No. 13813 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF THE GUARDIANSHIP 

OF DeAUNA D. DONEY and TERRENCE R. DONEY, 

Minors. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

Gregory Morgan argued, Bozeman, Montana 

For Respondent: 

Bolinger and Wellcome, Bozeman, Montana 

H. A. Bolinger argued, Bozeman, Montana 

Submitted: September 16, 1977 

Decided: OCT 14 19n 

-, -- A Filed: LI. - < lhn 

Clerk 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the 

Court. 

Petitioner, Waide Lewis Doney, appeals from an order of 

the district court, Gallatin County, denying his petition to 

terminate respondent's guardianship of petitioner's two minor 

children, and maintaining custody of the children in respondent "until the further or other order of the court". 

Petitioner is the natural father of DeAuna Doney, born 

March 13, 1974, and Terrence Doney, born July 17, 1975, Petitioner 

married the children's mother,Leah Doney, on October 26, 1969. 

Leah Doney was killed in an auto accident on September 28, 1976. 

Petitioner testified that he was confused after his wife's 

death and determined that it would be best for the children if 

they stayed with Leila Wallace, his deceased wife's sister, for 

about two months while he composed himself and prepared to take 

the children into his home. On October 8, 1976, petitioner met 

with respondent Leila Wallace, respondent's brother and her lawyer, 

and signed guardianship papers, giving his consent to give temporary custody of the children to Leila Wallace. Petitioner was 

not represented by counsel at this meeting. The stated understanding of petitioner, respondent, and respondent's lawyer was 

that petitioner would consent to the guardianship for the sole 

purpose of allowing respondent Leila Wallace to authorize hospital and medical care for the children in petitioner's absence. 

Petitioner told respondent's lawyer that he did not want to give 

up his custodial rights and that it would not be more than two 

months before he would be ready to make a home for the children. 

On October 12, 1976, the district court appointed respondent as 

guardian of the children. 

Petitioner married his present wife, Janice, on February 

3, 1977. Prior to their marriage they visited the children at 

respondent Leila Wallace's home in mid-October, early November, 
and late November, 1976. On their final visit, petitioner requested custody of the children and respondent refused. 

On January 14, 1977, petitioner filed a motion to show 

cause why the guardianship should not be terminated. At the 

hearing on the motion to show cause, respondent presented no 

evidence to show that the children were dependent and neglected 

(section 10-1301, R.C.M. 1947) while in the custody of petitioner. 

Respondent did present evidence that petitioner was $4,500 in 

debt, that petitioner had contemplated bankruptcy, that petitioner 

and his present wife had lived together before his former wife's 

death, and that petitioner and his wife lived in a one-bedroom 

house that would be quite cramped with the addition of two children. 

Petitioner presented evidence that he and his wife loved 

and wanted to raise the children, that he earned $800 per month, 

that they planned to either build another bedroom onto the house 

or move to a larger home, that his little girl felt much affection and love for him, and that respondent Leila Wallace was trying to make the children think that she and her husband were 

their true parents. 

The judge refused to terminate the guardianship. He based 

his decision on petitioner's "disgraceful relationship * * * absent 

benefit of clergy or civil rite" with his present wife before their 

marriage, petitioner's failure to substantially contribute to his 

children's support after September, 1975 (refuted by the evidence 

at the hearing), and on the good care that the children received 

while in respondent's custody. The court further noted that it 

did not deem Waide Doney to be a fit and proper custodian. Petitioner appealed the district court's ruling to this Court. 

The issue presented on appeal is whether a natural parent 

may be deprived of custody of his children absent a finding of 

dependency, abuse or neglect. 
Surrender of custody of a minor child by a parent is presumed to be temporary unless the contrary is made to appear. 

State ex rel. Lessley v. District Court, 132 Mont. 357, 318 P.2d 

571 (1957). There is no evidence in this case to rebut that 

presumption. Rather, it is undisputed that petitioner signed the 

guardianship papers solely to allow respondent to consent to the 

children's medical care. Petitioner stated that he thought that 

he would be ready to take custody of the children within two 

months of his wife's death. This he attempted to do, but respondent refused to return custody of the children to petitioner. 

