May 16 2012
IN THE SUPREME COURT OF THE STATE OF MONTANA
OP 12-0155
2012 MT 110
_________________
A.C.,
Petitioner,
v. OPINION
AND
MONTANA TENTH JUDICIAL DISTRICT COURT, ORDER
FERGUS COUNTY, HONORABLE E. WAYNE
PHILLIPS, Presiding,
Respondent.
_________________
¶1 On March 9, 2012, Petitioner A.C., by counsel, filed a Petition for Writ of
Supervisory Control seeking our exercise of control over Fergus County Cause Nos.
DN 2012-1 and DN 2012-2. A.C. challenges the District Court’s interpretation of
§ 3-1-804(1)(b), MCA, as it pertains to the timeliness of motions for substitution of
district judges in child abuse and neglect proceedings (hereinafter DN cases). On March
21, 2012, we issued an Order taking A.C.’s petition under advisement pending the
outcome of another petition for supervisory control that raised a similar question. That
matter having been resolved by way of an Opinion and Order, we now address the
question presented here.
¶2 On May 15, 2012, we issued our Opinion and Order in D.H. v. Montana Fourth
Jud. Dist. Ct., 2012 MT 106, ___ Mont. ___, ___ P.3d ___. In D.H., we were asked to
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address the timeliness of a motion for substitution of a district judge in two distinct types
of cases: youth court proceedings, and matters on appeal to district court from a justice
court. For present purposes, we focus on the youth court proceedings aspect of our
Opinion and Order in D.H.
¶3 D.H. and J.H. were alleged to be delinquent youths. Both were served with
summonses and directed to appear for a detention hearing, which they did with assigned
counsel. The detention hearings served to determine whether probable cause existed that
the youths were delinquent. D.H., ¶ 17. If probable cause is determined, the youth court
may grant leave to the State to file a petition charging the youth as delinquent. Section
41-5-1401(1), MCA. This occurred in the cases of both D.H. and J.H. Thus, following
the detention hearings, the State’s petitions and summonses were prepared and served on
the youths, directing them to appear and answer the allegations of the petitions charging
them as delinquent youths. In each case, the youths thereafter appeared in response to the
petitions and summonses, and filed motions to substitute district judge pursuant to
§ 3-1-804(1)(b), MCA, within 10 days of their appearances. However, in both cases, the
motions for substitution of judge were filed more than 10 days after the youths initially
appeared in court for their respective detention hearings. The District Court concluded
that the appearance of each youth for his detention hearing constituted his “initial
appearance” for purposes of triggering the time period for substitution of district court
judge and therefore the court denied both motions for substitution of judge as untimely.
D.H and J.H. sought supervisory control.
¶4 Section 3-1-804(1)(b), MCA, provides:
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(b) In a criminal action; a child abuse and neglect proceeding under
Title 41, chapter 3; a youth court act proceeding under Title 41, chapter 5;
or a mental health commitment proceeding under Title 53, chapter 21, part
1, a motion for substitution by the prosecution or the state must be filed
within 10 calendar days after the district judge is assigned pursuant to
subsection (2)(a). A motion for substitution by the defendant, parent,
youth, or respondent must be filed within 10 calendar days after the
defendant, parent, youth, or respondent makes an initial appearance in the
district court.
¶5 In D.H., we concluded that the District Court’s determination that the detention
hearing constituted the youth’s “initial appearance” for purposes of § 3-1-804(1)(b),
MCA, was erroneous. Equating a detention hearing with a probable cause hearing, we
stated that “[a] ‘probable cause’ hearing does not constitute a youth’s ‘initial appearance’
in court within the meaning of § 3-1-804(b), MCA. This probable cause hearing instead
simply establishes whether the State may charge the youth as delinquent.” D.H., ¶ 17.
We determined that the youths’ “initial appearance” for purposes of the statute was the
date each appeared in court to answer the allegations of the petitions alleging them to be
delinquent youths. Therefore, we concluded that their motions for substitution of judge
were timely.
¶6 In the matter before us, we are concerned with DN proceedings and not youth
court proceedings. However, given that both types of proceedings are specifically
addressed in § 3-1-804(1)(b), MCA, and given the analogous nature of the respective
proceedings, we conclude our decision in D.H. is controlling here.
¶7 The DN proceedings in this case commenced with the filing of a Petition for
Emergency Protective Services, Adjudication as Youth in Need of Care and Temporary
Legal Custody on January 27, 2012. An Order to Show Cause and Notice of Show Cause
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Hearing was filed on January 30. The respondent parent, A.C., was served with the show
cause order on February 5, 2012, and on February 7, the Office of Public Defender filed a
notice of appearance on behalf of A.C. A settlement conference was held on February
10, and the court then continued the show cause hearing until February 22. A.C. filed her
motion to substitute judge on February 21, 2012. The District Court concluded that
A.C.’s “initial appearance” under the statute was the date that counsel appeared, which
was February 7, 2012, and that therefore the motion for substitution was untimely and
must be denied. A.C. sought supervisory control.
¶8 Citing § 41-3-432(4), MCA, A.C. argues in her petition that the “initial
appearance” in a DN case, as contemplated under § 3-1-804(1)(b), MCA, is the show
cause hearing at which a parent is informed of the procedures to be followed in the case
and of the various rights the parent has. These rights include the right of representation
and notice regarding ICWA, if applicable. Importantly, § 41-3-432(4), MCA, further
provides that the parent “must be given the opportunity to admit or deny the allegations
contained in the petition at the show cause hearing.” Moreover, § 41-3-432(2), MCA,
provides that “[t]he person filing the petition has the burden of presenting evidence
establishing probable cause for the issuance of an order for temporary investigative
authority after the show cause hearing . . . .”
¶9 We conclude that for both youth court and DN cases, it is the hearing at which the
parties appear in court to answer the allegations of the petition in question that constitutes
the “initial appearance” for purposes of § 3-1-804(1)(b), MCA. In D.H., we determined
that the youth’s “initial appearance” occurred on the date when the youth appeared
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pursuant to summons “to answer the allegations of the petition.” D.H., ¶ 18. In the
instant case, the “initial appearance” occurred when the parent appeared and was “given
the opportunity to admit or deny the allegations contained in the petition[].” Section
41-3-432(4), MCA. Thus, it is the date upon which a parent first appears in court to
answer the allegations of a DN petition that constitutes her “initial appearance” for
purposes of the substitution statute.
¶10 A.C. moved for substitution of judge one day before the continued show cause
hearing was set to occur. Two days later, the District Court entered its order declaring
the motion to substitute untimely. We do not know if the show cause hearing has yet
occurred; however, based upon the foregoing, we conclude that the District Court erred in
determining that it was the date of appearance of counsel that started the clock running
for purposes of a motion for substitution of judge in a DN proceeding. Therefore,
¶11 IT IS HEREBY ORDERED that A.C.’s Petition for Writ of Supervisory Control is
GRANTED.
¶12 IT IS FURTHER ORDERED that this matter is remanded to the District Court for
further proceedings consistent with this Opinion and Order.
¶13 The Clerk of this Court is directed to provide a copy of this Opinion and Order to
all counsel of record and to the Hon. E. Wayne Phillips, Tenth Judicial District Court.
DATED this 16TH day of May, 2012.
/S/ PATRICIA COTTER
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We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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