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NO. 95-243 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 IN RE A.R.A., PATRICK a minor child. ERGER, Petitioner and Respondent, v. APPEAL FROM: District Court of the Thirteenth Judicial In and for the County of Yellowstone, The Honorable Robert W. Holmstrom, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Rodd A. Hamman (argued) Calton Hamman & Wolff, For Respondent: Damon L. Anderson For and Robin A. Wolff, Billings, Montana Amicus Gannett (argued), & Liechty, Billings, Gannett, Montana Curiae: Hon. Joseph P. Mazurek, Attorney General, Patricia A. Jordan, Assistant Attorney General (argued), Helena, Montana Submitted: Decided: Filed: April June 30, 20, 1996 1996 Justice Charles This E. Erdmann delivered is an appeal District Court, Patrick J. Erger. proceedings the interest Did reasons for the awarding custody Judicial of A.R.A. to Court for opinion. Court err in awarding a natural parent Court in custody based of on the the best test? District denial of the Thirteenth as follows: over of the child 2. this District a stepparent of the Court. and remand to the District with the issues Did to County, We reverse consistent 1. child from a decision Yellowstone We restate the opinion of attorney err failing to set forth fees? FACTS Tracy A.R.A. Erger was born when A.R.A. and William to them in 1987. was nineteen was awarded custody of visitation. of (Bill) Bill Askren Tracy and Bill was ordered and Bill was given to pay child $200 per month but became delinquent moved out of rights their to telephone state full and was not extent. and saw A.R.A. able to He did, approximately reasonable Tracy rights in the amount payments. exercise however, 1983. in 1989 decree, support on those in divorced In the divorce months old. of A.R.A. were married his visitation keep in once a year Bill touch for by extended periods. Bill 1990 and Colleen's remarried were in expecting daughter 1989 to Colleen. another from a previous child marriage They had a daughter at the time also lives of with in trial. them. Colleen works Department and is as a secretary and Bill, studying Tracy Billings and In was killed will, Tracy as the up A.R.A. in ordered that A.R.A., 1992, custody under was not the the crash refused the a stepparent the child Patrick MCA. That District over a natural college the From err shortly to thereafter. 18, 1992. In her for the to Billings to physical held that in transferred came custody of custody pursuant to a hearing appropriate of Joshua, guardian. court Court interest Court moved relinquish the ISSUE Did was parent, to was father. a junior on December natural The District natural Sheriff's had a son, Patrick as A.R.A.'s surviving best County attends and Joshua an airplane Patrick Lake 1990 and they and petitioned MCA. Salt a paralegal. September Patrick Bill § 40-4-221, and in the employed, had named Patrick Bill, to not Patrick Tracy, Tracy A.R.A. become married 1992. pick while to February for on the individual matter to child test even order, Bill have though appeals. 1 in awarding parent based custody on the of the best child interest test? requested section a custody hearing pursuant to § 40-4-221, provides: Upon the death of a parent granted custody of (1) custody shall pass to the noncustodial parent a child, named in subsection unless one or more parties (2) request a custody hearing. The noncustodial parent shall be a party in any proceeding brought under this section. upon the death of a parent granted custody of (2) a child, any of the following parties may request a custody hearing and seek custody of the child: 3 he to of ibi . the . parent; surviving spouse of the deceased a person nominated by the will parent; . . i3i The hearing and determination be governed by this part. of Cc) custodial According Annotated, interest to a court of relevant to the the part 2 of shall 40, Section 40-4-212, interest deceased of custody custody best the Chapter determine child. child's Title custodial 4, shall Montana pursuant to include the the The MCA. Code best factors following: the wishes of the child's parent or parents as (a) custody; the wishes of the child as to a custodian; (b) (c) the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who may significantly affect the child's best interest; adjustment to home, school, and Cd) the child's community; the mental and physical health of all (e) individuals involved; (f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and dependency, as defined in 53-24-103, (57) chemical or chemical abuse on the part of either parent. to are rebuttable presumptions: . The following . A knowing failure to pay birth-related costs that person is able to pay is not in the best interest of the child. (b) Failure to pay child support that the person is able to pay is not in the best interest of a child in need of the child support. i4j (a) the The District between Patrick Joshua; that Court possessed changing by found and A.R.A.; Patrick's Bill; schools, that that A.R.A. parenting that therapists, there was a close was attached skills A.R.A. would and her 4 are be primary relationship to her superior adversely residence; brother to affected those by and that it was her in family unit to findings, court in right association with of both test Bill of the District The District the authority (1994), (1994), parent A statute is to be construed Holdings 813 P.2d 460, 461. that to privacy the best review MCA, for 268 Mont. using but argues of balanced interest the of the a statute to of law. Denial of App. 301, 883 P.Zd the its 298, a Court's District See correctness. 