*1 49 GIRARD, JAMES W. Respondent, and
Petitioner GIRARD, JANYTH DONALD Respondents, Intervenors v. WILLIAMS,
BRUCE E.
WILLIAMS,
SANDRA
LITRE, JR.,
D.
and FRANK
Appellants.
Respondents
No. 97-060.
Argued
1997.
October
30, 1997.
October
Submitted
Rehearing
October
1998.
Denied
September
1998.
Decided
For Boyer Il- Hamilton; Stark; Chicago Newman & Office, Vincent Law *3 Jr.). (for Litke, Frank D. Appellant linois Law, Attorney at Loring (argued), A. Judith Respondents: For (for Janyth Donald and Respondents and Intervenors Stevensville Girard). of the Court. Opinion GRAY delivered
JUSTICE (Frank) entered Litke, judgment from the appeals Jr. Frank D. ¶1 Court, Find- County, Ravalli on its District Twenty-First Judicial Custody granting Don- Decree of Fact, of Law and Conclusions ings of (Jan) (Don) permanent legal Girard full and Janyth and ald reverse. Girard. We and Michael David District Court is whether the appeal on issue dispositive The ¶2 in standing to intervene Jan had that Don and determining in erred proceedings.
BACKGROUND (Bonnie) they Arizona in 1986 Girard Bonnie Frank met ¶3 Frank, she met At the time relationship. intimate an developed (Jim) mar- they remained to James Girard married Bonnie was ried May 13,1987, until Bonnie’s death in 1990. On gave Bonnie birth (David). Litke, Frank David III given While David was Frank’s last name, his birth certificate listed Jim as the natural father. In August 1987, complaint Arizona, Frank filed a in the Superior Court of in and (Arizona County Maricopa Court), Superior to establish pa- ternity of David. an Bonnie filed answer in which she admitted that Frank was David’s natural father. pursue Frank did not this com- he, Jim, he plaint, but remained convinced that rather than was Da- biological vid’s father. January 3,1988, Frank was on subsequently arrested incar- an prison
cerated in Arizona state as the result of revocation of pro- a previous bation for theft prison, conviction. While Frank was in (Michael) Bonnie birth Frank gave Thomas Litke Girard on June Again, 1988. while name name, Michael’s includes Frank’s last certificate Jim birth listed as the natural father. Jim was in federal penitentiary incarcerated on Sep- Arizona 10,1990,
tember after convicted being possessing sawed-off shot- two gun. 21,1990, The infants remained with Bonnie. On December Bonnie was murdered in her home. The record indicates that David body Michael were alone approximately with Bonnie’s they likely hours before were found and that witnessed mur- experience Both children continue and psychologi- der. emotional resulting problems from this traumatic event. cal death, of Economic Following Department Bonnie’s the Arizona (ADES) Security prison contacted Jim the federal to determine and, at place suggestion, where to the children Jim’s the children sub- sequently transported were Montana to live with Jim’s brother and sister-in-law, Don and Jan. David and Michael arrived in Montana in December and have resided with Don and Jan since that Having knowledge time. no of Frank’s with Bonnie or relationship children, regarding the ADES did not contact Frank the children’s time, at nor was he aware the ADES’s actions until placement been The ADES after the children had removed from Arizona. denied request be told the children had been subsequent Frank’s where placed. (Wil- mother, February In Frank’s Sandra Williams
liams), Supe- action paternity and her husband filed a Arizona *4 Court, respondents request- naming both Frank Jim rior that Frank was the natural father David ing the court determine boys of the to either Frank Wil- and Michael to award instigated liams. Frank claims that he filing of the pater- Arizona nity action after learning that Bonnie had been killed and the chil- dren had been removed to Montana. Frank was released from prison early 1993 in March of
1993, the Arizona court amended Williams’ paternity complaint petitioner, make Frank a rather than a respondent, in the action. Jim participated actively paternity in the action and contested various of orders, the Arizona including court’s an order that he and Frank sub- mit testing, through to blood appeals. number of He eventually had group a blood typing completed, test the results of which were consis- tent with his being biological father, children’s but did not un- dergo testing the DNA blood ordered the Arizona court. Frank’s DNA blood test indicated a greater ninety-nine than percent proba- bility that he was the father of both David and Michael. Jim was released from the federal penitentiary in October of 1991 County, Montana,
and moved to Ravalli where he Don, resided with Jan April and the children. In Jim petitioned the Fourth Judi- (now cial District Court the Twenty-First Judicial Court), District County, legally Ravalli change the names on the children’s birth cer- tificates to remove the name Litke. At the hearing on his petition for change, name Jim testified that he was the children’s natural father. give He did not notice change of the name proceeding to either Frank or Williams and did not disclose to the District Court that the children subject were the of an ongoing paternity action in Arizona. 2,1993, April On Jim filed a Verified Petition for Custody in the
