In re D.A.

2003 MT 109, 68 P.3d 735, 315 Mont. 340, 2003 Mont. LEXIS 180

Opinions

JUSTICE REGNIER

delivered the Opinion of the Court.

¶1 K.G. appeals an Order for Temporary Legal Custody from the Second Judicial District Court, Silver Bow County. We affirm.

¶2 The following issue is dispositive of this appeal:

¶3 Were the District Court’s findings of fact sufficient to allow for meaningful appellate review?

BACKGROUND

¶4 D.A. was bom on July 11, 2000. Her natural mother is K.G. Her natural father, B.A., has not contested these proceedings.

¶5 At the request of law enforcement, the Department of Public Health and Human Services (“DPHHS”) became involved with D.A. after a domestic occurrence between D.A.’s mother and her mother’s live-in boyfriend, S.S. When social workers went to the home, they found that D.A. had significant bruising, was vomiting and no one had changed her diaper for quite some time. D.A. was taken to the hospital for an evaluation and then released to her mother’s overnight care.

¶6 The following day, the county attorney contacted DPHHS and requested a follow-up examination. The social workers discovered that bruising was first noted on D.A. on May 10, 2001, but no one had sought medical attention until May 17, 2001. When questioned about this, K.G. told the social workers that she noticed the bruising after she left D.A. in the care of S.S. She claimed that S.S. had beaten her up when she confronted him about the injuries. K.G. also told the social workers that S.S. had beaten her up previously and that she had been in domestic altercations with D.A.’s father before moving to Montana with S.S.

¶7 On May 21, 2001, DPHHS filed a Petition for Temporary Investigative Authority and Order to Show Cause in the District Court. The court issued an Order to Show Cause, granted emergency protective powers to DPHHS and appointed Timothy Dick as D.A.’s guardian ad litem. Following the expiration of the temporary investigative authority period, DPHHS filed a Petition for Temporary Legal Custody and Protective Services.

¶8 The District Court held a hearing on November 8, 2001. B.A. entered a Stipulation and Order granting temporary legal custody to DPHHS for six months the following day. On November 13, 2001, the court entered an Order for Temporary Legal Custody. KG. appeals.

STANDARD OF REVIEW

¶9 When reviewing a district court’s findings of fact, we must decide whether the court’s findings are clearly erroneous. See In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11. A finding of fact is clearly erroneoüs if substantial evidence does not support it, if the district court misapprehended the effect of the evidence or if, after reviewing the record, we are left with a definite and firm conviction that the district court made a mistake. See In re J.N., ¶ 11.

DISCUSSION

¶10 Were the District Court’s findings of fact sufficient to allow for meaningful appellate review?

¶11 At the outset, it is important to address the procedural history of this case. On February 1,2002, the State moved to dismiss this appeal. The State argued that the District Court’s temporary custody order was not “final,” and, therefore, not appealable pursuant to Rule 1, M.R.App.P. On February 26, 2002, we concluded that “because the District Court has granted all the relief requested in the Department’s petition, that its order dated November 13, 2001, granting temporary legal custody to the Department for a period of six months is a ‘final order’ within the meaning of Rule 1, M.R.App.P.” Therefore, we denied the State’s motion to dismiss the appeal.

¶12 After further reflection, we believe that our initial inclination was incorrect for the reasons discussed below. However, because we denied the State’s motion to dismiss, we will entertain the merits of this case as if they were before us on direct appeal. But, for the benefit of future litigants, we will delineate the appropriate procedure one must hereafter follow in challenges to orders of temporary custody.

¶13 Rule 1(b), M.R.App.P., provides in relevant part:

In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases:

(1) From a final judgment entered in an action or special proceeding commenced in a district court, or brought into a district court from another court or administrative body.

