No. 92-244 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1993

IN RETHEPATERNITYANDCUSTODY OFJ.D., aminor child TRACYL. GRUBB,

Petitioner andRespondent,-vsTARENAL. DAPP,

Respondent andAppellant.

APPEALFROM: District Court of the Fifth Judicial District,

In andfor the County of Beaverhead, TheHonorable Frank M. Davis, Judge presiding.

COUNSELOFRECORD:

For Appellant: Tarena L. Dapp, Great Falls, Montana, Pro Se For Respondent: Andrew P. Suenram; Jones, Dillon, Hoffman andSuenram,

Montana

Submitted onBriefs: June 17, 1993 Decided: August9,1993Justice John Conway Harrison delivered the Opinion of the Court.

Tarena L. Dapp (Tarena) appeals pro se from an order of the Fifth Judicial District Court, Beaverhead County, awarding sole custody of J.D., aminor child, to J.D.'s father, Tracy L. Grubb (Tracy). Weaffirm. J.D. was born to Tarena and Tracy onApril 26, 1989. Tarena and Tracy were not then and never have been married, though they lived together for a few months in 1988. Both signed an acknowledgement of paternity naming Tracy asJ.D.'s natural father. Tracy also signed J.D.'s birth certificate. For almost a year after J.D. was born, Tracy kept her during weekends and on week nights when Tarena was working. Both parties lived in Great Falls that year. Tarena was working part time as a poker dealer in a casino, while Tracy was afull time engineering technician for the Montana Department of Transportation. J.D. is Tarena's second child. Her oldest child, Christa, was approximately three years old when J.D. was born. Tracy took care of Christa while Tarena was working, before J.D. was born. After J.D.'s birth, Tracy always took Christa along when he kept J.D. He testified that he cared very much for Christa and that he and Tarena had tried to keep the two girls together. In March 1990, Tarena and Tracy entered awritten agreement concerning J.D.' scustody and support. This agreement provided for joint custody, with Tarena as the residential parent, and visitation for Tracy onweekends and for two weeks in the summer.

2Tracy was to pay Tarena $150 per month for child support and

maintain medical and hospital insurance for Tarena. For several months thereafter, Tracy kept J.D. and Christa every weekend, Friday night until Monday morning. At the time of the trial in March 1992, Tracy was current on his child support obligation, except for adisputed half month's payment for February 1991. In July 1990, Tracy married Christine whom he had met in November 1989. Tracy and Christine moved to Fort Benton in August 1990 with Christine's daughter, Alisha, then age six. At about the

sametime, Tarena moved to Dillon with J.D. and Christa. Tracy and Christine kept both girls for two weeks during the summer of 1990. Tarena became known to the Montana Department of Family Services (Family Services) in Dillon during Labor Day weekend, 1990. Her babysitter's mother called Family Services because Tarena had not come back overnight and there was no food in the house. Bythe time Family Services responded to the call, however, Tarena had returned home. About six weeks later, on October 14, 1990, a friend or acquaintance of Tarena's called Family Services at 2:00 a.m. to report that the two children had been left alone in Tarena's house. AFamily Services social worker and two police officers broke into the house, found the children sleeping in anupstairs bedroom, and removed them from the house. Tarena called Tracy the next day, and he and Christine went to Dillon to pick up J.D. Tracy testified that he took both girls, however, because Family Services "basically told us if we wanted our daughter we had to take

3Christa." Concerned about the financial and legal consequences of

keeping Christa, Tracy and Christine consulted aFort Benton Family Services social worker, Diann Button, who later testified on Tracy's behalf. Button arranged for Christa to be sent back to Dillon and placed in foster care. After aYouth Court hearing before Judge Davis onNovember 5, 1990, J.D. was placed in foster care in Dillon with Christa. The two children were returned to Tarena on December 14, 1990, on condition that she attend mental health counselling and parenting classes. Tracy filed a petition for determination of paternity and modification of custody on November 20, 1990, seeking primary physical custody of J.D. After Tracy requested a custody investigation, the parties stipulated to home studies conducted by Family Services. The parties also stipulated that Tarena would continue as primary physical custodian, pending ahearing onTracy's petition, and that J-D. would visit Tracy for two weeks in September 1991 and two weeks in November 1991. Tarena and the two girls moved to Butte in October 1991. OnDecember 11, 1991, Tarena gave birth to her third child, Jacob. Jacob's father, Jeff, was living in Dillon. At the hearing in March 1992, Tarena described her relationship with Jeff as "stable" and "happy" but stated that she did not intend to marry him. In her brief on appeal she reported that Jeff had formally acknowledged paternity on December 22, 1991, and in her affidavit