Twenty-First Court, Judicial District alleging that he was pre- sumed natural father of David pursuant 40-6-105, and Michael to § MCA, and that it would be in the children’s best interests to award him sole and permanent custody of the children. Jim named Frank and Williams as respondents in the action and acknowledged that he, Frank might Jim, assert rather than was the children’s natu- ral petition father. The disclosed ongoing paternity Arizona, action in but stated Jim’s belief that ju- Arizona did not have risdiction to determine of the children. In regard, Jim al- leged that the District Court had sole and jurisdiction exclusive pursuant issue Custody to the Uniform Child Jurisdiction (UCCJA), Act through MCA, 40-7-101 §§ because the chil- dren had lived in Montana since December thus making appropriate Montana a more forum in which to custody. determine The verified petition requested jurisdic- the District Court to assume *5 children, tion under the UCCJA in order to custody determine of the Jim, custody sole and exclusive award and to determine that nei- any rights ther Frank nor Williams had or obligations respect with responded petition either child. Frank to Jim’s custody by for assert- that he was the children’s natural father ing and that Jim had no relationship requested either David or Michael. Frank blood with the stay petition custody District Court to on the for until and, thereafter, paternity on the the Arizona court ruled children’s custody could be made as to further litigation determination necessary. was 11,1993, May Superior On the District Court and the Arizona by telephone regarding proceed- conferred the simultaneous
Court jurisdiction ings and determined that the Arizona court would retain established, Once was pending paternity paternity over the action. again custody to determine whether was still the courts would confer so, jurisdiction over the if which court should exercise an issue stipulation par- the UCCJA. Pursuant to a of the custody issue under ties, temporary ordered that Jim would have cus- the District Court litigation. the outcome of the In a tody pending of David and Michael conference, Ari- again the courts determined that telephone second retain, had, jurisdiction adjudication to render a final zona and would They further determined that District paternity on the issue. custody issue, Arizona jurisdiction over the court Court had custody of the children and the regarding enter no orders would stayed pending the Arizona custody proceeding would be Montana determination. paternity 17,1994, entered its February Superior the Arizona Court On biological the natural and father decreeing that Frank was
order with the previous Based on its communications David and Michael. any Court, declined to enter specifically the Arizona court District issue to custody over the jurisdiction orders and deferred custody recognize District Court to moved the subsequently Frank Montana. with the chil- grant order and him visitation paternity Arizona The District custody proceeding. during pendency dren paternity the Arizona or- recognize motion to granted Frank’s Court proceeded with parties visitation. The der, his motion for but denied custody action. Montana the Dis- 28,1994. Jan then moved Don and died on October Jim or, in place in Jim’s petitioners them as substitute trict Court to either Frank custody action. alternative, to intervene in allow them the motion opposed on the basis that Don and Jan did not have stand- ing petition of David and Michael. He also moved the court for an immediate judgment on the merits in his favor and of the children. The District Fact, Court entered its Findings of Conclu- permitting sions Law Order Don and Jan to intervene in the cus- tody implicitly denying action and Frank’s motion for judg- immediate January 13, ment on 1995. The court also ordered that Don and Jan temporary custody would retain of the children pending its ultimate Jan, intervenors, determination. Don and subsequently petition filed a verified of David and Michael. The District Court hearing held a on the merits of the custody February and March of 1996. Its subsequent Findings Fact, Conclusions of Law Custody and Decree of granted Don and permanent legal custody
Jan full and of David and Michael pro- *6 vided Frank with the opportunity for future visitations with the chil- Judgment dren. was accordingly entered appeals. and Frank
DISCUSSION Did the District Court err in determining that Don and Jan had standing to intervene in proceeding? long It has been the law in Montana that a natural parent legal right
has a
to the custody
which,
of his or her child
in the absence
showing
of a
that the
natural
right,
forfeited that
prevails
See,
over the
party
interest of a third
seeking custody.
e.g., August v.
(1927),
198, 219-20,
737,
Burns
79 Mont.
744;
255 P.
In re Bourquin
(1930),
118, 123-24,
250,
88 Mont.
290
251-52;
P.
Henderson
v.
(1977),
1, 10,
177,
Henderson
174
Indeed,
Mont.
568 P.2d
182.
in re
years,
cent
recognized
parent’s
we have
that a
to the
of
merely
his or her natural child is not
legislative
a matter of
enact
ment,
fundamental,
but is a
constitutionally
protected right. Matter
Guardianship
of Doney (1977),
282, 286,
575,
174 Mont.
570 P.2d
of
(citing Stanley
(1972),
577
v.
645, 651, 92
Illinois
405
1208,
U.S.
S.Ct.
1212-13, 31
551,558-59); Matter
L.Ed.2d
(1997),
Paternity
of
of Vainio
229, 234, 943
1282, 1285.
284 Mont.
P.2d
Consequently,
ability
of a
party
third
an individual or
entity
an
such as a state
—whether
agency
parent-child
interfere with the natural
relationship must
—to
closely
(1996),
be
monitored.
In
66, 71,
See
re A.R.A.
277 Mont.
919
388, 391;
Guardianship
(1979),
P.2d
Matter
Aschenbrenner
of
540, 544-45,
1156, 1160.
Mont.
597 P.2d
Recognizing
importance
involved
the natu-
parent-child relationship,
Legislature
ral
the Montana
has enacted a
statutory
variety
pertaining
schemes
of children and
of parental rights,
regulating
termination
the manner in which
may
third
intercede in the
parties
parent-child relationship.
pre We
viously have noted at least five
statutory
such
schemes in Montana
that, although
degree
similarity
and observed
there is a
as to gen
matter,
subject
statutory
specific
eral
each
scheme has
purposes and
which must be
procedures
judgment
followed to ensure that a
or or
Aschenbrenner,
given
Guardianship
der in a
case is valid.
