NO. 95-243 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

IN REA.R.A., aminor child. PATRICK ERGER,

Petitioner and Respondent,
v.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable Robert W.Holmstrom, Judge presiding.

COUNSELOFRECORD:

For Appellant: RoddA. Hamman (argued) and Robin A. Wolff, Calton Hamman&Wolff, Billings, Montana For Respondent: Damon L. Gannett (argued), Gannett, Anderson &Liechty, Billings, Montana For Amicus Curiae: Hon. Joseph P. Mazurek, Attorney General, Patricia A. Jordan, Assistant Attorney General (argued), Helena, Montana

Filed: Submitted: April 30, 1996 Decided: June 20, 1996

### Justice Charles E. Erdmanndelivered the opinion of the Court.

This is anappeal from adecision of the Thirteenth Judicial District Court, Yellowstone County, awarding custody of A.R.A. to Patrick J. Erger. Wereverse andremandto the District Court for proceedings consistent with this opinion. Werestate the issues asfollows: 1. Did the District Court err in awarding custody of the child to a stepparent over anatural parent based on the best interest of the child test? 2. Did the District Court err in failing to set forth
reasons for denial of attorney fees? FACTS Tracy Erger andWilliam (Bill) Askren were married in 1983. A.R.A. wasborn to them in 1987. Tracy andBill divorced in 1989 whenA.R.A. wasnineteen months old. In the divorce decree, Tracy
wasawarded custody of A.R.A. andBill wasgiven reasonable rights ofvisitation. Bill wasordered topaychild support inthe amount of $200per month but becamedelinquent onthose payments. Bill movedout of state andwasnot able to exercise his visitation rights to their full extent. Hedid, however, keep in touch by telephone and sawA.R.A. approximately once ayear for extended periods. Bill remarried in 1989to Colleen. They had adaughter in 1990 and were expecting another child at the time of trial. Colleen's daughter from aprevious marriage also lives with them.Colleen works as a secretary for the Salt Lake County Sheriff's

Department and Bill, while not employed, attends ajunior college and is studying to become aparalegal. Tracy married Patrick in 1990 and they had ason, Joshua, in February 1992. In September 1992, Patrick was transferred to Billings and Tracy, A.R.A., and Joshua moved shortly thereafter. Tracy was killed in anairplane crash onDecember 18, 1992. In her will, Tracy had named Patrick asA.R.A.'s guardian. Bill, as the surviving natural parent, came to Billings to pick upA.R.A. Patrick refused to relinquish physical custody of A.R.A. to Bill and petitioned the court for custody pursuant to §40-4-221, MCA. The District Court held ahearing onthe matter and ordered that Patrick was the appropriate individual to have custody under the best interest of the child test even though he
was not the natural father. From that order, Bill appeals. ISSUE 1 Did the District Court err in awarding custody of the child to
astepparent over anatural parent based on the best interest of the child test? Patrick requested acustody hearing pursuant to §40-4-221, MCA. That section provides:

(1) Upon the death of aparent granted custody of achild, custody shall pass to the noncustodial parent unless one or more parties named in subsection (2) request acustody hearing. Thenoncustodial parent shall beaparty in any proceeding brought under this section.

(2) upon the death of aparent granted custody of a child, any of the following parties may request a custody hearing and seek custody of the child:
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## ibi

.. the surviving spouse of the deceased custodial parent;Cc) aperson nominated by the will of the deceased custodial parent; i3i . . The hearing anddetermination of custody shall be governed by this part. According to part 2 of Title 40, Chapter 4, Montana Code Annotated, a court shall determine custody pursuant to the best interest of the child. Section 40-4-212, MCA. The factors relevant to the child's best interest include the following:

(a) the wishes of the child's parent or parents as to custody; (b) the wishes of the child as to acustodian; (c) the interaction and interrelationship of the child with the child's parent or parents andsiblings and with any other person who may significantly affect the child's best interest; Cd) the child's adjustment to home, school, and community; (e) the mental and physical health of all individuals involved; (f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and (57) chemical dependency, as defined in 53-24-103, or chemical abuse onthe part of either parent. i4j

