No. 14784 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE APPLICATION OF 

WALT AND JUDE PIERCE. 

Appeal from: District Court 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 2 5 1978 7 - Filed: yCj25:~ - d 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Walt and Judy Pierce, parents of Katherine Frances 

Pierce, petitioned this Court for a writ of supervisory 

control or other appropriate writ to secure the custody of 

Katherine. We deny the relief requested. 

On November 29, 1978, Katherine Frances Pierce petitioned the District Court of the Tenth Judicial District, 

County of Fergus, under the provision of section 41-5-921, 

MCA, to place her with her maternal grandparents, Burton T. 

and Frances E. Raw, at Garneill, Montana. Her petition 

noted that on November 20, 1978, she ran away from her 

parental home in Powell, Wyoming. It alleged that she had 

suffered physical and mental abuse from her parents over a 

period of years, and that she desired to be 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 to Mr. and Mrs. Walter 

Pierce at Powell, Wyoming. Hearing was held on December 20, 

1978, which Mr. and Mrs. Pierce did not attend on advice of 

counsel, wherein the District Court 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 district guidance 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 the 
legal custody of her parents. The petition requested that 

an order be issued directing any peace officer or appropriate person in Montana to take Katherine Frances into custody 

and detain her. Such an order and requisition was issued by 

the Wyoming court on December 18, 1978. However, because 

they had to be processed through state offices in Helena, 

Montana, the order and requisition did not reach Fergus 

County, Montana, until sometime in January. 

Upon receipt of the order and requisition from Wyoming, 

the Honorable LeRoy L. McKinnon set a hearing date for 

January 25, 1979. At that hearing 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 to the 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 fact and 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 in the custody of her maternal grandparents in lieu of a District Youth Guidance 

Home. That hearing thereon came on regularly 

December 20, 1978; that order thereon issued 

December 27, 1978, placing said youth 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 o the Juvenile Department, and 

had not been filed with 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 to place her in an 

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 to attend 

said hearing. 

"4. That the maternal 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 in high school at Moore, 

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 in a 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 

in her parental home; that she was an unwanted 

child; that she has constantly been threatened 

with institutionalization; that she has been told 

that the minute she is eighteen, she's out of the 

house. That there is love and caring in her 

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 to enable her to present her situation 

to a Court in the State of Wyoming. 

"2. That it is not in the best interest of the 

said youth to be returned to the State of Wyoming. 

"3. That the best interests of said youth, and 

of society at large would be served by leaving 

her in the care, custody and control of Mr. and 

Mrs. Burton T. Raw, Garneill, Montana." 

Petitioners filed this petition for a writ of supervisory control to set aside the orders of Judge McKinnon 

dated December 27, 1978, and March 28, 1979, and to return 

Katherine Frances to her parents in the State of Wyoming 

pursuant to the Interstate Compact on Juveniles. 

Three contentions are set forth by petitioners: 

1. That the Honorable LeRoy L. McKinnon substituted 

his judgment for that of the judge of the demanding state, 

namely, the State of Wyoming, on what was the best interests 

of the child; 
2. hat the Honorable LeRoy L. McKinnon exceeded the 

jurisdiction bestowed upon him pursuant to the 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 in excess of the jurisdiction granted 

him. 

We first look to the factual situation faced by Judge 

McKinnon when Katherine Frances filed her petition in his 

court on November 29, 1978. Her petition revealed she had 

left her 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 in Wyoming or Montana, but was a runaway 

child. While the above statute provides for placement in a 

district youth guidance home, the fact that the Tenth Judicial District had 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 was within his discretion to have 

her placed in a state institution or an approved aftercare 

program. Because Katherine Frances was not a delinquent 

child, but one in need of a home with tender loving care, 

Judge McKinnon, in the exercise of his broad discretion, 

properly used that discretion in granting her request to be 

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 trial court's decision. We reversed, 

holding that a guardianship proceeding is not a proper means 

to terminate a parent's constitutional right to custody of 

his or her 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 will be discussed in our discussion 

of other issues raised by petitioners. Here, Katherine 

Frances filed her petition, as a youth in need of care, and 

later changed the same to request placement with her grandparents, and as of the date of hearing, November 29, 1978, 

the District Court properly assumed jurisdiction as requested. 

The second issue challenging Judge McKinnon's right to 

continue jurisdiction once he was presented with the order 

and requisition from the State of Wyoming raises several 

issues. First, it must be decided if the Interstate Compact 

on Juveniles empowers the District Court to act beyond 

refusing to return a youth to a requisitioning state pursuant to a 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 the Wyoming decree and placing Katherine in her 

grandparents' custody. 

Section 41-6-105, MCA, pertains to the first question 

presented under this issue. That section reads: 

"The courts, departments, agencies, and officers 

of this state and its subdivisions shall enforce 

this compact and shall do all things 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 all things appropriate" to 

carry out the purposes of the Compact should include the 

power to place a youth in a private home on determining the 

child should not be returned to the requisitioning state. 

Beyond the statutory language, In Re Welfare of Wiles 

(1976), 15 Wash.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 effect of the decision 

was to place the youth involved in the matter in the custody 

of her mother in Washington despite the existence of a court 

order in Oregon granting custody of the child to the State 

of Oregon. 

The second problem under this issue arises due to the 

December 18 order issued by the Wyoming court finding Walt 

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 to modify 

an out-of-state decree before entering a valid decree in 

Montana. Wenz v. Schwartze, 598 P.2d at 1093. 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 in the state 

when it is necessary to protect the child because of 

threatened mistreatment or abuse. Since the ~istrict Court 

found that to be the situation here, the court had jurisdiction over Katherine. 
Regarding the enforcement of the Wyoming decree under 

the UCCJA, the Court stated in Wenz, ". . . before the 

recognition and enforcement provisions of the Act can be 

applied, the initial decree must be entered in conformity 

with strict notice requirements." 598 P.2d at 1095. See 

also section 40-7-114, MCA. If there is no compliance with 

the notice requirements of the UCCJA by the state entering 

the initial decree, Montana courts are not required to 

recognize and enforce the out-of-state decree. Wenz, 598 

P.2d at 1096. Here, notice of the Wyoming hearing was not 

given to the Raws, the persons in physical custody of Katherine, 

contrary to the requirements of section 40-7-105, MCA. 

Under Wenz the District Court, therefore, was not required 

to recognize or enforce the Wyoming order. 

The last issue challenges Judge McKinnon's order placing 

Katherine in her grandparents' home, alleging that he acted 

in excess of his jurisdiction and deprived the petitioners 

the custody of their minor child. 

Petitioners argue that the District Court's order 

placing Katherine with her grandparents modified the Wyoming 

decree. Section 40-7-115, MCA, requires the Montana courts 

to defer to the courts of a state which first grants a 

custody decree. Under this section, Wyoming retains almost 

exclusive jurisdiction to determine Katherine's custody 

unless Wyoming no longer has jurisdictional prerequisites 

substantially in accordance 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 

courts must defer to Wyoming's courts with respect to modification unless those courts no longer have jurisdiction 
under jurisdictional prerequisites substantially in accordance 

with the UCCJA. Making this determination entails once 

again consideration of the jurisdictional standards set out 

in section 40-4-211, MCA, this time to decide if the Wyoming 

courts still have jurisdiction over Katherine. 

Section 40-7-103(5), MCA, defines "home state" as 

". . . the state in which the child, immediately preceding 

the time involved, lived with his parents . . . for at least 

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 the Wyoming court's custody decree. 

We find that the interaction of the Interstate Compact 

on Juveniles and the UCCJA places the District Court in the 

following situation: the court has the authority under the 

Compact to deny Wyoming's requisition ordering Katherine be 

returned to Wyoming and place Katherine in the custody of 

her grandparents; under the UCCJA, the court is not required 

to recognize 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 interest would be 

served by having her in the custody of her grandparents and 

ordered the Wyoming requisition denied. The court did not 

modify the Wyoming order. This procedure appears to be 

allowed under the interaction of the Interstate Compact on 
Juveniles and the UCCJA. Therefore, this Court 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 in the result. 

24A-k4%- 

Chief Justice