552-53,
Mont. at
the state become necessary, parent’s custody a child from a Montana when remove relationship. generally See Title legal parent-child or terminate 3,4 provisions, and MCA. Under these the cus- Chapter parts child a natural to the state or tody may be transferred from finding order entered after a party only upon third court other 41-3-406(1), youth A youth in need of care. Section the child is a finding on a that the care determination must be based in need of (§ 41-3-102(17), MCA), includes which neglected child is abused or abuse, child, provide failure to injury mental to the sexual physical *7 financially able although necessities for the child’s basic adequately the child under circumstances so, by leaving abandonment to do and not intend to re- parent to believe the does make it reasonable which 41-3-102(7), MCA. Title 41 also sets care of the child. Section sume legal relation- parent-child of the criteria for the termination forth specific finding a that a court make expressly requires ship and parental termination of exist which warrant certain circumstances include, gen- 41-3-609(1), circumstances MCA. These See rights. § termination, natural to the terms, consent of the written eral with a comply and failure by parent, abandonment adjudicated a a child has been plan after treatment court-approved 41-3-609(l)(a) youth in need of care. Sections through 41-3-609(l)(d), MCA. 40, Chapter regulates Title 8 of the MCA adoption proceedings the natural
through parents’ parental rights which to the care and terminated a child are essentially, transferred to the parents. parents or The natural adoptive generally must con- sent, writing, 40-8-lll(l)(a), to the of their adoption child. Section However, MCA. the consent of a natural parent required is not if his or parental judicially her have been terminated or if he or she has offenses, specified been convicted of criminal has been judicially de- prived cruelty of the child based on neglect, willfully or child, abandoned the or has failed to contribute to support period year although provide child for a of one able to support. such 40-8-111(l)(a)(i) 40-8-lll(l)(a)(vi), through Sections MCA. (UPA), The Uniform Act Parentage set forth in Title Chapter MCA, provides 6 of the a mechanism which the legal parent-child may relationship or, be established between a father and child cases, some a mother and child. The UPA sets forth a spe- number of cific factual circumstances which a will raise rebuttable presumption 40-6-105, is the natural person father of a child. Section MCA. created, presumption paternity any may If a is party interested existence, nonexistence, an action to bring establish the of the fa- 40-6-107(1), relationship. ther-child Section MCA. If a child has no 40-6-105, MCA, however, presumed father under there are limita- may 40-6-107(2), bring paternity tions on who action. Section MCA. The UPA also includes provisions regarding personal subject venue, jurisdictional requirements, pretrial matter proceedings, See testing paternity and evidence to a action. appropriate blood 40-6-109,40-6-111,40-6-112,40-6-113, MCA. Once paternity ac- §§ UPA, initiated may ju- under the a court determine whether a tion relationship dicial declaration of a father-child would be in the best 40-6-114(1), Furthermore, a child. interests of Section MCA. a final judgment declaring or order the existence or nonexistence of a fa- may relationship provisions relating ther-child also include to cus- visitation, any financial other matter in the best in- tody, terest of the child. Section may and visitation matters also be determined Child MCA, in Title 4 of the
pursuant Chapter to the statutes contained commonly Marriage are of what is called the Uniform part which (UMDA). relating matters procedural Divorce Act Jurisdictional *8 to child custody proceedings under the UMDA are set forth in 40-4-211, statute, MCA. Under § this a custody proceeding may be by parent initiated a filing petition a for dissolution legal separa- tion which includes a request for a determination, a parent filing petition or, a for custody in specified circumstances, a nonparent filing a petition custody. 40-4-211(4), Section MCA. Custody must be determined in accordance with the best interests of the child and the court’s determination consideration, must take into alia, specific inter statutory criteria presumptions and set forth in 40-4-212, MCA. A parent granted who is not of a child is en- titled to reasonable rights visitation absent finding by the court that such visitation seriously would endanger physical, child’s emotional, mental or moral 40-4-217(1), health. Section MCA. Finally, Title Chapter 5 of the MCA provides by means nonparent may which a appointed guardian be of a minor child in der- ogation living parent’s parental of a rights. Such an appointment by only must be made a court and if “all parental rights have been suspended by terminated or prior circumstances or court 72-5-222(1), order.” Section appointed, MCA. Once guardian has all the and powers responsibilities of a parent except natural for the obligation financially child or be liable to others for the child’s actions. Section light variety In statutory relating pa schemes rights custody,
rental and child it is clear that identify District Courts must proper procedure adhere to the and standards to be used Only before them. then will fundamental relationship existing be- or, tween fully child be realized necessary, prop- when erly severed. Aschenbrenner,
Guardianship
¶26 in this Rather, they case. argue applicable that the statutory criteria are con- tained in the UPA provisions set forth in Chapter Title 6 of the They assert petition Jim’s for custody, their motion to in- tervene and their subsequent petition all alleged paternity issues requested the District Court to determine both paternity the and, custody result, the of David and Michael as a correctly the court applied the UPA and case interpreting law those statutes. Thus, resolving in whether the District Court erred in allowing
Don and petition Jan to intervene and custody children, for of the we first must determine whether underlying the proceeding pater- is a nity a custody action or action. The answer to question will dic- tate the criteria and case law applicable in analyzing the District concluding Court erred in that Don and Jan have in standing this matter.
A. Nature of the below above, As discussed litigation relating to David and Michael ongoing has been several courts since 1987. The specific proceeding with which are concerned began in this case with filing of Jim’s verified in the petition April District Court of 1993. The petition Custody” was entitled “Verified Petition for allegation and the first purpose therein was that the to petition custody was determine petition of David and Michael under the UCC JA. The alleged further that Jim is the natural father of the children and referenced then-pending Arizona case. The paternity petition' also stated Jim’s that, position requested paternity while the Arizona case both determinations, custody jurisdiction the Arizona court did not have Jim, custody According award of David and Michael. had Montana jurisdiction custody alleging exclusive over under the UCC JA. After appropriate that Montana was the more forum in which to determine communicate custody, the the District Court petition requested with the Arizona court “to the end may that the issue be liti- and, gated appropriate the more forum ...” ultimately, to award Jim sole and exclusive of David and Michael. Jim did not re- quest over, the District Court to assume jurisdiction determine or otherwise address the issue of the paternity. Thus, children’s Jim’s petition clearly only raised issues relating of David and Michael. The District Court communicated with the Superior Arizona regarding jurisdictional
Court twice questions associated with pending communication, the two cases after each specifically de- jurisdiction clined to assume over paternity stayed issue. It also petition on Jim’s for until the Arizona court adjudication paternity. rendered final When the Arizona court judgment rendered its that Frank biological was natural and fa- children, ther of the the District formally recognized Court it a fi- judgment paternity nal on and refused to repeated address the at- Jim, Jan, tempts by subsequently by Don and to reopen pater- record, therefore, nity issue in Montana. On this it is clear that the paternity District Court did not consider to be at issue in the Montana custody proceeding. Finally, we that the sole observe basis advanced Don and Jan request custody to intervene and the District Court ll(4)(b), MCA, nonparent petition
was 40-4-2 which allows a *10 custody upon showing under the UMDA a that the child is not in the custody parents. They argue of one of his or her did not their physical standing proceed paternity provisions. in the action under the UPA Thus, present custody pro- even Don and Jan considered the case a ceeding, paternity proceeding, they rather than a at the time moved the District Court to allow them to intervene. us, On the basis of the record before we conclude that this ais
¶31 nonparents between and the natural father to determine result, custody of and Michael. As a whether the David review granting standing erred in to Don and Jan under the District Court and case law to child under pertaining statutes the UMDA. Child Custody Proceedings Nonparent Standing
B. above, jurisdictional procedural standards As stated the UMDA are set forth in custody proceedings child under for 40-4-211(4)(b), MCA, authorizes the com MCA. Section § custody proceeding by person a other than a mencement of a child
61
“only if
is
parent
physical custody
[the child]
not
of one of his
made,
parents.”
