No. 14784 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

IN RE THE APPLICATION OF WALT AND JUDE PIERCE.

Appeal from: DistrictCourt of the Tenth Judicial 

### District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, Sinclair and Murphy, Billings, Montana James Sinclair argued, Billings, Montana For Respondent: Bradley Parrish argued, Lewistown, Montana

Submitted: September 25, 1979 Decided: 

## OCT

## 25

# 1978

7 - Filed: 

### yCj25:~ - dMr. Justice John Conway Harrison delivered the Opinion of the Court.

Waltand Judy Pierce, parents of Katherine Frances Pierce, petitioned this Court for a 

### writof supervisory control or other appropriate 

### writto secure the custody of Katherine. Wedeny the relief requested. On November 29, 1978, Katherine Frances Pierce petitioned the DistrictCourt of the Tenth Judicial District, County of Fergus, under the provision of section 41-5-921, MCA, toplace her with her maternal grandparents, Burton T. and Frances E. Raw, atGarneill, Montana. Herpetition noted that on November 20, 1978, she ran away from her parental home inPowell, Wyoming. It alleged that she had suffered physical and mental abuse from her parents over 

### a period of years, and that she desired tobe placed in the custody of her grandparents. The cause was 

### set for hearing

on December 20, 1978. Bradley Parrish, counsel for Katherine Frances, sent a notice of the hearing toMr. and Mrs. Walter Pierce 

### atPowell, Wyoming. Hearing 

### was held on December 20, 1978, which Mr. and Mrs. Pierce did not attend on advice of counsel, wherein the DistrictCourt found 

### it had jurisdiction under the provisions of section 41-5-921, MCA, and placed Katherine Frances in the custody of her grandparents in lieu of placing her in a districtguidance home. Petitioners, Walt and Judy Pierce, petitioned the Juvenile Court, Park County, Wyoming, for an order giving them custody of Katherine Frances, under the Interstate Compact on Juveniles. In their petition they alleged that Judy had run away from home, that she was with her grandparents, the Raws, and that 

### it was in the best interests and protection of Katherine Frances that she be returned to thelegal custody of her parents. The petition requested that

an order be issued directing any peace officer or appropriateperson inMontana to take Katherine Frances into custody and detain her. Such an order and requisition was issued by theWyoming court on December 18, 1978. However, because they had tobe processed through stateoffices inHelena, Montana, the order and requisition did not reach Fergus County, Montana, until sometime inJanuary. Upon receiptof the order and requisition from Wyoming, the Honorable LeRoy L. McKinnon 

### set a hearing date for January 25, 1979. Atthathearing 

### all interested parties appeared with counsel. Testimony 

### was given by both petitioners, by the grandparents, by Katherine Frances, by Sherry Pierce, Katherine's 

### sister, and by Susan Briggs. Counsel 

### were given 

### time to submit briefs tothe court, and

on March 28, 1979, the court issued 

### its findings of fact, conclusions of law and order, denying the requisition from the State of Wyoming. The findings of factand conclusions of 

### law stated: "1. That on the 30th day of November, 1978, the said Katherine Frances Pierce filed a petition herein under Section 10-1247, R.C.M. 1947 as amended, now Section 41-5-921 M.C.A., asking to be placed inthe custody of her maternal grandparents inlieuof a DistrictYouth Guidance Home. That hearing thereon came on regularly December 20, 1978; thatorder thereon issued December 27, 1978, placing saidyouth in the custody of her maternal grandparents, Burton T. and Frances E. Raw, of Garneill, Montana. "2. That on the 25th day of January, 1979, hearing came on regularly on Order and Requisition from County of Park, State of Wyoming, which apparently 

### came i n t othe Juvenile Department, and had not been filedwith the Clerk of Court. "3. That the parents of said youth appeared and testified that said youth has problems, and that they have made arrangements toplace her inan institution. They further testified that they

### had notice of the hearing on the petition of said youth, but being advised that they had not been properly served, they elected not toattend said hearing. "4. 

### That thematernal grandparents testified that they have no indication of any problem; that they get along well with said youth; that said youth takes care of her own room and helps her grandmother prepare meals and do up dishes; that said youth is

### enrolled inhigh school atMoore, Montana, and is

### earning A's 

### and B's; 

### that the said school teachers indicate no problem whatever, that said youth is

### doing very 

### well. That an aunt of said youth who lives ina separate home on the 

### same farmstead with the grandparents testified to the same effect as the grandparents. "5. 

### Said youth testified that there is

### no love inher parental home; that she was an unwanted child; that she has constantly been threatened with institutionalization; that she has been told that theminute she is

### eighteen, she's outof the house. That there islove and caring inher grandparents home, that she is

### accepted there, and that she wants to stay there. "From the foregoing facts, the Court draws the following CONCLUSIONS OF LAW 

### "1. That the said Katherine Frances Pierce has no support toenable her topresent her situation toa Court inthe Stateof Wyoming. "2. That it is

### not inthe best interestof the said youth tobe returned tothe State of Wyoming. "3. 

### That the best interests of said youth, and of society atlargewould be served by leaving her inthe care, custody and control of Mr. 

