No. 14610 

IN THE SUPFEDE COW OF THE STATE OF RDJSEAM1 

1979 

IN THE MAllTER OF THE GUARDIANSHIP 

OF IXXAID ASCHENBIIENNER, TERRI 

LYNN -, and JASON 

JACOB ASCHENBRE3N33, Minors. 

Appeal frm: District Court of the Second Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

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 three minor children to A. 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 three minor children, at that time aged 

eight, four, and one and a half years old. 

Following the divorce, the mother lived alone with the 

children until the middle 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 left the children with his parents while he was 

out working on the road. 

Following another incident with McClosky, Mary again 

requested the grandparents to care for the children on June 

30, 1977. The whole family, including Mary, her ex-husband, 

the children, and the grandparents, vacationed together over 

the Fourth of July weekend. When the mother attempted to 

obtain the return of the children the following week, however, she was denied. When she tried to enlist the assis- 
tance of the county attorney, she was served with a citation 

and order to show cause on July 21, 1977. The order to show 

cause, dated July 21, 1977, and issued in response to a 

petition for appointment of guardian of minors filed by the 

grandparents on June 15, contained a provision awarding 

temporary custody of the children to the grandparents. 

Subsequent to the issuance of this order to show cause, 

several hearings over several months were held by the District Court. At these later hearings, the District Court 

heard testimony from the parties and from Roger LaVoie, a 

county social worker. The court kept in effect its grant of 

temporary custody, modifying it at times to allow the mother 

reasonable visitation rights to her 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 to embark 

on a course of interfering with or hindering Mary's attempts 

to talk to the children on the phone or otherwise visit with 

them. 

As to the children's well-being, the court questioned 

them in chambers. They seemed to express no strong preference for living with either their mother or grandparents. 

According to the social worker's report, however, the school 

work and attitude of the eldest child had markedly improved, 

the middle child had a positive attitude toward school and 

all three children seemed to be better cared for by the 

grandparents. Although during his testimony the social 

worker declined to label Mary an "unfit" parent, he did 

classify her as "deficient" in some respects in her ability 

as a parent. This classification was based on her tendency 

to "party" excessively, leaving the children alone, on her 
inability to make sure the children attended school, and on 

her generally unsettled emotional status and living arrangements. It was his recommendation that the children remain 

in the 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 the mother since the entry of the divorce decree; 

that she had not had adequate, permanent housingaand had not 

> 

conducted herself as a fit and proper mother by continually 

going out and leaving the children alone and unattended. 

The District Court also found that while in his mother's 

care, the eldest child's schoolwork suffered materially but 

improved while in the care of his grandparents. The court 

found that the mother was not a fit and 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 in the mother, 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 appellant was denied procedural due 

process by the District Court'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 its discretion in 

awarding the guardianship and custody of the children to the 

respondents? 

The right of a parent to custody 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 at any action by the 

State which interferes with this right. Our examination of 

the procedure utilized in the District Court in this case 

leads us to conclude that the termination of the mother's 

custody and the award of guardianship to the grandparents 

was improper and must be reversed. 

The grandparents instituted this action 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 that under section 91A-5-204, R.C.M. 

1947, now section 72-5-222(1) MCA, that a "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 order." The District Court is required, 

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 to be given by the petitioner in the manner prescribed by section 91A-1-401 to: 

"(a) the minor, if he is fourteen (14) or more 

years of age; 
"(b) the person who has had the principal care and 

custody of the minor during the sixty (60) days 

preceding the date of the petition; and 

"(c) any living parent of the minor. 

" (2) Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, 

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 will be 

served by the requested appointment, it shall make 

the appointment. In other cases the court may dismiss the proceedings, or make any other disposition 

of the matter that will best serve the interest of 

the minor." 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 last longer than 6 months." -- 

With these principles in mind, we examine the sequence 

of events in the District Court. As noted above, before any 

guardian may be appointed for a minor, - all parental rights 

of custody must be terminated or suspended by circumstances 

or prior 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 six months 

prior to the institution of this action, the mother was 

awarded custody of these children following her divorce. 

It thus becomes necessary to determine 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 visitation period during which he 

often left the children with his parents, the 

petitioners . 

June 9, 1977 -- The mother resumes custody of the 

children. 

June 15, 1977 -- The grandparents file their petition for appointment of guardian of minors. This 

petition stated, apparently inaccurately, that 

the children were presently in the care and custody of their paternal grandparents and had been 

in their custody since about May 18. 

June 20, 1977 -- The District Court, based exclusively on the grandparents' petition and affording 

neither notice nor hearing to the mother, awards 

temporary custody of the children to the 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 

the mother, her ex-husband, the children, and the 

grandparents, vacation together at Canyon 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 the mother during this family vacation. 

July 21, 1977 -- The mother seeks assistance from the 

County Attorney in attempting to regain custody of 

the children, after the grandparents have refused to 

return them. At this time, the mother first receives notice of the order granting temporary custody of the children to the grandparents. 

From this sequence of events, it is obvious that the 

mother's parental rights of custody had not been terminated 

by circumstances. In fact, contrary to the allegations in 

the petition for guardianship, the mother had actual physical custody of the children at the time the petition was 

filed by the grandparents and the order was issued by the 

District Court. 

Moreover, at the time the District Court issued its 

order granting temporary custody of the children to the 

grandparents, on June 17, all that had happened to indicate 

that the mother had somehow abandoned or given up her parental 
rights of custody was that she had left the children with 

the grandparents for a period of three weeks while she 

looked for another place to live. In Matter of Guardianship 

of Doney (1977), Mont. , 570 P.2d 575, 34 St.Rep. 