showing
nonparent
If that
is
standing
has
to pur
custody proceeding.
Custody
(1993),
sue the
In re
260 Mont.
of R.R.K.
191, 197,
998,
Henderson,
(citing
5,
859 P.2d
Jan moved
the children
living
were
Thus,
in their home.
it could
possession,
be said that
had
custody,”
However,
of David
“physical
“physical
and Michael.
custody”
ll(4)(b), MCA,
purposes
establishing standing
40-4-2
is
based
on
simply
possession
not
who has actual
of a child at the time a
“Rather,
custody proceeding is commenced.
the phrase ‘relates to the
”
custodial
involved in the care and control of the child.’ Matter
(1996),
256, 259,
870,
K.M.
280 Mont.
929 P.2d
872 (quoting
179).
Henderson,
result,
accidental.” *11 defined, part, right thing.” is in as “to renounce some or quish” BLACK’S (6th 1990). Thus, in a vol- parent LAW DICTIONARY 1292 ed. order for untarily relinquish right his or her child, to the of a he or she generally must manifest an intentional renouncement of custody; parent’s a custodial rights cannot relinquished be uncon- sciously accidentally. or [8] Frank asserts that Don and Jan did not establish that he
voluntarily relinquished
rights
to custody of David and Michael
and, therefore,
the District Court erred in allowing Don and Jan to in
tervene in the custody action. While the District Court did not ex
pressly address the standing issue in terms of whether Frank volun
tarily relinquished
rights,
his custodial
it found that Frank had aban
doned the children as a result of his incarceration and concluded that
showing
dependency,
a sufficient
neglect
abuse or
had been made to
allow intervention. We review a district court’s findings of fact to de
Custody
findings
termine whether
those
are clearly erroneous. Matter of
1, ¶10,
D.M.G.,
120],
1377, ¶10,
1998 MT
[287 Mont.
951 P.2d
A
St.Rptr.
finding
clearly
of fact is
erroneous if it
sup
¶10.
is not
evidence,
by
if
ported
substantial
the district court has misappre
hended the effect of the evidence or if our
review the record leaves
us with the definite and firm conviction that a mistake has been
G.,
Custody
made.
DM.
10. We
a district
review
court’s conclusions
¶
A.R.A.,
of law to determine whether
the conclusions are correct. In re
ing that his incarceration constituted abandonment of the children. note, outset, addressing finding, In the court’s abandonment at the that abandonment is criterion Title 41 to be evaluated determining grant temporary investigative whether state terminate authority temporary custody and whether parental 41-3-102(7)(e), request. through at the state’s See 41-3-401 §§ 41-3-406, 41-3-609, MCA. also a Abandonment is criterion deter consent to an Ti mining parental adoption required under 40-8-111(1)(a)(iii), Chapter tle 8 of MCA. See 40-4-211(4)(b), MCA, however, does not mention aban Section circumstance donment a natural which custody. Custody of R.R.K., adopted wherein we nonparent may seek standard, also does not set forth “aban voluntary relinquishment analyzing phys whether a donment” as a consideration determining nonparent stand purposes a child for ical of K.M., under the UMDA. In Matter ing in a child however, grandparents of the children at issue asserted *12 ll(4)(b), request custody MCA, to 40-4-2 had be § one of the fathers had his when cause “abandoned” children he moved grandparents to another state. We concluded that the had proven not thereby voluntarily that the father abandoned his children and relin custody. not right separately his We did address quished whether “abandonment,” abuse, term in neglect depend as is used and ency proceedings adoption proceedings, falls within the volun tary in relinquishment standard contained § K.M., MCA. Matter 873. Mont. at P.2d at importance recognizing We discussed above the and ad hering to the standards and procedures contained in the various stat utory relating parental rights. schemes child In light importance of delineating between the criteria contained in the statutoiy different schemes and the absence of an “abandonment” crite MCA, 40-4-211(4)(b), in either Custody of R.R.K, rion we conclude that abandonment has terminology place no in determining nonparent’s standing in custody 40-4-211(4)03), proceedings under § Rather, appropriate applied standard to be in considering a nonparent’s standing in proceeding under the UMDA is voluntarily whether the natural relinquished to cus tody standard, of the child. Under this it is clear that District Court improperly finding made a that Frank had abandoned his children. however, In its making finding, abandonment the District Court may have equating been abandonment via incarceration to voluntary relinquishment pursuant language Thus, Matter al of K.M. though we have concluded that a proper abandonment is not stan present case, to use in the will dard review the finding court’s as it voluntary relinquishment relates to of the right to David and Mi custody. determining chael’s In substantial evidence sup the District Court’s ports finding that Frank’s incarceration resulted abandonment, we review as it at the record existed the time the motion court ruled on the to intervene. Frank in Arizona approximately was incarcerated five that, at
