No. 95-404

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN RE GUARDIANSHIP OF D.T.N., APR 0 5 1ggB

APPEAL FROM: District Court of the Twenty-First Judicial

District, In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mary Rose Heller, Sanders & Heller,

Hamilton, Montana

For Respondent:

Judith A. Loring, Attorney at Law,

Stevensville, Montana

Filed:

Submitted on Briefs: January 4, 1996

Decided: April 5, 1996
Justice Terry N. Trieweiler delivered the opinion of the Court.

Thomas and Joanne Nichols filed a petition in the District

Court for the Twenty-First Judicial District in Ravalli County for

permanent guardianship of D.T.N. After a hearing, the court

entered its order in which it appointed the petitioners as D.T.N.'s

permanent guardians. Krista Dickman, the mother of D.T.N., appeals

the court's order. We reverse the order of the District Court.

The issue on appeal is whether the District Court erred when

it appointed the Nicholses to be D.T.N. 's permanent guardians.

FACTUAL BACKGROUND

Krista Dickman is the natural mother of D.T.N., who was born

on July 27, 1992. Arturo T. Nichols is D.T.N.'s natural father.

Krista and Art were never married to each other and no

determination has been made that one is entitled to D.T.N.'s

custody as opposed to the other.

After D.T.N.'s birth, Art and Krista lived together or

separately in various places including Montana, Washington, and

California. In July 1994, Krista arrived in Idaho where, on

July 12, 1994, she executed a notarized document which evidenced

her intent to temporarily relinquish physical custody of D.T.N. to

her sister and mother. Krista then left and traveled across the

country.

Eventually, Krista's sister brought D.T.N. back to Montana and

in September 1994, Thomas and Joanne Nichols, the paternal

grandparents of D.T.N., began taking care of him. On September 23,

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1994, the Nicholses filed a petition for a temporary guardianship

of D.T.N. The court heard evidence in support of the petition.

However, before an order was entered, Krista and the Nicholses

entered into an agreement in which Krista consented to the

guardianship on a temporary six-month basis. Arturo, D.T.N.'s

father, also consented to the guardianship, and on October 26,

1994, the court included the parties' agreement in its order

granting temporary guardianship of D.T.N. to the Nicholses.

In December 1994, the Nicholses traveled with D.T.N. to

California. While they were gone, Krista married Jeff Dickman and

the couple moved into an apartment.

On February 21, 1995, the Nicholses moved the court to appoint

them permanent guardians. On March 8, 1995, the court held a

hearing to consider that motion. However, before a decision was

made by the court, the Nicholses and Krista entered into another

agreement in which Krista agreed to satisfy certain conditions

during the remaining period of the temporary guardianship. The

conditions required that Krista and her new husband take parenting

classes, be evaluated for chemical dependency, and if necessary,

take chemical dependency classes.

On April 12, 1995, the Nicholses filed a petition for

appointment as permanent guardians. On April 18, 1995, Krista

filed a withdrawal of consent to temporary guardianship and a

petition for removal of guardians and termination of temporary
guardianship. The temporary guardianship expired by law on

April 25, 1995.

On May 30, 1995, the court held a hearing to consider the

parties' claims. On June 20, 1995, the court issued its order in

which it granted the Nicholses' petition. It found that pursuant

to § 40-4-221, MCA, the Nicholses had physical custody of the child

and that when the physical custody commenced the child was not in

the physical custody of either parent; that the natural father

consented to the guardianship; that Krista "voluntarily

relinquished physical custody of the child in the early summer of

1994" and "did not evidence or demonstrate an intent to resume

custody or to provide for the child's care"; that when the child

was in Krista's care he was neglected and/or dependent as those

terms are defined by § 41-3-102, MCA; and that the child's best

interest, pursuant to § 40-4-212, MCA, would be served by the

appointment of the petitioners as D.T.N.'s permanent guardians. It

also found that Krista and the child's natural father, Arturo T.

Nichols, had agreed to resolve ultimate custody and visitation

issues by April 25, 1995, the date the Nicholses' temporary

guardianship status would otherwise terminate, but that they had

failed to do so. The court then concluded that the Nicholses

should be awarded permanent guardianship.