4supporting her petition to file her appeal in forma oauperis, she

stated that hewaspaying $175amonth aschild support. Button visited Tracy, Christine, and Alisha three times in November 1991. Shehad seen J.D. with Tracy's family in October 1990, during J.D.'s temporary placement with Tracy, and she testified that she saw Christine and J.D. together in November 1991. In her homestudy report she described their homeas a "modest, well kept two bedroom mobile home" in a Fort Benton trailer court ownedby Christine's parents. Button testified that she was familiar with Christine's extended family and described them as "committed to [J.D.]" and looking forward to having her live with Tracy and Christine ona full time basis. Sherecommendedthat Tracy have custody of J.D. Dave Evans, a social worker with Family Services in Butte, visited Tarena's homethree times in November and December 1991. HesawJ.D. there only onthe third visit. Evans reported that Tarena hadmovedto Butte to obtain Section 8housing andthat she

wasliving in a"fairly older" two-bedroom house onthe upper west side of Butte. Whenhe visited, by appointment, the house was "very clean, well-maintained, hadproper utilities, andwaswellfurnished," andcontained amplefood andclothing for the children. According to Evans' homestudy report, Tarena wasunemployed. Shehadnot graduated from high school but wasplanning to complete

aG.E.D. Her income asof December 1991consisted of $300amonth child support from Christa's father, wholived in Seattle, and$150

amonth child support from Tracy. All but $16of her monthly rent

5waspaid through Section 8, andshewasreceiving food stamps and

Medicaid benefits. Evansincluded in his report asummaryof records for 1989-90 from Family Services in Great Falls. He characterized their contents asa"history of neglect," summarized as "[Tarena] would leave the children unsupervised, would not pick them up from the babysitter until the next dayandalso was involved with drinking. Theolder child wasalso physically cruel to the infant." Evans' third visit occurred onDecember 10, 1991, soon after J.D. had returned from atwo-week visit with Tracy. Heobserved J.D. playing with Christa andcommentedthat they "seemvery close to oneanother, as stepsisters." Only oneday earlier, however, Tarena had called his office to express concern about J.D.'s emotional state, andhehadreferred her to alicensed professional counsellor, Grainger Brownof Butte. BrownsawTarena andJ.D. for two one-hour visits in December 1991. At Tarena's request, he wrote to her lawyer, saying that Tarena had described J.D. as "crying easily, being clingy and defiant/aggressive," andthat these behaviors were "suggestive of anxiety created by separation" rather than by abuse or neglect. Brown recommended that J.D. visit her father more frequently and for shorter periods of time. Brown's letter was submitted in evidence at the trial, andhealso testified onTarena's behalf. Basedonhis observations of Tarena andher children in Butte, Evansrecommendedthat custody of J.D. beawarded to Tarena, adding that Family Services "would provide temporary, ongoing services and

6follow up intervention if necessary."

OnMarch 13, 1992, the District Court heard testimony by Tracy, Christine, Tarena, Button, Evans, Brown, Tarena's supervising social worker in Dillon, andaDillon police officer. Tracy andTarena both were represented bycounsel. Thecourt also took judicial notice of the Youth Court abuse and neglect proceeding before the samejudge. OnApril 7, 1992, it filed its findings of fact, conclusions of law, andorder, awarding exclusive custody of J.D. to Tracy. Onappeal, Tarena raises nolegal issues but alleges numerous errors in the District Court's findings of fact. Tracy presents several issues, of which only one is dispositive: whether substantial credible evidence supports the District Court's modification of adefacto custody arrangement. Tracy initiated this case by requesting a determination of paternity aswell asamodification of custody, but the District Court properly addressed only the custody issue, aspaternity is not in dispute. Ourstandard of review for acustody determination is that the district court's decision is presumed to becorrect andwill not be disturbed onappeal unless there is amistake of law or afinding of fact not supported by substantial credible evidence that would amount to aclear abuse of discretion. Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644; In re Marriage of Otto (1990), 245Mont. 271, 275, 800P.2d 706, 708. Section 40-4-224(3), MCA,provides that an order for joint

7custody may be modified pursuant to §40-4-219, MCA, to terminate

the joint custody. If the proposed modification merely changes living arrangements within ajoint custody situation, it need not bejustified bythe relatively stringent criteria of §40-4-219 but instead may be justified by a review of the best interest of the child under 540-4-212, MCA. In re Marriage of Ferguson (1990), 246 Mont. 344, 347, 805 P.2d 1334, 1336. Here, no order for joint custody had ever been entered. The District Court appropriately treated the parties' agreement as a "de facto custody arrangement," which maybe modified, pursuant to §40-4-219(2), MCA, "in accordance with the factors set forth in 40-4-212." In effect, then, the District Court's order is the original custody decree in this case, andthe applicable statute is § 40-4-224 (1) , MCA, which provides that joint custody is presumed to be in the best interest of a minor child, "unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interest of the minor child." The District Court stated in its findings of fact and conclusions of law that it had considered the criteria set forth in §40-4-212, MCA, and "finds for Tracy and against Tarena on each of the relevant factors itemized." "Ordinarily, 'IJudge Davis wrote, he is "partial to the old presumption that achild of tender years belongs in the custody of the mother." He continued: Unfortunately in this case that presumption if it were still applicable (which it isn't) would be overcome by Tarena's past life style and indeed her present philosophy in regard to the family concept. She discounts

