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OP 22-0621

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 7

A.J.B. and O.F.,

 Petitioners,

 v.

MONTANA EIGHTEENTH JUDICIAL

DISTRICT COURT, GALLATIN COUNTY, 

HON. ANDREW J. BREUNER, Presiding,

 Respondent.

ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control

In and For the County of Gallatin, Cause No. DN-16-2022-027-YC

Honorable Andrew J. Breuner, Presiding Judge

COUNSEL OF RECORD:

For Petitioners:

Ryan “Buddy” Rutzke, Office of the State Public Defender, Bozeman, 

Montana

Kelly M. Driscoll, Public Defender, Missoula, Montana

For Respondent:

Austin Knudsen, Montana Attorney General, Bjorn Boyer, Assistant 

Attorney General, Helena, Montana

Hon. Andrew J. Breuner, Self-represented, Bozeman, Montana

 Decided: January 17, 2023

Filed:

__________________________________________

Clerk

01/17/2023

Case Number: OP 22-0621
2

Justice Ingrid Gustafson delivered the Opinion and Order of the Court. 

¶1 Petitioner A.J.B., on behalf of herself and her minor child O.F., seeks a writ of 

supervisory control to reverse the October 25, 2022 Opinion and Order Re Request for EPS 

Hearing of the Eighteenth Judicial District Court, Gallatin County, in its Cause No. 

DN-22-27D. In that Order, the District Court denied A.J.B.’s request for an emergency 

protective services (EPS) hearing to which she would otherwise be entitled under 

§ 41-3-306(1)(a), MCA, because the court determined that § 41-3-306(7)(b), MCA,1 barred

such hearing in dependent-neglect cases that implicate the Indian Child Welfare Act 

(ICWA). The court further denied A.J.B.’s constitutional challenge to that statute. At our 

invitation, the State of Montana and the District Court have responded to A.J.B.’s petition. 

¶2 We consider the following issues: 

1. Is this matter appropriate for a writ of supervisory control? 

2. Does § 41-3-306(7)(b), MCA, which excepts cases subject to the Indian Child 

Welfare Act (ICWA) from eligibility for emergency protective services hearings in 

dependent-neglect cases, violate the constitutional right to equal protection of the 

law? 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On October 20, 2022, the Child and Family Services Division of the Montana 

Department of Health and Human Services (Department) removed O.F., a minor, from the 

1 Section 41-3-306, MCA (2021), is a temporary statute that terminates June 30, 2023. On July 1, 

2023, § 41-3-306, MCA (2023), becomes effective; § 41-3-306(7)(b), MCA (2021), will become 

§ 41-3-306(7), MCA (2023). 
3

care of his mother A.J.B. on an emergency basis. The Department alleged its reasons for 

removal were “physical neglect based on domestic violence, family will flee.” 

¶4 A.J.B. immediately sought counsel from the Office of Public Defender. On 

October 21, 2022, A.J.B., via counsel, filed Mother’s Request for EPS Hearing, Challenge 

to Constitutionality of ICWA Exemption, and Preliminary Legal Memo in the District 

Court. In that filing, A.J.B. asked the court to immediately set an EPS hearing to allow her 

to challenge O.F.’s removal, as provided in § 41-3-306(1)(a), MCA (“If requested by the 

parents . . . a district court shall hold an [EPS] hearing within 5 business days of the child’s 

removal to determine whether to continue the removal beyond 5 business days.”). A.J.B.

further alleged there was reason to believe O.F. may be an Indian child2 within the meaning 

of the ICWA, a federal law that governs the removal and out-of-home placement of 

American Indian children. She argued the Department was unable to meet its burden to 

prove O.F.’s removal was necessary under the ICWA standard. 

¶5 However, A.J.B. also acknowledged § 41-3-306(7)(b), MCA, provides that 

§ 41-3-306(1)(a), MCA, does not apply to cases involving an Indian child who is subject 

to ICWA. She asserted the Montana Legislature enacted § 41-3-306(7)(b), MCA, because 

it misunderstood ICWA’s notice requirements and argued this provision is unconstitutional 

as a violation of equal protection of the law and due process rights to fundamentally fair 

2

“Indian child” means any unmarried person who is under age eighteen and is either (a) a member 

of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of 

a member of an Indian tribe. 25 U.S.C. § 1903(4). 
4

procedures and review, without unreasonable delay, of the suspension of the fundamental 

right to parent. 

¶6 On October 25, 2022, the District Court issued an Opinion and Order Re Request 

for EPS Hearing (Order), in which it denied A.J.B.’s request for an EPS hearing. The court 

ruled A.J.B. was not entitled to an EPS hearing because of § 41-3-306(7)(b), MCA. The 

court further determined the plain language of § 41-3-306(7)(b), MCA, supports ICWA’s 

fundamental purposes as well as the role of Montana’s dependent-neglect statutes in 

accommodating those purposes. The court concluded that holding an EPS hearing in 

contravention of § 41-3-306(7)(b), MCA, would risk interfering with the mandatory notice 

to tribes ICWA requires. 

¶7 After the District Court denied her motion, A.J.B. filed this petition for writ of 

supervisory control in this Court. 

STANDARD OF REVIEW

¶8 Supervisory control is an extraordinary remedy that may be invoked when the case 

involves purely legal questions and urgent or emergency factors make the normal appeal 

process inadequate. M. R. App. P. 14(3). The case must meet one of three additional 

criteria: (a) the other court is proceeding under a mistake of law and is causing a gross 

injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other 

court has granted or denied a motion for substitution of a judge in a criminal case. 

M. R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case 

decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 

279, 259 P.3d 754 (citations omitted). Consistent with Rule 14(3), this Court refrains from 
5

exercising supervisory control when the petitioner has an adequate remedy of appeal. 

Volkswagen Aktiengesellschaft v. Mont. First Judicial Dist. Court, No. OP 20-0171, 401 

Mont. 556, 472 P.3d 1151 (Aug. 25, 2020). Such writ is available “[o]nly in the most 

extenuating circumstances.” State ex rel. Ward v. Schmall, 190 Mont. 1, 4, 617 P.2d 140, 

141 (1980). 

DISCUSSION

¶9 1. Is this matter appropriate for a writ of supervisory control? 

¶10 As a threshold matter, we first must determine whether we should accept A.J.B.’s

petition. In its response, the State agrees with A.J.B. that this Court should accept 

supervisory control. However, the District Court disagrees. The court asserts the issue is 

moot as to A.J.B.’s case because more than five business days have elapsed since O.F.’s 

removal and the time for an EPS hearing has passed. It argues that it is irrelevant if this 

moot issue may nonetheless be appropriately considered under an exception to the 

mootness doctrine because an otherwise moot matter cannot create the urgent or emergency 

situation that supervisory control requires under M. R. App. P. 14(3). The court argues, 

“the principle of mootness is antithetical to the writ because there is no redress to 

effectively address the alleged exigency.” 

¶11 In support of its argument, the court cites to five previous instances in which this 

Court denied a petition for writ of supervisory control due to mootness. However, none of 

those instances implicated exceptions to the mootness doctrine. Rather, in each of these 

cases the controversy that spurred the petition for writ was resolved before this Court made 

a determination. Benefis Hosp. Inc. v. Mont. Eighth Judicial Dist. Court, No. OP 18-0643, 
6

Order (Mont. Nov. 20, 2018) (dispute over deposition was moot because parties resolved 

dispute after petition was filed); Mulkey v. Eighteenth Judicial Dist. Court, No. 

OP 17-0598, 390 Mont. 424, 410 P.3d 173 (Oct. 24, 2017) (supervisory control denied as 

moot where disputed issues were resolved prior to the Court considering the writ); First 

Interstate Bank v. Mont. Fourth Judicial Dist. Court, No. OP 14-0658, 377 Mont. 434, 348 

P.3d 170 (Nov. 12, 2014) (supervisory control denied as moot where district court had 

already revised the judgment at issue); Evert v. State, No. OP 13-0056, Order (Mont. 