1107, 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." Doney, 570 P.2d at 577. 

Quite simply, at the time of issuing its order granting 

temporary custody to the grandparents, the District Court 

had no evidence that the mother'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 to appoint a 

guardian is invalid. 

Beyond the jurisdictional question of the termination 

of the mother's parental rights of custody, there are procedural errors which 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, there must be a hearing at which the 

District Court is required to determine, inter alia, that 

the required notices were given and that all parental rights 

of custody have been terminated. 
The District Court's order, though couched in terms of 

temporary custody, was issued in response to a petition for 

appointment of guardian of minors and was, in effect, the 

appointment of a temporary guardian. Yet, there was no 

notice to the mother, 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 to the [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 the mother participated in a hearing on the petition 

later. As we stated in Henderson: 

". . . Regardless of any deficiency in obtaining 

temporary custody, the aunt argues the issue is 

moot since a full hearing on the merits of the 

petition for permanent custody was held on July 

6, 1976. We disagree. The transcript on appeal 

indicates the district judge conducting the hearing on permanent custody mistakenly assumed that 

another district judge had conducted a hearing 

and found misconduct on the part of the mother 

before he awarded temporary custody of the children to the aunt. This temporary custody order 

in effect created a presumption in favor of the 

aunt and shifted the burden of proof to the 

mother, and was in direct violation of section 

48-333(1), R.C.M. 1947." 568 P.2d at 180. 

In the instant case, the District Court was led to 

believe by the petition filed by the grandparents that the 

mother had abandoned the children to the grandparents on May 

18, 1977, and had not returned for them by June 15 when 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 full week before the petition was filed. Indeed, it appears the mother had actual 
physical 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 to the point that any 

final order or judgment based thereon must be reversed. 

Finally, any showing that the grandparents may be able 

to prove a "better" environment than can the mother is 

irrelevant to this issue of custody as between the mother 

and the grandparents, especially in view of the abovementioned fundamental constitutional right of a parent to 

custody of her children. As we stated in Doney: 

". . . 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. 

. . . 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 to deprive 

the natural father of 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." 570 P.2d 

at 578. (Citations omitted. ) 

And in Henderson: 

"The 'best interest of the child' test is correctly used to determine custody rights between 

natural parents in divorce proceedings. In this 

situation the 'equal rights' to custody which 

both the father and mother possess under section 

61-105, R.C.M. 1947, are weighed in relation to 

each parent's ability to provide 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 -- to the other andxot to society~ g 

whole. However, where third parties -- seek cust 

-- 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. Ex par 

Bourquin, 88 Mont. 118, 290 P. 250 (1930). Se 
also Matter of Fisher, 169 Mont. 254, 545 P.2d 

654, 33 St.Rep. 183 (1976). The 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." 

568 P.2d at 181-82. (Emphasis added.) 

In the instant case, the District Court heard only one 

person testify that the mother was "unfit" to care for her 

children,the grandfather. The investigating social worker 

specifically declined to call the mother "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 - in camera 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 in June 

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 is replete with demonstration by the mother of her 

continuing concern and care for her children. In fact, at 

one point, the grandfather threatened to change his phone 

number because the mother was calling the children so often. 

Throughout the proceedings, the mother has opposed the 

attempt by the grandparents to obtain permanent custody of 

the children. 

Clearly, from this evidence, the District Court was not 

warranted in concluding that the mother was not fit to care 

for her children. Such evidence must be clear and convincing 

to justify 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 fact that the grandparents may be 

able to provide a better home is exactly the kind of rationale 

condemned in Doney. 

The District Court concluded that the children were 

"dependent and neglected under the laws of the State of 

Montana." Yet, this was a guardianship proceeding instituted by the paternal grandparents, not a proceeding instituted to have the children declared dependent and neglected, 

as it must be, by the county attorney under Title 10, Chapter 13, 1947 Revised Codes of Montana, now Title 41, Chapter 

3, Montana Code Annotated. The District Court could not 

validly conclude that the children were dependent and neglected. 

Similarly, the District Court found the mother to be 

not a fit and proper person to have custody of her children 

and terminated her custody rights. As pointed out above, 

however, the termination of all parental rights must 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 is not a proper means to terminate a parent's 

constitutional right to custody of his or her children. As 

we stated in Doney: 

". . . 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. 1347, 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." 570 P.2d at 577. 

As a last example, 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 six months. In 

the instant proceedings, however, the original order granting temporary custody of the children to the grandparents 

was entered in June 1977. This temporary custody status was 

continued by the District Court until August 1978, a total 

of fourteen months before permanent letters of guardianship 

were issued by the District Court. 

The confusion in the District Court is understandable. 

We are able to identify at least five distinct statutory 

schemes governing the termination of parental rights or the 

custody of children or both. Title 10, Chapter 13, R.C.M. 

1947, now Title 41, Chapter 3 MCA (abused, neglected and 

dependent youth); Title 48, 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 for parental abuse); Title 61, Chapter 

2, R.C.M. 1947, now Title 40, 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 in these 

various procedures as to general subject matter, each is 

used for a distinct purpose and sets forth specific procedures which must be followed before a valid judgment or 

order may be issued. To insure that the minors involved 

receive the full protection 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. District Courts 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. 

The order of the District Court granting letters of 

guardianship to the grandparents is reversed. 

~ We concur: 

. Ahief Just* 

i / Justices