In Re BP

May 13 2008

DA 07-0461

IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 166

IN THE MATTER OF DECLARING

B.P. and A.P.

Youths in Need of Care.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DN 1999-001
Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Timothy J. Whalen, Attorney at Law, Laurel, Montana

For Appellee:

Leanne M. Schraudner, Attorney at Law, Bozeman, Montana

Submitted on Briefs: January 29, 2008

Decided: May 13, 2008

Filed:

__________________________________________
Clerk
Justice Patricia O. 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

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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 children 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.

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¶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 courts. 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 jurisdiction 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

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¶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 (“UCCJEA”), 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(1)(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

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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 custody laws, not under

the child abuse and neglect laws of Montana.”

¶16 The District Court provided no findings in its order denying Mother’s motion,

explaining simply that “the last order entered by this [c]ourt is a viable order and this

[c]ourt retains jurisdiction.” It further stated that the last order “expressly provided for a

mechanism by which mother could seek and maintain contact with the children. That

order is valid and remains in effect, no matter in which [c]ourt(s) it may have been filed.

Until and unless mother provides proof of compliance with the terms of that order, this

[c]ourt will not consider any further motions from mother.”

¶17 The statute relied on by Father, § 41-3-103(1)(b), MCA, was enacted in 1974, and

was part of the Uniform Child Custody Jurisdiction Act (“UCCJA”), the predecessor to

the UCCJEA. The UCCJA was weaker than its successor in many ways, especially in

that it was unclear whether the UCCJA applied solely to child custody determinations, or

also to child abuse and neglect proceedings. In 1997, the National Conference of

Commissioners on Uniform State Laws remedied this and other ambiguities by adopting

the UCCJEA. The official comments to the UCCJEA illuminate this deliberate change in

UCCJEA’s scope:

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 The definition of custody proceeding in the UCCJA is ambiguous.
States have rendered conflicting decisions regarding certain types of
proceedings. There is no general agreement on whether the UCCJA applies
to neglect, abuse, dependency, wardship, guardianship, termination of
parental rights, and protection from domestic violence proceedings. The
UCCJEA includes a sweeping definition that, with the exception of
adoption, includes virtually all cases that can involve custody of or
visitation with a child as a “custody determination.”

UCCJEA, 9 U.L.A. 651-52.

¶18 Montana and many other states, including California, adopted the UCCJEA in

1999, which repealed and replaced all of the provisions of the UCCJA. Paslov v. Cox,

2004 MT 325, ¶ 25, 324 Mont. 94, ¶ 25, 104 P.3d 1025, ¶ 25. The expanded reach of the

UCCJEA is codified in Montana at § 40-7-103(4)(a), MCA, which defines “child custody

proceeding” as:

[A] proceeding in which legal custody, physical custody, or visitation with
respect to a child is an issue. The term includes a proceeding for divorce,
separation, neglect, abuse, dependency, guardianship, paternity, termination
of parental rights, and protection from domestic violence, in which the
issue may appear.

Section 40-7-103(4)(a), MCA. In sum, both the UCCJEA drafters and the states which

adopted it clearly intended to expand the reach of the statute to include child abuse and

neglect proceedings. Thus, to the extent that § 41-3-103, MCA, and § 40-7-103(4)(a),

MCA, conflict, § 40-7-103(4)(a), MCA, must prevail. See e.g. Ross v. City of Great

Falls, 1998 MT 276, ¶ 18, 291 Mont. 377, ¶ 18, 967 P.2d 1103, ¶ 18 (holding that the

later-enacted statute prevails, especially in light of clear legislative intent). The Montana

District Court’s final order in the youth-in-need-of-care proceeding underlying this case

expressly addressed custody and visitation involving B.P. and A.P.; consequently, the

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proceedings in the instant case are governed by the jurisdictional provisions of the

UCCJEA.

¶19 The relevant jurisdictional provision of the UCCJEA is § 40-7-202(1), MCA,

which provides that:

[A] court of this state that has made a child custody determination
consistent with 40-7-201 or 40-7-203 has exclusive, continuing jurisdiction
over the determination until:
(a) a court of this state determines that neither the child, the child
and one parent, nor the child and a person acting as a parent have a
significant connection with this state and that substantial evidence is no
longer available in this state concerning the child’s care, protection,
training, and personal relationships; or
(b) a court of this sate or a court of another state determines that
neither the child, a parent, nor any person acting as a parent presently
resides in this state.

