Jones v. Jones (In re L.R.J.)

• Decision Date: 03 January 2023
• Docket Number: DA 22-0405
• Parties: IN RE THE MATTER OF L.R.J., C.M.J., AND C.S.J., v. LEVI LUKE JONES, Respondent, BONNIE ANNE JONES and ANDY JOHN JONES, Petitioners and Appellees, MARTHA JOANN JONES, Respondent and Appellant.
• Court: Montana Supreme Court

2023 MT 1

IN RE THE MATTER OF L.R.J., C.M.J., AND C.S.J.,

BONNIE ANNE JONES and ANDY JOHN JONES, Petitioners and Appellees,
v.
LEVI LUKE JONES, Respondent,

MARTHA JOANN JONES, Respondent and Appellant.

No. DA 22-0405

Supreme Court of Montana

January 3, 2023

Submitted on Briefs: November 30, 2022

APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DR-17-182 Honorable Jennifer B. Lint, Presiding Judge

For Appellant: Bradley J. Jones, Bulman Jones &Cook PLLC, Missoula, Montana

For Appellees: Jane E. Cowley, Laird Cowley, PLLC, Missoula, Montana

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OPINION

BETH BAKER, JUSTICE

¶1 Together with their father, Martha Joann Jones (Mother) signed a Stipulated Parenting Plan in 2017 agreeing to place her three minor children in the care and custody of their paternal grandparents, Bonnie Anne Jones and Randy John Jones (Grandparents), and accepting certain obligations to "ensure restoration of [her] custodial rights." Several years later, after obtaining new counsel and participating in a court-ordered parenting assessment, Mother filed a notice withdrawing her consent to the stipulated plan and invoking the Indian Child Welfare Act (ICWA) to seek immediate return of the children. Mother now appeals the Twenty-First Judicial District Court's denial of her motion. We reverse the District Court's determination that ICWA does not apply to this proceeding. But we decline Mother's request to order the children's immediate return to her and instead remand for the court to conduct further proceedings in compliance with ICWA's requirements.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Grandparents filed in August 2017 a Petition to Establish Parenting and Custody of the three minor children, alleging that a child-parent relationship, as defined by § 40-4-211(6), MCA, existed between the children and Grandparents and that the Parents had engaged in conduct contrary to the child-parent relationship.^[1] The Petition stated that Grandparents "do not allege that Respondents are unfit to parent and do not seek

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termination of Respondents' parental rights." It noted that Parents denied engaging in conduct contrary to the child-parent relationship but had agreed, after consultation with counsel, to the establishment of custodial rights to the children in Grandparents. Grandparents stated that the intended purpose of the arrangement was "to establish sufficient time for the children to reside with [Grandparents] so that [Parents] may resolve any allegations or matters pending with Child Protective Services."

¶3 A week later, Parents and Grandparents filed a Stipulated Parenting Plan signed by all parties and their respective counsel. It designated Grandparents as the sole custodians of the children. The Stipulated Plan provided:

From time to time, Grandparents may allow contact or visitation between children and Parents, but such contact shall be at the sole discretion of Grandparents until June 15, 2018. After June 15, 2018, Parents may file an appropriate motion to either modify custodial rights to the minor children or establish parental visitation on a regular schedule. In either event, Parents shall be required to show that such a modification is in the best interests of the children applying the standards of Mont. Code Ann[.] § 40-4-212

The Stipulated Plan required Parents to assume responsibility for the children's medical insurance and medical expenses, but it otherwise gave Grandparents all control and decision-making authority. It was to "be made an integral part of any order concerning custody of the children" and to "be binding upon the parties, their personal representatives, heirs, and assigns." It concluded with the following paragraph, titled "Parental Responsibilities":

Grandparents are exercising the authority granted based upon the express representation by Parents that Parents will undertake consumer credit counseling, marriage counseling, individual counseling on parenting or personal development matters and parenting classes to correct deficiencies in parenting that have brought the parties to this point. The parties agree that

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the District Court shall have the authority to order and enforce the Parents to participate in the counseling and improvement necessary to ensure restoration of their custodial rights.

¶4 The District Court entered an order the following week, approving the Stipulated Plan and directing the parties to "perform the terms and conditions of the parenting plan in all respects." More than a year later, and several months after the Stipulated Plan's June 2018 trigger date, Parents' counsel withdrew from the case with consent of the Parents and leave of court.

¶5 In August 2019, appearing on her own behalf, Mother filed a motion to hold Grandparents in contempt for failing to follow the Stipulated Plan, using for her motion a form provided for self-represented litigants. Mother submitted a supporting affidavit listing the provisions of the Stipulated Plan with which Grandparents allegedly had failed to comply. She followed several days later with a motion requesting return to Parents of custodial rights to the children...