No. 14610 

### INTHESUPFEDE COWOF THE 

### STATEOF RDJSEAM1 1979

IN

### THEMAllTER OFTHE GUARDIANSHIP OF IXXAIDASCHENBIIENNER, TERRI LYNN

## -, and JASON JACOB ASCHENBRE3N33, Minors.



### Appeal frm: DistrictCourt of the SecondJudicial District, HonorableArnold Olsen, Judgepresiding. Counsel of Record: For Appellants: Lewis RDtering argued, Butte, 

### mtana For Respondent: Leonard J. Haxby argued, Butte, 

### kbntana

Submitted: June 11, 1979 Decided

# rJmi7

# ~isrs

~UL 

# a t3;S Filed: 

### -Mr. Justice John C. Sheehy delivered the Opinion of the Court. Mary Aschenbrenner, natural mother of Ronald, Terri Lynn, and Jason Jacob Aschenbrenner, appeals from the findings, conclusions and order of the District Court, Silver Bow County, granting 

### letters of guardianship and custody of the threeminor children toA. B. (Bud) and L. V. (Lillian) Aschenbrenner, the paternal grandparents. The facts leading to this appeal 

### are: On December 27, 1976, Mary Aschenbrenner by the 

### terms of 

### a divorce decree was awarded the care, custody, and control of her threeminor children, atthat 

### time aged eight, four, and one and a half years old. Following the divorce, the mother lived alone with the children until themiddle of May 1977, when she began living with one Jay McClosky. Her relationship with McClosky 

### was stormy and following one particular incident, the mother asked the grandparents to care for the children while Mary found another place for herself and the children to live. The grandparents had custody of the children from May 19 until June 9, 1977, when Mary resumed custody. Part of this three-week period apparently coincided with her ex-husband's annual two-week summer visitation period during which he sometimes leftthe children with hisparents while he was outworking on the road. Following another incidentwith McClosky, Mary again requested the grandparents tocare for the children on June 

### 30, 1977. The whole family, including Mary, her ex-husband, the children, and the grandparents, vacationed together over theFourth of July weekend. When the mother attempted to obtain the return of the children the following week, however, she was denied. When she tried toenlist the 

### assis-tance of the county attorney, shewas served with a citation and order to show cause on July 21, 1977. The order to show cause, dated July 21, 1977, and issued inresponse toa petition for appointment of guardian of minors filedby the grandparents on June 15, contained a provision awarding temporary custody of the children tothe grandparents. Subsequent tothe issuance of thisorder to show cause, several hearings over several months 

### were held by the Dis

### trict Court. Atthese later hearings, the DistrictCourt heard testimony from the parties and from Roger LaVoie, a county social worker. The court kept ineffect 

### its grant of temporary custody, modifying 

### it 

### attimes toallow the mother reasonable visitation rights toher children on weekends. During the course of the proceedings, the relationship between the mother and the grandparents, especially the grandfather, was strained. The grandfather seemed toembark

on a course of interfering with or hindering Mary's attempts totalk tothe children on the phone or otherwise visitwith them.As tothe children's well-being, the courtquestioned them inchambers. They seemed toexpress no strong preference for living with either theirmother or grandparents. According tothe social worker's report, however, the school work and attitude of the eldest child had markedly improved, themiddle child had a positive attitude toward school and 

### all three children seemed tobe better cared for by the grandparents. Although during his testimony the social worker declined tolabel Mary an "unfit" parent, he did classify her as "deficient" in some respects inher ability

asa parent. This classification was based on her tendency to "party" excessively, leaving the children alone, on herinability tomake sure the children attended school, and on her generally unsettled emotional status and living arrangements. It was his recommendation that the children remain inthe custody of the grandparents. After maintaining the temporary custody status for over

a year, the District Court, on August 

### 14, 1978, issued 

### its findings and conclusions. Significant among 

### its findings



### were that there had been a material change in the circumstances of themother since the entry of the divorce decree; that she had not had adequate, permanent housingaand had not 

