No. 97-1 IN THE SUPREVE COURT OF THE ST4TEOF MOhTANA 1097

IN RE CUSTODY OF C.K.J., a minor. RONNIE JACOBSEN and MARTHA J.&COBSEN, Pct~tloners and Appellants,

MALISSA JACOBSEN and RODNEY JACOBSEN. Respondents and Respondents.

APPEAL FROM: District Court ofthe Sixth Judicial District, In and for the County of Sweet Grass, The Honorable William Nels Swandal,Judge presiding.

COUUSEL OF RECORD: For Appellants: Bard G.Middleton, Attorney at Law, Billings, Montana No appearance was made by the respondents.

Filed: Submitted on Briefs: August 28, 1997 Decided: October 10, 1997Justice Jim Regnier delivered the opinion ofthe Court. Pursuant to Section 

### I, Paragraph 3(e), Montana Supreme Court 1995 Internal OperatingRules, the following decision shall not be cited asprecedent and shall be published by its filing as apublic docunlent with the Clerk ofthe Supreme Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. Petitioners and appellants, Ronnie and Martha Jacobsen, appeal from an order ofthe Thirteenth Judicial District Court, Yellowstone County, denying their petition for custody oftheir granddaughter. For the reasons stated below, we affirm. Having considered appellants' arguments, we find the following issues dispositivc 011 appeal:1. Did the District Court err in concluding it was in C.K.J.'s best interest to be transferred from the care and custody ofher grandparents to that ofher mother? 2. Did the District Court enin finding C.K.J.'s mother did not abandon hcr or othenvise relinquish her parental rights:' FACTUAL AND PROCEDCRAL BACKGROUYD C.K.J. was born on June 26, 1991: to Malissa Danes; her biological mother, and Rodney Jacobsen, her biological father. Rodney Jacobsen and ,Valissa Danes married in June 1992, and divorced two years later. The decree of dissolution, entered by a district

court 

### in Nebraska on June 

### 28, 1994, did not decide the issue of custody. Petitioners and appellants Ronnie and Martha Jacobsen (the Jaeobsens), are C.K.J.'s paternal grandparents. Theparties donot dispute that, following C.K.J.'s birth in June 1ON, 2Kodney Jacobsen and Malissa Danes, formerly known as Mallssa Jacobsen, experleiiced financial and marital difficulties which prompted them to place their daughter in the Jacobsens' care on a number ofoccasions. Indeed, the record indicates that C.K.J. has spent the majority of her young life in her grandparents' household. The Jacobsens cared for C.K.J. on an intermittentbasis from her birth until November 1993. Beginning in the fall of 1993, the Jacobsens cared for C.K.J. on a continuous basis tltrough April 1906. Kodney Jacobsen and Malissa Dancs traveled from Nebraska to Montana in March 1994 in an attempt toretrieve custody ofC.K.J., but failedto do soupon intervention by a social worker for the Montana Department of Family Senlices. The social worker placed a 48-hour hold

on C.K.J., and Danes testified it was her understanding that the Departnient of Family Services Itad assumed legal control over her daughter. Danes eventually moved to Flor~da, and on Aprd 

### 12. 1996, she and her boyfr~cnd, Randy Porter, arrived at the Jacobsens' house, to ptck tip C.K.J. and return wlth her to Flortda. Danes stated that, prior to her arrwal at the Jacobsens, she had spoken w~th a Stillwater County Attorney who advised her she could take C.K.J. from the Jacobsen household. The Jacobsens permitted Danes and Porter to leave with C.K.J. on April 12% 1996. On April 23,1996,the Jacobsens filedapetition forcustodynaming Malissa Jacobsen a/k/a Danes, and their son, Rodney Jacobsen, as respondents. The Jacobsens also filed an eyyartemotion for temporary assignn~ent ofcustody, which the court granted on April 25,1996. Rodney Jacobsen subsequently filed an affidavit indicating he did not oppose his parents' petition for custody of C.K.J. Following a show cause hearing on May 14, 1996, the court granted the Jacobsens' temporary custody ofC.K.J. The District Court held a final custody hearing on August 13, 1996. following which it issued an order denying the Jacobsens' petition for custody and granting custody ofC.K.J. to Danes. it is from this order, dated September 13, 1996:that the Jacobsens now appeal. On March 10, 1997,Danes' attorney filed a motion to withdraw as Danes' counsel of record in this case. The District Court granted counsel's motion on Marc11 25, 1997. Danes is thus proceeding pro se for the purposes ofthis appeal. DlSCUSSfON We review a district court's custodial deteinlination for an abuse of discretion. 