. . The following are rebuttable presumptions: (a) Aknowing failure to pay birth-related costs that the person is able to pay is not in the best interest of the child. (b) Failure to pay child support that the person is able to pay is not in the best interest of achild in need of the child support. The District Court found that there was aclose relationship between Patrick andA.R.A.; that A.R.A. wasattached to her brother Joshua; that Patrick's parenting skills are superior to those possessed by Bill; that A.R.A. would be adversely affected by changing schools, therapists, and her primary residence; and that
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### it was in 

### her best interest 

### that she remain in Billings in the

family unit to which she had grown accustomed. Based onthese findings, the court determined that A.R.A.'s best interest warranted the award of her custody to Patrick. Bill contends that the court's useof the best interest of the child test in awarding custody to a stepparent abrogates his constitutional right to parent his child. Patrick concedes that Bill hasaconstitutional right toparent his child but argues that A.R.A.'s fundamental liberty interest andright to privacy in the association with her family is also constitutionally protected. Patrick maintains that the District Court properly balanced the rights of both Bill andA.R.A. in using the best interest of the child test asdirected by§40-4-221, MCA. The interpretation and application of a statute to a particular set of circumstances arematters of law. Denial ofApp. for Iss. of Beer/Wine Lit. (1994), 267Mont. 298, 301, 883P.Zd 833, 835. Wewill therefore review the District Court's interpretation of §40-4-221, MCA, for its correctness. See Babcockv. Wonnacott (1994), 268Mont. 149, 151, 885P.2d 522, 524. TheDistrict Court interpreted §40-4-221, MCA,asgiving the court the authority to award custody to astepparent rather than a surviving natural parent using the best interest of the child test. Astatute is to beconstrued according to the plain meaning of its language. Norfolk Holdings v. Dept. of Revenue (1991), 249Mont. 40, 43, 813P.2d 460, 461. However, it is paramount that wegive

5such construction to the statute as will preserve the

constitutional rights of the parties. LaFountaine v. State Farm Mut. Auto. Ins. (19851, 215 Mont. 402, 406-07, 698 P.2d 410, 413. Werecognized the constitutional rights of anatural parent to parent his or her child in In re Doney (1977), 174 Mont. 282, 570 P.2d 575 This careful protection of parental rights is not merely a matter of legislative grace, but is constitutionally required. Stanleyv.Illinois, 405 U.S. 645, 92 s.ct. 1208, 31 L.Ed.2d 551 (1972). II* * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyerv. Nebraska, supra [262 U.S. 3901, at 399, [43 S.Ct. 6251, 67 L.Ed. [1042], at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinner1zOklahoma, supra [316 U.S. 5351, at 541 162S.Ct. 11101, 86L.Ed. 116551, at 1660, and the Ninth Amendment, Griswoldv.Connecticut,381 U.S. 479, 496, 85S.Ct. 1678, 14L.Ed.2d 510, 522 (1965) (Goldberg, J., concurring) .'I Stanley, 405 U.S. at 651, 92 S.Ct. at 1213, 31L.Ed.2d at 559. Doney, 570 P.2d at 577. In a line of cases following Doney, we again stressed the constitutional protection of anatural parent's right to the custody of his or her child. Babcock, 885 P.2d at 524; In re M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998; Pierce v. Pierce (1982), 198 Mont. 255, 260, 645 P.2d 1353, 1356; In re Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 1156, 1160. This constitutional protection is based upon the integrity of the family unit which necessarily includes the child's right to bewith his or her natural parent. Stanley v. Illinois (1972), 405 U.S. 645, 652, 92S. Ct. 1208, 1213, 31L. Ed. 2d551, 559.