years. hearing He testified on the motion to intervene death, to Bonnie’s he and the prior corresponded with her children each telephoned them several times month to check on how doing. Court provided were He District with the letters and cards Bonnie sent to him which his two refer to sons and discuss their fu- together family. testimony regard ture Frank’s was corrob- by deposition testimony that orated Jim’s he saw the letters Bonnie other, and Frank Estrada, sent each Ted a neighbor of Bonnie’s who testified that Frank would call his house to contact Bonnie because she did not have a telephone. While Frank’s financial limited, of Bonnie and the children was he testified that he did attempt provide clothing, food and toys for them with the assis- tance charity organization of his mother and a through worked system. prison Although Don and provided Jan evidence that people helped other support Bonnie and the children while Frank prison, was in their evidence did not controvert Frank’s evidence of attempts provide support. Moreover, Frank as soon as found out that Bonnie had been Montana, killed and the ADES had sent the children to he initi- through his paternity mother —the Arizona action to have ated — himself established as the gain children’s natural father and to their custody. He was not advised of the ADES’s actions advance and had *13 opportunity no to assert his at that time. Frank also attempted precisely sent, to find out where in Montana the children had been but the ADES refused to him that provide with information. it that While is true Frank’s incarceration resulted in an ex- ¶43 children, period separation tended of from the the evidence does not voluntarily establish that he renounced or relinquished right his to Frank custody contrary, of David and Michael. theOn maintained Bonnie and the from prison, attempted pro- contact with children such as he was able and initiated proceedings vide to estab- right lish his of the children as soon as he learned of actively litigated proceeding Bonnie’s death. He also Moreover, inception its in the record in Montana since 1993. reflects that, case, prior requested to the final decree in this Frank visitation with David and Michael on four occasions. His first visita- request conjunction tion was in with his motion in March of 1994 to recognize Superior pater- the District Court the Arizona Court have order; Court Frank nity request. the District denied this visitation of1994, July July in of 1995 and December subsequent requests made 1995; only requests granted by one of these was the District Court. period strong this time indicate his desire throughout Frank’s actions his children. to be involved with incarceration does not conclude that the mere fact of Frank’s We voluntary physical of his relinquishment rise to the level of a his actions to maintain conjunction with custody when considered children, paternity and seek their cus- establish his contact with Thus, further that tody. conclude the District Court’s finding Frank abandoned his children as a result of his incarceration —to the finding may equated finding voluntary extent be to a relin- is, quishment supported by not substantial evidence and there- —is fore, clearly erroneous. Frank that the argues also District Court erred in conclud Jan made ing showing dependency, that Don and had a sufficient 41-3-102, MCA, neglect by pursuant or Frank in abuse allow custody proceeding. tervention in the He asserts that the court erred neglect Title 41 because no or applying proceeding abuse had been initiated. above, 41, Chapter provides As discussed Title 3 of the MCA instituted the state to have children declared abused removing a child from a neglected purposes parent’s custody
or
terminating
legal parent-child relationship.
generally
or
See
Title
41,
3,
3,4
6,
parts
county attorney
and MCA. A
Chapter
or the state at
torney general
proceeding by filing petition
initiates such a
alleging
neglected
requesting
that a child
abused
a district court to
grant
temporary custody
the state
or terminate the parent-child rela
41-3-401(1)
(10),
tionship.
may
Sections
MCA. A
properly
court
abused, neglected
make a determination
that a child is
or dependent
to,
only
with,
instituted
pursuant
conformity
and in
provisions
Chapter
of Title
3 of the MCA. In re Guardianship
(1996),
480, 485, 914
579, 582; Guardianship
275 Mont.
P.2d
of D.T.N.
Aschenbrenner,
1163; Henderson,
at
ant to a nonparent present § must “evidence convincingly prove” sufficient that the parent voluntarily relin- Mont, quished his ofK.M., the child. See Matter 260,929 at undisputed P.2d at 873. While it is here that Frank has not Michael, paid support child for David and provide Don and Jan no le- gal authority proposition pay that failure to support child con- voluntary relinquishment stitutes parent’s rights of a his children provide standing so as to them with in this case. As dis- above, parent’s provide adequately cussed failure to for a child’s ba- financially sic necessities when express able to do so is an youth for a finding basis the child is a in need of care under Title 41-3-102(7)(d) 41-3-102(5), Chapter of the MCA. See § 41-3-102(17), Similarly, parent’s provide failure to financial or her child support statutory excep- his when able to do so is also a tion to the that a natural requirement adoption consent to the 40-8-lll(l)(a)(iv) 40-8-lll(l)(a)(v), his or her child. See §§ 40-4-211(4)(b), MCA, however, provision MCA. Section contains no under which a failure to parent’s pay support when able to do so can for a nonparent’s standing par- serve as a basis to seek ofthat 40-4-211(4)(b), MCA, ent’s children. Nor do our cases under hold —or suggest pay support even failure to child when able constitutes —that voluntary relinquishment parent’s right of a to the or interjecting pay support her child. In the failure to consideration into its determination of whether Don and Jan had to intervene custody proceeding, again in this UMDA the District Court failed to identify applicable and adhere to the standards to the be- fore it. Furthermore, hear- presented Don and Jan no evidence at the Frank ability their motion to intervene that had the financial
ing on child incarcerated during either the time he was pay the hear- years prison between his release from during the two he testimony attempted Frank’s ing. Nor did controvert *15 children, the assistance of clothing, toys food and for the with provide while he incarcer- prison programs, charitable was his mother Thus, injecting District Court’s error in in addition to the ated. finding proceeding, into this its that Frank had support consideration financial incomplete failing was to take abil- paid not child account, ability financial been taken into ity into account. Had evidence as a re- supported by not be substantial finding would sult, clearly be erroneous. would to that Frank that Don and Jan failed establish We conclude Mi- rights to the of David and
voluntarily relinquished his result, they standing requirements have failed to meet the As a chael. custody proceeding them to intervene in a UMDA which would entitle ll(4)(b), hold, therefore, MCA. We that the Dis- to 40-4-2 pursuant § Jan in- determining standing that Don and had to trict Court erred tervene. it on concluding opinion, appropriate to comment Prior The two main criticisms of our dissent. dissent’s Leaphart’s
Justice first, are, that we have concluded this is a opinion MCA, 40-4-211(4), and then the crite- by applied controlled matter § and, second, that have not govern proceedings ria which such the children’s “constitutional to an taken into account whether the Girards to family” standing confers on assert established family.” their We address these matters on behalf of “established turn. First, underlying proceeding that the is a cus- our conclusion on the us. As dis-
tody matter under the UMDA is based record before above, that record indicates that the basis advanced Don cussed standing request custody in the District and Jan for to intervene ll(4)(b), Apparently pre- 40-4-2 MCA. the dissent would Court was § proceeded prior the case change that we the basis on which fer liberty We are not at to do so. While Don and Jan reaching this Court. the District paternity during some of the issues attempted reopen standing pro- their they simply argue did not proceedings, Court provisions any or basis paternity under the UPA ceed in the action 40-4-211(4)(b), Thus, duty our is to determine than other § they sought— had on the basis on which they 40-4-211(4)(b), have concluded that did not. MCA. We Moreover, ignore have us the fact apparently dissent would has enacted different Legislature Montana simply children and involving govern proceedings various schemes provisions read from one such scheme into others. As discussed at length above, some each of separate statutory programs —involv- ing adoption, paternity, custody and the like —has its own procedures and standards to applied be If Legisla- thereunder. ture had desired or intended to make the procedures and standards in all of separate those statutory programs consistent, it could and so; result, would have done it did not. As a we are not free to pick stat- utory from, requirements for example, adoption paternity proceed- *16 ings engraft them onto a proceeding. To “blend” the Leg- islature’s separate statutory schemes in such a manner would re- quire ignore us to the rules of construction guide which Court, law, as well as our case and intrude Legislature’s into the rightful cannot domain. This we do. Finally, the dissent simply in wrong
¶55 contending that we should have considered the children’s “constitutional right to an es- family” determining tablished in whether the Girards standing have to request custody. not, not, The reason we could and did take that subject into account is that it is not before us in this case. Neither Don guardian Jan nor the children’s ad litem —who was an par- active ticipant in the District Court proceedings an argument —raised about the rights children’s constitutional in the District Court as a basis for granting standing 40-4-211(4)(b), to the Girards under § MCA. Consequently, and not surprisingly, argument that also was not raised on appeal. We must decide cases based on the issues in raised properly presented the trial court and appeal. case, to us on In this simply those issues do not question include the of David and Mi- chael’s constitutional insofar as rights might those impact on l(4)(b), Don and Jan’s to seek under 40-4-21 § holding Our that the District Court erred in allowing ¶56 Don and custody proceeding Jan intervene in the necessitates our further holding that granting District Court’s final decree permanent custody of the legal children to Don and Jan is without effect. As a re- sult, natural Frank —the father of David and Michael —is entitled to custody of his children. In this regard, we are aware of—and con- cerned about —the psychological problems children’s emotional and stemming from their mother’s violent death the subsequent up- in heavals their lives. We also are aware that Frank and the children virtually opportunity have had no to know —or develop relationships with —each other and that the who in experts testified this case were unanimous cautioning in that a sudden in change custody and re- moval David and Michael from their current home would detri- be Thus, mental to the children’s well-being. while no legal basis exists delaying change custody, strenuously encourage parties together planning to work and implementing the custody so transition as result as little trauma to all espe- involved — cially, possible. children —as entry Reversed and remanded for the an order awarding cus- tody David and Michael to Frank. TRIEWEILER, HUNT,
JUSTICES REGNIER and NELSON con- cur. LEAPHART, dissenting.