### > conducted herself as

### a fitand proper mother by continually going out and leaving the children alone and unattended. The 

### District Court also found thatwhile inhis mother's care, the eldest child's schoolwork sufferedmaterially but improved while inthe care of his grandparents. The court found that the mother was not a fitand proper person to have custody of the children by virtue of her irresponsible behavior and concluded that the children 

### were dependent and neglected. Based on these findings, the court ordered that the grandparents be granted guardianship of the children with reasonable rights of visitation inthemother, including custody of the children during June and July. From this order, the mother appeals. The issues presented for review on appeal 

### are: 1. Whether the appellantwas denied procedural due process by the DistrictCourt's award of a temporary custody order without prior notice and opportunity for a hearing? 2. Whether a guardianship proceeding may be used to terminate the custodial rights of a natural parent?3. Whether the District Court abused 

### itsdiscretion in awarding the guardianship and custody of the children to the respondents? The right of 

### a parent tocustody of his child has been recognized by this Court 

### as being a fundamental constitutional right. Matter of Guardianship of Doney (1977), Mont. 570 P.2d 575, 577, 34 St.Rep. 1107, 1110. In view of this, 

### we must, look closely atany actionby the Statewhich interferes with this right. Our examination of theprocedure utilized inthe 

### District Court inthis 

### case leads us to conclude that the termination of themother's custody and the award of guardianship to the grandparents

was improper and must be reversed. The grandparents instituted thisaction by filing a petition for appointment of guardian of minors. We thus begin our analysis by examining the statutes governing the appointment of such guardians. Part 2, Chapter 5, Title 91A, 1947 Revised Codes of Montana, now Part 2, Chapter 5, Title 72 Montana Code Annotated. Initially, 

### we note thatunder section 91A-5-204, R.C.M. 1947, now section 72-5-222(1) MCA, that 

### a "courtmay appoint

a guardian for an unmarried minor if 

### - allparental rights of custody have been terminated - or suspended - by circumstances

orprior court order." The 

### District Court 

### isrequired, however, to following very specific procedures in the appointment of the guardian:

"(1)Notice of the 

### time and place of hearing of a petition for the appointment of a guardian of a minor is tobe given by the petitioner inthemanner prescribed by section 91A-1-401 to: "(a)theminor, if he 

### is fourteen (14) ormore years of age;

### "(b)the person who has had the principal care and custody of theminor during the sixty (60) days preceding the date of the petition; and "(c)any living parent of theminor. 

### "(2) 

### Upon hearing, if the court finds that a qualifiedperson seeks appointment, venue 

### isproper, the required notices have been given, the requirements of section 91A-5-204 have been 

### met, and the welfare and best interests of the minor willbe served by the requested appointment, it 

### shallmake the appointment. In other cases the courtmay dis

### miss the proceedings, ormake any other disposition of thematter thatwillbest serve the interest of theminor." Section 91A-5-207, R.C.M. 

### 1947, now section 72-5-225 MCA. 

### Under section 91A-5-207(3), R.C.M. 

### 1947, now section 72-5-224 MCA, 

### the court 

### is authorized "if necessary, [to] appoint a temporary guardian with the status of an ordinary guardian of a 

### minor, 

### -- but the authority of 

### -- a temporary guardian shall not lastlonger than 6months." 

### -- -- 

### With these principles inmind, we examine the sequence of events inthe DistrictCourt. As 

### noted above, before any guardian may be appointed for a minor, - all

### parental rights of custody must be terminated or suspended by circumstances

orprior court order. Both parties concede that there was

no prior court order terminating or suspending the mother's parental right of custody. To the contrary, only sixmonths prior to the institution of this action, the mother was awarded custody of these children following her divorce. It 

### thus becomes necessary todetermine whether the mother's parental rights of custody were "suspended - 

### by circumstances" in the language of section 75-5-222 (1)MCA. 

### To so determine, we examine with particularity the following sequence of events: May 19, 1977

## -- The mother, after a 

### fight with her paramour, leaves the children with the grandparents while she looks for another place to live. This period of time coincides with her ex-husband's

### annual two-week visitationperiod during which he often leftthe children with his parents, the petitioners

# . June 9, 1977

## -- The mother resumes custody of the children. June 15, 1977

## -- The grandparents filetheir petition for appointment of guardian of minors. This petition stated, apparently inaccurately, that the children were presently inthe care and custody of their paternal grandparents and had been intheir custody since about May 18. June 20, 1977

## -- The DistrictCourt, based exclusively on the grandparents' petition and affording neither notice nor hearing to the mother, awards temporary custody of the children tothe grandparents and 

### sets July 30 as the hearing date on whether the grandparents should be awarded permanent custody. June 30, 1977

## -- The mother again leaves the children with the grandparents. July 2, 

### 3, 4, 1977 

## -- The entire family, including themother, her ex-husband, the children, and the grandparents, vacation together atCanyon Ferry Lake. Although by this 

### time the grandparents had been awarded temporary custody of the children, they neither discussed nor even mentioned this fact to themother during this family vacation. July 21, 1977

## -- The mother seeks assistance from the County Attorney inattempting toregain custody of the children, after the grandparents have refused to return them. At

### this time, themother first

### receives notice of the order granting temporary custody of the children to the grandparents. From this sequence of events, it 

### isobvious that the mother's parental rights of custody had not been terminated by circumstances. In fact, contrary tothe allegations in the petition for guardianship, themother had actual physical custody of the children atthe 

### time the petition was filedby the grandparents and the order 

### was issued by the District Court. Moreover, atthe 

### timethe District Court issued 

### its order granting temporary custody of the children to the grandparents, on June 17, all 

### that had happened toindicate that themother had somehow abandoned or given up her parentalrights of custody was that she had leftthe children with the grandparents for 

### a period of three weeks while she looked for another place to live. InMatter of Guardianship of Doney (1977), Mont. 

## , 570 P.2d 575, 34 St.Rep. 1107, the natural father of the children leftthem with his sister-in-law for a period of two months "while he composed himself and prepared totake 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. Inrejecting the argument that this showed

an abandonment of parental custodial rights, we stated: "Surrender of custody of 

### a minor child by a parent 

### ispresumed tobe temporary unless the contrary ismade to appear." Doney, 570 P.2d 

### at577. Quitesimply, atthe 

### timeof issuing 

### its order granting temporary custody to the grandparents, the DistrictCourt had no evidence that themother's parental rights of custody had been suspended or terminated by either prior court order

or circumstance. The requirements of section 91A-5-204 have not been met and therefore any order purporting toappoint a guardian 

### is invalid. Beyond the jurisdictional question of the termination of themother's parental rights of custody, there 

### are procedural errorswhich likewise require reversal. As noted above, prior to appointing a guardian for a minor, there must be notice given to, among others, any living parent of the child. Thereafter, theremust be 

### a hearing atwhich the DistrictCourt 

### isrequired todetermine, inter alia, that the required notices were given and that allparental rights of custody have been terminated.The DistrictCourt's order, though couched in

### terms of temporary custody, 

### was issued inresponse to

### a petition for appointment of guardian of minors and was, ineffect, the appointment of a temporary guardian. Yet, there was no notice to themother, hearing prior to the appointment of the temporary guardian, no determination that the required notices had been given, and no determination that the mother's parental rights of custody had been terminated or suspended. "The court's granting temporary custody tothe [grandparents] without notice to the mother 

### was error." Henderson

v. Henderson (1977), -Mont

# . , 568 P.2d 177, 179, 34 St.Rep. 942, 944. Nor 

### was this error corrected by the fact that themother participated in 

### a hearing on the petition later. As 

### we stated inHenderson: 

# ".

. 

# . Regardless of any deficiency inobtaining temporary custody, the aunt argues the issue 

### is moot since a fullhearing on the

### meritsof the petition forpermanent custody 

### was held on July 6, 1976. Wedisagree. The transcript on appeal indicates the districtjudge conducting the hearing on permanent custody mistakenly assumed that another districtjudge had conducted a hearing and found misconduct on the part of themother before he awarded temporary custody of the children to the aunt. This temporary custody order ineffect created a presumption infavor of the aunt and shifted the burden of proof to the mother, and 

