                                                                                     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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