No. DA 06-0207

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 101

FREDERICK J. FISCHER, Petitioner and Respondent,

v. RUBY M. FISCHER, Respondent and Appellant.

APPEAL FROM: The District Court of the Third Judicial District, In and For the County of Deer Lodge, Cause No. DR 01-127, Honorable Ted L. Mizner, Presiding Judge

COUNSEL OF RECORD: For Appellant: Daniel R. Sweeney, Attorney at Law, Butte, Montana For Respondent: Patrick T. Gallagher, Skakle s & Gallagher, Anaconda, Montana

Submitted on Briefs: January 17, 2007 Decided: April 24, 2007 Filed:

__________________________________________ Clerk2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Ruby M. Fischer (Ruby) appeal s from the order of the Third Judicial District Court, Deer Lodge County, gr anting Respondent Frederick J. Fischer’s (Frederick) motion for appointment of temporary guardians for their son, Jeret Fischer (Jeret), and appointing Barry an d Angie Woods and Frank Austin as Jeret’s co-guardians.

We reverse. ¶2 We consider the following issues on appeal: ¶3 (1) Is the order granting Frederick’s request for a temporary guardianship of Jeret an appealable order? ¶4 (2) Did the District Court err by appoin ting temporary guardians of Jeret over the objection of Ruby, Jeret’s mother?

BACKGROUND ¶5 Frederick and Ruby Fischer were married on August 13, 1994, and had one child, Jeret, who was born on May 24, 1993. In Ap ril 2004, the parties di ssolved their marriage and entered a stipulated parenting plan which was approved by the District Court. Under the plan, Frederick was designated as prim ary custodian of Jeret, while Ruby was awarded visitation every other weekend. ¶6 Frederick and Jeret moved to Billings, Montana, in Apr il 2005, and have lived in the home of friends Barry and Angie Woods since then. Frederick is employed by the U.S. Army Reserve in Billings, and Jeret a ttends school in Billings. Ruby resides in Butte with her ailing father fo r whom she provides care.3 ¶7 In December 2005, Frederick received orders to report for active duty to Iraq on January 8, 2006. On Decem ber 20, 2005, Frederick file d a motion for an emergency hearing regarding Jeret. He sought, on the recommendation of Je ret’s counselor, Lynn Pillman (Pillman), to have Ba rry and Angie Woods and Fra nk Austin, Ruby’s brother, who also lives in Butte, Mont ana, appointed as temporar y legal guardians of Jeret. 1 Upon being served with the mo tion, Ruby filed a motion to dismiss. After briefing and oral argument, the District Court granted Fr ederick’s motion for temporary guardianship of Jeret. Ruby appeals.

STANDARD OF REVIEW ¶8 This Court reviews a district court’s conc lusions of law related to the appointment of a guardian to determine if they are correct. In re Guardianship of D.T.N. , 275 Mont. 480, 483, 914 P.2d 579, 580 (1996) (citation om itted). We review findings of fact to determine whether they are clearly erroneous. D.T.N. , 275 Mont. at 483, 914 P.2d at 580 (citations omitted).

DISCUSSION ¶9 (1) Is the order granting Frederick’s re quest for a temporary guardianship of Jeret an appealable order? ¶10 As a preliminary matter, Frederick argues this appeal must be dismissed because the District Court’s temporary guardianship order is not appe alable under M. R. App. P. 1, which allows appeals from a final judgment or special order made after final judgment.

1 After Ruby informed Pillman that she had recently been awarded Social Security Disability based on mental illness, namely, seve re depression, Pillman opined that it was unreasonable to presume Ruby was capab le of providing for Jeret.4 He notes that this Court has held “that orders of temporary custody are not ‘final judgments,’ subject to direct appeal, but inst ead are interlocutory orders from which this Court will grant relief in extr aordinary circumstances.” In re D.A. , 2003 MT 109, ¶ 19, 315 Mont. 340, ¶ 19, 68 P.3d 735, ¶ 19. Fred erick reasons that the granting of his request for appointment of a guardian is temporary, because the order auto matically terminates on Frederick’s return from Iraq or on further order of the court. ¶11 Ruby responds that the order appealed from should be considered final and appealable because the District Court ruling appointed guardian s of Jeret in derogation of her parental rights. Ruby also points to M. R. App. P. 1(b)(3), which allows an aggrieved party to appeal from an “ord er granting or refusing to gr ant, revoking or refusing to revoke, letters testamentary, or of admini stration, or of guardianship . . . .” ¶12 We have previously specifical ly interpreted M. R. App. P. 1(b)(3) with regard to temporary guardianshi p proceedings. In Matter of Klos , 284 Mont. 197, 201, 943 P.2d 1277, 1279 (1997), we not ed that “[t]he rule defines an appealable order as an ‘order granting or refusing to grant, revoking or refusing to revok e . . . guardianship,’” and concluded from this plain language that th e Rule “does not differentiate between a permanent guardianship and a temporary guar dianship. Thus, a district court order granting either a permanent or a tem porary guardianship is appealable.” Klos , 284 Mont. at 201, 943 P.2d at 1279. ¶13 Therefore, Ruby’s appeal is properly before the Court. ¶14 (2) Did the District Court err by appo inting temporary guardians of Jeret over the objection of Ruby, Jeret’s mother?5 ¶15 Frederick initiated this matter by motioning th e District Court, within the parties’ earlier dissolution proceeding, for an emerge ncy hearing and appoin tment of temporary legal guardians for Jeret, because of Frederic k’s forthcoming deployment to Iraq. Ruby responded by filing a motion to dismiss under M. R. Civ. P. 12(b)(6), arguing that absent a termination of her parental rights, a natural parent cannot lose the custody of his or her child in favor of a guardian. Frederick, in reply, argued that the court could modify the parties’ existing parenting pl an by authority of § 40-4-2 19, MCA, on a showing of changed circumstances and that a modification wa s necessary to serve the best interest of the child. Relying on § 40 -4-219, MCA, and also citi ng §§ 40-4-228 and 41-3-427, MCA, the District Court concluded that a change of circumstances had occurred as a result of Frederick’s deployment and that an amendment to the parenting plan was necessary to serve Jeret’s best interests, appointed temporar y guardians, and ordered that the guardianship be terminated upon Frederick’s return from duty in Iraq or upon further

order of the court. 2 ¶16 Ruby contends the District Court impermis sibly relied on the provisions of §§ 41- 3-327 and 40-4-228, MCA, a nd argues that Title 72, Chapter 5, MCA, governs Frederick’s request for appointment of a temporary guardian for Jeret. Ruby notes that § 72-5-222(1), MCA, provides a procedure for appointment of a guardian for a minor child in derogation of a parent ’s rights, and allows such onl y if “all parental rights of

2 The District Court also ordered that Ruby’s rights under the existing parenting plan shall continue and remain unchanged.6 custody have been terminated or if parent al rights have been suspended or limited by circumstances or prior court order.” She main tains that because her parental rights have never been terminated, suspended, or limite d by circumstances or by prior court order, the appointment of a guardian for Jeret was invalid. Frederick responds that Ruby’s parental rights were indeed limited by a prio r court order, that bei ng the parenting plan agreed upon by the parties a nd approved by the District Court, which limited Ruby’s parenting time to every other weekend. Moreov er, Frederick contends that regardless of the appointment of temporary guardians, Ruby’ s limited parental rights remain intact and she may enjoy those limited rights at her convenience. ¶17 As authority for its order, the District C ourt first cited to § 40-4-219, MCA, which provides, in pertinent part: Amendment of parenting plan – mediation . (1) The court may in its discretion amend a prior parenting plan if it finds, upon the basis of facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan, that a change has occurr ed in the circumstances of the child and that the amendment is necessary to se rve the best interest of the child. Section 40-4-219, MCA. However, “modification of a parenting plan is based on the best

interests of the children with regard to the respective parents .” In re Marriage of Burk , 2002 MT 173, ¶ 19, 310 Mont. 498, ¶ 19, 51 P.3d 1149, ¶ 19 (citin g § 40-4-219, MCA) (emphasis added). Section 40 -4-219, MCA, merely provide s a mechanism for the court to amend a parenting plan as between the par ties to that agreement. It does not provide authority to decide custody matters between a child’s parents and third parties, including appointment of a third party as a child’s guardian.7 ¶18 Secondly, the District Court indicated that it had also relied upon § 40-4-228, MCA, although not raised by the parties. It provides, in pertinent part: Parenting and visitation matt ers between natural parent and third party. (1) In cases when a nonparent se eks a parental interest in a child under 40-4-211 or visitation with a child, the provisions of this chapter apply unless a separate action is pending under Title 41, chapter 3. (2) A court may award a parental interest to a person other than a natural parent when it is shown by clear and convincing evidence that: (a) the natural parent has engaged in conduct that is contrary to the child-parent relationship; and (b) the nonparent ha s established with th e child a child-parent relationship, as defined in 40-4-211, an d it is in the best interests of the child to continue that relationship.

. . . . (5) It is not necessary for the court to find a natural parent unfit before awarding a parental interest to a third party under this section. Section 40-4-228, MCA (emphasis added). This provision provides standards by which a court may award a parental interest in a child to a nonparent who has brought a parenting plan proceeding pursuant to § 40-4-211, MC A. In turn, § 40-4-211, MCA, as we have previously noted, “defines a c ourt’s jurisdictional authority fo r child custody or parenting proceedings under the [Uniform Marriage and Divorce Act],” In re Parenting of