Mar. 12, 2013) (supervisory control denied as moot where district court ruling resolved 

issue while petition pending); Jensen v. Macek, No. OP 06-0797, Order (Mont. Dec. 20, 

2006) (supervisory control denied where the underlying case was dismissed while 

disposition of petition pending). None of these cases are analogous to the present case. 

¶12 Conversely, we have exercised supervisory control in a matter that was reviewable 

under an exception to the mootness doctrine. In Wier v. Lincoln Cty. Sheriff’s Dep’t, 278 

Mont. 473, 925 P.2d 1172 (1996), Wier was convicted of two misdemeanors and sentenced 

to five days in jail by a Justice of the Peace. He appealed his conviction to District Court 

on the day he was sentenced, but the Justice of the Peace refused to stay execution of the 

sentence. Wier, 278 Mont. at 475, 925 P.2d at 1173. The following day, after the District 

Court also refused to stay execution of the justice court sentence, Wier petitioned this Court 

for a writ of habeas corpus; although this Court ultimately issued an order staying the 

remainder of Wier’s sentence, it did not do so until four days later, by which time Wier had 

been released as he had served his sentence. Wier, 278 Mont. at 475, 925 P.2d at 1173. 
7

¶13 At that time, this Court requested the Attorney General respond and address Wier’s 

petition. Wier, 278 Mont. at 475, 925 P.2d at 1173. In its response, the State argued the 

Court should not address the substantive issues Wier had raised because he was no longer 

in custody and thus his petition for writ of habeas corpus was moot. Wier, 278 Mont. at 

475, 925 P.2d at 1173. Because this Court determined the issue Wier presented was 

“capable of repetition, yet evading review,” and because it implicated Wier’s constitutional 

rights, this Court accepted jurisdiction to review the matter by writ of supervisory control

pursuant to Article VII, Sections 2(1) and 2(2), of the Montana Constitution. Wier, 278 

Mont. at 475-76, 925 P.2d at 1173-74. Wier is on point with the present matter and the 

District Court’s argument to the contrary is unavailing. 

¶14 The District Court next argues, even if this Court may exercise supervisory control 

under the mootness doctrine, it has no cause to do so here because this case does not 

implicate exceptions to the mootness doctrine. This Court has recognized three 

circumstances as exceptions to mootness: (1) voluntary cessation, (2) capable of repetition, 

yet evading review, and (3) public interest. In re Big Foot Dumpsters & Containers, LLC, 

2022 MT 67, ¶ 15, 408 Mont. 187, 507 P.3d 169. Pertinent to the present case, this Court 

has explained the third exception, public interest, applies when (1) the case presents an 

issue of public importance; (2) the issue is likely to recur; and (3) an answer to the issue 

will guide public officers in the performance of their duties. In re Big Foot, ¶ 18 (citation

and internal quotation omitted). 

¶15 Although the District Court admits the constitutionality of § 41-3-306(7)(b), MCA, 

is an issue of public importance and that a ruling from this Court determining its 
8

constitutionality would provide guidance to Montana’s courts, the District Court argues the 

likelihood of recurrence is “uncertain” because the constitutionality of ICWA is currently 

before the U.S. Supreme Court. See Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021),

cert. granted, 142 S. Ct. 1205 (Feb. 28, 2022). 

¶16 Regardless of how the U.S. Supreme Court may rule in the future, ICWA currently 

remains applicable to dependent-neglect cases in Montana that involve an Indian child. As 

such, the situation that affected A.J.B. and her son may recur—and we know it has occurred 

in at least one other instance where the Second Judicial District Court considered the same 

legal issue in August 2022 and concluded the statute was unconstitutional. Thus, with this 

District Court’s ruling in A.J.B.’s case, it is apparent that parents affected by 

§ 41-3-306(7)(b), MCA, are obtaining different results depending on where their case is 

heard in this state. We are also cognizant the Legislature could amend the statute in the 

future. However, with fundamental constitutional rights directly at issue in 

dependent-neglect cases concerning Indian children throughout Montana, we will not 

refrain from considering the matter on speculation that the applicability of our ruling will

be of limited duration. 

