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IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 11-0270

2011 MT 329

_________________

IN RE THE GRANDPARENT VISITATION OF 

M.M. AND LINDA LARSEN, GRANDMOTHER,

 Petitioner and Appellant.

O P I N I O N 

A N D

O R D E R

_________________

¶1 Briefing of this appeal having been completed, the Court considered it for 

classification purposes on December 6, 2011. We have determined that the appeal must 

be dismissed and the case remanded to the Fifth Judicial District Court for further 

proceedings in conformity with this Opinion and Order. 

¶2 This appeal arises out of a matter concerning grandparent-grandchild visitation. In 

August of 2010, the District Court entered an order for grandparent contact between 

Linda Larson and her granddaughter, M.M. The court’s order was entered over the 

mother’s objection. In that order, the court found that both of M.M.’s parents were 

incarcerated and M.M. was currently under the guardianship of the Benjamins. The court 

found no evidence that the Benjamins were not currently able to care for M.M. It also 

found that it was in M.M.’s best interest to have contact with Larson. The court ordered 

visitation between Larson and M.M., to take place at the Benjamins’ home on the first, 

second, and fourth Saturday of every month.

¶3 In November of 2010, Larson filed a petition for additional grandparent contact. 

The District Court held a hearing on that petition on April 20, 2011. Larson’s May 10, 

2011 notice of appeal states this appeal is taken from “the final judgment entered in such 

action on the 20th day of April, 2011.” No written judgment or order disposing of the 

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issues raised at the April 20 hearing appears in the District Court record. Larson has, 

however, filed a transcript of the April 20 hearing. 

¶4 The controlling statute is § 40-9-102, MCA:

Grandparent-grandchild contact. (1) Except as provided in subsection 

(7), the district court may grant to a grandparent of a child reasonable rights 

to contact with the child, including but not limited to rights regarding a 

child who is the subject of, or as to whom a disposition has been made 

during, an administrative or court proceeding under Title 41 or this title. 

The department of public health and human services must be given notice 

of a petition for grandparent-grandchild contact regarding a child who is the 

subject of, or as to whom a disposition has been made during, an 

administrative or court proceeding under Title 41 or this title.

(2) Before a court may grant a petition brought pursuant to this 

section for grandparent-grandchild contact over the objection of a parent 

whose parental rights have not been terminated, the court shall make a 

determination as to whether the objecting parent is a fit parent. A

determination of fitness and granting of the petition may be made only after 

a hearing, upon notice as determined by the court. Fitness must be 

determined on the basis of whether the parent adequately cares for the 

parent’s child.

(3) Grandparent-grandchild contact may be granted over the 

objection of a parent determined by the court pursuant to subsection (2) to 

be unfit only if the court also determines by clear and convincing evidence 

that the contact is in the best interest of the child.

(4) Grandparent-grandchild contact granted under this section over

the objections of a fit parent may be granted only upon a finding by the 

court, based upon clear and convincing evidence, that the contact with the 

grandparent would be in the best interest of the child and that the 

presumption in favor of the parent’s wishes has been rebutted.

(5) A person may not petition the court under this section more 

often than once every 2 years unless there has been a significant change in 

the circumstances of:

(a) the child;

(b) the child’s parent, guardian, or custodian; or

(c) the child’s grandparent.

(6) The court may appoint an attorney to represent the interests of a 

child with respect to grandparent-grandchild contact when the interests are 

not adequately represented by the parties to the proceeding.

(7) This section does not apply if the child has been adopted by a 

person other than a stepparent or a grandparent. Grandparent-grandchild 
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contact granted under this section terminates upon the adoption of the child 

by a person other than a stepparent or a grandparent.

(8) A determination pursuant to subsection (2) that a parent is unfit 

has no effect upon the rights of a parent, other than with regard to 

grandparent-grandchild contact if a petition pursuant to this section is 

granted, unless otherwise ordered by the court.

¶5 Larson raises three issues on appeal. Her first issue relates to a motion she filed 

before the April 20 hearing, asking the court to allow her expert witness to observe M.M. 

during her interactions with Larson during one of their weekend visits. In relation to this 

motion, Larson’s counsel stated at the hearing that they wished to present expert 

testimony on “what was appropriate at what age with the child in terms of visitation, and 

what the child would be able to handle and would not be able to handle.” 

¶6 During the April 20 hearing, the District Court hypothesized that, under 

§ 40-9-102, MCA, if it found M.M.’s mother fit, there would be no need for the expert 

testimony “because mother’s objection would trump.” Neither party disputed that 

statement. At the end of the hearing, the court orally stated Larson had failed to establish 

that M.M.’s mother was unfit. However, the court never expressly ruled on Larson’s 

motion to present expert testimony. Nor did the court address § 40-9-102(4), MCA, 

which allows grandparent contact even over the objection of a fit parent, if clear and

convincing evidence supports findings that contact with the grandparent would be in the 

child’s best interests and that the presumption in favor of the parent’s wishes has been 

rebutted.

¶7 The second issue Larson raises on appeal is whether the District Court erred when 

it found the incarcerated parents were fit. In a lengthy, self-described attempt at the April 

20 hearing “to think through this as I’m discussing it with you,” the District Court 

reasoned that M.M.’s parents, although not in a position to provide for her hands-on care, 

had made arrangements to provide care for her through the Benjamins. Although the 

court stated at one point that “the proper order for the Court to issue here, that 

grandmother’s motion to . . . find mother unfit must fail,” our review of the record does 

not reveal an express finding by the District Court that M.M.’s parents are fit.
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¶8 The third issue on appeal is whether the District Court was prohibited by res 

judicata from rescinding its previous order granting visitation to Larson. The parties 

disagree as to whether the court did, in fact, rescind its prior order for grandparent 

contact, and the record presents good cause for confusion on that point. At one point 

during the April 20 hearing, the court stated grandparent visitation “should be 

reasonable” and “I’m hopeful that the parties can then work out something that would be 

reasonable without a specific order on a date and time schedule.” While it appears no 

change was made, the District Court’s oral statements at the hearing were meandering, at 

best, as to whether the court was altering the status quo as to visitation between Larson 

and M.M. 

¶9 In summary, this Court is left with a record that is impossible to properly review 

as to all three issues raised on appeal. Not only does the District Court’s practice of 

neglecting to file written findings of fact and a written order render appellate review 

impossible, but the parties clearly are left without the ability to discern and thereby 

enforce or comply with such “orders.” 

¶10 IT IS ORDERED that this appeal is DISMISSED and this matter is remanded to 

the District Court for further proceedings consistent with this Opinion and Order. On 

remand, the District Court is directed to enter written findings, conclusions, and an order 

addressing the issues raised by Larson’s petition and at the April 20, 2011 hearing as 

necessary, following consideration of whether the provision of § 40-9-102(5), MCA—

which addresses the filing of petitions under the statute more often than once every 2 

years—applies to this particular petition.

DATED this 30th day of December, 2011. 

/S/ MIKE McGRATH

We Concur:

/S/ JAMES C. NELSON

/S/ BETH BAKER

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS