DA 11 - 0664, DA 11 - 0665 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 78 IN THE MATTER OF: S.S. and S.S., Youths in Need of Care.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Ca scade, Cause Nos. BDN 11 - 015, BDN 11 - 016 Honorable Julie Macek, Presiding Judge COUNSEL OF RECORD:

For Appellant (Mother): Elizabeth Thomas, PLLC, Missoula, Montana For Appellee : Steve Bullock, Montana Attorney General; Matthew T. Cochenour, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney; Jennifer Ropp, Deputy Cascade County Attorney, Great Falls, Montana Submitted on Briefs: March 14, 2012 Decided: April 10, 2012 Filed:

_______________________ ___________________ Clerk April 10 20122

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 T.S. (Mother), mother of S.S. and S.S., appeals from the judgment of the Eig hth Judicial District, Cascade County, awarding D.S. (Father) sole custody of the children and dismissing her case as relate dt o the Department of Public Health and Human Service s ’ ( State ) involvement.

FACTUAL AND PROCEDURAL BACKGROUND ¶2 In February 2011, the State initiated abuse and neglect proceedings and removed 12 - year- old S.S. and 10 - year- old S.S. from Mother ’ s care upon substantiating reports that her alcohol abuse had led to the endangerment and physical neglect of thechildren. At the time, the marriage of the parents was dissolv

ed and Mother and Father shared legal custody. The Stat eplaced the children with Father and establisheda safety plan that only allowed Mother supervised contact with the children. ¶3 The State filed a petition for emergency protective services pursuant to § 4 1 - 3 - 4 27, MCA, and temporary investigative authority p ursuant to § 4 1 - 3 - 433 , MCA. The District Court then appointed separate counsel to Mother, Father and the children pursuant to § 41 - 3 - 425 , MCA, and the children were also appointed a guardian ad litem. Both parents stipulated that there was probable cau se to grant the petition , and the children ’ s attorney did not object to the State ’ srequest . The District Court granted the State ’ s petition for emergency services and temporary investigative authority. The court also determinedthat the children should remain temporarily with Father because continuation in Mother ’ s home would be contrary to their welfare.3

¶4 Mother continued to abuse alcohol, resulting in several fa iled urinalysis tests and an arrest for violating the temporary order of protection Father obtained to limith er excessive phone calls. Accordingly, the Statepetitioned to have the children adjudicated as youths in need of care. The g uardian ad litem reported to the court that the children expressed that they were doing well in Father ’ s home, and that their performance in school had improved. A fter b oth parents stipulated , the District Court adjudicated the children as youths in need of careand ordered that the children remain in their current placement with Father. F ather also informed thecourt that he intended to move for dismissal of the caseat the time of the subsequent dispositional hearing. M other indicated her intent to contest his motion. ¶5 After several continuations, a dispositional hearing was held on October 6, 2011. Father moved to dismiss the State ’ scase and grant him full legal custody of the children. He argued that despite finishing treatment, Mother was still using alcohol. There was no objection to Father ’ s motion from the Stateor the children ’ s attorney. Mother, however, objected and asked to call witnesses. The District Court denied this request , f inding that the issue was purely legal and that there were no disputed factual issues. Because Father was constitutionally entitled to parent his childrenand the court was not aware of any allegations concerning him, the case was dismissed and the children were placed with Father pursuant to § 41 - 3 -438 (3)(d), MCA. This appeal followed. ¶6 Because Mother appeals from an abuse and neglect proceeding initiated by the State pursuant to § 41 - 3 -422, MCA, Father is not a party to this appeal. ¶7 We state the dispositive issueas follows:4

