In re A.J.C.

393 Mont. 9

427 P.3d 59

2018 MT 234

In the MATTER OF: A.J.C., a Youth in Need of Care.

DA 17-0600

Supreme Court of Montana.

Submitted on Briefs: June 6, 2018

Decided: September 18, 2018

For Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Jean Adele Carter, Attorney at Law, Thompson Falls, Montana (for Laura Schaefer ), Robert L. Zimmerman, Attorney at Law, Thompson Falls, Montana (for State of Montana), Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana (for A.J.C.)

Ingrid Gustafson, J., delivered the Opinion of the Court.

¶ 1 Appellant Dennis Cromwell, the natural father of A.J.C. (Father), appeals the September 26, 2017 Order Denying Department’s Motion to Amend the Permanency Plan and Order of Dismissal, in which the Twentieth Judicial District Court, Sanders County, determined it was in A.J.C.’s best interest to reside with his maternal grandmother (Grandmother) and denied the Department’s motion to place A.J.C. with Father.

¶ 2 We restate the issue on appeal as follows:

Did the District Court violate Father’s constitutional right to parent by denying Father his fundamental right to care and custody of his child throughout this dependent neglect proceeding and thereafter by permanently placing A.J.C. in the primary care of his grandmother and dismissing this proceeding?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On September 22, 2014, when A.J.C. was 11 years old, the Department of Health and Human Services, Child and Family Services Division (Department), filed a Petition for Emergency Protective Services (EPS) and Temporary Investigative Authority (TIA) in this dependent neglect (DN) matter. The Department had received several reports regarding A.J.C.’s mother (Mother) related to drug use, abuse, and distribution, and domestic violence. Although Mother had legal custody of A.J.C., he was frequently in Grandmother’s care. Father, who resided in Oregon, had not participated in parenting A.J.C. to any significant degree and had provided only limited support. Father had only seen A.J.C. in person a few times although he occasionally spoke to him via telephone.

¶ 4 After the Department became formally involved with Mother, it formally placed A.J.C. in Grandmother’s care. When Father learned of the Department’s involvement, he acted to gain custody of A.J.C. On October 14, 2014, at the Department’s direction, Father petitioned the District Court under an action separate from this DN action for a parenting plan designating him as A.J.C.’s primary residential parent.¹

¶ 5 On November 3, 2014, the District Court granted the Department’s petition for EPS and TIA. On November 24, 2014, Father moved for directed disposition and dismissal of this action. Father asserted he was prepared to parent A.J.C. and argued that as the non-custodial parent, he was entitled to immediate placement. Father further argued that Grandmother had failed to protect A.J.C. from Mother’s neglect. The Department objected, contending Father had an insufficient relationship with A.J.C. and immediate transfer of care would force A.J.C. to change schools in the middle of the school year.

The Department further expressed concern that Father had a criminal history and a previous history of child protective services (CPS) involvement. The Department argued that the District Court should allow it to further investigate the appropriateness of placement with Father before removing A.J.C. from Grandmother’s care.

¶ 6 The Department then petitioned for adjudication of A.J.C. as a youth in need of care (YINC) and asked the District Court to grant it temporary legal custody (TLC). On January 13, 2015, the District Court denied Father’s motion for directed disposition and dismissal. Shortly thereafter, the District Court adjudicated A.J.C. as a YINC and granted TLC to the Department.

¶ 7 On May 26, 2015, the District Court approved a treatment plan for Father.² The plan required three tasks: (1) maintain regular contact with A.J.C.; (2) cooperate with an interstate compact (ICPC) home study; and (3) maintain regular contact with the Department. The treatment plan’s purposes were: to strengthen the parent-child relationship; to provide the Department with the necessary information to determine if it was safe to place A.J.C. in Father’s care; to achieve reunification and establish a permanency plan; and to determine if Father could provide a stable lifestyle.

¶ 8 On July 17, 2015, the Department petitioned to extend TLC. The Department acknowledged that Father had maintained regular contact with it and with A.J.C., was cooperating with the ICPC home study process, and was hosting A.J.C. for a six-week visit. However, it alleged Father had not made sufficient progress on his treatment plan for the Department to transfer A.J.C. to his care because the ICPC home study was not yet complete. Father objected to the extension of TLC, noting that A.J.C. was doing well during his current visit. Father also contended the ICPC home study was completed without identification of any significant issues although a written report had not yet been produced. He asked the District Court to allow A.J.C. to remain in his care.

