NO. 82--119 

IN THE SUPfiEME COURT CF THE STATE OF MONTANA 

1982 

IN THE MATTER OF 

M.N., R.N., B.N., S.N. and W.N., 

Neglected and Dependent children. 

1 from: District Court of the Tenth Judicial District, 

In and for the County of Fergus, The Honorable 

R. D. BlcPhillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Torger S. Oaas, Lewistown, Montana 

Craig R. Buehler, Lewistown, Montana 

For Respondent: 

Bradley B. Parrish, Lewistown, Montana 

William E. Berger, Lewistown, Montana 

Submitted on Briefs: July 1, 1982 

Decided: August 11, 1982 

Filed: 

AUG 1 1 1982 
Mr. ~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 the Honorable R. D. McPhillips, in the District 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 to his natural parents. 

On October 3, 1980, the SRS received word that the N. family 

was planning to leave Lewistown. 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 in need of care, and they remained in the custody 

of the SRS. A dispositional hearing, required by Section 

41-3-406, MCA, was held ~riday, January 29, 1982. At that time 

Mrs. Sparks, the appellant, testified she moved to Montana in 

September of 1981 to see what she could do about the kids 

(grandchildren); that she was presently working, but was planning 

to move back to Washington. She also testified that she was present at the adjudicatory hearing. 

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. This appeal followed. 

The sole issue presented to this Court for review is: 

Did the District Court err in awarding custody of the five 

minor N. 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 Interest of C. P. and D.P. Children 

(1974), 34 Colo.App, 54, 524 P.2d 316; Section 41-3-406, MCA, supports this position also. It states: 

"Dispositional Hearing. (1) If a youth is found 

to be abused, neglected, or dependent under 

41-3-404, the court after the dispositional hearing 

may enter its judgment making any of the following dispositions (emphasis added ) to protect the 

welfare of the youth: 

"(a) . . . "(b) transfer legal custody to any of the 

following: 

"(iii) a relative or other individual who, after 

study by a social service agency designated by the 

court, is found by the court to be qualified to 

receive and care for youth; . . .I1 

This section is not mandatory but places the discretion in 

the District Court whether or not to award 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 is concerned, the best interest of the children 

is the paramount consideration. In the Matter of T.J.D., J.L.D. 

and R. J.W., supra; In Re Gore Youths in Need of Care (1977), 174 

PIT 321, 570 P.2d 1110; In the Matter of Inquiry into JJS (1978), 

176 MT 202, 577 P.2d 378; In the Matter of Burgoff and Berry 

(1976), 170 MT 116, 551 P.2d 656: In the Matter of Declaring the 

Jones and Peterson Children Dependent and Neglected Children v. 
Peterson (1975), 168 MT 1, 539 P.2d 1193. The District Court in 

this case gave serious consideration to the grandmother' s request 

but was compelled to balance this with the consideration of the 

best interest of the children as is evidenced by the Court's Finding of Fact No. IV. 

"The paternal grandmother of 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) nights a 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 eventually return 

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 her custody of 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 propensities of 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 since the Department has had 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 at the expense of 

the child's best interest,'' 577 P.2d at 382. 

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 their need 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 in other areas concerning Mrs. Sparks1 ability to raise the 

children. Concern was also voiced as Mrs. Sparks testified that 

she wishes to return to Sedro Wooly, 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 in the best interest 

of the children that custody be awarded to the SRS, with the 

right to consent to adoption. The District Court's findings 

enjoy a presumption of correctness, and since there is sufficient 

credible evidence in the record to support his judgment, we cannot and do not interfere with Judge McPhillipsl judgment. 

.& 

The judgment of the District Court is ,&irmed. 

Justice ,' 

We concur: 

pA--e-4wcltDweQJ 

Chief Justice