JUSTICE holding I dissent from the Court’s that Girards lack stand-
ing. The Court holds that this is a matter which is controlled (1995). 40-4-211(4), Thus, Girards, MCA in order for parents, standing they
nonnatural to establish have to show were physical custody parents. children not of one of their argued pay The Girards Frank’s failure to support child the children supports determination that Frank voluntarily relin- quished custody. physical undisputed It is that Frank did not child pay during for David and Michael either his incar- years during ceration or the two prison between his release from Nonetheless, hearing. the date of the this Court concludes that since *17 (1995), MCA does § not make reference to lack of sup- child port, form the finding it cannot basis for a relinquishment of right physical custody. analysis to The Court’s fails to take into con- that the requirement parent sideration that the “relinquished” have right his to is itself not a specific requirement. The upon of standing analysis house cards which the Court’s is based is 40-4-211(4)(b), (1995), in the provisions rooted MCA which grant § petition custody “only a to if nonparent [the child] for is not parents.” in the of one of The physical says his statute noth- a ing parent having “relinquished” right physical about his her to lack custody through support or otherwise. why, juncture, necessary me at this it escapes It find to revert precise it wording
to the of the statute and focus on the fact that support. addressing no mention of lack of child In the makes issue 40-4-211(4), I support custody, interpret in the context of would § 3, MCA, (1995), consistently pro- MCA with Title which Chapter to for when finan- provide vides that failure a child’s basic necessities is a a dally finding youth able basis for that child is a in need of consistently I it interpret 40-8-lll(l)(a)(iv), care. would also with § (1995), that provide year MCA which states failure to support for one adoption for petitioner having excuses a from to obtain the consent of certainly A parent. change natural is to less severe having adopted by natural than the child If another. lack of adoption an support proceeding, suffices for it should likewise suffice custody proceeding. legislature a The has said that to pay failure finding youth a that support supports child in need of care and adoption. the need obtain consent of the also obviates an concluding problem support, I have no that failure to Accordingly able, voluntary by relinquishment required when constitutes as our or, statute, law in the words of the that it constitutes failure to case (1995). 40-4-211(4)(b), custody.” Section MCA “physical exercise that, holding if of sup- I dissent from the Court’s even lack also considered, would not a properly support finding record port were Presumably holding back to inability support. relates not that the Girards did refute Frank’s tes- Court’s earlier statement clothing, toys food and for the timony attempted provide that he children, pro- prison of his charitable with the assistance mother testimony may he This be sufficient grams, while was incarcerated. incarcerated, but does support lack while he was it not explain years after he for the two was released support address his lack of during job had thus of time which he was prison— period from Accordingly, I find no basis for con- payments. support able to make account, into the find- ability financial been taken cluding “[h]ad that ability not be support] supported would [regarding Frank’s ing result, clearly I would be erroneous.” evidence substantial proper is a consideration hold that lack of would holds, ability 40-4-211(b), (1995), if, as Court financial MCA account, pro- remand for further into I would properly taken was not regard. findings in ceedings and substantive, concern, is that the Court is more My which other issue of the Girards’ stand- on the narrow of this matter disposed consideration the chil- taking into custody without petition for
ing to family established right to an constitutional dren’s rights on behalf to assert standing on the Girards confers family.” “established made a determina analysis, Court has *18 the In the final parent but not the biological rights of the considering the after
tion
71 stems, rights large of the children. This from part, our failure to distinguish implications proceedings between the of that seek to ter parental rights minate that seek determine cus (1996), tody. example, 66, in In 388, For re A.R.A. 277 Mont. P.2d 919 MCA, we held unconstitutional extent it re quired by a dispute stepparent initiated be resolved accord ing to of the the best interest child. We reasoned that the statute in fringed rights upon natural who had adju not been A.R.A., re heavily dicated “unfit.” In In we relied on Matter of 282, Guardianship (1977), of Doney 174 Mont. 570 P.2d which involving parental was a case termination rights. of In Guardinaship ofDoney, required showing we of abuse or neglect prior to terminat Guardianship rights ing guardian the natural father’s as of the children. 174 at Doney, Mont. 570 P.2d at That high 578. standard of was appropriate Guardianship ofDoney because the implications terminating parental rights of are so proceeding is, severe. A however, not so harsh as a parental termination of rights in the this, context of a such as the Court should not be a blind employing rights deference to the of the biological without considering balancing rights against those rights the children. In addition to between distinguishing termination and
proceedings, involving should differentiate between cases the re- moval of children from the parent’s natural home and involving cases parent. reunification children with a natural Thus when the chil- dren’s parties established home with other than the par- natural entis), rights of the natural parent weighed have to be against rights to family.” By failing weigh children’s the “established these interests, the Court ignores importance family both the stable rela- tionships relationships and children’s to have such main- tained. United Supreme recognized
¶66 The States Court has “fa- relationship” milial is more than a mere tie: biological importance relationship, [T]he familial the individuals in- society, volved and to the stems from the emotional attachments association, intimacy daily that derive from the from plays “promoting] way through role it of life” the instruction of ... as well from relationship. children the fact blood (1983), 248, 261, 103 2985, 2993, Lehr v. Robertson 463 U.S. S.Ct. (alteration (citation omitted). L.Ed.2d in original) *19 For this reason the Court held in Lehr that when an unwed fa- a the responsibilities ther demonstrates full commitment par- of enthood, acquire protection his interests substantive the Due has the Process Clause because he acted as father toward children. biological The of the is that it the significance connection offers an opportunity possesses natural father that no other male to de- If velop offspring. grasps with his he relationship opportu- nity accepts responsibility some measure of for the child’s fu- ture, may enjoy blessings parent-child relationship the he uniquely develop- valuable contributions to the and make child’s so, the ment. he fails do Federal Constitution will not automat- If ically compel opinion a State to listen to his of where the child’s lie. best interests 262, 2993-94,
Lehr,
77
at
463
at
103 S.Ct. at
L.Ed.2d
627.
U.S.
(1995),
Paternity
351, 903
Mont.
In Matter
Adam
273
P.2d
of
of
judicially
of
the fa
question
we addressed the
declare
grant
biological
the
father
relationship
preroga
the
ther-child
Lehr,
the
the
Following
of a
lead of
Court in
we looked be
parent.
tives
ties,
test,
a best interest
and considered
yond
biological
applied
the
environment;
the
of
stability
present
of a
the
“the existence
home
family;
uncertainty
parentage
extent to which
of
al
the
home
(if
mind;
any)
in the child’s
the efforts and commitments
ready exists
finan
supportive
father has taken to establish
putative
that the
any
may
as
rele
child;
the
as well
other factors which
be
cial ties with
or
child.”
assessing
potential
benefits
detriments
the
vant in
357-58,
Adam,
211.
Mont. at
903 P.2d at
The Pater
Paternity
of
custody.
of paternity,
case involved
declaration
not
nity Adam
of
stability
However,
interest in a home environment and
the children’s
paternity pro
than in a
compelling
in a
are no less
are,
submit,
protec
I
entitled to constitutional
ceeding.
rights
Their
II,
the Montana
Section
of
Constitution.
under Article
tion
protected
are
under the Montana
rights
privacy
Children’s
much,
Constitution,
II,
rights
and those
deserve as
Article
Section
rights
biological parent.
more,
privacy
than
of
protection
if not
observed,
agree,
biological connec-
and I
One commentator
factor
to what constitutes a
determining
are
the exclusive
tions
not
Lationo, Note,
Protecting
v.
the Bi-
Erger
M.