Under this statute, the Montana District Court retains “exclusive, continuing jurisdiction”

over this matter until one of the two specific events described in subsections (a) or (b)

occurs. These subsections are neither arbitrary nor confusing. The statute unequivocally

states that exclusive and continuing jurisdiction exists until a court in this state

determines that none of the relevant parties reside in Montana. While it is undisputed and

well-documented that none of the relevant parties reside in Montana, the District Court

merely stated in its order that Father and children do not live in Montana. Whether this

was an oversight or an attempt to retain jurisdiction when jurisdiction was no longer

authorized, the District Court was obligated to apply this statute, make such a

determination and relinquish jurisdiction over this matter. Failure to do so constitutes an

abuse of discretion.

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¶20 Due to the cursory nature of the District Court’s order of dismissal, we cannot

determine whether i t was persuaded by Father’s concern that “dismissal” of the

proceeding would nullify the court’s final order in which Father was granted custody and

appropriate restrictions were placed on Mother’s rights. We therefore address Father’s

concern.

¶21 Under the UCCJEA, California must recognize and enforce Montana’s decrees.

The California statute provides: “A court of this state shall recognize and enforce a child

custody determination of a court of another state if the latter court exercised jurisdiction

in substantial conformity with [the UCCJEA].” Cal. Fam. Code Ann. § 3443 (West

2004). No one disputes that the Montana District Court exercised legitimate jurisdiction

when it issued the child custody determination. Additionally, as noted above, Father has

registered the Montana custody order in California for the express purpose of California

enforcement. Section 3445(a) of the California Code provides that “[a] child custody

determination issued by a court of another state may be registered in this state, with or

without a simultaneous request for enforcement.” Under these provisions, upon

registration or after registration, Father may seek enforcement in California of Montana’s

custody order.

¶22 In addition to being able to enforce the custody order, California may also modify

the order under Cal. Fam. Code Ann. § 3423, which is California’s counterpart to

§ 40-7-203, MCA. Both statutes provide that a state court may modify another state

court’s custody order if the modifying court meets the requirements necessary to make an

initial determination (e.g., residency of children, parent(s), significant connection) and

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the modifying court or the initial court determines that none of the relevant parties reside

in the state where the initial custody order was issued. Given this Court’s determination

that neither the children nor their parents live in Montana, and the fact that the children

and Father reside in California, the two necessary prerequisites to California jurisdiction

over this matter are met.

¶23 Lastly, Mother acknowledges on appeal that while she called her motion a

“Motion to Dismiss,” she was seeking transfer of jurisdiction. Under the circumstances

of this case and in light of the exclusive relief sought by Mother—relinquishment of

jurisdiction—the District Court was obligated to apply the relevant jurisdictional

provisions of the UCCJEA. Application of such required a determination that none of the

relevant parties resided in the state of Montana and that Montana no longer had

exclusive, continuing jurisdiction over the matter. The District Court should have issued

an order relinquishing jurisdiction. The court abused its discretion in failing to do so.

CONCLUSION

¶24 For the foregoing reasons, we reverse and remand to the District Court with

instructions to enter an order relinquishing jurisdiction over the Montana custody order.

/S/ PATRICIA COTTER

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER

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/S/ JAMES C. NELSON
/S/ JIM RICE

Justice W. William Leaphart, dissenting.

¶25 I dissent from the Majority’s opinion because there were no ongoing proceedings

for the District Court to dismiss in the instant case. As a result, I would affirm the

District Court’s denial of Mother’s motion to dismiss.

¶26 The District Court’s March 18, 2000 Order adjudicated the children youths in need

of care, and approved the Department’s request to award permanent custody to Father

under § 41-3-406, MCA (now § 41-3-438, MCA). The court’s Order giving Father

permanent custody of the children is a final order for the purposes of M. R. App. P. 4,

which Mother appealed, and we affirmed. In re B.P., 2001 MT 219, 306 Mont. 430, 35

P.3d 291.

¶27 All abuse and neglect proceedings concerning B.P. and A.P. were concluded with

the District Court’s March 18, 2000 Order. Once the children were placed with Father,

they were removed from the circumstances which placed them in danger of abuse or

neglect. As a result, both the Department and the District Court’s jurisdiction over the

proceedings came to an end. See e.g. In re A.C., 2004 MT 320, ¶ 17, 324 Mont. 58, ¶ 17,

101 P.3d 761, ¶ 17 (placing children with their non-custodial parent who lived out-of-

state, and holding that the permanent placement “reliev[ed] the Department from any

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further obligation, as the concern for them being youths in need of care was eliminated by

such placement.”).

¶28 Should Mother or Father wish to modify the existing custody order, entered by the

Montana District Court and registered with the California courts, they are free to file the

appropriate civil action to do so. In the instant case, however, the District Court properly

denied Mother’s motion to dismiss, since all proceedings in this case were resolved by

the court’s final judgment issued on March 18, 2000.

/S/ W. WILLIAM LEAPHART

Justice Brian Morris joins in the foregoing dissent of Justice W. William Leaphart.

/S/ BRIAN MORRIS

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