother's care.

¶7 In early January 2019, the Department received yet another report alleging domestic violence in the home of Mother and P.M.,

481 P.3d 837

after Mother advised law enforcement P.M. punched her in the face and gave her a black eye. P.M. was cited for PFMA. Mother later admitted she gave herself the black eye and falsely accused P.M. Around this time, she was also diagnosed with Borderline Personality Disorder and depression by her therapist. In late January 2019, before the Department completed its investigation, Mother reported to police P.M. had stabbed her in the stomach. Mother was pregnant with twins at this time. The Children were in the care of the maternal grandparents during the incident, and the Department implemented a new 30-day out-of-home protection plan—again placing the Children with the

403 Mont. 329

maternal grandparents. Mother later admitted to inflicting this injury on herself as well.

¶8 The Department contacted Father in Colorado, who noted his frustration at the Children once again being placed in out-of-home care due to Mother's domestic violence and drinking. Father recommended the Department seek legal custody to allow Mother to get the help she needs. At that time, Father fully disclosed the March 2017 DUI incident and informed the Department he had completed probation, as well as completed a psychological evaluation and a chemical dependency evaluation. He reported there was nothing that would deem him an "unsafe" parent, but noted he did not want to disrupt the lives of the Children in Missoula if Mother could demonstrate she was able to safely parent. Father also advised of his willingness to amend the parenting plan to seek full custody if Mother was unable to show she could safely parent the Children.

¶9 On February 15, 2019, the Department conducted an emergency removal of the Children from Mother's care due to "physical neglect by birth mother including exposure of the children to domestic violence between birth mother and her partner, concerns of birth mother's mental health instability affecting her ability to safely parent and birth father's inability or unwillingness to intervene[.]" The Children were placed in kinship foster care with the maternal grandparents once again. On February 20, 2019, the Department filed a Petition for Emergency Protective Services (EPS) and Temporary Investigative Authority (TIA). Also, on February 20, 2019, the District Court granted EPS and TIA. On February 21, 2019, the District Court set a Show Cause Hearing for March 7, 2019. Mother was personally served with the Petition on February 28, 2019, and Father signed an acknowledgment of service on March 7, 2019. Standing Master Rubin held an Intervention Conference for Mother on March 1, 2019, and an Intervention Conference for Father on March 12, 2019.

¶10 The District Court held a Show Cause Hearing on March 7, 2019, where Mother advised the court she did not oppose TIA, while Father stated he was opposed to TIA. Mother and the Department filed a Stipulation to Temporary Investigative Authority on March 8, 2019. On March 28, 2019, the District Court held a Status Hearing, at which Father did stipulate to TIA and waived his right to a contested hearing. The District Court granted the Department TIA through June 5, 2019. At an April 25, 2019 Status Hearing Father advised the court he objected to some of the tasks set out for him during the TIA period—specifically a drug and alcohol testing requirement. Taking judicial notice of Father's 2017 DUI case, the District Court orally

403 Mont. 330

ordered "minimal testing ... such as twice a month ... to simply check in." At a May 30, 2019 Status Hearing, the District Court continued TIA until June 20, 2019. At the June 20, 2019, Status Hearing, the Department advised the court it would be filing for adjudication of the Children as youths in need of care and for temporary legal custody. The District Court extended EPS at this time.

¶11 On June 21, 2019, the Department filed a Petition for Adjudication of Child as Youth in Need of Care and Temporary Legal Custody (following TIA). At a hearing on June 27, 2019, both Mother and Father objected to the Department's petition for adjudication, and the District Court set an adjudication hearing for August 14, 2019. At the August 14, 2019 Adjudication Hearing, Mother rescinded her objection to adjudication. Father continued to object, however, and the District Court heard testimony from Father, the addiction counselor who performed Father's chemical dependency evaluation in

481 P.3d 838

2017, the Children's counselor, the maternal grandmother, and CPS Jill Patton. At the conclusion of the hearing, the District Court took the matter under advisement and ordered all previous orders to remain in place until the issuance of its decision.

¶12 On August 21, 2019, Father filed a Motion for Dismissal and Placement with Father and Brief in Support, requesting the District Court issue an order placing the Children in his care and dismissing the abuse and neglect case. On September 9, 2019, the District Court issued its Findings of Fact, Conclusions of Law & Order. In this Order, the District Court analogized this case to this Court's decision in In re E.Y.R. , 2019 MT 189, 396 Mont. 515, 446 P.3d 1117, and found Father's history "raised potential imminent safety risks" which "necessitate[ ] further investigation." The court therefore found "an imminent safety risk to the children such that immediate placement with Father is not appropriate" and that it was in the best interests of the Children to declare them Youths in Need of Care. The District Court further noted that, as in In re E.Y.R. , "Father's assertion that he is a safe parent and...