No. 14759 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE GUARDIANSHIP OF P.J.D., 

a minor. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Richard Ganulin argued, Great Falls, Montana 

For Respondent: 

Dennis Conner argued, Great Falls, Montana 

Gary Zadick argued, Great Falls, Montana 

Submitted: September 14, 1979 

Decided: SEP 2 5 1979 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

On ~pril 24, 1969, P.J.D. was declared a dependent and 

neglected child. The Division of Child Welfare Services of 

the Department of Public Welfare was awarded permanent legal 

custody with the right to consent to the adoption of the 

youth. On May 7, 1969, P.J.D. was placed in the foster care 

of the appellants herein. She has resided with them since 

that time. On November 17, 1974, P.J.D. was permanently 

placed with the appellants. 

P.J.D. has been disabled with cerebral palsy since 

birth. Appellants have been approved as adoptive parents; 

however, they are financially unable to adopt P.J.D. On 

June 27, 1978, appellants filed a petition in the District 

Court of the Eighth Judicial District, County of Cascade, 

requesting that they be appointed guardians of P.J.D., their 

permanent foster child. The Department of Social and Rehabilitation Services (SRS) made a motion to dismiss the 

petition on the grounds that the court lacked subject matter 

jurisdiction and that the petition failed to state a claim 

upon which relief could be granted. On January 22, 1979, 

the District Court granted SRS's motion to dismiss and, on 

February 8, 1979, denied appellants' motion to amend the 

conclusions of law by vacating the hearing on the motion. 

Appellants appeal from these orders of the ~istrict Court. 

The sole issue presented to this Court is the interpretation of section 72-5-222(1), MCA, and section 72-5-225(2), 

MCA, to determine (1) whether the ~istrict Court has jurisdiction to appoint permanent foster parents as guardians of 

a child in the legal custody of SRS, and (2) whether SRS 

ever had parental rights over P.J.D. and, if so, whether 

these rights have been suspended by circumstances, 
Appellants' principal arguments can be summarized as 

follows : 

(1) The term "parental rights" as used in section 72-5- 

222(1), MCA, refers to the rights of the natural parents, 

which in this case were terminated on April 24, 1969. The 

foster parents have the right to custody, companionship and 

services of the child and control her religion, education 

and discipline. 

(2) SRS's "parental rights of custody" were terminated 

by the permanent foster placement with appellants. Section 

72-5-222 (I), MCA, and ARM S46-2.6 (2) -S640 (3) (c) (i) . 

(3) Appellants request this Court to limit its decision 

to the facts of this case and appoint them guardians. 

The District Court's order dismissing the petition is 

founded upon its interpretation of sections 72-5-222(1) and 

72-5-225 (2), MCA. Section 72-5-222 (1) states: 

"The court may appoint a guardian for an unmarried minor -- ifpall-parental rights of custody 

-- have been terminated or - suspended circumstances or prior court order." (Emphasis sup- -. - . - plied. ) 

Section 72-5-225(2) provides: 

"Upon hearing, if the court finds that a 

qualified person seeks appointment, venue 

is proper, the required notices have been 

given, the requirements of 72-5-222 have 

been met, and the welfare and best interests 

of the minor will be served by the requested 

appointment, it shall make the appointment. 

- &-other cases the court may dismiss the 

roceedings -- or make any other disposition of 

:he matter --- that will best serve the interez 

-- of the minor." (Emphasis supplied.) 

Resolution of this case rests on the construction 

placed on the above statutes and more particularly, on this 

Court's interpretation of the phrase "all parental rights of 

custody . " 
Although there is no Montana case law which for our 

purposes specifically interprets the above statutes, appellants cite and rely on a recent Montana case, In re Guardianship of Evans (1978), Mon t . , 587 P.2d 372, 35 

St-Rep. 1768, as being dispositive here. A close look at 

Evans reveals it is distinguishable from the instant case. 

The problem of statutory interpretation was not reached in 

Evans. 