¶17 Finally, the District Court argues this matter does not meet the threshold criteria for 

a writ of supervisory control because no urgent or emergency factors make appeal an 

inadequate remedy. The court alleges that in this case, it was later determined that O.F. is 

not an Indian child, and A.J.B. and O.F. have been “conditionally reunited.” However, as 

A.J.B. asserts in her petition, she does not appear to have any remedy on appeal for the 
9

denial of her right to an EPS hearing, and the potentially erroneous loss of the right to 

parent, even for a short time, is a matter of great urgency. 

¶18 In State v. Mont. Eighth Judicial Dist. Court, Nos. OP 22-0099, 22-0100, Order 

(Mont. Apr. 19, 2022), we held supervisory control was appropriate in a dependent-neglect 

case where allowing a possible instance of reversible legal error to go unchecked would 

prolong the litigation, which was not in the best interest of the subject child. In that case, 

the Department argued a delay in permanency goes against a child’s best interest. Here, 

A.J.B. argues it is not in O.F.’s, or any child’s, best interest to be kept out of the care of 

their natural parents unnecessarily. 

¶19 We have adopted the presumption a child’s best interests are served in the custody 

of the natural parents. In re J.H., 2016 MT 35, ¶ 23, 382 Mont. 214, 367 P.3d 339 (citing 

In re Guardianship of J.R.G., 218 Mont. 336, 342, 708 P.2d 263, 267 (1985)). In a case 

where a statute may act to unnecessarily delay a child’s reunification with their natural 

parent or parents, urgency renders the normal appeal process inadequate. 

¶20 We therefore conclude that it is appropriate to consider this petition for writ of 

supervisory control. 

¶21 2. Does § 41-3-306(7)(b), MCA, which excepts cases subject to the Indian Child 

Welfare Act (ICWA) from eligibility for emergency protective services hearings in 

dependent-neglect cases, violate the constitutional right to equal protection of the 

law? 

¶22 Having determined this matter may be susceptible to a writ of supervisory control, 

we next consider the substantive question of whether the statute at issue is unconstitutional. 

A.J.B. argues the statute violates the right to equal protection of the law to parents and 
10

children subject to dependent-neglect proceedings under ICWA. The State agrees the 

provision should be stricken as unconstitutional, while the District Court takes no position 

beyond its procedural argument that we should not accept the petition for writ. 

¶23 While A.J.B. and the State both assert § 41-3-306(7)(b), MCA, is unconstitutional, 

the statute nonetheless carries the presumption of constitutionality and A.J.B. thus bears 

the burden of proving, beyond a reasonable doubt, that it is unconstitutional. City of Great 

Falls v. Morris, 2006 MT 93, ¶ 12, 332 Mont. 85, 134 P.3d 692. Here, she asserts 

§ 41-3-306(7)(b), MCA, explicitly treats families whose child is an Indian child, as defined 

by ICWA, less favorably than the families of children not subject to ICWA and it is thus 

impermissibly discriminatory under the U.S. and Montana Constitutions. 

¶24 The Fourteenth Amendment to the U.S. Constitution provides the state shall not 

make or enforce laws which deny any person the equal protection of the laws. Similarly, 

Article II, Section 4, of the Montana Constitution provides, “The dignity of the human 

being is inviolable. No person shall be denied the equal protection of the laws. Neither 

the state nor any person, firm, corporation, or institution shall discriminate against any 

person in the exercise of his civil or political rights on account of race, color, sex, culture, 

social origin or condition, or political or religious ideas.” These provisions “embody a 

fundamental principle of fairness: that the law must treat similarly-situated individuals in 

a similar manner.” Snetsinger v. Mont. Univ. Sys., 2004 MT 390, ¶ 15, 325 Mont. 148, 104 

P.3d 445 (quoting McDermott v. Mont. Dep’t of Corr., 2001 MT 134, ¶ 30, 305 Mont. 462, 

29 P.3d 992). Article II, Section 4, of the Montana Constitution provides even more 
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individual protection than does the Fourteenth Amendment to the U.S. Constitution. 