### was indirectviolation of section 48-333(1), R.C.M. 1947." 568 P.2d at180. In the instant case, the DistrictCourt 

### was led to believe by the petition filedby the grandparents that the mother had abandoned the children tothe grandparents on May 18, 1977, and had not returned for them by June 15when the petition was filed. This was incorrect. As testified to at the hearing by the grandmother, the mother had returned for her children on June 9, 1977, a fullweek before the petition was filed. Indeed, 

### it appears themother had actualphysical custody of the children on the day the petition was filed and on the day the order was issued. From the date of the issuance of this order, however, the mother labored under an unfair, inaccurate prejudicial presumption that she had abandoned her children. This presumption necessarily colored the subsequent proceedings tothe point that any final order or judgment based thereon must be reversed. Finally, any showing that the grandparents may be able toprove a "better" environment than can themother 

### is irrelevant tothis issue of custody 

### as between themother and the grandparents, especially inview of the abovementioned fundamental constitutional right of a parent to custody of her children. As

### we stated inDoney: 

# ".

. . This 'best interests of the child' 

### test, however, isused only after a showing of dependency or abuse or neglect by the natural parent, asdefined in section 10-1301, 

### R.C.M. 1947, or incustody disputesbetween two natural parents.



# . 

# . .Without the required statutory showing thatpetitioner had abused or neglected his children, the districtcourt under the facts of this case had no jurisdiction todeprive the natural father of their custody. The state 

### is entirely powerless todeprive 

### a natural parent of the custody of hisminor childrenmerely because a districtjudge or

### a 

### state agency might feel that a nonparent has more financial resources or pursues a 'preferable' lifestyle." 570 P.2d at578. (Citations omitted.) And inHenderson: "The 'best interest of the child' 

### test 

### iscorrectly used todetermine custody rights between natural parents indivorceproceedings. In this situation the 'equal rights' tocustody which both the father and mother possess under section 61-105, R.C.M. 1947, areweighed inrelation to each parent's ability toprovide best for the child's physical, mental, and emotional needs uDon the breakdown of the marital relationship. -L -~ 'Fitness' of each parent is determined only

- ----- - 

## -- relation 

### -- tothe other andxot

## to society~ 

### g whole. However, where third parties 

## -- seek cust 

### it has long been the law inMontana that the 

### -- 

### --- 

### -- right 

### -- of the natural parent prevails 

### -- until a showing of -- a forfeiture 

## -- of this right. Ex par Bourquin, 88 Mont. 118, 290 P. 250 (1930). SealsoMatter of Fisher, 169 Mont. 254, 545 P.2d 654, 33 St.Rep. 183 (1976). The Uniform Marriage and Divorce Actdoes not change this law. This forfeiture can result only where the parent's conduct does not

### meettheminimum standards of the child abuse, neglect and dependency statutes." 568 P.2d at181-82. (Emphasis added.) In the instantcase, the 

### District Court heard only one person testify that themother 

### was "unfit" to care for her children,the grandfather. The investigating social worker specifically declined to

### call themother "unfit." When the grandmother was asked her opinion, of the mother's care of the children from the divorce until July 

### 4, 1977, she 

### replied: "A. I don't know when 

### I'm not there, but I've told you when I've had them. What she does when she has them, I don't know. I always thought she was a pretty good mother when-she had the children. 

### -- ---- I don'

### t know. 'I The 

### District Court also conducted an 

### - incamera examination of the three children during which the following exchange between the court 

### and the eldest child occurred: "THE COURT: You lived with your mother inJune and July? "RONALD: (Witness nods affirmatively.) "THE COURT: How did you get along? "RONALD: Not too good. A bunch of fighting always. "THE COURT: What 

### were you fighting about? "RONALD: I don't know. This one kid, he caused a fight down there. "THE COURT: Down on Park Street? 

