No

No. 97-639

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 159

IN THE MATTER OF A.E., 

A Youth In Need Of Care. 

 APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

Honorable Jeffrey H. Langton, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

Teresa Ann Scriber, pro se, Stevensville, Montana

For Respondents:

Honorable Joseph P. Mazurek, Attorney General; Mark W. 

Mattioli, Assistant Attorney General, Helena, Montana

George H. Corn, County Attorney, Hamilton, Montana

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Michael L. Hayes, Recht, Hays and Hayes, Hamilton, Montana

Submitted on Briefs: May 5, 1998

Decided: June 23, 1998

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1 Teresa Scriber appeals from a decision of the Twenty-First Judicial District 

Court, Ravalli County, granting the Montana Department of Public Health and 

Human Services a ninety-day extension of its temporary legal custody of her 

daughter, A.E. In a separate child custody action between Scriber and A.E.'s father, 

custody of A.E. was transferred to A.E.'s father. That decision was not appealed. The 

proceedings herein were subsequently dismissed. Because we conclude this matter is 

now moot, we dismiss this appeal.

¶2 Scriber states the issue as whether the court's order granting an extension of the 

Department's legal custody of A.E. violated her right to have and raise her child. 

¶3 When these proceedings began, Scriber and A.E.'s father were divorced and 

Scriber had physical custody of nine-year-old A.E. and her twelve-year-old brother. 

In November 1996, Scriber reported to the Department that A.E.'s brother had 

sexually abused A.E. The Department's investigation confirmed that A.E.'s brother 

had forcefully sexually molested her on multiple occasions while both children were 

in Scriber's custody, and that when A.E. had told Scriber about the incidents, 

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Scriber accused A.E. of lying and sent her to her room. 

¶4 The Department obtained temporary investigative authority (TIA), which 

included the authority to require that A.E. and her family obtain counseling. Scriber 

refused to participate in family counseling and threatened to remove A.E. from the 

court's jurisdiction. The court thereafter declared A.E. a youth in need of care and 

placed her temporary physical custody with her father, who lived in Idaho.

¶5 While these proceedings were pending, A.E.'s father filed an independent motion 

to modify the provisions of the decree dissolving his and Scriber's marriage. Under 

that decree, Scriber had primary physical custody of A.E. Scriber appeared pro se in 

the modification action, as in this action, despite the court's advice that she seek legal 

counsel. 

¶6 Meanwhile, the court held a hearing on the Department's request for a ninety-day 

extension of its TIA. At the end of the hearing, the court orally granted the request 

for an extension of TIA based upon the evidence presented, including the evidence 

that Scriber had been uncooperative with family counseling. Scriber immediately 

filed a notice of appeal which, pursuant to Rule 5(a)(2), M.R.App.P., was treated as 

filed on the date the written judgment was entered, September 18, 1997. 

¶7 In the action by A.E.'s father to modify the decree of dissolution, the court 

awarded sole custody of A.E. to her father. Scriber did not appeal. 

¶8After the custody modification order was entered, the Department moved to 

dismiss its petition for TIA and to vacate the court's order granting it extended 

temporary legal custody of A.E. The motion to dismiss was granted and the order 

giving temporary custody to the Department was vacated on November 14, 1997. 

DISCUSSION

¶9 A legal question is moot when it no longer presents a justiciable controversy 

because the issues have become academic or dead or because any action the court 

may take will have no effect on the situation of the parties. Air Pollution Control v. 

Bd. of Env. Rev. (1997), 282 Mont. 255, 264, 937 P.2d 463, 469. In other words, a 

question is moot when the court can no longer grant effective relief. 

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¶10 Here, the validity of the Department's TIA and temporary legal custody of A.E. 

is a moot question because the Department no longer possesses such authority over 

and custody of A.E. In the absence of an ongoing, concrete controversy, the court 

cannot grant effective relief. Furthermore, this Court cannot fashion the remedy 

which Scriber seeks (return to her of legal and physical custody of A.E.), because 

Scriber did not appeal the court's order in the custody modification proceeding. 

¶11 Because this appeal of the order extending the Department's TIA and temporary 

legal custody of A.E. is moot, the appeal is dismissed.

/S/ J. A. TURNAGE 

We concur:

 /S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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