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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No
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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No
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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