Snetsinger, ¶ 15 (citation omitted). 

¶25 Equal protection guarantees that persons similarly situated with respect to a 

legitimate government purpose of a law receive like treatment. Rausch v. State Comp. Ins. 

Fund, 2005 MT 140, ¶ 18, 327 Mont. 272, 114 P.3d 192. This Court evaluates potential 

equal protection violations under a three-step process: (1) we identify the classes involved 

and determine if they are similarly situated; (2) we determine the appropriate level of 

scrutiny to apply to the challenged statute; and (3) we apply the appropriate level of 

scrutiny to the statute. Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶¶ 15, 

17-18, 353 Mont. 265, 222 P.3d 566. 

¶26 To identify the classes, we isolate the factor allegedly subject to impermissible 

discrimination. If the two classes are equivalent in all other respects, they are similarly 

situated. Goble v. Mont. State Fund, 2014 MT 99, ¶ 29, 374 Mont. 453, 325 P.3d 1211

(citing Snetsinger, ¶ 27). In the present case, A.J.B. asserts the classes—families whose 

children are removed by the Department on an emergency basis who are subject to ICWA 

and families whose children are removed by the Department on an emergency basis who 

are not subject to ICWA—are equivalent in all respects other than the factor that subjects 

them to discrimination. In the context of emergency proceedings, we agree, these classes 

are similarly situated. 

¶27 Next, we determine the appropriate level of scrutiny to apply to § 41-3-306(7)(b), 

MCA. A.J.B. asserts we should apply strict scrutiny review because § 41-3-306(7)(b), 
12

MCA, impacts the fundamental right of familial integrity. In In re B.H., 2020 MT 4, ¶ 36, 

398 Mont. 275, 456 P.3d 233, we held: 

In addition to the presumption the custody of a natural parent is in the child’s 

best interests, the natural parent’s right to the care and custody of his or her 

children is a fundamental constitutional interest protected by both the United 

States Constitution and the Montana Constitution. See In re A.S.A., 258 

Mont. 194, 197, 852 P.2d 127, 129 (1993) (citing Article II, § 17, of the 

Montana Constitution); In re R.B., 217 Mont. 99, 102-03, 703 P.2d 846, 848 

(1985); Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95, 

71 L. Ed. 2d 599 (1982) (citing the Due Process Clause of the Fourteenth 

Amendment); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 

31 L. Ed. 2d 551 (1972) (citing the Due Process Clause of the Fourteenth 

Amendment, the Equal Protection Clause of the Fourteenth Amendment, and 

the Ninth Amendment to the United States Constitution). The United States 

Supreme Court “has frequently emphasized the importance of the family. 

The rights to conceive and to raise one’s children have been deemed 

‘essential,’ ‘basic civil rights of man,’ and ‘rights far more precious . . . than 

property rights.’” Stanley, 405 U.S. at 651, 92 S. Ct. at 1212 (internal 

citations omitted). Both natural parents have the constitutional right to 

custody of their children. See Stanley, 405 U.S. at 651, 92 S. Ct. at 1212 

(“The private interest here, that of a man in the children he has sired and 

raised, undeniably warrants deference and, absent a powerful countervailing 

interest, protection.”). 

¶28 We apply strict scrutiny review if a fundamental right is affected. Snetsinger, ¶ 17. 

The right to parent one’s child is a fundamental right, and we therefore apply strict scrutiny 

where the right to parent is implicated. A.W.S. v. A.W., 2014 MT 322, ¶ 16, 377 Mont. 234, 

339 P.3d 414 (citing Snetsinger, ¶ 16). We thus apply strict scrutiny here. 

¶29 When the government intrudes upon a fundamental right, any compelling state 

interest for doing so must be closely tailored to effectuate only that compelling interest. 