### 1n re ,Mwirt,qe uf 

### i>r-eesbach j1994j,265 Mont.216,220-21, 875P.2d 1018, 1021;

### 111 re Matter rfS.P., 

### C.l'., H.M., J.M.,

### K.M., Y.M. (1090), 241 Mont. 190, 104, 786 P.2d 042, 644. U'e afford the district court's decision "all reasonable presumptions as to the correctness ofthe deterniination" and will not disturb the decision on appeal "unless there is a mistake of law

or a finding of fact not supported by substantial credible evidence that would amount to a clcar abuse of discretion." 

### In reMutter qj'S.P.,241 Mont. at 194, 786 P.2d at 644 (quoting 

### inre iM~~ttel.qf K.A.D. (1988), 231 Mont. 143, 148,753P.2d 862,865). 

### See izlso

### Ilreeslti~ri~, 256 Mont. at 220-21, 875 P.2d at 1021. We thus proceed under the presumption that thedistrict court's custody determination is correct unless not supported by credible evidence. 

### 112reMatter of' 

### S.P.,241 Mont. at 194, 785 P.2d at 544. 

### lSSUE 1 Did the District Court err in concluding it was in C.K.J.'s best interest to he transferred from the care and custody ofher grandparents to that ofher natural mother'? TheJacobsens petitioned the court forcustody ofC.K.J. pursuant to 

## 3 40-4-2 1 1(4)(b), MCA, which pro~ides that a nonparent may commence a custody proceeding only if the childisnot in the physical custody ofaparent. Implicitin the Diskict Court's September 13, 1996, order was the conclusion that the Jacobsens had standing to seek custody ofC.K.J. Where a nonparent properly commences a custody proceeding pursuant to ij 40-4-21 1(4)(b), MCA, we have held that, "[olnce tlte standing requirement is met and the custody proceeding goes forward under the [Uniform Marriage and Divorce] Act, the court determines custody based on the best interests of the child; a finding of unfitness is not required." 

### In re Custody

### of'K.K.K.,

### K.D.K., und

### L.M.K. (1993), 260 Mont. 191, 199-200, 859 P.2d 998, 1004. Accordingly, the District Court applied the best interest stmdard in making a custody determination 

### inthis case. Following considerationof the record before it,the District Court concluded that "this court must carefully protect parental rights, and it is in [C.K.J.'s] best interest that shebe returned to the custody and control ofher mother subject to visitation with [theJacobsens] and [her father]." The Jacobsens argue the court erred in so concluding.7he Jacobsens first contend the court crrcd by failing to state the facts upon w11tcb it rel~ed in determining itwas in 

### C.K.J.'s best interest that her mother receive custody. In a related argument, the Jacobsens additionally contend tlie District Court failed to enter appropriate findings of fact to support its conclusion that it was in C.K.J.'s best interest to be ret~lrned to the custody ofher mother. Specifically, the Jacobscns note that the Distrtct Cout-tmade no specific findings offact regarding "the interaction and interrelationship ofthc child with the child's parent or parents and siblings and with any other person \tho may s~gn~ficantly affect the chtld's best interest." 

