NO. 82--119 INTHE SUPfiEME COURT CF THE STATE OF MONTANA 1982

INTHE MATTER OF M.N., R.N., B.N., S.N. and W.N., Neglected and Dependent children.

1 from: DistrictCourt of theTenth Judicial District, Inand for theCounty of Fergus, The Honorable R. D. BlcPhillips, Judgepresiding.

Counsel of Record:

For Appellant: Torger S. Oaas, Lewistown, Montana CraigR. Buehler, Lewistown, Montana

For Respondent: Bradley B. Parrish, Lewistown, Montana WilliamE. Berger, Lewistown, Montana

Submitted on Briefs: July 1, 1982 Decided: August 11, 1982

Filed:

## AUG111982Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. This appeal was brought by Mrs. Ann Sparks, the paternal grandmother of the five N. children, who intervened to seek custody of her grandchildren. She seeks to have the judgment, entered by theHonorable R. D. McPhillips, intheDistrict Court of the Tenth Judicial District, granting custody of the five N. children to the Department of Social and Rehabilitation Services (SRS)

# . The natural parents of the five N. children, M.N., R.N., B.N., S.N., and W.N., have had problems caring for and raising the children over a long period of 

### time. They have had contact with welfare agencies in two other states prior to their arrival in Montana. The N. family came 

### to Fergus County, Montana, to avoid contact with the welfare authorities in the State of Washington. During the period the family 

### was in Fergus County, the youngest child, W.N., was declared dependent and neglected, but was returned tohisnatural parents. On October 3, 1980, the SRSreceived word thattheN. family

was planning 

### to leaveLewistown. The SRS took emergency custody of all the children at that 

### time and has had custody since. An adjudicatory hearing 

### was held, pursuant to Section 41-3-404 MCA. At that hearing 

### all five N. children 

### were declared youths inneed of 

### care, and they remained inthe custody of the SRS. A dispositional hearing, required by Section 41-3-406, MCA, was held ~riday, January 29, 1982. Atthat 

### time Mrs. Sparks, the appellant, testified she moved to Montana in September of 1981 

### to see what she could do about the kids (grandchildren);thatshe

### was presentlyworking, but was planning tomove back toWashington. She also testified thatshe was presentatthe adjudicatoryhearing. Upon completion of the dispositional hearing

## , Judge IYlcPhillips entered his judgment terminating the parental rights of, G.N. and J.N, the natural parents of the five N. children and awarding custody 

### to the SRS with the right to con-sent

### to adoption. Thisappeal followed. The sole issue presented to this Court for review is: Did the District Court 

### err in awarding custody of the five minorN. children to the SRS, with the right 

### to consent 

### to adoption rather than 

### to their paternal grandmother, Mrs. Ann Sparks? A grandmother does not, by virtue of her status as a grandparent, have any superior right of adoption or custody 

### to that of a non-relative. Graham v. Childrens Service Division, Department of Human Resources, (1979)r 39 0r.App. 27, 591 P.2d 375; In Re the People of the Interestof C.P. and D.P. Children (1974), 34 Colo.App, 54, 524 P.2d 316; Section41-3-406, MCA, supportsthisposition also. It 

### states: "DispositionalHearing. (1) If a youth is found to be abused, neglected, 

### or dependent under 41-3-404, the courtafterthedispositional hearing may enteritsjudgment making anyof thefollowingdispositions (emphasis added) 

### to protect the welfareof the youth: "(a)

# . .. "(b) transfer legal custody 

### to any of the following:

"(iii) a relative 

### or other individual who, after studyby 

### a social service agencydesignated by the court, 

### is found by the court 

### to be qualified 

### to receive and care foryouth;

# .. .I1 This section 

### is not mandatory but places the discretion in the DistrictCourt whether 

### or not toaward custody to a relative. In the 

### Matter of T.J.D., J.L.D. and R.J.W. (1980), MT I ---- 615 P.2d 212, 37 St.Rptr. 1385, 1390. Where custody isconcerned, thebestinterestof thechildren is the paramount consideration. In the Matter of T.J.D., J.L.D. and R.J.W., supra; In ReGore Youths inNeed of Care (1977), 174 PIT 321, 570 P.2d 1110; In theMatter of Inquiry intoJJS (1978), 176 MT 202, 577 P.2d 378; In the Matter of Burgoff and Berry (1976), 170MT 116, 551P.2d 656: 

### In the 

### Matter of Declaring the Jones and Peterson Children Dependent and Neglected Children v.Peterson (1975), 168MT 1, 539 P.2d 1193. The District Court in thiscase gave seriousconsideration

### to the grandmother's request but 

### was compelled to balance thiswith the consideration of the best interestof the childrenas 

### is evidenced by the Court's Finding of Fact No. IV.

"The paternal grandmotherof the five (5)children, ANN SPARKS, has asked for custody of all 

### or any part of the five (5) children. Mrs. Sparks is a widow and 57 years old. She presently works at Eddie's Corner 

### as 

### a cook five (5)nightsa week and lives in 

### Moore. Over the past three (3) 

### or four (4) months, she not only obtained employment but has managed 

### to save up FIVE HUNDRED DOLLARS ($500.00). Mrs. Sparks plans 

### to eventuallyreturn to Washington where she resides with her 90-year-old father. She, by necessity, has to work for 

### a living. The Court finds that it would be a burden upon 

### Mrs. Sparks 

### to award hercustodyof the children. The Court finds that in all probability she would be unable to 

### resist the intrusions of both J.N. and G.N.; that it would in the long run be contrary 

### to the best interest of said children or any of them 

### to award custody to Mrs. Sparks, particularly in view of the fact that time is somewhat of the essence and the propensitiesof the natural parents. "Further, the Court finds that it is in the best interest of said children that they continue to be placed with the Department of Social Services to continue the excellent progress said children have shown sincetheDepartment hashad their custody." Appellant, grandmother, contends that the policy 

### set out in section 41-3-101(l) (d)

## , MCA, of preserving the unity and welfare of the family whenever possible, 

### was not followed by the District Court. But, as this Court has made abundantly clear in its prior decision of In Re the 

### Matter of Inquiry into JJS, supra, 

### "[Flamily unity need not be preserved atthe expense of thechild's best interest,'' 577 P.2d at382. In the present 

### case both the grandmother and the SRS presented evidence as to their ability to serve the children's best interest. The SRS presented testimony that the children's individual needs outweighed theirneed to remain together

# . Contrary to this, Mrs. Sparks brought in a psychologist who testified that separation of siblings causes damage 

### to their emotional development and, therefore, it would be better for the children 

### to place them with Mrs. Sparks. There 

### was 

### also con£licting evi-dence inother 

### areas concerning Mrs. Sparks1ability

### to raise the children. Concern 

### was also voiced as Mrs. Sparks testified that she wishes to return 

### to SedroWooly, Washington, with the children, which 

### is only 50 

### miles from where the children's natural parents 

### are now living, that the children might be returned to them. In considering all the evidence together with such factors

as Mrs. Sparks1 age, living arrangement and need 

### to work, the District Court entered a judgment finding it inthebest interest of the children that custody be awarded to the SRS, with the right 

### to consent to adoption. The District Court's findings enjoya presumption of correctness, and since there is sufficient credible evidence in the record to support hisjudgment, 

### we cannot and do not interfere with Judge McPhillipsl judgment. .& The judgment of the District Court is,&irmed.

Justice ,'

Weconcur: 

# pA--e-4wcltDweQJ Chief Justice