¶ 9 On July 31, 2015, the ICPC home study report approved Father as a placement for A.J.C., noting that Father had made the necessary changes to his lifestyle to allow him to care for A.J.C., and that he was "ready, willing and able" to do so. Thus, by July 31, 2015, Father had indisputably completed all of his treatment plan’s tasks.

¶ 10 On August 11, 2015, the District Court granted the Department extension of TLC. Although Father had already completed his treatment plan’s tasks, the court nonetheless found that Father needed additional time to complete his treatment plan. Even though the ICPC home study report had been issued over a week earlier, the court ruled, "In order for the child to be returned home to birth father, the ICPC home study must be completed with no concerns or any concerns in the ICPC must be addressed."

¶ 11 On September 8, 2015, the District Court conducted a hearing to determine A.J.C.’s placement. The court spoke with A.J.C. alone and off-the-record in chambers. It then heard the parties’ arguments. The Department objected to placing A.J.C. with Father even though the ICPC home study had approved placement, asserting it wanted additional time to obtain more information about Father. The Department alleged Father had an anger management issue that required further examination. The Department also urged the court to consider A.J.C.’s opinions in determining his placement.

¶ 12 Johnathan Nelson, a child protection specialist at the Department, testified he had interviewed A.J.C., and A.J.C. had expressed a preference for living with Grandmother. Nelson testified that the Department’s only concern in placing A.J.C. with Father was that the ICPC home study had turned up some "historical stuff" that made Nelson inclined to have Father evaluated for anger management and psychological issues. Nelson indicated the Department preferred A.J.C. remain with Grandmother, but would reassess its recommendations for placement if Father had those evaluations and addressed any issues that were uncovered. Nelson acknowledged, "Traditionally, the Department would try to reunify with the non-offending parent."

¶ 13 Father objected to the Department’s position, noting the ICPC home study had revealed no concerns. He also indicated he was willing to continue to work with the Department under a treatment plan if A.J.C. were placed in his care.

¶ 14 A.J.C.’s counsel asserted that A.J.C. did not wish to live with Father; however, she conceded the Department was statutorily obligated to place A.J.C. in Father’s care over Grandmother’s.

¶ 15 At the close of testimony, the District Court upheld the Department’s recommendation to leave A.J.C. with Grandmother until further order of the court. The court noted, however, that "in the long term [A.J.C.] is probably going to end up being reunited and living with his father ... given the preferences under the Montana code."

¶ 16 Thereafter, Father underwent a psychological evaluation at the Department’s behest, although it had not been part of his treatment plan. The evaluator concluded Father was ready and able to parent A.J.C. immediately and that Father did not need to make any changes before being an appropriate permanent placement for A.J.C. Despite this and despite the affidavit of Child Protection Specialist Kirk Israel of December 24, 2015, stating, "The Department has determined that [Father] is a safe and adequate placement and has no reason to deny placement of [A.J.C. with Father] at this time," the Department did not place A.J.C. with Father. Instead, on February 1, 2016, the Department filed a Motion for Approval of Parenting Plan in which it asked the District Court to determine if the permanency plan would be placement with Father or Grandmother in accordance with A.J.C.’s best interests.

¶ 17 On April 12, 2016, the District Court held a hearing to determine a final parenting plan and a permanency plan for A.J.C. The hearing encompassed not only the Department’s pending Motion for Approval of Permanency Plan in this case, but also included argument and testimony regarding a petition to establish a parental interest Grandmother had filed, and proposed parenting plans which Father and Grandmother had filed in other separate but related District Court cases.³

¶ 18 On July 18, 2016, prior to the District Court issuing any rulings on the issues pending at the April hearing, Father filed a motion for an emergency status hearing. Father indicated the Department had advised him that it intended to place A.J.C. with him for a trial home placement, and Father asked the District Court to hold a status hearing prior to issuing its rulings on the issues argued at the April hearing.

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