### See 

## 5 40-4-212(1)(c), MCA. Thc Jacobsetis also contend the court should have entered findings of fact regarding C.K.J.'s "adjustment to home, school, and community." See 

### 5 40-4-212(1)(d), 

### MCA. Sectton 40-4-212, 

### MCA, del~neates tliose factors whtch a court shall consider tn making a custody determination in accordance with the best interest of the child. 'fhosc factors include: (a) the wishes ofthe child's parent orparents as to custody; (b) the wishes ofthe child as to a custodian; (c) the interaction and interrelationsliipofthe child with the child's parent or parents and siblings andwith any otherperson who may significantly affect the child's best interest: (d) the child's adjustment to home, school, and community; 

### (e) the mental and physical health of all individuals involved; 

## (0 physical abuse orthreat ofphysical abuse by one parent against tlie otherparent or the child; and (g) cheiiiical dependency, as defined in 53-24-103, or chemical abuse on the part ofeither parent. Section 40-2-212(1), 

### MCA.On appcal, the Jacobsens argue the District Court erred in failing to enter findings of fi~ct regarding C.K.J.'s interaction with her parents, siblings, or with anyone else who might significantly affect her best interest, and similarly failedto enter findings regarding C.K.J.'s "adjustment to home, school, and community." 

### See 

## 5 40-4-212(1)(c), (d), MCA. Indeed, review ofthe District Court's findings offact indicates that, apart from its observation that there was no evidence to suggest that Danes and C.K.J. didnot have a good relationship with

one anotl~er, the District Court didnot enter specific findings offact addressing these factors. We have held, however, that "[a]ll the [best interest ofthe child] statute requires is that the court consider the factors listed. It is not required to make specific findings concerning each clement, though it must express the essential and determining facts upon which its conclusions rest." 

### In reMarr-iageofLSyver:wrz (Mont. 1997),931 P.2d 591, 703-04, 54 St. Rep. 32, 40 (quoti~~g In 

### re hrriageqfFesolowitz (1993), 258 Mont. 380, 388. 852 P.2d 658, 663). Wereview a district court's findings offact regarding custody to determine whether the findings in question areclearly erroneous.

### ,Syver-sorz, 

### 931 P.2d at 703,54St. Rep. at 40. Findings of fact upon which a custody determination rests "are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review ofthe record convinces it that a mistake has been made." 

### Sj~veisotz, 93 1P.2d at 903, 54 St. Rep. at 40. Here, anlongthe findings of fictupon which the District Court based its conclusion that it would be 

### in C.K.J.'s best interest to return to the custody of her mother were the following:

7(a) While the Court finds that respondent Malissa Danes could have been in more contact with [C.K.J.] and could have used different means in reaching her goal of being reunited with her daughter, there is no evidence other than Malissa Danes has a good mother'daughter relationship with [C.K..I.] at present and would now sene as a fit caretaker for the child. [Finding ofFact No. 9.1 (b) That [Danes] is presently going to school, has a part-timejob, has completed aparentmg class, and tt appears to the Court that she has taken steps to improve her ltfe and that she can provtde a good home for [C.K.J.]. [Finding ofFact No. 12.1 (c) It is clear that the respondent Malissa Danes will provide a suitable home and environment for [C.K.J.]. [Findingof Fact So. 13.1 (d) That it is in [C.K.J.'s] best interests to have visitation with [the Jacobseiisl and her father. In itsremaining findings, the court additionally noted that, at the trmc ofits decision, Danes had an elcvcn-month-old daughter living with her, and had undergone a "financral and lifestyle tra~isformatron" which would enable her to properly parent her daughter. Further, although the court made no specific findings regarding certain factors delineated in ji 40-4-212,MCA, it heard testimony at two separate custody hearings which addressed those factors and supports the court's conclusion that it was in C.K.J.'s best intcrestthat shebe returned to licrmother's custody. 

### For example,the court heard testrmony regardung "the Mrshes ofthe child's parent orparents as to custody." Both C'.K.J.'s mother and father testified atthe hearings, as did Ronnie and Martha Jacobsen. The court additionally heard test~monyregarding C.K.J.'s "tnteractlon and sntenelationship" wlth her mother and her eleven-month-oldhalf-s~ster, B.D., as well as w~th the Jacobsens and their ch~ldren. Finally, testimony was offered rcgarding ('.I<.J.'s"adjustment to home, school, and community," not only while in the care ofthe Jacobsens, but also while in her mother's care in Florida during April 1995. In addition, as the court noted in its findings of fact, it reviewed and relied upon both a written report aud deposition 