6Consequently, the state's ability to intrude upon the

parent/child relationship must be guarded. Schultz v. Schultz (1979), 184 Mont. 245, 247, 602 P.2d 595, 596; Doney, 570 P.2d at 577. For that reason, N[a] finding of abuse, neglect, or dependency is the jurisdictional prerequisite for anycourt-ordered transfer of custody from a natural parent to a third party." Babcock, 885P.2d at 524. Therefore, where asurviving parent does not voluntarily relinquish custody, the best interest of the child test can be used only after ashowing of dependency or abuse and neglect by the natural parent. M.G.M., 654 P.2d at 998; Aschenbrenner, 597 P.2d at 1162. Contrary to the above analysis, wehave held that it was not
error for adistrict court to apply the best interest of the child test rather than the dependency, abuse, and neglect test as set forth in Donev to determine custody between the natural father and the maternal grandmother. Brost v. Glasgow (1982), 200 Mont. 194, 199, 651 P.2d 32, 34. In Brost -I weheld that the 1979 Legislature, in §40-4-221, MCA, changed the test to be used in determining custody when acustodial parent dies. Brost , 651 P.2d at 34. We again refused to require the stricter Donev standard in favor of the best interest of the child test in In re C.G. (1987), 228 Mont. 118, 740 P.2d 1139. However, in Aschenbrenner and Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177, we held that the Uniform Marriage and Divorce Act (Title 40, Chapters 1and 4) does not diminish the

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### constitutionally protected rights of a natural parent to the

custody of his or her child. Aschenbrenner, 597 P.2d at 1163; Henderson, 568P.2d at 181-82. It follows that anamendmenttothe Uniform Marriage andDivorce Act, however limited, cannot infringe uponthose samerights. Therefore, the useofthe best interest of the child test, asreferred to in 540-4-221, MCA,is improper in that anyshowing that anonparent maybeable to provide abetter environment than cananatural parent is irrelevant to the question of custody between the two inview of the constitutional rights of
aparent to custody. Babcock, 885P.2dat 524; Aschenbrenner, 597 P.2dat 1162. Accordingly, 540-4-221, MCA,is unconstitutional to the extent that it allows the granting of a§-221 petition prior to the termination of the natural parent's constitutional rights. Wetherefore overrule Brost andInre C.G. intheir useof the best interest of the child test to award custody to anonparent over a natural parent absent afinding of abuseandneglect ordependency. While werecognize that §40-4-221, MCA,gives anonparent standing to request acustody hearing, that section doesnot give the district court authority to deprive anatural parent of his or her constitutionally protected rights absent afinding of abuseand neglect or dependency. Accordingly, wehold that the District Court erred in awarding custody of A.R.A. to Patrick based onthe best interest of the child test inview of the fact there were no allegations of abuseandneglect ordependency onthe part of Bill.

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### Wetherefore reverse the District Court andawardcustody ofA.R.A.

to Bill, the natural father. ISSUE2 Didthe District Court err infailing toset forth reasons for denial of attorney fees? TheDistrict Court denied attorney fees to Bill but did not set forth reasons for the denial. Adistrict court mayaward attorney fees pursuant to §40-4-110, MCA. In the past, wehave held that adistrict court must indicate in the findings of fact, conclusions of law, or order whyattorney fees were not awarded. In re Marriage of Gallinger (1986), 221Mont. 463, 471, 719P.2d 777, 782 (citing Lewis v. Lewis (1982), 198Mont. 51, 55, 643P.2d 604, 606). Wesaid that acourt's failure to set forth specific findings constituted remandable error. Gallinaer, 719P.2dat 782. However, welater considered that rule muchtoo harsh to be applied onageneral basis, andweheld that amore appropriate standard of review for adecision not to award attorney fees is abuse of discretion. Gallinqer, 719P.2d at 783. In the present case, the record indicates that the District Court wasinformed of both parties' financial resources asrequired by§40-4-110, MCA. Basedonthat information, the District Court determined that the parties would paytheir ownattorney fees. That information has not changed. Notwithstanding the fact that wearegranting custody of A.R.A. to Bill, wedetermine the District Court did not abuseits discretion in directing the parties to pay their ownattorney

fees. Reversed in part and affirmed in part.

Weconcur:

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-.Justice James C. Nelson specially concurs.