State v. Pastos, 269 Mont. 43, 47, 887 P.2d 199, 202 (1994). Whether a compelling state 

interest exists is a question of law. Pastos, 269 Mont. at 47, 887 P.2d at 202. Neither 
13

A.J.B., the State, nor the District Court have identified a compelling state interest to justify 

the disparate treatment § 41-3-306(7)(b), MCA, imposes upon families subject to ICWA. 

¶30 Both A.J.B. and the State assert the Legislature enacted this provision because it 

misunderstood ICWA’s notice requirements. The State explains while § 41-3-306(1)(a), 

MCA, allows a parent to request an EPS hearing to occur within five business days of the 

child’s removal, § 41-3-306(7)(b), MCA, excludes cases involving a child subject to ICWA 

from that requirement because the Legislature believed the courts could not hold an EPS 

hearing within five business days of removal of an Indian child since 25 U.S.C. § 1912 

provides the tribe must be given notice at least ten days before a foster care placement 

hearing. Mont. House Jud. Comm., 2021 Mont. Laws, ch. 529, Hearing on HB 503, 67th 

Leg., Reg. Sess. 1 (Feb. 22, 2021). 

¶31 Both A.J.B. and the State contend the Legislature incorrectly believed ICWA’s 

notice requirements also applied to emergency hearings, which are distinct from foster care 

placement proceedings. See In re H.T., 2015 MT 41, ¶ 38, 378 Mont. 206, 343 P.3d 159 

(explaining ICWA allows emergency custody proceedings in emergency circumstances). 

As A.J.B. explains, the foster care placement hearing notice requirements do not apply to 

emergency proceedings such as an EPS hearing: 25 U.S.C. § 1922 governs emergency 

removal or placement of an Indian child, while 25 U.S.C. § 1912 governs child custody 

proceedings, and the former does not contain a notice requirement. A.J.B. argues 

preventing the families of Indian children from requesting and obtaining an EPS hearing 

within five business days of removal impermissibly denies them the opportunity to 

promptly challenge the necessity of an emergency removal. A.J.B. contends the 
14

Legislature enacted § 41-3-306(7)(b), MCA, in good faith but inadvertently violated ICWA 

and equal protection requirements. 

¶32 The State further draws our attention to 25 U.S.C. § 1922, which directs the 

responsible government agent to “insure that the emergency removal or placement 

terminates immediately when such removal or placement is no longer necessary to prevent 

imminent physical damage or harm to the child,” and notes the federal code supports 

allowing the parents of Indian children to request an EPS hearing. 

¶33 Having determined: in the context of emergency proceedings, the parents of Indian 

children are similarly situated to other parents whose children were removed by the 

Department on an emergency basis; § 41-3-306(7)(b), MCA, treats these similarly situated 

classes differently; § 41-3-306(7)(b), MCA, implicates a fundamental right and is therefore 

subject to strict scrutiny review; and no compelling state interest has been identified to 

justify the disparate treatment of these similarly situated classes, we therefore conclude

A.J.B. has met her burden of proving, beyond a reasonable doubt, § 41-3-306(7)(b), MCA, 

unconstitutionally violates the right to equal protection of the law under both the U.S. and 

Montana Constitutions. 

CONCLUSION

¶34 This Petition for a Writ of Supervisory Control is ACCEPTED and GRANTED. 

¶35 The District Court’s October 25, 2022 Opinion and Order Re Request for EPS 

Hearing is REVERSED. 

¶36 The State SHALL NOT ENFORCE § 41-3-306(7)(b), MCA. 
15

¶37 This matter is REMANDED to the District Court for further proceedings consistent 

with this Opinion and Order and as necessary. 

¶38 The Clerk is directed to send a copy of this Opinion and Order to all counsel of 

record in this matter and in Eighteenth Judicial District Court Cause No. DC-22-27D, and 

to the Honorable Andrew J. Breuner, presiding District Judge. 

Dated this 17th day of January, 2023.

/S/ INGRID GUSTAFSON

We concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ BETH BAKER

/S/ DIRK M. SANDEFUR