### testimony givcn by an investigating social worker who indicated she would not hcsitate in recommending placing C.K.J. with her mother. Operating as we do, under the presumption that the district court's ct~stody determination is correct, we hold the court's finding that Danes had a good relationship with her daughter and was able to provide her with a suitable home adequately set hrth the essential and determining facts upon which it relied in concluding it was in C.K.J.'s best interest that her mother receive custody. Further,having reviewed the entirerecord, we hold that substantial evidence existed to support the findings of hctupon which the cotlrl restcd its custody determination. The court did not misapprehend the effect ofthe evidence?and

our review ofthe record does not convince us the court made any mistakes. ,4ccordingly, we hold the court's findings of fact are not clearly erroneous and will not be disturbed on appeal. In a final argument attacking the court's application of the best interest test, the Jacobsens contend the District Court incorrectly deviated &omits consideration ofC.IC.J.'s best interest by bestowing apreference upon the child's natural mother in reaching a custody determination. The Jacobsens point to the court's conclusion that it 

### nus st carefully protect parental rights" as evidence that it afforded Danes preference as a matter of law in the custody proceeding. The Jacobsens argue that, once they established their entitlement to 9standingpursuant to (i40-4-211(4)(b), MCA, the fact that Danes was C.K.J.'s natural mother should have had no bearing on the court's ultirnate award of custody. They maintain the court should onlyhave considered those factorsrelevant to C.K.J.'s best interest, and erred in givingDanes preference as a matter oflaw. Having held that the District Court properly set forth the essential and 

### determining factors upon which it concluded C.K.J.'sbest interest required returning her to the custody ofher mother, we need not address the Jacobsens' final argument. Whether ornot the Court afforded Danespreference as a matter oflaw is immaterial, as the court otherwise provided adequate supportfor its conclusionthat itwas in C.K.J.'s best interesttoreturn to the custody of her mother. ISSUE 2 Did the District Court enin finding that Danes did not abandon 

### C.K.J. or relinquish her parental rights? In its September 

### 13, 1996,custody order, the District Court found that Danes "did not abandon or relinquish her parental rights to" C.K.J. The court further concluded that although Danes "abandoned her child



### . . . for a two-year period pursuant to 

## 5 40-4- 211(l )jc)(i), and that constitutes neglect pursuant to 

## 5 41-3- 102(5)(a)(ii) and (7), the abandoninent was not meant to be pernlanent, but temporary." The Jacobsens contend the District Court's finding on this point is clearly erroneous and constitutes an abusc of discretion.As discussed above, we have held that if a nonparent establishes standing to seek custody pursuant to 

## 5 40-4-21 1(4)(b), MCA, the court will base its ensuing custody determination exclusively on the best interest ofthe childpursuant to 

## 5 40-4-212, MCA. In

re 

### K.R.K., 260 Mont. at 199-200, 859 P.2d at 1004. In In re 

### K.R.K., we specifically recognized that a "finding ofunfitness [on the part ofthe natural parent] is not required" for



### a nonparent to successfully seek custody. In I-e 

### R.R.K., 260 Mont. at 199-200, 859 P.2d at lOO4. Having heldthe District Courtcorrectly concluded it was in C.K.J.'s best interest that she be returned to the cnstody of her mother, we need not address the question ofwhether the District Court erred in finding Danes did not abandon her daughter or otherwise relinquish her parental rights. Wehold the DistrictCourtdid not abuse its discretionin concluding it was in C.K.J.'s best interest to be transferred firon1 the care and custody of her grandparents to that of her natural mother. Specifically, we hold the court properly set forth the essential and determining hctsupon which it rested its conclusion regarding C.K.J.'s best interest, and did not enin failing to enter specific findings regarding certain factors set forth in 

## 5 40-4-2 12, 

### MCA. Based on the foregoing, we affirm the decision ofthe District Court, and hold the court did not abuse it discretion in denying the Jacobsens' petition for custody.We Concur:October 10, 1997

CERTIFICATE OF SERVICE I hereby certifj that the following certified order was sent by United States mail, prepaid, to the following named: BARD G. MIDDLETON ATTORNEY AT LAW PO BOX 1084 BILLINGS MT 59103-1084 MALISSA DANES 20620 COUNTYLINE ROAD BROOKVILLE FL 34610

ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA