DA 11-0664, DA 11-0665

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 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 Cascade, 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 2012
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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 Eighth 

Judicial District, Cascade County, awarding D.S. (Father) sole custody of the children 

and dismissing her case as related to the Department of Public Health and Human 

Services’ (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 the children. At 

the time, the marriage of the parents was dissolved and Mother and Father shared legal 

custody. The State placed the children with Father and established a safety plan that only 

allowed Mother supervised contact with the children. 

¶3 The State filed a petition for emergency protective services pursuant to § 41-3-

427, MCA, and temporary investigative authority pursuant to § 41-3-433, 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 cause to grant the petition, and the 

children’s attorney did not object to the State’s request. The District Court granted the

State’s petition for emergency services and temporary investigative authority. The court 

also determined that the children should remain temporarily with Father because 

continuation in Mother’s home would be contrary to their welfare. 
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¶4 Mother continued to abuse alcohol, resulting in several failed urinalysis tests and 

an arrest for violating the temporary order of protection Father obtained to limit her 

excessive phone calls. Accordingly, the State petitioned to have the children adjudicated 

as youths in need of care. The guardian 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. After both parents stipulated, the District Court adjudicated the 

children as youths in need of care and ordered that the children remain in their current 

placement with Father. Father also informed the court that he intended to move for 

dismissal of the case at the time of the subsequent dispositional hearing. Mother 

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’s case 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 State or the children’s attorney. Mother, however, 

objected and asked to call witnesses. The District Court denied this request, finding that 

the issue was purely legal and that there were no disputed factual issues. Because Father 

was constitutionally entitled to parent his children and 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 issue as follows:
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¶8 Did the District Court err when it dismissed the State’s abuse and neglect 

proceeding and placed the children with the non-custodial parent pursuant 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, 324 Mont. 58, 101 

P.3d 761.

DISCUSSION

¶10 Initially, the State 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 with one parent where the other parent’s parental rights 

have not been terminated. See e.g. In re A.C., ¶ 17; In re B.P., 2008 MT 166, ¶ 26, 343 

Mont. 345, 184 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 dismissal in this case had the effect of 

terminating both the State’s and 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 placed the children with the non-custodial parent pursuant to § 41-3-

437(3)(d), MCA? 
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¶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 

disposition. Section 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 Mother 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 against Father, and thus no question of fact 

regarding the best interests of the children in an abuse and neglect proceeding initiated by 

the State. Recognizing Father’s constitutionally-protected interest in parenting his child1, 

the District Court placed the children with him pursuant to § 41-3-438(3)(d), MCA, 

which allows the court to:

order the placement of the child 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. 
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¶14 In support of her argument that under § 41-3-438(2), MCA, it was reversible error 

to deny her an opportunity to present evidence, Mother cites 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.2d 931 (1984). 

¶15 The above cases are factually 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 dispositional hearings. Moreover, all three cases relied upon by Mother 

involved the removal of children from homes where both parents were being investigated 

by the State for suspected abuse or neglect, and two of these cases involved petitions to 

terminate the parent-child relationships of both parents.

¶16 This case arose, on the other hand, from an abuse and neglect proceeding initiated 

by the State due to the alcohol abuse of Mother, who was divorced from Father.

Mother’s parental rights were not terminated. Instead, 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 State from any further obligation to the children, as the concern 

for them being youths in need of care was eliminated by the placement. See In re A.C., ¶ 

17. 

¶17 This is not to say that Mother does not have 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 forum to invoke 

district court jurisdiction to resolve future disputes between the parents regarding these 

children. 
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CONCLUSION

¶18 The District Court did not err when it dismissed the State’s abuse and neglect 

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