DISCUSSION

The issue on appeal is whether the District Court erred when

it appointed the Nicholses to be D.T.N.'s permanent guardians.

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We review a district court's conclusions of law related to the

appointment of a guardian, as we do in other cases, to determine if

they are correct. Jim’sExcavatingServ.,Inc. V. HKMAssocs. (1994) , 265 Mont.

494, 501, 878 P.2d 248, 252. We review the underlying factual

findings to determine whether they are clearly erroneous.

Rule 52(a), M.R.Civ.P.; Bvownv. Tintinger (19901, 245 Mont. 373, 377,

801 P.2d 607, 609.

The Nicholses petitioned for appointment as permanent

guardians of D.T.N. pursuant to the guardianship provisions of the

Uniform Probate Code, found at §§ 72-5-201 through -234, MCA. The

Nicholses' arguments and the District Court's order incorporate

provisions of the U.P.C., Montana's Uniform Marriage and Divorce

Act, and this state's statutes relating to abused and neglected

children to construct the legal justification for the District

Court's decision. However, since the Nicholses sought permanent

guardianship of D.T.N. pursuant to the U.P.C., we will consider the

merits of Krista's appeal in that context.

Section 72-5-225(2), MCA, provides in part that:

Upon hearing, if the court finds that a qualified

person seeks appointment, venue is proper, the required

notices have been given, the requirements of 72-5-222

have been met, and the welfare and best interests of the

minor will be served by the requested appointment, it

shall make the appointment.

(Emphasis added). Section 72-5-222(l), MCA, referred to in

5 72-5-225(2), MCA, provides that "[tlhe court may appoint a

guardian for an unmarried minor if all parental rights of custody

have been terminated or suspended by circumstances or prior court

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order." All criteria set forth in -225(2), MCA, and the

requirement imposed by -222(l), MCA, must be satisfied before a

court may grant any application for appointment of a permanent

guardian.

After a hearing, the District Court granted the Nicholses'

petition for permanent guardianship; however, it failed to make a

specific finding that Krista's parental rights were "terminated or

suspended by circumstances or prior court order." Instead, the

court seemingly ignored the requirements of § 72-5-222(l), MCA,

made several findings related to custody determinations made

pursuant to the Marriage and Divorce Act or termination of parental

rights, and concluded that the child's best interest would be

served if D.T.N. remained with the Nicholses. We will, however,

review the record to determine if Krista's parental rights were

"terminated or suspended" as 5 72-5-222(l), MCA, requires.

On appeal, Krista contends that her parental rights had not

been suspended or terminated by circumstances or prior court order.

In fact, both parties concede that no prior court order terminated

or suspended her parental right of custody. Therefore, we must

determine whether the facts support a finding that Krista's

parental rights of custody were "suspended by circumstances."

This Court has interpreted the term "suspended by

circumstances" in only one case, InreAschenbrenner (1979), 182 Mont.

540, 597 P.2d 1156. In Aschenbrenner , the natural mother of three

children also entrusted the care of her children to paternal

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!

grandparents, although in that case it was for a period of three

weeks. When she left the children with the paternal grandparents

on a second occasion for a shorter period of time, they refused to

return the children to her. Instead, they petitioned for

appointment as the children's guardian. Aschenbrenner , 182 Mont. at

542-43, 597 P.2d at 1159.

After considering evidence, including the testimony of a

social worker who questioned the mother's ability as a parent, the

district court granted the petition for a permanent guardianship

based on findings similar to those made in this case. Aschenbrenner ,

182 Mont. at 543-44, 597 P.2d at 1159. The court concluded that

based on the mother's inadequacy as a parent, the children were

dependent and neglected and that their best interests were served

by placing them in the care of their grandparents. Aschenbrenner, 182

Mont. at 544, 597 P.2d at 1159. When the mother appealed from the

district court's decision, we were asked to decide whether a

guardianship proceeding may be used to terminate the custodial

rights of a natural parent. We held that parental rights could not

be terminated in that manner. Aschenbrenner, 182 Mont. at 547-48, 597

P.2d at 1161.

In Aschenbrenner we first noted the jurisdictional requirement at

§ 72-5-222(l), MCA, that parental rights be terminated before a

permanent guardian can be appointed, and then considered whether

that mother's parental rights of custody had been "suspended by

circumstances." Aschenbrenner , 182 Mont. at 545, 597 P.2d at 1160.

