In re Declaring B.P.

2008 MT 166, 184 P.3d 334, 343 Mont. 345, 2008 Mont. LEXIS 248
CourtMontana Supreme Court
DecidedMay 13, 2008
DocketNo. DA 07-0461
StatusPublished
Cited by11 cases

This text of 2008 MT 166 (In re Declaring B.P.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Declaring B.P., 2008 MT 166, 184 P.3d 334, 343 Mont. 345, 2008 Mont. LEXIS 248 (Mo. 2008).

Opinions

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 R.P., mother of B.P. and A.P., appeals the Montana Eighteenth Judicial District Court’s order denying her motion to dismiss. We reverse and remand.

ISSUE

¶2 A restatement of the issue is:

¶3 Did the District Court abuse its discretion in refusing to relinquish jurisdiction over the proceeding involving B.P. and A.P.?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 B.P. was born in July 1989, and A.P. was born in July 1993. They are the children of R.P. (hereinafter “Mother”) and T.P. (hereinafter “Father”). Mother and Father were divorced in April 1996 and the children remained in Mother’s custody in Montana. Shortly after the divorce Father moved to California. Beginning in November 1996 the Montana Department of Public Health and Human Services (Department) began receiving calls from concerned persons regarding the children’s and Mother’s extremely inappropriate behavior. Ultimately the Department was authorized to conduct temporary investigations and provide protective services. In February 1999 the District Court ordered the children be removed from Mother’s home and placed in therapeutic foster care. Mother appealed this order to the Montana Supreme Court and we affirmed the District Court.

¶5 While the appeal was pending, the children, with court permission, traveled to California to spend six weeks with their father beginning in July 1999. During this time Father sought and was granted permission to keep the children in California until the next adjudicatory hearing on the Department’s authority. In June 2000 the Department notified the District Court that it no longer wished to pursue temporary legal custody over the children as they were thriving under the care of their father in California. Subsequently in July 2000 the District Court held an adjudicatory hearing and took extensive testimony. In October 2000 the District Court issued its Findings of Fact, Conclusions of Law and Order (“custody order”). The court found that Mother had emotionally abused the children, and ordered that the [347]*347children be permanently placed with their father. The court prohibited Mother from having any contact with the children until “such time as she has addressed her psychological disorders with the ongoing treatment of a psychologist or counselor in conjunction with a licensed psychiatrist.”

¶6 In its custody order, the court also specified the means by which Mother could resume contact with her children, after “she acknowledges her responsibility in emotionally abusing the[] children.” The court ordered Mother to seek psychological treatment and counseling. After she made sufficient improvement, and at the discretion of her treating psychologist and the children’s counselor, she could slowly re-establish contact with the children according to the court’s plan. Mother appealed the court’s Order. In November 2001 we affirmed the District Court’s custody order.

¶7 Following the court’s custody order, the children remained in California with their Father, where they have lived since July 1999. Mother relocated to Minnesota in the fall of 2002 and has not lived in Montana since that time. The State of Montana has had no contact with any of the family members since 2002.

¶8 In September 2005 Mother violated the Montana court’s custody order by surprising Father and the children in California with an unauthorized visit. After Mother’s unannounced visit, Father registered the Montana District Court’s custody order with the California courts, so that the terms of the custody order could be enforced in California if necessary. Pursuant to Cal. Fam. Code Ann. § 3445 (West 2004), Mother received notice that Father had registered an out-of-state custody decree with the California coruts. This notice explained that Mother had the right to contest the validity of the out-of-state decree by requesting a hearing within 20 days of the mailing of the notice. Mother did not request a hearing, and so the decree was confirmed.

¶9 In March 2007 Mother filed a “Motion to Dismiss” in the Montana Eighteenth Judicial District Court on the grounds that the Montana District Court no longer had jurisdiction over the matter because none of the parties lived in Montana. Mother sought the Montana District Court’s relinquishment of jurisdiction over the proceeding. The District Court denied her motion to dismiss, and this appeal followed.

¶10 We note that in July 2007, B.P. turned 18 years old and is no longer subject to these proceedings.

STANDARD OF REVIEW

¶11 We review a district court’s decision on a motion to decline [348]*348jurisdiction for abuse of discretion. In re Marriage of Fontenot, 2003 MT 242, ¶ 11, 317 Mont. 298, ¶ 11, 77 P.3d 206, ¶ 11, rev’d in part on other grounds in In re Marriage of Fontenot, 2006 MT 324, 335 Mont. 79, 149 P.3d 28.

DISCUSSION

¶12 Did the District Court abuse its discretion in refusing to relinquish jurisdiction over the proceeding involving B.P. and A.P. ?

¶13 Mother wishes to pursue an action for visitation in California. Accordingly, she sought to have the Montana District Court “dismiss” the youth-in-need-of-care proceeding that originated in Montana in 1999. While styled a “Motion to Dismiss,” the sole relief requested in Mother’s motion is the Montana District Court’s relinquishment of jurisdiction. She argues that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCC JEA”), codified under Title 40 of the Montana Code Annotated, the Montana District Court no longer has jurisdiction over these proceedings.

¶14 In response, Father argues that since the proceedings in the instant case were initiated under Title 41 (as opposed to Title 40), the UCCJEA does not apply. Title 41 governs abuse and neglect proceedings, which is the type of proceeding initiated in this case in 1999. Title 41 contains a unique jurisdictional provision, which provides in relevant part: “In all matters arising under this chapter, the district court has jurisdiction over ... a youth or other person subject to this chapter who under a temporary or permanent order of the court has voluntarily or involuntarily left the state or the jurisdiction of the court[.]” Section 41-3-103(l)(b), MCA. Father cites this provision in support of his contention that the District Court properly retained jurisdiction. Father also argues that “dismissal” of the abuse and neglect proceedings would “nullify” the Montana District Court’s custody order and eliminate the protections afforded by it.

¶15 The Department filed a brief in response to Mother’s motion to dismiss. The Department pointed out to the District Court that it no longer had a “legal interest” in this matter, having permanently placed these children in the custody of their father in accordance with the court’s final custody order issued in October 2000. At that time the agency closed its case file. The DPHHS also opined that “this is an issue of comity in which a valid order has been entered in a Montana Court and California has adopted that order. The Montana order is valid and has been registered in California. At this time, it is appropriate for this case to proceed under the appropriate child [349]

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Cite This Page — Counsel Stack

Bluebook (online)
2008 MT 166, 184 P.3d 334, 343 Mont. 345, 2008 Mont. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-declaring-bp-mont-2008.