This Court has defined a final judgment as “one which constitutes a final determination of the rights of the parties; any judgment, order or decree leaving matters undetermined is interlocutory in nature and not a final judgment for purposes of appeal.” In re B.P., 2000 MT 39, ¶ 15, 298 Mont. 287, ¶ 15, 995 P.2d 982, ¶ 15. Whether to treat orders of temporary custody as final or interlocutory judgments presents a difficult question, as evidenced by the contrasting philosophies adopted in various jurisdictions. Compare In re Murray (Ohio 1990), 556 N.E.2d 1169, 1175 (“[A]n adjudication that a child is neglected or dependent, followed by a disposition awarding temporary custody... constitutes a ‘final order’ ... and is appealable ....”) with In re Marriage of Denly (Iowa 1999), 590 N.W.2d 48, 51 (“Temporary custody orders are not final judgments appealable as a matter of right, but rather are interlocutory orders from which permission to appeal must be obtained from our court.”).

¶14 Perhaps the gravity of the competing concerns complicates the final versus interlocutory order issue. On one hand, temporary custody orders purport to deprive parents of a fundamental liberty interest, the right to the care and custody of their child. See Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599; Matter of R.B. (1985), 217 Mont. 99, 102, 703 P.2d 846, 848. A prohibition against review of temporary custody orders would not only secure the deprivation, but could significantly disadvantage parents in permanent custodial proceedings.

¶15 For example, orders of temporary custody transfer custody of a youth in need of care to someone other than the child’s parents for up to six months. See § 41-3-442(2), MCA. Before expiration of the six months, the state can petition a court to extend the temporary custody for an additional six months pursuant to § 41-3-442(2)(a), MCA. Therefore, a court could conceivably strip a parent of his or her right to raise a child for up to one year, preliminary orders of temporary investigative authority aside. Section 41-3-604(1), MCA, provides that “[i]f a child has been in foster care under the physical custody of the state for 15 months of the most recent 22 months, the best interests of the child must be presumed to be served by termination of parental rights.” Were we to prohibit review of temporary custody orders, the state would irrefutably bank eighty percent of the time contemplated by the statutory presumption. Therefore, for those parents facing the prospect of termination proceedings and the adverse presumption, we presume that a review of the temporary custody order carries significant import.

¶16 On the other hand, we have a child whose welfare most often depends upon immediate action. To this end, the Iowa Supreme Court has often repeated the maxim that “the custody of children should be quickly fixed and seldom disturbed.” Denly, 590 N.W.2d at 51. To subject a child to protracted custodial litigation and the regrettable delay associated with multiple direct appeals would run counter to this proposition. Further, the multiple direct appeals would force a child to languish in custodial limbo while the notice of appeal would arguably stifle a trial court’s authority to act in the interim.

¶17 Despite the parental interests reiterated above, we do not believe that temporary custody orders embrace the finality contemplated in Rule 1, M.R.App.P. As its very name implies, a temporary custody order acts as a provisional intervention for the protection of the child. The order remains in effect for a finite period of time until the child is returned to the respective parent or parents or permanency proceedings are commenced. If the state commences permanency proceedings, the order of temporary custody is subsumed into the final custody determination. Consequently, the order of temporary custody does not constitute a final determination of the rights of the parties.

¶18 Simply qualifying orders of temporary custody as interlocutory does not leave a parent, aggrieved by an erroneous order, without remedy. Such a party may invoke extraordinary remedies “when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper.” Rule 17(a), M.R.App.P. One such extraordinary remedy, supervisory control, shall issue when a district court proceeds under a mistake of law causing a gross injustice for which an appeal is not an adequate remedy. Safeco v. Montana Eighth Judicial Dist., 2000 MT 153, ¶ 14, 300 Mont. 123, ¶ 14, 2 P.3d 834, ¶ 14. Certainly, preclusion from direct appeal satisfies the inadequacy requirement for purposes of supervisory control. Accordingly, supervisory control is the appropriate mechanism to challenge an order of temporary custody. We do not intend to suggest that we are relaxing the burden a petitioner must establish under Rule 17(a), M.R.App.P., in neglect and dependency cases. However, given the gravity of the issues in cases such as this, we conclude that supervisory control affords us the opportunity to review those cases where a parent alleges that the entry of the temporary legal custody order constituted a mistake of law causing a gross injustice.