Appellants cite various cases for the proposition that 

the District Court should appoint a guardian whenever necessary or convenient for the best interest of the child: 

In re Henwood's Guardianship (1958), 49 Cal.2d 639, 320 P.2d 

1; San Diego County Dept. of Pub. Welf. v. Superior County 

(1972), 101 Cal.Rptr. 541, 496 P. 2d 453; In re C.M.D. (Del. 

1969), 256 A.2d 266. These cases, however, are easily distinguishable. They involve different statutory guidelines 

for guardianship than those we are considering in Montana. 

There are, however, two cases from Arizona construing that 

state's guardianship statutes which are identical to Montana's. 

The first is Morales v. Glenn (1977), 114 Ariz. 327, 

560 P.2d 1234. In Morales the custody of the two minor 

children involved was, pursuant to a divorce decree, lodged 

in the father. In 1976 the father died, and the paternal 

grandparents assumed custody of the two children. A request 

for custody by the mother was made to the grandparents, 

which request was refused. Thereafter, the grandmother 

petitioned for guardianship of the children alleging that 

all parental rights of custody had been terminated by court 

order. The mother regained custody of the children through 

a habeas corpus proceeding and moved to dismiss the guardianship proceedings. This motion was denied, and the mother 
appealed. The Arizona court found the mother's parental 

rights of custody had not been terminated by the divorce 

decree or circumstances and held the lower court erred in 

not granting the mother's motion to dismiss. The court went 

on to state: "The Probate Court does not have jurisdiction 

to award custody when custody by operation of the law . . . 

or by court order . . . has already been determined." 

Morales, 560 P.2d at 1237, 1238. 

In McNeal v. Mahoney (1978), 117 Ariz. 543, 574 P.2d 

31, the court, citing Morales , held that where the father's 

custody rights had not been terminated by circumstances or 

by his conditional delivery of the child to grandparents, 

the appointment of the grandparents as temporary guardians 

for the child was improper and "the trial judge was without 

authority to appoint even a temporary guardian for Cindy." 

McNeal, 574 P.2d at 35. 

In the instant case the custody of P.J.D. was established by court order on April 24, 1969, when permanent 

legal custody with right to consent to adoption of P.J.D. 

was awarded to SRS. Permanent custody of a child is defined 

in ARM S46-2.6 (2) -S650 (1) (b) as: 

". . . the legal status created by an order of 

the youth court, that gives a person or agency 

the right and duty to the care, custody and 

control of a youth with the authority to consent to the adoption of said youth. This 

severs the rights and duties of the natural 

parent(s) to the child." 

Further, "[tlransfer of legal custody of a child shall 

include guardianship of any assets or estate of the child. . 

." Section 41-3-406(4), MCA. 

In effect, by making such an order, the court grants 

all the rights of the natural parent to SRS. SRS, thus, 

becomes responsible for the care, feeding, and control of 
the child. To provide for the best interests of and protect 

the welfare of a child, SRS attempts to place the child "in 

a stabilized setting such as an adoptive home or permanent 

foster care home which will promote the development of a 

psychological parent-child relationship." ARM S46-2.6(2)- 

S640 (3) (c) (i) . 

As unacceptable as it may sound, some of the children 

will never be adopted. Instead of having to institutionalize 

these children, SRS licenses foster parents, people who want 

to care for children but are either ineligible to adopt or 

cannot afford to adopt. When a child is placed in permanent 

foster home care, as P.J.D. was here, SRS provides certain 

services including: counseling services to child and foster 

parents; referral services when appropriate; arrange for 

continued education of the child as appropriate to his age 

and abilities; arrange for medical services for the child; 

and open foster home payments for board, room and personal 

necessities. ARM S46-2.6(2)-S6020. These services are in 

keeping with the duty placed upon SRS when it is granted 

legal custody of a child. The responsibilities and duties 

charged to SRS are similar to the ones charged to natural 

parents. The only difference is that to care for a child, 

SRS, in promoting a natural instead of institutional environment for the child, must assign the everyday duties of care 

and feeding to foster parents like the appellants. By such 

assignment, however, SRS does not forego any of the duties 

it was charged by court order to carry out; it merely assigns 

the duties so they will be carried out in a more natural 

environment. SRS is still responsible for the youth's care 

and must keep a constant vigil to assure that the youth's 

best interests are being served. This duty is so strict 
because, in effect, SRS is charged with overcoming any illeffects the deprivation of the child's natural parents may 

have had on the child. 