Askern:
“family.” Heather
Expense, 58 Mont. L. Rev. 599
Rights at the Child’s
ological Parent’s
(1997).
family “stems from the emotional
Rather,
of
importance
intimacy
daily
....”
from the
of
association
that derive
attachments
(1977),
Organization
816, 844, 97
Smith v.
Foster Families
431 U.S.
2094, 2109,
children,
S.Ct.
Young
adults,
53 L.Ed.2d
35.
unlike
psychological conception
have no
relationships
blood ties. See
(rev.
al.,
Joseph
Beyond
Goldstein et
the Best Interest of the Child 12
1979). Conversely, a
perception
ed.
child’s
of a
shaped by
day-to-day
her
Boskey,
needs. See James B.
The Swamps Home:
Parent-Child,
Rev,
A Reconstruction
Relationship, 26 U.
L.
Tol.
(1995).
805, 808
maintain
rights
The
of children to
healthy
family
nurturing
at
tachments
are no less than
rights
biological
parents
to raise
C,
Baby Boy
their children. In In re
the natural
father of a child ap
(D.C.
pealed
grant
petition
of a
for adoption.
Baby
In re
Boy C
1993),
¶71 in the case ap- had counsel pointed, their counsel asserted the rights of the children adopting position the Girards. Thus when this Court found that Girards had no standing, indirectly it held that the children had no standing and that their best interests would not be considered in making determination. The Court determines that the Girards have no (1995), MCA grants standing nonparent “only which to a if in physical custody
[the child] is not parents.” one of his Section (1995). ll(4)(b), statute, 40-4-2 MCA interpreting In this Court “physical has held that custody” really “physical” does not mean cus- Rather it means “custodial tody. rights involved the care and con- (1977), 1, 5, trol of the child.” Henderson v.Henderson 174 Mont. 568 (citiation omitted). P.2d that, Beyond we have held that a nonparent must demonstrate the parent has voluntarily relin quished right physical custody. (1996), See Matter of K.M. 256, 260, Mont. 929 P.2d 872-73. Although it would seem that a parent would have to have “physical custody” before he or she can “re linquish” physical custody, give natural parents the benefit of this test despite not, fact, the fact that they may have any exercised “care and control of the child.” I suggest that when the legislature used the “physical term cus-
tody,” (1) inviting it was us to make a distinction between: cases in which physical the child is in the parent of the and the issue is (2) the child will be removed from that custody; and cases in which the child is not in the physical custody of and the seeking to be united or reunited with the child. When the children physical are not in the of one of their it parents, is incumbent upon court to determine who does have physical custody of the children and whether the children have estab- lished a stable familial relationship with their non-biological parents. If the children such family have an established I relationship, would children, hold that the as well as their surrogate parents, have stand- ing privacy rights assert to the continuation of that relationship. biological The father seeking privacy reunification has rights as well. However, strong those are not as would be if he had legal “physical” both custody and the issue was removal of the children family. from his established I would hold that nonpayment can constitute volun
tary relinquishment right of the under our holding In re (1993), Custody 191, 859 260 Mont. P.2d 998. In the alterna of R.R.K. tive I would hold that constitutionally protected children have a family Girards, an established as the parents family, children, children’s physical custody “established” with *21 (1995), standing litigate have derivative MCA to the issue of without having biological to establish that the fa rights ther’s have been terminated. (1996), 66, This Court’s recent decision in In re A.R.A. 277 Mont. 388, relying Guardianship
919 P.2d
on Matter
Aschenbrenner
cannot,
(1979),
182 Mont.
597 P.2d
held that a court
in a
biological
between a
and a third
em
custody dispute
parent
person,
parental
a “best interest of the child” test absent a termination of
ploy
finding
neglect
dependency.
due
a
of abuse and
In re
rights
to
A.R.A.,
72, 919 P.2d at
Although
CHIEF joins JUSTICE TURNAGE in the foregoing dissent. JUSTICE NELSON specially concurs. I legal analysis concur in the in the result of the Court’s record,
opinion. law, Given the the state of the and the arguments appeal, virtually am, made on there was no other choice. I neverthe- less, agreement with much of what Justice Leaphart say has to dissenting opinion regarding children’s rights constitutional such as the one at bar. Constitution, II, Under our Montana Article Section chil- enjoy rights dren same fundamental as adults. At a bare mini- mum these include rights inalienable clean and healthful envi- ronment, necessities, pursue safe, life’s enjoy healthy basic 3) (Article II, (Article happy II, life Section and to basic human dignity 4). Section case, Unfortunately, rights generally the instant these are arguments factored into the the warring parties
not even and their hand, mentioned, attorneys. On the other where are the chil- typically trumped by dren’s fundamental constitutional are competing rights biological parent and to *22 his or her children —even in cases where the natural parent dys- functional, abusive and parenting has little or no skills or substantive (and relationship with his or her children. More often than not example) case is an excellent the children’s fundamental constitu- simply ground up tional are in the machinery of various statu- tory weighted heavily schemes favor of this biologically-based custody and marginalize and which exclude or other (as actually relationships might be more in the op- children’s parent’s) to the natural best interest. posed is, view, my legally The Court’s answer to the dissent correct. Nonetheless, Leaphart speaks to the extent that Justice from the knowing frustration of that the result our decision will be to cause already these traumatized children to lose the stable and loving home need, they constitutionally deserve and to which are enti- tled, me speaks then he as well. The cold letter of the law has vindi- rights. Tragically, cated Frank’s David’s and Michael’s were not even considered.