                                      No. 03-288

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2003 MT 323N


IN THE MATTER OF L.M. and N.M.,

           Youths in Need of Care.



APPEAL FROM:      District Court of the Eighth Judicial District,
                  In and for the County of Cascade, Cause No. ADJ-00-128-Y
                  The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:

           For Appellant:

                  Vince van der Hagen, Attorney at Law, Great Falls, Montana

           For Respondent:

                  Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
                  Assistant Attorney General, Helena, Montana

                  Brant Light, Cascade County Attorney, Great Falls, Montana


                                              Submitted on Briefs: October 23, 2003

                                                         Decided: November 25, 2003
Filed:


                  __________________________________________
                                    Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     The mother of L.M. and N.M. (Mother) appeals from the order granting a planned

permanent living arrangement (PPLA) entered by the Eighth Judicial District Court, Cascade

County. The restated issue on appeal is whether the District Court erred in granting a PPLA

after a permanency plan hearing without receiving a separate petition and holding a separate

hearing. We affirm.

                                     BACKGROUND

¶3     In June of 2000, the District Court granted the Department of Health and Human

Services (DPHHS) temporary legal custody (TLC) of Mother’s three children after an

incident involving her oldest child. In July of 2000, it adjudicated the children as youths in

need of care and, thereafter, held periodic review hearings. Throughout the proceedings, the

parties repeatedly stipulated to extensions of the TLC so Mother could continue to

participate in treatment programs.

¶4     In September of 2001, DPHHS filed a request for a permanency plan hearing, and the

District Court granted the request and scheduled the hearing for October 17, 2001. It later




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rescheduled the hearing for October 24. Prior to the hearing, the children’s guardian ad litem

submitted an informational report with her recommendations.

¶5     At the October hearing, DPHHS’s attorney stated Mother needed to progress in her

treatment before a permanency plan could be established, and Mother’s counsel said she had

nearly completed her treatment plan. The District Court determined the status quo should

be maintained regarding L.M. and N.M. and, because Mother’s oldest child had reached her

majority by that time, dismissed the case insofar as it pertained to her. The District Court

eventually scheduled another “review hearing and a permanency hearing” for March 20,

2002. In February of 2002, Mother moved the court for an immediate hearing. On March

13, 2002, the District Court ordered reunification of L.M. and N.M. with Mother and

subsequently vacated the March 20 hearing.

¶6     Although the children were reunited with Mother, DPHHS retained TLC. The

District Court held two more review hearings in May and August of 2002, ordering that the

children remain with Mother and extending the TLC six months after the August hearing.

In September of 2002, DPHHS removed L.M. and N.M. from Mother’s home due to

immediate concerns about the children’s safety. The District Court eventually set a

permanency hearing for January 29, 2003.

¶7     Prior to the hearing, the guardian ad litem submitted an updated report to the court.

DPHHS filed a Motion to Accept Permanency Plan and Grant Planned Permanent Living

Arrangement and Guardianship (Motion), together with a social worker’s affidavit

articulating a permanency plan and a PPLA for each child. DPHHS requested that N.M. be


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placed with her maternal grandparents and L.M. be placed with her adult sister and brother-

in-law.

¶8     A family support specialist, the DPHHS social worker, and Mother testified at the

hearing. The family support specialist stated that L.M.’s adult sister and brother-in-law

“ma[d]e a really good team” in caring for L.M. The social worker testified that DPHHS had

offered every available service, Mother could not place her children’s needs above her own,

and the placements with family members were in the children’s best interests and would

allow the children to maintain relationships with Mother. Mother stated she was employed,

felt it was “weird” that L.M.’s sister would want to raise her, and questioned N.M.’s

grandmother’s ability to care for her. Mother also testified she had “resolved” an incident

in which she left L.M. unsupervised, and she had driven the children in a car with a

dangerous offender on parole from pre-release because she feared his family might retaliate

if she called the police. She admitted she could have handled a public confrontation with

L.M.’s adult sister differently, but felt her home was “very safe” and would be “a good home

for [L.M. and N.M.].”

¶9     The District Court entered its order on what it apparently deemed DPHHS’s

“petition,” granting its “request” for a PPLA for each child. Mother moved the court to

vacate its order, asserting it lacked jurisdiction to grant the PPLA without first receiving an

actual petition from DPHHS and holding a separate hearing. The District Court denied her

motion, and Mother appeals.




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                                 STANDARD OF REVIEW

¶10    We review a district court’s conclusions of law for correctness. In re Custody of T.Z.,

2000 MT 205, ¶ 10, 300 Mont. 522, ¶ 10, 6 P.3d 960, ¶ 10.

                                        DISCUSSION

¶11 Did the District Court err in granting a PPLA after a permanency plan hearing without
receiving a separate petition and holding a separate hearing?