### and Mrs. 

### Burton T. 

### Raw, Garneill, Montana." Petitioners filed thispetition for a 

### writof supervisory control to set 

### aside the orders of Judge McKinnon dated December 27, 1978, and March 28, 1979, and toreturn Katherine Frances toher parents inthe Stateof Wyoming pursuant to the 

### Interstate Compact on Juveniles. Three contentions are set 

### forthby petitioners: 1. 

### That the Honorable LeRoy L. 

### McKinnon substituted hisjudgment for thatof the judge of the demanding state, 

### namely, the Stateof Wyoming, on what was the best interests of the child;2. hat the Honorable LeRoy L. McKinnon exceeded the jurisdiction bestowed upon him pursuant tothe Interstate Compact on Juveniles; and 3. That the Honorable LeRoy L. McKinnon deprived the Wyoming parents of the minor child of custody of the child and that his order 

### is inexcess of the jurisdiction granted him. We firstlook to the factual situation faced by Judge McKinnon when Katherine Frances filed her petition inhis court on November 29, 1978. Her petition revealed she had lefther parental home, gave the reasons for leaving, and sought the protection of the court under section 41-5-921, MCA. She was not, nor had she ever been, declared 

### a delinquent child either inWyoming or Montana, but was 

### a runaway child. While the above statuteprovides for placement in a districtyouth guidance home, the factthat the Tenth JudicialDistricthad no such home did not of itself preclude Judge McKinnon from accepting jurisdiction of the cause. Jurisdiction having attached, the cause properly remained before Judge McKinnon. It

### waswithin his discretion tohave her placed ina stateinstitution or an approved aftercare program. Because Katherine Frances 

### was not 

### a delinquent child, but one inneed of 

### a home with tender loving care, Judge McKinnon, in the exercise of hisbroad discretion, properly used thatdiscretion ingranting her request tobe placed with her grandparents. We 

### are not faced here, 

### as argued by petitioners, with the 

### same facts or legal problems presented in In the Matter of Aschenbrenner (1979)

## , -Mont. 

## , 597 P.2d 1156, 36 St.Rep. 1282. In that case the grandparents petitioned the court for a guardianship of their grandchildren and the

### mother appealed the the trialcourt's decision. We

### reversed, holding that a guardianship proceeding is

### not a proper means toterminate a parent's constitutionalright tocustody of hisorher child. Here, unlike Aschenbrenner, Katherine Frances is 

### the petitioner under an entirely different statutory procedure. Nor do we 

### find our recent case of Wenz v. Schwartze (1979)I 

### Mont. 

## , 598 P.2d 1086, 36 St.Rep. 1360, controlling. This case 

### willbe discussed inour discussion of other issues raised by petitioners. Here, Katherine Frances filedher petition, asa youth inneed of care, and later 

### changed the same torequest placement with her grandparents, and as of the date of hearing, November 29, 1978, the District

### Court properly assumed jurisdiction asrequested. The second issuechallenging Judge McKinnon's right to continue jurisdiction once he 

### was presented with the order and requisition from the Stateof Wyoming raises several issues. First, it 

### must be decided if the Interstate Compact

on Juveniles empowers the District Court toactbeyond refusing toreturn a youth toa requisitioning 

### state pursuant toa hearing under the Compact. Second, it 

### must be determined if the Uniform Child Custody Jurisdiction Act (UCCJA) 

### precludes the District

### Court from denying enforcement of theWyoming decree and placing Katherine inher grandparents' custody. Section 41-6-105, MCA, 

### pertains tothe firstquestion presented under this issue. That sectionreads: "The courts, departments, agencies, and officers of this stateand its 

### subdivisions shall enforce thiscompact and shall do allthings appropriate to the effectuation of its

### purposes and intent which may be within their respective jurisdictions.

### "The broad language of this section granting the courts of Montana the authority to "do allthings appropriate" to carry out the purposes of the Compact should include the power toplace 