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Based on the facts in that case, we held that they had not been

terminated. Although it was not a guardianship case, we cited Inre

Doney (1977), 174 Mont. 282, 570 P.2d. 575, in support of our

conclusion. Because that case includes facts similar to those in

this case, it is worth quoting that part of OUT Aschenbrenner

decision.

InMatterofGuardianshipofDoney (1977), 174 Mont. 282, 570 P.2d.

575, the natural father of the children left them with

his sister-in-law for a period of two months "while he

composed himself and prepared to take the children into

his home" and thereafter even signed guardianship papers,

giving his consent to give temporary custody of the

children to his sister-in-law. In rejecting the argument

that this showed an abandonment of parental custodial

rights, we stated: "Surrender of custody of a minor

child by a parent is presumed to be temporary unless the

contrary is made to appear." Done-y, 570 P.2d at 577.

Aschenbrenner, 182 Mont. at 547, 597 P.2d at 1161.

In Aschenbrenner we also concluded that whether the grandparents

were better able to provide a good environment for the children

than the mother was irrelevant because the mother had a fundamental

constitutional right to the custody of her children. We quoted

again from Doney to the effect that the "best interest of the child"

test is only relevant after there has been a showing of dependency

or abuse or neglect pursuant to our termination of parental rights

statutes, or in custody disputes between two natural parents.

Aschenbrenner , 182 Mont. at 549, 597 P.2d at 1162. We stated that:

‘ I However, where thirdparties seek custody, it has long been the law in Montana that

the right of the natural parent prevails until a showing of a forfeiture of this right.

ExparteBorquin, 88 Mont. 118, 290 P. 250 (1930). See also

MatterofFisher, 169 Mont. 254, 545 P.2d 654 (1976) . The

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Uniform Marriage and Divorce Act does not change this

law. This forfeiture can result only where the parent's

conduct does not meet the minimum standards of the child

abuse, neglect and dependency statutes."

Aschenbrenner, 182 Mont. at 550, 597 P.2d at 1162-63 (quoting Henderson

v.Henderson (1977), 174 Mont. 1, 10, 568 P.2d 177, 182).

Although the district court in Aschenbrenner found, as did the

District Court in this case, that the children were "dependent and

neglected," we held that that kind of determination could not be

made in a guardianship proceeding instituted by paternal

grandparents, but only in a proceeding instituted to have children

declared dependent and neglected, brought by the county attorney

pursuant to Title 41, Chapter 3, of the Montana Code Annotated.

Aschenbrenner, 182 Mont. at 551, 597 P.2d at 1163.

W e noted in Aschenbrenner that while the district court ' s

confusion was understandable based on the various statutory schemes

governing the termination of parental rights or the custody of

children, each scheme had a specific and distinct purpose with its

own procedures which must be followed. We held that:

T o insure that minors involved received the full

protection of these laws, the procedures should be

"rigorously followed." In re Guardianship ofEvans (1978) , 179

Mont. 438, 445, 587 P.2d 372, 376. District [clourts

must identify and adhere to the proper procedure and

standards to be used in the proceedings before them.

Only 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.

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The phrase "suspended by circumstances" was more recently

considered by the Supreme Court of Idaho in a case which involved

facts similar to those that exist in this case. 1n In re Copenhaver

(Idaho 1993), 865 P.2d 979, 980, two minor children had been left

in the care and custody of the petitioners in June 1990. on

September 13, 1990, they petitioned for guardianship pursuant to

Idaho's version of the Uniform Probate Code. They alleged that the

mother had voluntarily surrendered their custody and was currently

residing in Arizona, that neither of the children's natural fathers

had provided any support or care for them, and therefore, that

parental rights had been "suspended by circumstances." Temporary

guardianship was granted. However, the natural parents moved to

set aside the temporary guardianship based on their intent to claim

their rights as natural parents. Copenhaver , 865 P.2d at 980-81.

Instead, after a hearing, a permanent guardianship was granted

and the mother appealed. Copenhaver , 865 P.2d at 981.