¶12    Mother contends that the statutes governing child abuse and neglect cases precluded

the District Court from granting a PPLA upon DPHHS’s Motion. She argues that governing

statutes required a separate petition for a PPLA, and DPHHS’s Motion did not equate to the

requisite petition. She also argues that the District Court was required to hold a separate

hearing to adjudicate the PPLA.

¶13    Section 41-3-445, MCA (2001), governs permanency plan hearings. The court’s

order following such a hearing must include findings about whether the permanency plan is

in the child’s best interests and whether DPHHS has made reasonable efforts to finalize the

plan, as well as an order to DPHHS to take any additional steps necessary to effectuate the

plan. Section 41-3-445(4), MCA (2001). However, § 41-3-445(5), MCA (2001), authorizes

the court to enter any other order that it determines is in the child’s best interests, so long as

the order does not conflict with enumerated permanency options. Pursuant to § 41-3-445(6),

MCA (2001), permanency options include reunification, adoption, guardianship, or a PPLA.

Here, the District Court found DPHHS had made “more than reasonable efforts” to reunite

the family, and the placements with family members would be in the children’s best



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interests. The District Court also allowed DPHHS to petition for guardianship of either child

if and when appropriate.

¶14    Mother concedes the purpose of the hearing was for the court to approve a plan for

permanent placement of her children. She further concedes that PPLAs were an option

available under § 41-3-445(6), MCA (2001). Nor does she argue that § 41-3-445, MCA

(2001), required a separate petition. Mother relies on other statutes to support her argument

that a petition was required. For example, two other permanency options enumerated in §

41-3-445(6), MCA (2001)–adoption after a termination of parental rights and

guardianship–expressly require a petition. See §§ 41-3-444(1) and 41-3-604, MCA (2001).

In addition, § 41-3-442(2), MCA (2001), required DPHHS to petition for one of several

options before the expiration of the TLC, and one option was a PPLA. Finally, when

DPHHS does not petition to terminate parental rights to a child who has been in foster care

for 15 of the last 22 months, it must file a petition for extension of the TLC, a PPLA, or a

dismissal. See § 41-3-604(5), MCA (2001). Mother correctly sets forth these statutes.

¶15    The issue before us, however, boils down to whether DPHHS’s Motion satisfied these

statutory requirements for a petition. Stated differently, we address whether the District

Court properly treated the Motion as a petition. A natural parent’s right to care and custody

of a child is a fundamental liberty interest that must be protected by fundamentally fair

procedures at all stages of the proceedings. In re F.M., 2002 MT 180, ¶ 22, 311 Mont. 35,

¶ 22, 53 P.3d 368, ¶ 22 (citation omitted). However, we “look to the substance of a motion,




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not just its title, to identify what motion has been presented.” See In re Marriage of

Holloway, 2000 MT 104, ¶ 13, 299 Mont. 291, ¶ 13, 999 P.2d 980, ¶ 13 (citation omitted).

¶16    In its motion, DPHHS expressly requested the District Court to grant the permanency

plan set forth in the social worker’s affidavit and, in substance, to order a PPLA for each

child. While titled a “motion,” DPHHS’s filing clearly was a petition for a PPLA.

¶17    In this regard, Mother argues that the “formalities required of a petition give notice

of a different kind of legal proceeding and hearing than the formalities associated with a

motion.” She cites no authority for this contention, however. Because the appellant bears

the burden of establishing error, Mother has not established error in this regard. See Matter

of M.J.W., 1998 MT 142, ¶ 18, 289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18 (citation omitted).

¶18    Mother also contends that the District Court was required to hold a separate hearing,

because § 41-3-445(6)(d), MCA (2001), provides that a district court must find “the evidence

demonstrates by a preponderance of the evidence” that one of five situations exists before

granting a PPLA. However, nothing in this language suggests that a hearing separate from

the permanency plan hearing is required, and nothing in the statute precludes an

interpretation that a permanency plan hearing includes a hearing on the requested relief. In

fact, defense counsel asked the social worker and Mother questions about the “placement”

during the permanency plan hearing and did not object to discussing the placement at that

time. Because DPHHS’s Motion provided sufficient notice that the District Court would

hear evidence regarding the PPLA for each child, the District Court did not err in granting

the PPLA without holding a separate hearing.


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¶19    We hold the District Court did not err in granting a PPLA after a permanency plan

hearing without receiving a separate petition and holding a separate hearing.

¶20    Affirmed.



                                                 /S/ KARLA M. GRAY

We concur:

/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON




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