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, Judgepresiding. 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: 

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ClerkMr. 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'smother,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 itwould 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 respondentLeila Wallace, respondent's brother and her lawyer, and signed guardianshippapers, giving his consent to give temporary custody of the children to Leila Wallace. Petitionerwas not representedby counsel at thismeeting. The stated understanding of petitioner, respondent,and respondent's lawyer was that petitioner would consent to the guardianship for the sole purpose of allowing respondentLeila 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 itwould 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 respondentLeila Wallace's home in mid-October, early November,and late November, 1976. On their final visit, petitioner requested custodyof the children and respondent refused. On January 14, 1977,petitioner filed a motion to show

causewhy the guardianship should not be terminated. At the hearing on the motion to show cause,respondentpresented no evidence to show that the children were dependent and neglected

(section10-1301,R.C.M. 1947) while in the custody of petitioner. Respondentdid present evidence that petitioner was $4,500

### in debt, thatpetitioner had contemplated bankruptcy, that petitioner and his present wife had lived together before his formerwife's death, and thatpetitioner and his wife lived in a one-bedroom house thatwould be quite cramped with the addition of two children. Petitionerpresented evidence that he and his wife loved and wanted to raise the children, that he earned $800per month, that they planned to either build another bedroom onto the house

ormove to a larger home, that his little girl feltmuch 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

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## * 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 (refutedby 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 deemWaide Doney to be a fit and proper custodian. Petitioner appealed the district court's ruling to this Court. The issue presented on appeal iswhether 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 ispresumed to be temporary unless the contrary ismade to appear. State ex rel. Lessley v. District Court, 132Mont. 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 guardianshippapers 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 thatpetitioner had in the past failed to substantially support his children, that petitioner had carried on a disgraceful extramarital affair, that respondentprovided a good home. None of these are factorswhich petitioner can in the future change. The court further found petitioner "nota fit and proper person" to have custody of the children. At themost, the evidence revealed petitioner to be financially troubled,but genuinely concerned aboutproviding a stable and loving home for his children. Where a child has allegedly been abused or neglected by his natural parent, the statehas 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 invasionsby 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 statemust follow and the findings which the courtmust make before custody of a childmay legally be taken from his natural parent. A judicial hearing and findingof dependency and neglect under Title 10,Chapter 13,R.C.M. 1947,or judicial finding ofwillful abandonmentor 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 carefulprotection of parental rights is not merely

a matter of legislativegrace,but is constitutionallyrequired. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L ed 2d 551

(1972). 

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## * * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra at 399, 67L.Ed at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinnerv. 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 casemust 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 indefinitelydeprive petitioner of the custody of his children

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means of the subterfugeof a guardianship which has outlived the purposes forwhich itwas 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 

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## * * * the lodestar of the district court in exercise of its discretion is the welfare and best interestsof 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

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## , 34 St.Rep. 1080 (1977);Henderson v. Henderson, Mont

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## , 34 St.Rep. 942, (1977); See,August

v. Burns, 79 Mont. 198, 255 

### P. 737 (1927). Without the required statutory showing thatpetitioner 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 childrenmerely because a district judge or a state agencymight feel that a nonparent has more financial

resourcesor pursues a "preferable"lifestyle. "Manifestly,the expression 'welfareof 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 fortunateparents 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, 88Mont. 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 

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4' Justices 

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