On appeal, the Supreme Court of Idaho noted that the

application for appointment of a guardian of a minor is a statutory

proceeding which must proceed based on statutory terms, and not

based on principles of equity. Copenhaver , 865 P.2d at 983. Based

on a guardianship statute identical to Montana's, it concluded

that, under the circumstances in that case, before a guardian could

be appointed it must first be established that the natural parent's

right to custody had been suspended by circumstances. Without such

a finding, the Idaho Court acknowledged that an inquiry about the

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children's best interest would be irrelevant. Copenhaver , 8 6 5 P .2 d

at 983-84.

The Idaho Supreme Court noted that in that case the minor

children had been left with the petitioners from June 1990 to the

date of the hearing in March 1991; that the natural mother had

stated that she could not afford her children; and that during

their placement with the petitioners the mother had had little

contact with her children. In fact, the petitioners had little

information about the mother's whereabouts and she had been

difficult to locate. In addition, the trial court made findings

intended to demonstrate an inadequate level of maternal care,

including alcohol and drug abuse. Copenhaver , 865 P.2d at 984.

Nevertheless, after reviewing decisions from other jurisdictions

which had interpreted the phrase "suspended by circumstances," the

Idaho Court concluded that when the natural mother appeared in the

guardianship proceeding, objected to the guardianship, made it

clear that she no longer desired to leave the children and that she

was willing and capable of caring for them, and made her

whereabouts known, her parental rights were no longer suspended by

circumstances. The Idaho Supreme Court held that at that point the

magistrate's findings regarding the children's living situation,

school enrollment, financial support, and contact with their mother

no longer had any relevance. Copenhaver , 865 P.2d at 984-85.

The drafting committee's Comment to § 5-204 (the corresponding

U.P.C. section to § 72-5-222(l), MCA), promulgated by the National

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Conference of Commissioners on Uniform State Laws, also indicates

the restrictive nature of the section. The Comment states:

Nothins in this Article is intended to deal with the

status of a so-called natural guardian, with the

authority of a parent over a child, or with authority

over a child or children that may be conferred bv other

state laws.

The court [under the Probate Code] is not authorized

to aopoint a guardian for one for whom a parent has

custodial riqhts or for one who has a parental

guardian.

Uniform Probate Code 5 5-204 (Comment), 8 U.L.A. 445 (1983)

(emphasis added). Similarly, as observed by Richard V. Wellman, in

2 Uniform Probate Code Practice Manual, at 5 I I ( 19 7 7 ) :

Under the [Uniform Probate] Code, the power of the court

to appoint a guardian for a minor is narrowly limited.

. It should be remembered, however, that the court

has no power to appoint a guardian at all if the minor

has a living parent entitled to his custodv or a auardian

appointed bv the will of a parent [who] is willinq to

a. The parents and their testamentary appointees have,

therefore, priority over everyone whom the court might

appoint unless the parents have been deprived of custody.

(Emphasis added.)

We agree that the guardianship provisions of the Probate Code

were never intended as a substitute for the custody provisions of

our Marriage and Divorce Act, nor the prescribed and demanding

procedures established for the termination of parental rights. See

55 40-4-211 through -226, MCA; §§ 41-3-601 through -612, MCA.

We conclude that Krista's parental rights were not terminated

by circumstance. Krista appeared in this action, withdrew her

consent to the temporary guardianship, and filed a petition to

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terminate the temporary guardianship. These actions indicate that

she is present and that she has not voluntarily relinquished her

right to physical custody of her child. Moreover, Krista's

previous surrender of D.T.N. and consent to the implementation of

the temporary guardianship is presumed to be temporary unless the

contrary is made to appear. Aschenbrenner , 597 P.2d at 1161 (quoting

Doney, 570 P.2d at 577). Therefore, while Krista did voluntarily

relinquish physical custody of D.T.N. and consented to the

temporary guardianship, that guardianship ended on April 25, 1995.

It could not form the basis for termination of her rights as a

parent because it was limited by its terms and by statute to a

specific period of time.

For these reasons, we conclude that the requirements of

5 72-5-222(l), MCA, were not met. Based on our review of the

record, Krista's parental rights of custody have not been

terminated or suspended by circumstance or prior court order. We

therefore conclude that the District Court erred when it awarded

permanent guardianship to the Nicholses and we reverse the District

Court's order.

13
Chief Justice

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