¶19 Based on the foregoing, we hold that orders of temporary custody are not “final judgments,” subject to direct appeal, but instead are interlocutory orders from which this Court will grant relief in extraordinary circumstances. We believe this position to be the more prudent means of balancing the competing interests involved. This result ensures the expeditious review of legal error while, at the same time, protects children from the instability borne out of protracted, piecemeal litigation. We believe the following statement aptly summarizes the policy considerations which support our holding:

[T]his holding will protect the child from the protraction of custody litigation through repetitive appeals while still allowing prompt and comprehensive review of custody determinations. It will also support judicial economy and efficiency and uphold the integrity of the trial court’s process in deciding custody matters. On the one hand, to permit piecemeal appeals subjects the child to the uncertainties of ongoing litigation. A custody proceeding, whether on the trial or the appellate level, threatens a child’s stability. On the other hand, a custody decision once finally made must be subject to review. Drawing a bright line by which finality may be determined will encourage judicial economy and efficiency by making it clear both to litigants and to trial courts when the appellate process may properly be invoked. Our holding also serves to uphold the integrity of the trial process by not interfering with the trial court’s efforts to craft a final decision and by not permitting premature challenges to those efforts.

G.B. v. M.M.B. (Pa. Super. Ct. 1996), 670 A.2d 714, 720-21.

¶20 Despite our holding that orders of temporary custody constitute interlocutory orders, we will address K.G.’s appeal as if it were before us on direct appeal because we denied the State’s motion to dismiss in February 2002. We now turn to the merits of the District Court’s order. ¶21 We have adopted the doctrine of implied findings for purposes of reviewing findings of fact. See In re Mental Health of S.C., 2000 MT 370, ¶ 14, 303 Mont. 444, ¶ 14, 15 P.3d 861, ¶ 14; Interstate Brands Corp. v. Cannon (1985), 218 Mont. 380, 384, 708 P.2d 573, 576. The doctrine provides that “where a court’s findings are general in terms, any findings not specifically made, but necessary to the judgment, are deemed to have been implied, if supported by the evidence.” Interstate Brands, 218 Mont. at 384, 708 P.2d at 576.

¶22 When deciding whether to grant temporary legal custody, a court must first determine whether the child is a youth in need of care. See § 41-3-442(1), MCA. To make this determination, the court must make written findings on issues, including but not limited to:

(i) which allegations of the petition have been proved or admitted, if any;

(ii) whether there is a legal basis for continued court and department intervention; and

(iii) whether the department has made reasonable efforts to avoid protective placement of the child or to make it possible to safely return the child to the child’s home.

Section 41-3-437(7)(a), MCA.

¶23 The court also must “determine the nature of the abuse and neglect and establish facts that resulted in state intervention and upon which disposition, case work, court review, and possible termination are based.” Section 41-3-437(2), MCA.

¶24 The District Court’s findings conform with these statutory requirements. First, the court found that DPHHS proved its allegation that D.A. was abused, dependent or neglected. In support of this finding, the court wrote that K.G. “failed to protect her from an environment which is dangerous to her physical and emotional well being.” The court also found that “the state or condition of the natural mother is such that at the present time, she cannot provide adequate protection to [D.A.] to ensure that she does not suffer further abuse or neglect.” In addition, the court found that “[dismissing the petition would create a substantial risk of harm to the child or be a detriment to the child’s physical or psychological well being.” Finally, it found that DPHHS “made reasonable efforts to prevent or eliminate the need for removal of the child and/or to make it possible for the child to return home.” These findings provided a sufficient basis to determine that D.A. was a youth in need of care under § 41-3-437, MCA.

