### 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

## 51979

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 toconsent tothe adoption of the youth. On May 7, 1969, P.J.D. was placed inthe 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 asadoptive 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 todismiss the petition on the grounds that the court lacked subjectmatter jurisdiction and that the petition failed to statea claim upon which relief could be granted. On January 22, 1979, the DistrictCourt granted SRS's motion todismiss and, on February 8, 1979, denied appellants' motion toamend the conclusions of law by vacating the hearing on the motion. Appellants appeal from these orders of the ~istrict Court. The sole issuepresented to thisCourt 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 asguardians of

a child inthe 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" asused insection 72-5- 222(1), MCA, refers to the rights of the natural parents, which inthiscase

### were terminated on April 24, 1969. The foster parents have the right tocustody, companionship and servicesof the child and control her religion, education and discipline. (2) SRS's "parental rights of custody" were terminated by the permanent fosterplacement 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 tothe factsof this case and appoint them guardians. The DistrictCourt'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 courtmay appoint a guardian for an unmarried minor 

### -- ifpall-parental rights of custody have been terminated or suspended circum

### -- - stances orprior court order." (Emphasis sup-



### -. - 

### . - plied.) Section 72-5-225(2) provides: "Upon hearing, if the court finds that 

### a qualifiedperson seeks appointment, venue 

### isproper, the required notices have been given, the requirements of 72-5-222 have been 

### met, and the welfare and best interests of the minor 

### willbe served by the requested appointment, 

### it shallmake the appointment. &-other cases the courtmay dismiss the -

roceedings or 

## -- make 

### any other disposition of :he matter 

## --- that

### willbest serve

## the interez of theminor." (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 "allparental rights of custody

# ."Although there 

### isno Montana case law which for our purposes specifically interprets the above statutes, appellants cite and rely on a recent Montana 

### case, In re Guardianshipof Evans (1978), Mon

### t

# . , 587 P.2d 372, 35 St-Rep. 1768, asbeing dispositive here. A close look at Evans reveals 

### it 

### isdistinguishable from the instant case. The problem of statutory interpretation was not reached in Evans. Appellants 

### cite various cases for the proposition that the DistrictCourt should appoint a guardian whenever necessary or convenient for the best interestof 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), 101Cal.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 areconsidering inMontana. There are, however, two cases from Arizona construing that state's guardianship statuteswhich are identical toMontana's. The firstisMorales v. Glenn (1977), 114Ariz. 327, 560 P.2d 1234. InMorales the custody of the two minor children involved 

### was, pursuant to a divorce decree, lodged inthe father. In 1976 the father died, and the paternal grandparents assumed custody of the two children. A request for custody by themother 

### wasmade to the grandparents, which request was refused. Thereafter, the grandmother petitioned for guardianship of the children alleging that allparental rights of custody had been terminated by court order. The mother regained custody of the children through

a habeas corpus proceeding and moved todismiss the guardianshipproceedings. This motion 

### was denied, and the motherappealed. 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 themother's motion todismiss. The court went

on to state: "The Probate Court does not have jurisdiction toaward custody when custody by operation of the law 

# .

# . . orby court order

# . .. has already been determined." Morales, 560 P.2d at1237, 1238. InMcNeal 

### v. Mahoney (1978), 117 Ariz. 543, 574 P.2d 31, the court, citingMorales 

## ,held thatwhere the father's custody rightshad not been terminated by circumstances or by his conditional delivery of the child tograndparents, the appointment of the grandparents astemporary guardians for the child was improper and "the trialjudge was without authority toappoint 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 toconsent toadoption of P.J.D.

was awarded toSRS. Permanent custody of a child 

### isdefined inARM S46-2.6 (2) -S650 

### (1) (b) as: 

# ".

. . the legal statuscreated by an order of the youth court, thatgives a person or agency the right and duty tothe care, custody and control of a youth with the authority toconsent to the adoption of said youth. This severs the rights and duties of the natural parent(s) tothe child." Further, "[tlransfer of legal custody of a child shall include guardianship of any assets or estateof the child. 

# . 

# ." Section 41-3-406(4), MCA. In effect, by making such an order, the court grants allthe rightsof 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 developmentof a psychological parent-child relationship." ARM S46-2.6(2)- S640(3)

### (c)(i)

# . As unacceptable as itmay 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 serviceswhen 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 itwas charged by courtorder to carry out; itmerely 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 constantvigil to assure that the youth's best interests are being served. This duty is so strictbecause, ineffect, 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 thatthe permanent foster parents, when placed inthis situation, assume the role of parents and can in factbecome the psychological parents of the child, thisdoes not change the legal relationship between the child and SRS. "A child cannot be adversely possessed

ascan a piece of real property." In theMatter of Fish (1977) Mont. 

# - , 569 P.2d 924, 928, 34 St.Rep. 1080, 1085.Appellants argue that thephrase "allparental 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 

### isnot supported by the facts or by the 

### law. In lightof the duties and responsibilitiesplaced on SRS, there can be littledoubt that it was awarded parental rights to custody similar tothat of a natural parent. There also can be little doubt that the phrase "allparental 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 totake into account. If only natural parents' rights were protected, it would mean that a guardian could be appointed for a child with adoptive parents, solelybecause the natural parents' rights had been 

### terminated. One can hardly argue that the legislature intended such a result. SRS, inreality, takes the place of theadoptive parent by seeing that the child's needs 

### are taken

care of, albeitby fosterparents. 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 innature and have not been terminated. This being the case, the court

was without jurisdiction toappoint a guardian under section 72-5-225(2), MCA. It did not err indismissing appellants' petition. One other point needs tobe discussed. Because the parental rights of P.J.D. 

### were not terminated, the last sentence of section 72-5-225 (2) may come intoplay. This sentence reads: "In other cases the court

### maydismiss the proceedings or 

### -- make 

### any other disposition of 

## -- thematter that 

### willbest serve the interestof the minor." (Emphasis added.) The language of this sentence indicates that it 

### is within the court's discretion in such a situation toeither dismiss the proceeding ormake some other disposition. Here, the court chose todismiss the proceeding. In the absence of abuse of discretion, this Court 

### willnot alter such 

### a decision. In 

### re Gore (1977), Mont. 

## , 570 P.2d 1110, 34 St-Rep. 1179. In the instant case, an attorneywas appointed to protect P.J.D.'s interests. In his brief to this Court, he 

### states: "Itappears to

### me that the division of authoritybetween the fosterparents and the Department of Social and Rehabilitation Services inthe P.J.D. matter has been sufficiently compatible so that the best interestsof the child have been looked after. The department has provided all medical care, financial assistance and so

### cial services support toP.J.D. that have appeared tobe necessary."Wehave no factrecord inthis case, so

### we have no indication that SRS 

### willremove the child from 

### its foster parents. Nor is there any indication that the child should be receiving additional 

### care which SRS refuses toprovide. It also appears that SRS has agreed togrant authority to the foster parents toauthorize emergency medical treatment. Apparently, the best interests of the child arebeing served here.This 

### isnot to say that there areno long 

### term foster placements, such asthe case here, inwhich changes of statusmay be desirable. But to interpret the statute as a blanket permission for such 

### isoverlooking the possible mischief involved in short 

### termcases by the 

### less sincere of those among us. Therefore, any change inthe 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