While it is true that the permanent foster parents, 

when placed in this situation, assume the role of parents 

and can in fact become the psychological parents of the 

child, this does not change the legal relationship between 

the child and SRS. "A child cannot be adversely possessed 

as can a piece of real property." In the Matter of Fish 

(1977) Mont. - , 569 P.2d 924, 928, 34 St.Rep. 1080, 

1085. 

Appellants argue that the phrase "all parental rights 

of custody" from section 72-5-222(1), MCA, was intended to 

encompass only "parental rights" of natural parents and 

therefore, the rights granted to SRS when it was awarded 

permanent custody of P.J.D. are incapable of the District 

Court's jurisdiction to appoint a guardian. This contention 

is not supported by the facts or by the law. 

In light of the duties and responsibilities placed on 

SRS, there can be little doubt that it was awarded parental 

rights to custody similar to that of a natural parent. 

There also can be little doubt that the phrase "all parental 

rights of custody" includes the rights awarded to SRS. This 

is the logical result. To construe the above phrase to 

include only natural parents would create problems that 

appellants fail to take into account. If only natural 

parents' rights were protected, it would mean that a guardian could be appointed for a child with adoptive parents, 

solely because the natural parents' rights had been terminated. One can hardly argue that the legislature intended 

such a result. SRS, in reality, takes the place of the 
adoptive parent by seeing that the child's needs are taken 

care of, albeit by foster parents. 

The phrase "parental rights of custody" therefore 

includes the parental rights of both adoptive parents and 

SRS when it is awarded custody. 

The rights held by SRS here are permanent in nature and 

have not been terminated. This being the case, the court 

was without jurisdiction to appoint a guardian under section 

72-5-225(2), MCA. It did not err in dismissing appellants' 

petition. 

One other point needs to be discussed. Because the 

parental rights of P.J.D. were not terminated, the last 

sentence of section 72-5-225 (2) may come into play. This 

sentence reads: "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." (Emphasis 

added.) The language of this sentence indicates that it is 

within the court's discretion in such a situation to either 

dismiss the proceeding or make some other disposition. 

Here, the court chose to dismiss the proceeding. In the 

absence of abuse of discretion, this Court will not alter 

such a decision. In re Gore (1977), Mont. , 570 

P.2d 1110, 34 St-Rep. 1179. 

In the instant case, an attorney was appointed to 

protect P.J.D.'s interests. In his brief to this Court, he 

states: 

"It appears to me that the division of 

authority between the foster parents and 

the Department of Social and Rehabilitation 

Services in the P.J.D. matter has been sufficiently compatible so that the best 

interests of the child have been looked 

after. The department has provided all 

medical care, financial assistance and social services support to P.J.D. that have 

appeared to be necessary." 
We have no fact record in this case, so we have no 

indication that SRS will remove the child from its foster 

parents. Nor is there any indication that the child should 

be receiving additional care which SRS refuses to provide. 

It also appears that SRS has agreed to grant authority to 

the foster parents to authorize emergency medical treatment. 

Apparently, the best interests of the child are being served 

here. 

This is not to say that there are no long term foster 

placements, such as the case here, in which changes of 

status may be desirable. But to interpret the statute as a 

blanket permission for such is overlooking the possible 

mischief involved in short term cases by the less sincere of 

those among us. Therefore, any change in the rules as we 

have applied them must come from the legislature after long 

and serious consideration and adequate safeguards are installed 

for the benefit of the foster children. 

The judgment of dismissal of the District Court is 

affirmed. 

4- 

L/L/,A 

Justice 2 

We concur: 

7~-efl, @&,4 

Chief Justice 

-4- ustices