### "RONALD : Yeah

# . "THE COURT: You 

### -got along good with your mother, didn'

### t 

### you? "RONALD: (Witness nods affirmatively.) "THE COURT: You get along with your grandmother and grandfather? "RONALD: Yes."In addition to the above specific examples, the transcript

### isreplete with demonstration by the mother of her continuing concern and care for her children. In fact, at

one point, the grandfather threatened to change hisphone number because themother was calling the children so often. Throughout the proceedings, the mother has opposed the attempt by the grandparents toobtain permanent custody of the children. Clearly, from this evidence, the District Court 

### was not warranted inconcluding that the mother was not fittocare forher children. Such evidence must be clear and convincing tojustify depriving a parent of custody of her children. Matter of 

### J.L.B. (1979), Mont. I 

### P.2d I 36 St.Rep. 896, 909. The factthat the grandparents may be able toprovide a better home 

### is exactly the kind of rationale condemned inDoney. The DistrictCourt concluded that the children 

### were "dependent and neglected under the laws of the State of Montana." Yet, thiswas a guardianshipproceeding instituted by the paternal grandparents, not a proceeding instituted tohave the children declared dependent and neglected,



### as itmust be, by the county attorney under Title 10, Chapter 13, 1947 Revised Codes of Montana, now Title 

### 41, Chapter 3, Montana Code Annotated. The DistrictCourt could not validly conclude that the children were dependent and neglected. Similarly, the District Court found themother tobe not a fitand proper person tohave custody of her children and terminated her custody rights. As pointed out above, however, the termination of allparental rightsmust precede the appointment of a guardian for unmarried minors. Section 91A-5-204, and -207, R.C.M. 1947, now sections 72-5-222,and -225 MCA. Nowhere in the record does anything appear concerning the termination of the parental rights of the father of these children. In any event, a guardianship proceeding 

### isnot a proper means to terminate a parent's constitutional right tocustody of his or her children. As



### we stated inDoney: 

# ".

. . A judicial hearing and finding of dependency and neglect under Title 10, Chapter 13, R.C.M. 1947, orjudicial finding of willful abandonment orwillful nonsupport under 

### section 61-205, R.C.M. 1347, 

### are the exclusive means by which a natural parentmay be involuntarily deprived of custody of his children. In the absence of such showing, the natural parent 

### is legally entitled tothe custody of hisminor children. Section 61-105, R.C.M. 1947." 570 P.2d at577. As a lastexample, the application of the statutory guardianship procedure was incorrect. Under these procedures, a District Court may, if necessary, appoint a 

### temporary guardian of unmarried minors but the authority of the temporary guardian cannot last longer than sixmonths. In the instantproceedings, however, the original order granting temporary custody of the children to the grandparents

was entered inJune 1977. This temporary custody statuswas continued by the DistrictCourt untilAugust 1978, a total of fourteen months before permanent 

### letters of guardianship



### were issued by the District Court. The confusion inthe DistrictCourt isunderstandable. We are able to identify atleast fivedistinct statutory schemes governing the termination of parental rights or the custody of children orboth. Title 10, Chapter 13, R.C.M. 1947, now Title 41, Chapter 3 MCA (abused, neglected and dependent youth); Title48, Chapter 3, R.C.M. 1947, now Title 40, Chapter 

### 4 MCA (Uniform Marriage and Divorce Act); sections 61-111, -112, R.C.M. 1347, now sections 40-6-233,and -234 MCA (remedy forparental abuse); Title 61, Chapter 2, R.C.M. 1947, now Title40, Chapter 8 MCA; Title 91A, Chapter 5, Part 2, R.C.M. 1947, now Title 72, Chapter 5, Part 

### 2 (Guardianship of Minors). Nevertheless, while there 

### is some overlap inthese various procedures 

### as togeneral subjectmatter, each 

### is used for a distinctpurpose and sets forth specificprocedures which must be followed before a valid judgment or order may be issued. To insure that the minors involved receive the fullprotection of these 

### laws, these procedures should be "rigorously followed." In

### re Guardianship of Evans (1978), Mont. 

## , 587 P.2d 372, 376, 35 St-Rep. 1768, 1773. DistrictCourts must identify and adhere to the proper procedure and standards tobe used inthe proceedings before them. Only then 

### willthe fundamental rights and relationship existing between parent and child be fully realized or, when necessary, properly severed. The order of the DistrictCourt granting letters of guardianship to the grandparents 

### isreversed.



## ~ Weconcur:



## . Ahief Just*

i 

### / Justices