State ex rel. C.M.J. v. District Court of the Fourth Judicial District
State ex rel. C.M.J. v. District Court of the Fourth Judicial District
Opinion of the Court
delivered the opinion of the Court.
Relator has petitioned this Court for a writ of supervisory control or other appropriate writ directing the District Court to grant visitation privileges with the minor child J.L.B. and to stay adoptive proceedings of J.L.B. pending outcome of relator’s appeal of the District Court’s termination of C.M.J.’s custody of the child.
On October 27, 1977, the Department of Social and Rehabilitation Services (SRS), by and through the County Attorney of Missoula County, filed an action in District Court there, seeking a determination that the minor child J.L.B. is a youth in need of care and that permanent custody of the child and authority to consent to her adoption be granted SRS. A hearing on the petition extended over four days, February 23 and 27, and March 6 and 7, 1978. Judge Brownlee, on March 29, 1978, issued findings and conclusions, and a judgment awarding permanent custody of J.L.B. to SRS and authorizing the Department to arrange and consent to her adoption. Relator filed notice of appeal from the District Court determination on April 10, 1978, and at the same time, moved for, inter alia, “Visitation Pending Appeal” and “Stay of Adoptive Proceedings Pending Appeal”. Those motions were entertained at hearing on April 13, 1978, and were denied.
Writs of supervisory control are issued in circumstances of an emergency nature, making consideration of a cause of action or right in the trial courts and due appeal to this Court an adequate remedy, or in those circumstances when supervision of a trial court, other than by appeal, is deemed necessary or proper. Rule 17(a), Mont.R.App.Civ.P. Phrased otherwise, a writ of supervisory control will issue in those circumstances in which the facts show that a party has no plain, speedy or adequate remedy at law, in which there is no right of appeal from a District Court’s order, or in which the District Court has so abused its discretions as to justify intervention by this Court. State ex rel. Woodahl v. District Court (1975), 166 Mont. 31, 38-39, 530 P.2d 780, 785, and cases cited therein. Too, a writ of supervisory control is properly issued to prevent a party’s participation in needless litigation. State ex rel. Buttrey Foods, Inc. v. District Court (1966), 148 Mont. 350, 354, 420 P.2d 845, 847.
In a case such as this, petitioner, in order to prevail, must show that the District Court, which has a superior advantage in
Relator has failed to show that the District Court abused its discretion by denying her motion for visitation pending outcome of the appeal; consequently, her petition for a writ directing the court to allow such visitation is denied.
The District Court, however, erred in denying the motion to stay the adoptive proceedings pending the outcome of the appeal. This Court is empowered to issue a writ in aid pf an appeal which would otherwise be ineffectual. See Bennett v. Dowdall (1971), 157 Mont. 11, 13, 482 P.2d 572, 573. In the instant case, relator’s appeal would be ineffectual if the child J.L.B. were adopted during the pendency of the proceedings. A writ thus will issue directing the District Court to stay proceedings concerning the adoptive of J.L.B. pending outcome of the appeal to this Court.
Petition for relief granted in part and denied in part.
Reference
- Full Case Name
- The STATE OF MONTANA ex rel. C.M.J., Relator v. The district court of the FOURTH JUDICIAL DISTRICT of the STATE OF MONTANA, in and for the COUNTY OF MISSOULA, the HON. E. GARDNER BROWNLEE, Judge Thereof
- Status
- Published