### a youth ina private home on determining the child should not be returned to the requisitioning state. Beyond the statutory language, In ReWelfare of Wiles (1976), 15Wash.App. 61, 547 P.2d 302, substantiates this interpretation of the court's power under the Compact. Although the Washington court did not specifically address the question before us, the practical effectof the decision

was toplace the youth involved in the matter in the custody of her mother inWashington despite the existence of a court order inOregon granting custody of the child to the State of Oregon. The second problem under this issue arisesdue to the December 18order issued by the Wyoming court findingWalt and Judy Pierce entitled to legal custody of Katherine. This order meets the definition of "decree" 

### set out in section 40-7-103(4), MCA, thus bringing the matter within the purview of the UCCJA. Under the UCCJA, the District Court of Montana must have jurisdiction over the child and jurisdiction tomodify

an out-of-state decree before entering a valid decree in Montana. Wenz v. Schwartze, 598 P.2d at1093. Section 40- 

### 4-211 (1) (c)(ii) 

## , MCA, a portion of the UCCJA jurisdiction statute incorporated by reference, allows the ~istrict Court to invoke jurisdiction over a child present inthe state when it 

### isnecessary toprotect the child because of threatened mistreatment or abuse. Since the 

### ~istrict Court found that tobe the situationhere, the court had jurisdiction over Katherine.Regarding the enforcement of the Wyoming decree under the UCCJA, the Court stated inWenz, 

# ".

. . before the recognition and enforcement provisions of the Act can be applied, the initialdecree must be entered inconformity with strictnotice requirements." 598 P.2d at1095. See also section 40-7-114, MCA. If there 

### isno compliance with the notice requirements of the UCCJA by the state entering the initialdecree, Montana courts 

### are not required to recognize and enforce the out-of-state decree. Wenz, 598 P.2d at1096. Here, notice of the Wyoming hearing 

### was not given to the Raws, the persons inphysical custody of Katherine, contrary to the requirements of section 40-7-105, MCA. Under Wenz the DistrictCourt, therefore, 

### was not required torecognize or enforce the Wyoming order. The 

### last issue challenges Judge McKinnon's order placing Katherine inher grandparents' home, alleging that he acted inexcess of his jurisdiction and deprived the petitioners the custody of their minor child. Petitioners argue that the DistrictCourt's order placing Katherine with her grandparents modified the Wyoming decree. Section 40-7-115, MCA, requires the Montana courts todefer tothe courts of a statewhich firstgrants a custody decree. Under this section, Wyoming retains almost exclusive jurisdiction todetermine Katherine's custody unless Wyoming no longer has jurisdictional prerequisites substantially inaccordance with the UCCJA, or has declined to assume jurisdiction and the court of this 

### state has jurisdiction. Wenz, 598 P.2d at 1096. Since the ~yoming court has not declined to 

### assume jurisdiction, Montana courtsmust defer toWyoming's courts with respect tomodification unless those courts no longer have jurisdictionunder jurisdictional prerequisites substantially inaccordance with the UCCJA. Making thisdetermination entailsonce again consideration of the jurisdictional standards 

### set out in section 40-4-211, MCA, this

### time todecide if the Wyoming courts still have jurisdiction over Katherine. Section 40-7-103(5), MCA, defines "home state" as 

# ".

. . the stateinwhich the child, immediately preceding the 

### time involved, lived with his parents 

# . . . for 

### atleast 6 consecutive months 

# . . ." Under section 40-4-211 

### (1) (a)

### (i) 

## , MCA, 

### state courts have jurisdiction over children if the 

### state 

### is the child's home state. Reading these two sections together, the facts here show that the Wyoming courts 

### retained jurisdiction over Katherine under the UCCJA. The 

### District Court, therefore, did not have jurisdiction to modify theWyoming court's custody decree. We find that the interaction of the Interstate Compact

on Juveniles and the UCCJA places the District Court inthe following situation: the court has the authority under the Compact to deny Wyoming's requisition ordering Katherine be returned toWyoming and place Katherine in the custody of her grandparents; under the UCCJA, the court 

### isnot required torecognize or enforce the Wyoming order, but the court 

### is precluded from modifying the order. Considering the March 28 order, the District Court merely concluded that Katherine's best interestwould be served by having her inthe custody of her grandparents and ordered theWyoming requisition denied. The court did not modify theWyoming order. This procedure appears tobe allowed under the interaction of the InterstateCompact on

### Juveniles and the UCCJA. 

### Therefore, thisCourt should not set aside the District 

### Court's March 28 

### order. The petition for a writ

### of supervisory control is 

### denied.

We

### concur:

ghief Justice

Mr. 

### Chief Justice Frank I. Haswell specially concurring: I 

### concur intheresult.

# 24A-k4%- Chief Justice