. . . or at least downplays the importance of a father's role in the family relationship. This

8philosophy is, in the court's opinion, wrong. 90%of the

youths whoappear in Youth Court are the product of this type of philosophy, i.e., single parents with insufficient financial resources and little or no fatherly involvement. Tarena interprets these comments, which unfortunately are consistent with the judge's frequent interjections from the bench during the trial, as evidence that Judge Davis discriminated against her based onher age, beliefs and lifestyle, anddid not take into consideration the facts presented to the court. Her

concern about the basis for the District Court's decision is understandable in view of a number of inappropriate remarks in Judge Davis' findings of fact. For example, hestated that Tarena has "an alarming andtragic history of family instability. At age three shebecamethe victim of abroken home. In her early years sheresided invarious places with her natural mother, half sisters andbrothers, andmultiple stepfathers." In fact, the Family Services homestudy report prepared by Evansstates that Tarena's mother andstepfather were divorced when Tarena wasfive, not three; that shehadonly the onestepfather; and that she is still in contact with her natural father even though he and her mother were never married. No evidence of "alarming" or "tragic" events or circumstances appears anywhere in the record. Judge Davis assigned considerable weight to the fact that Tarena's supervising social worker in Dillon declined, in response to his direct question, to give anopinion asto whether continued custody with Tarena was in J.D.'s best interest. Shesaid "It's a

9hard question to answer because I do think Tarena has tried."

Earlier in her testimony, however, shetold the court that Tarena had "very muchimproved" in her parenting abilities, andthat she felt comfortable leaving the children in Tarena's care. In his findings of fact, Judge Davis rendered this statement as "She reportedly made some improvement in her parenting skills" and continued, "While her parenting skills may have improved, her morals did not. Sheagain becamepregnant.

. . . Theputative father is reportedly out of the state." Theselatter commentscontradict Tarena's testimony, inwhich she stated that the newbaby's father was still living in Dillon andthat her relationship with himwasstable andhappy. Apart from these inappropriate observations, however, we conclude that the District Court's decision was based on substantial credible evidence, andthat the court did not abuse its discretion in awarding sole custody to Tracy. Werequire only that the court express "the essential anddetermining facts uponwhich its conclusions rest." In re Marriage of Ulland (1991), 251Mont. 160, 167, 823P.2d 864, 869. Judge Davis metthis requirement when hewrote, in aconcluding comment, that: Thecourt is being asked to place the child with a22 year old single mother with asad record of abuse and neglect, limited resources andjob skills, twoadditional children to care for and support, and little or no prospects that the living andparenting situation will improve.

. . . Comparing this bleak prospect with the stable environment of the father in Fort Benton leaves the court with noalternative. Even if Judge Davis did exaggerate the "sad record of abuse andneglect," the record demonstrates that Tarena does have very 10limited resources andjob skills: that shedepends for most of her

income onchild support from two men other than Tracy, oneof whom lives in Seattle: andthat shedid not complete high school or any other program that would qualify her for employment at a level adequate to support her without the public assistance she now receives in the form of food stamps andahousing subsidy. Tracy, on the other hand, has a long-term, full time job paying approximately $384aweek at the time of the hearing. His wife was earning additional income as ababysitter, which meant that shewasavailable to serve asafull time caretaker for J.D. Therecord contains ampleevidence that Tracy andChristine possess adequate, even superior parenting skills. EvenTarena testified that Tracy is an "excellent father," while conflicting testimony

wasoffered concerning Tarena's parenting skills. It is the function of the district court to resolve conflicts in testimony andevidence, andto decide howmuchweight should be assigned to agiven witness Itestimony or to aparticular piece of evidence. Ulland, 823 P.2d at 870. Wewill not substitute our judgment for that of the district court unless it has clearly abused its discretion. Otto, 800P.2d at 708: Ulland, 823P.2d at 870. Erroneous findings of fact that are not necessary to support the trial court's judgment are not grounds for reversal. Ferouson, 805 P.2d at 1337. Although the court displayed adeplorable insensitivity to issues of gender bias and alternative lifestyles, substantial credible evidence does support its award of exclusive custody of

11J.D. to her father, based onJ.D.'s best interest.

AFFIRMED. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall bepublished by its filing as apublic document with the Clerk of the Supreme Court and by areport of its result to Montana LawWeek, State Reporter and West Publishing Company.

Weconcur:

Chief Justice

12Chief Justice J. A. Turnage specially concurring:

I concur in the result reached by the Court in this Opinion. However, I do not agree with all of the statements made in the opinion attributed to comments of the District Judge. Such statements are not necessary to a resolution of this case.

13