¶8 Did the District Court err when it dismissed the State ’ s abuse and neglect proceeding and placed the children wi th the non - custodial parent p ursuant to § 41 -3 - 437 (3)(d), MCA? STANDARD OF REVIEW ¶9 In a youth in need of care proceeding, we review a district court ’ s conclusions of law to determine if they are correct . In re A . C., 2004 MT 320, ¶ 9, 3 24 Mont. 58 , 101 P.3d 761 . DISCUSSION ¶10 Initially, theS tate argues that the approval of Father ’ s request was not a final judgment, and is thus not ripe for appeal. To the contrary, this Court has reviewed orders granting placement of children withone p arent where the other parent ’ s parental rights have notbeen terminated. See e . g . In re A . C., ¶ 17; In re B.P., 2008 MT 166, ¶ 26, 343 Mont. 345, 1 84 P.3d 334 (Leaphart & Morris , dissenting) ( “ The court ’ s Order giving Father permanent custody of the children is a final order for the purposes of M. R. App. P. 4 . . . . ” ). In regards to abuse and neglect proceedings, the Montana Rules of Appellate Procedure only designate orders of temporary custody among those which are not appealable. M . R. App. P. 6(5)(c). The dismissalin this case had the effect of termin ating both the State ’ sand the District Court ’ s jurisdiction over the abuse and neglect proceedings that gave rise to this appeal, thus this is an appealable order. ¶11 Did the District Court err when it dismissed the State ’ s abuse and neglect proceeding and

p laced the children wi th the non - custodial parent pursuant to § 41 -3 - 437 (3)(d), MCA?5

¶12 When a child is adjudged a youth in need of care, a dispositional hearing must be held within 20 days unless the petition is dismissed or the parents stipulate to a disp osition. S ection 41 - 3 -438 (1), MCA. This hearing must be separate from the adjudicatory hearing, and “must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues. ”Section 41 - 3 - 438 (2), MCA . ¶13 Mo ther argues that a dispositional hearing is intended to address placement issues and treatment plans, and that this necessarily requires the presentation of evidence as to the best interests of the children. Upon Father ’ s motion to dismiss the action and with the concurrence of the State, the District Court concluded there was no factual determination to be made . There were no allegations ag ainst Father , and thus no question of fact reg arding the best interests of the children in an abuse and neglect proc eeding initiated by the S tate. Recognizing Father ’ s constitutionally-protectedinterest in parenting his child 1 , the District Courtp laced the children with him pursuant to § 41 - 3 -438 (3)(d), MCA, which allows the court to : o rder the placement of the chil d with the noncustodial parent, superseding any existing custodial order, and dismiss the proceeding with no further obligation on the part of the department to provide services to the parent with whom the child is placed or to work toward reunification of the child with the parent or guardian from whom the child was removed in the initial proceeding. . . . Section 41 -3 - 438 (3)(d), MCA. The court also released the State from further obligation to provide services to Father.

1 See e.g. In re T

. S .B ., 2008 MT 23, ¶ 18, 341 Mont. 204, 177 P.3d 429.6

¶14 In support of her argumentthat under § 41 - 3 - 438(2), MCA, it was reversible error to deny her an opportunity to present ev idence , Mother

c ites to In re J.J.G ., 266 Mont. 274, 880 P.2d 808 (1994), In re M.L.H ., 220 Mont. 288, 715 P.2d 32 (1986), and In re C.L.A . , 211 Mont. 393, 685 P.2d931 (1984) . ¶15 The above cases aref actually inapposite with the present case because the District Court here complied with § 41 - 3 - 438 (2) , MCA, as it pertains to scheduling of the adjudicatory and disposition alhearings. Moreover , all threecases relied upon by Mother involved the removal of children from homes where both parents were being investigated by the State

f or suspected abuse or neglect, and two of these cases involved petitions to terminate the parent - child relationship s of both parents . ¶16 This ca se arose , on the other hand, f rom an abuse and neglect proceedin g initiated by the State

d ue to the alcohola

buse of Mother , who was divorced from Father. Mother ’ s parental rights were not terminated . I nstead , the District Court followed the statutory procedure of § 41 - 3 - 438(3)(d), MCA, in ordering placement of the children with Father. This relieved the Statefrom any further obligationto the children , as the concern for them being youths in need of care was eliminated by theplacement. See In re A.C. , ¶ 17 . ¶17 This is not to say that Mother does not hav e a remedy. Now that the State is no longer a party, Mother has the ability to initiate an action for a parenting plan pursuant to the provisions of Title 40 , Chapter 4, MCA . That is the appropriate fo rum to invoke district court jurisdiction to resolve future disputes between the parents regarding these children.7 CONCLUSION ¶18 The District Court did not err when it dismissed the State ’ s abuse and neg lect proceeding and placed the children with Father. For the foregoing reasons, we affirm the District Court ’ s order. /S/ MIKE McGRATH We concur: /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ BETH BAKER /S/ JAMES C. NELSON