D.A.H. , 2005 MT 68, ¶ 9, 326 Mont. 296, ¶ 9, 109 P.3d 247, ¶ 9, and, specifically, allows a parenting plan proceeding to be commenced in district c ourt “‘by a person other than a parent if the person has established a child-p arent relationship with the child, by filing a petition for parenting in the county in which the child resides or is found.’” D.A.H. , ¶ 9 (quoting § 40-4-211(4)(b), MCA).8 ¶19 Here, although Frederick asserts that th e temporary guardians have “a similar relationship of parent and child” with Jere t, no nonparent has filed a parenting plan proceeding with regard to Jeret, in his resi dential county, pursuant to § 40-4-211, MCA. Indeed, Frederick cedes, in his Respondent’s brief, that “argument that a third party has brought this case is misplaced .” The relief sought by Fred erick’s petition was not for the establishment of a new parentin g interest, but for the placem ent of Jeret with temporary guardians. Thus, the District Court’s re liance on § 40-4-228, MCA, was incorrect. ¶20 Lastly, the District Court turned to § 41-3-427, MCA, within the child abuse and neglect statutes, and concluded that there were: sufficient allegations within the context of this case for this Court to find that Jeret may be in danger of being abused or neglected if he were to reside with Respondent. Placement of Jere t with Respondent would trigger an immediate investigation and placemen t of Jeret in emergency protective services, most likely with Barry and Angie Woods. ¶21 However, the District Court failed to note that § 41-3-427, MCA, provides “the county attorney, the attorney general, or an attorney hi red by the county” with authority to file a petition when it appear s a child is abused or neglecte d or is in danger of being abused or neglected. Such a proceeding wa s not initiated here. While child abuse or neglect would be relevant to a determina tion of a child’s proper placement in a guardianship proceedin g, and a proceeding properly initiated under § 41-3-427, MCA, is a basis for placement with a nonparent, see §§ 40-4-228(1) and 41-3-427(1)(a), MCA, this section does not provide independent au thority for appointment of a guardian in disregard to the guar dianship statutes.9 ¶22 In summary, the District Court errone ously relied on §§ 40-4-219, 40-4-228, and 41-3-427, MCA, in granting Frederick’s mo tion for temporary guardianship. Ruby correctly contends that Frederick’s request was governed by Title 72, Chapter 5, MCA,

which the District Court did not address. That chapter provides a procedure for appointment of a guardian of a minor child, bu t only if “all parental rights of custody have been terminated or if parental rights have been suspended or limited by circumstances or prior court orde r.” Section 72-5-222(1), MCA. ¶23 Frederick contends that the parenting pl an approved within the dissolution action which granted only ever y other weekend for Ruby’s pare nting time constitutes an order limiting Ruby’s parental rights for purposes of § 72-5-222(1), MCA. 3 However, the parenting plan approved by th e court within the parties’ dissolution proceeding simply determined or limited visitation that Ruby may exercise with Jeret—it did not affect the standing of Ruby’s parental rights to Jeret. As an illustrative example, the parenting plan provides that “[t]he parents agree that they shall jointly make major decisions regarding the child’s education, health care, religious upbringing, and recreational activities.” Ruby’s parental rights to Jeret were not “ limited” for purposes of § 72-5-222(1), MCA, by the parenting plan. Under the statute, that requires a court order directed at a party’s right to parent, as opposed to arrangements defining a parent’s custody and visitation

times with a child in a disso lution proceeding. We therefore conclude that Ruby’s

3 Frederick does not allege that Ruby’s pare ntal rights were terminated, suspended, or limited by circumstances, but only that Ruby’s parental rights were limited by a “prior court order.” Therefore, we analyze only whether the parties’ parenting agreement qualified as a prior court order limiting Ruby’s parental rights.10 parental rights were not previously limited by court order, and that the District Court was without authority to appoint temporary guar dians for Jeret pursuan t to § 72-5-222(1),

MCA. ¶24 The right of a parent to custody of their child has been recogni zed by this Court as being a fundamental constitutional right. Matter of Guardianship of Aschenbrenner , 182 Mont. 540, 544, 597 P.2d 1156, 1160 (1979) (citing Matter of Guardianship of Doney , 174 Mont. 282, 285-86, 570 P.2d 575, 577 (1977)). The legislature has carefully enunciated the procedures th e State must follow and the findings that the court must make before custody of a child may legally be taken from his natural parent. “District Courts must identify and adhere to the proper procedure and standards to be used in the proceedings before them. On ly then will the fundamental rights and relationship existing between parent and child be fully realized or, when necessary, properly severed.”

Aschenbrenner , 182 Mont. at 553, 597 P.2d at 1164. In view of these principles, we look closely at actions which interfere with that right. Aschenbrenner , 182 Mont. at 544-45,

597 P.2d at 1160. Our examina tion in this case leads us to conclude that the granting of Frederick’s petition for temporary guardianshi p for Jeret was improper and must be

reversed. ¶25 Whether the District Court’s concerns about Ruby’s ability to parent will ultimately be borne out must be the subject of a proper proceeding to determine the same. Her parental rights have not been abridged and therefore, a guardianship cannot be granted over her objections.11 ¶26 We reverse the entry of the order appo inting temporary guardians of Jeret and remand for the entry of an orde r vacating the guardianship.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY /S/ JOHN WARNER /S/ JAMES C. NELSON /S/ BRIAN MORRIS