The order of the district court, though couched in temporary custody and temporary guardianship terms, is tantamount to 

a permanent custody order. The district court based its order on 

findings that petitioner had in the past failed to substantially 

support his children, that petitioner had carried on a disgraceful 

extramarital affair, that respondent provided a good home. None 

of these are factors which petitioner can in the future change. 

The court further found petitioner "not a fit and proper person" 

to have custody of the children. At the most, the evidence 

revealed petitioner to be financially troubled, but genuinely 

concerned about providing a stable and loving home for his children. 

Where a child has allegedly been abused or neglected by 

his natural parent, the state has a clear duty to protect the 

child by means of a judicial hearing to determine whether the 

youth is in fact abused or neglected. There are, however, few 

invasions by the state into the privacy of the individual that are 

more extreme than that of depriving a natural parent of the custody of his children. For this reason, the legislature carefully 

enunciated the procedures the state must follow and the findings 

which the court must make before custody of a child may legally 

be taken from his natural parent. A judicial hearing and finding 
of dependency and neglect under Title 10, Chapter 13, R.C.M. 

1947, or judicial finding of willful abandonment or willful 

nonsupport under section 61-205, R.C.M. 1947, are the exclusive 

means by which a natural parent may be involuntarily deprived 

of custody of his children. In the absence of such showing, 

the natural parent is legally entitled to the custody of his 

minor children. Section 61-105, R.C.M. 1947. 

This careful protection of parental rights is not merely 

a matter of legislative grace, but is constitutionally required. 

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L ed 2d 551 

(1972). " * * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, 

Meyer v. Nebraska, supra at 399, 67 L.Ed at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, 

supra at 541, 86 L.Ed at 1660, and the Ninth Amendment, Griswold 

v. Connecticut, 381 U.S. 479, 496, 14 L Ed 2d 510, 522, 85 S.Ct. 

1678 (1965) (Goldberg, J., concurring)." Stanley, 31 L ed 2d at 

559. 

The judgment of the district court in this case must be 

reversed, and custody of the children returned to petitioner, 

since there was no showing under Title 10, Chapter 13 that the 

children were abused or neglected. Nor may the district court 

indefinitely deprive petitioner of the custody of his children by 

means of the subterfuge of a guardianship which has outlived the 

purposes for which it was created. 

Respondent argues that the best interests of the children 

dictate that she, rather than the children's natural father, retain custody. Respondent cites Foss v. Leifer, Mont . - c 

550 P.2d 1309, 1311, 33 St.Rep. 528 (1976) for the proposition 

that " * * * the lodestar of the district court in exercise of its 

discretion is the welfare and best interests of the child, and 

not the parent." This "best interests of the child" test, however, 
is used only after a showing of dependency or abuse or neglect 

by the natural parent, as defined in section 10-1301, R.C.M. 

1947, or in custody disputes between two natural parents. In re 

Declaring Fish a Dependent and Neglected Child, Mont . I 

P.2d , 34 St.Rep. 1080 (1977); Henderson v. Henderson, 

Mont . -1- P.2d , 34 St.Rep. 942, (1977); See, August 

v. Burns, 79 Mont. 198, 255 P. 737 (1927). Without the required 

statutory showing that petitioner had abused or neglected his 

children, the district court under the facts of this case had no 

jurisdiction deprive the natural father their custody. 

The state is entirely powerless to deprive a natural parent of the 

custody of his minor children merely because a district judge or 

a state agency might feel that a nonparent has more financial 

resources or pursues a "preferable" lifestyle. 

"Manifestly, the expression 'welfare of the 

child' was never intended to penalize a parent 

because he may not be financially able to provide his child with the comforts and advantages 

which more fortunate parents may provide for 

their children. All the law requires is that 

the parent be honest and respectable, with 

disposition and capacity to maintain and educate his child." Ex Parte Bourquin, 88 Mont. 

118, 124, 290 P. 250 (1930). 

The judgment of the district court is reversed and custody 

of the children is ordered to be returned to petitioner. 

We concur: 

Chief Justice 0 

4' Justices /