¶25 Once the court determined that D.A. was a youth in need of care, the court could grant temporary custody if it determined by a preponderance of the evidence that:

(a) dismissing the petition would create a substantial risk of harm to the child or would be a detriment to the child’s physical or psychological well-being; and

(b) unless there is a finding that reasonable efforts are not required pursuant to 41-3-423, reasonable services have been provided to the parent or guardian to prevent the removal of the child from the home or to make it possible for the child to safely return home.

Section 41-3-442(1), MCA.

¶26 Here, the District Court specifically found that “[dismissing the petition would create a substantial risk of harm to the child or be a detriment to the child’s physical or psychological well being.” It also found that DPHHS “made reasonable efforts to prevent or eliminate the need for removal of the child and/or to make it possible for the child to return home. The efforts of the Department are set forth in the Affidavit in support of the Petition.” While these findings of fact are conclusory, our concern on review is whether the evidence supports them. We conclude that it does.

¶27 At the hearing, a clinical psychologist, Dr. Ned Tranel, testified as to his examination of K.G. concerning her parenting skills. Dr. Tranel found significant limitations in KG.’s cognitive functioning, which bordered on mental retardation, as well as a severe deficit in her social knowledge. Based on his evaluation, Dr. Tranel testified that K.G. “would be unable to meet a minimal standard of parenting for a young child based on the lack of skill in providing the basic ingredients of safety, nurturing and attachment.” He further testified that the prognosis for a change in K.G.’s behavior was poor and that the essential ingredients of D.A.’s development would “have to be generated by resources outside of [K.G.’s] capability.” Dr. Tranel concluded that the court’s dismissal of.the petition for temporary legal custody would risk D.A.’s safety and opportunities for child development.

¶28 Dr. Robert Page, a psychotherapist, also examined K.G. to determine her mental status and ability to safely parent. He testified that K.G. would have difficulty developing autonomy, independence and other coping skills necessary to avoid further potentially abusive relationships. Dr. Page recommended that D.A.’s treatment plan be more long-term to give K.G. the time she would need to gain adequate parenting skills.

¶29 A mental health therapist, Michelle Miller, also testified as to K.G.’s parenting ability. Miller counseled K.G. once a week as part of her treatment plan to work on relationship issues. She testified that K.G. achieved little progress in these sessions.

¶30 This evidence sufficiently supports the court’s findings. The court noted at trial that, while K.G. did not do “anything wrong personally,” she made mistakes concerning other people in her life that endangered D.A.’s welfare. Finding that K.G. personally caused D.A.’s injuries is not necessary for the court to grant temporary legal custody. A court may deem a youth in need of care regardless of the parent’s care for the child, or even whether actual abuse or neglect occurred. See In re A.M., 2001 MT 60, ¶ 42, 304 Mont. 379, ¶ 42, 22 P.3d 185, ¶ 42; Matter of M.M. (1995), 274 Mont. 166, 170-71, 906 P.2d 675, 678 (affirming an adjudication of children as youths in need of care where mother left children with inappropriate supervision); Matter of A.W. (1991), 247 Mont. 268, 272-73, 806 P.2d 520, 523 (affirming an adjudication of children as youths in need of care where mother continually exposed her children to a harmful living environment, including associating herself with abusive men, although not committing abuse herself).

¶31 K.G. argues that the District Court’s findings do not comply with our holding in Wolfe v. Webb (1992), 251 Mont. 217, 824 P.2d 240. That case involved a worker’s compensation claim where the district court adopted the findings of one party verbatim. We upheld the court’s findings and stated that we would affirm “findings or conclusions so long as they are supported by the evidence and law of the case.” See Wolfe, 251 Mont. at 229, 824 P.2d at 247 (citing Rule 52(a), M.R.Civ.P.). K.G. does not claim that the District Court adopted another party’s findings. More important, the evidence of the case supports the court’s findings.

¶32 For these reasons, we conclude that the District Court’s findings of fact were sufficient.

¶33 Affirmed.

JUSTICES NELSON, COTTER, LEAPHART and RICE concur.