I concur in our opinion on both issues 1 and 2. I write separately because I believe that several points not addressed in
our opinion deserve mention. First, it is only fair to point out that both Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177, and Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575, were decided prior to the enactment of § 40-4-221, MCA, in 1979. Accordingly, the constitut-ional principles enunciated in those
cases and relied upon here were neither considered nor addressed in the context of this statute. Second, Brost v. Glasgow (1982), 200 Mont. 194, 651 P.2d 32, and Matter of Paternity of C.G. (1987), 228 Mont. 118, 740 P.2d 1139, were decided strictly onthe basis of §40-4-221, MCA. While in both cases wementioned Donev, in neither Brost nor C.G. did we address the constitutionality of the best interest test mandated by this statute in light of our prior adoption of the principles enunciated in Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. Having now done that, Brost and C.G. are correctly overruled. Third, notwithstanding that wehave overruled Brost and C.G.
wehave not discussed nor attempted to deal with other cases, which remain good law, wherein we have permitted persons other than biological parents to seek or obtain custody of a child to the exclusion of a natural parent without prior termination of the natural parent's rights. I make no pretention that this list is 11all-inclusive, but see, for example: In re Custody of R.R.K.

(1993), 260Mont. 191, 859 P.2d 998 (grandparents entitled to seek custody of child under 540-4-211, MCA; §40-4-212 controls); In re Marriage of K.E.V. (1994); 267 Mont. 323, 883 P.2d 1246 (child awarded to non-biological father on the basis of equitable estoppel; neither natural mother's nor natural father's rights terminated); andMatter of Paternity of Adam (1995), 273Mont. 351, 903P.2d 207 (non-biological father allowed to adopt the child over objection of natural father on basis of presumption of paternity under Montana's Uniform Parentage Act, Title 40, Chapter 6, MCA; best interest test controls). I mention these cases here only from the standpoint that in the instant case we properly have grounded our decision in the fundamental constitutional rights implicit in the biological parent/child relationship andhave rejected astatutory scheme that permits the invasion of that relationship absent there first being proof or demonstration of the loss, forfeiture or termination of those rights. The cases referred to in the preceding paragraph
were decided under different statutory schemes, and/or ondifferent factual scenarios andwithout the constitutional question at issue here. Hence, while, arguably, it is not proper that wediscuss or analyze these andsimilar decisions here, nevertheless, it begs the question whether such decisions remain viable in the face of other statutory schemes or legal theories that, like 540-4-221, MCA, permit custody to be awarded to aperson other than abiological parent absent the rights pf the natural parent(s) being first

12terminated or otherwise forfeited. Obviously, those skirmishes

remain to be fought on future battlefields. Given our decision here, however, this maybeanarea of statutory law that should be addressed and clarified by the legislature Finally, it seems to methat the approach wehave articulated in the instant case is as follows:

1. Section 40-4-221, MCA, and, by implication, other statutes that allow persons other than biological parents to seek custody of achild to the exclusion of a natural parent, do no more than provide a basis for standing to file acustody petition, assuming that the petitioner meets the statutory criteria specified. 2. Inorder for such aperson to prevail onhis or her petition, however, the petitioner must prove that:

(a) the rights of the natural parent(s) have been lost via: (i) terminationforabuse, dependencyor neglect (Title 41, Chapter 3, MCA);l or

(ii) death of both natural parents or the surviving natural parent (§40-4-221, MCA); or

(iii) some other statutory basis or procedure onwhich parental rights have been forfeited, relinquished, abandoned or terminated or have otherwise ceased to exist; and

(b) the best interest of the child will be served by granting the petition. If the petitioner does not prove or demonstrate one of the subparagraphs under 2(a) above, then the court will not reach 2(b)

1 I note that our statutory and case law provide that petitions alleging abuse and neglect must bebrought bythe county attorney, the attorney general, or anattorney hired by Department of Health and Public Services with the consent of either of those two officials. Section 41-3-401(l), MCA; Pierce v. Pierce (19821, 198 Mont. 255, 261, 645 P.2d 1353, 1357; Babcock v. Wonnacott (1994), 268 Mont. 149, 154, 885 P.2d 522, 525. 13(best interest of the child). I~f2(a) isproven or demonstrated,

but Z(b) is not, then the petition will still be denied. In this

Case, 2(a) has not been proven or demonstrated and, accordingly, Bill is entitled to custody of

Justice Karla M. Gray joins in his daughter.

the foregoing special concurrence.

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