149, 151, 885 P.2d 522, 524. § 40-4-221, MCA, as giving to a stepparent the best interest according rather of the child to the plain of Revenue (1991), However, it is paramount the than a test. meaning of its v. Dept. 5 in the protected. properly 267 Mont. to award custody natural that MCA. interpreted surviving Norfolk Court are matters therefore Court his child application § 40-4-221, Babcock v. Wonnacott concedes Patrick in using and Lit. his constitutionally also by § 40-4-221, We will of child. of the abrogates is and A.R.A. Beer/Wine interpretation 40, 43, the interest interest a stepparent and right set of circumstances 835. language. best interest family interpretation Iss. in Based on these A.R.A.'s to parent liberty that to his right as directed particular court custody to parent her maintains The 833, that the court's awarding fundamental rights accustomed. use of the best that has a constitutional A.R.A.'s for determined Billings contends constitutional child she had grown in to Patrick. test Patrick she remain the award of her custody Bill Bill that interest which the warranted child best that 249 Mont. we give such construction to constitutional Mut. rights Auto. Ins. his P.2d or of (19851, We recognized parent the the as parties. 215 Mont. the her statute in 402, 406-07, rights In re preserve LaFountaine constitutional child will Doney v. State 698 P.2d Farm 410, of a natural (1977), the 413. parent 282, 174 Mont. to 570 575 This careful protection of parental rights is not legislative grace, merely a matter of but is constitutionally required. Stanley v. Illinois, 405 U.S. 645, 92 s.ct. 1208, 31 L.Ed.2d 551 (1972). II* * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyerv. Nebraska, supra [262 U.S. 3901, at 399, [43 S.Ct. 6251, 67 L.Ed. [1042], at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinner 1z Oklahoma, supra [316 U.S. at 541 162 S.Ct. 11101, 86 L.Ed. 116551, at 1660, 5351, and the Ninth Amendment, Griswoldv. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510, 522 (1965) (Goldberg, concurring) .'I Stanley, 405 U.S. at 651, 92 S.Ct. at J., at 559. 1213, 31 L.Ed.2d Doney, 570 again stressed right to 524; P.2d the the In re at 577. Pierce v. In of 1160. This of family the be with U.S. his 645, (1982), or which 92 S. Ct. cases her 201 Mont. 400, 198 Mont. 255, 406, 645 P.2d based Stanley 1213, 6 885 544, 31 L. the v. Ed. P.2d 994, at 998; 1353, 597 upon we parent's 654 P.2d includes parent. 1208, Babcock, 540, is Doney, a natural 260, 182 Mont. necessarily following of child. protection or her natural 652, of protection (1979), constitutional unit his (1982), Aschenbrenner re Pierce a line constitutional custody M.G.M. In the child's Illinois 2d 551, 1356; P.2d 1156, integrity right (1972), 559. to 405 Consequently, parent/child the state's relationship must (1979), 184 Mont. 245, 577. For reason, that dependency is transfer of Babcock, not the test only the for test rather in the than maternal 32, 34. best to interest changed party." parent does the or abuse 654 P.2d child and at 998; child that to of neglect (1982), dies. the natural child as set and 200 Mont. 194, 1979 Legislature, be used in determining , 651 P.2d standard In re C.G. the father Donev in was not test Brost stricter test and Glasgow test it interest the we held parent the best that between v. the held at in (1987), 34. We favor of 228 Mont. 1139. in the third dependency abuse, In Brost -I of However, the custody require 740 P.2d apply Brost when a custodial a of we have dependency, MCA, refused 174 Mont. Divorce to grandmother. § 40-4-221, 118, court to determine 651 P.2d custody the Donev or 1162. analysis, the at neglect, interest M.G.M., parent. Schultz 570 P.2d a surviving of the any court-ordered to best a showing at for where v. abuse, parent the upon Doney, of natural above a district forth after the 596; finding custody, 597 P.2d to 595, Therefore, natural error again 524. be used Contrary in at intrude Schultz prerequisite a relinquish Aschenbrenner, 199, N [a] to guarded. 602 P.2d from by neglect be jurisdictional 885 P.2d can 247, custody voluntarily ability 1, Act Aschenbrenner 568 P.2d (Title 40, 177, and Henderson we held Chapters that 1 and 7 the 4) v. Henderson Uniform does not (1977), Marriage and diminish the constitutionally custody of his Henderson, Uniform or her Marriage child. any showing environment that between the extent it to the termination We therefore interest While standing the district her constitutionally neglect test improper in MCA, is to provide is irrelevant to the question best interest 597 hearing, rights custody test of abuse and neglect or dependency. section absent does not give parent a finding we hold of A.R.A. that to Patrick of the fact of his or of abuse and the District based on the there or dependency on the part 8 a a nonparent a natural in view over MCA, gives that to deprive rights. to a nonparent § 40-4-221, to use of the best of abuse and neglect Accordingly, of the child of prior constitutional to award custody that dependency. in awarding parent's and In re C.G. in their protected erred rights of a § -221 petition authority Court a better MCA, is unconstitutional a custody or allegations of 885 P.2d at 524; Aschenbrenner, a finding we recognize court infringe the granting Brost 1163; interest may be able of the natural absent to request cannot 5 40-4-221, allows of the child at the an amendment to the the two in view of the constitutional overrule parent that 5 40-4-221, parent Babcock, to 597 P.2d the use of the best to in Accordingly, that parent however limited, a nonparent to custody. P.2d at 1162. a natural follows Therefore, than can a natural of custody a parent It Act, as referred test, of Aschenbrenner, and Divorce same rights. the child natural rights 568 P.2d at 181-82. upon those that protected were no of Bill. We therefore to Bill, reverse the District the natural Court and award custody of A.R.A. father. ISSUE 2 Did the District denial of attorney forth held Court reasons attorney fees that 606). findings that on a general standard of review parties' indicates parties pay their of A.R.A. resources not 463, 198 Mont. rule that forth we determine that the District awarded. 719 P.2d specific to be a more appropriate Court Court fees. of fact, 719 P.2d at 782. to award attorney as required the fact 471, we have much too harsh the District own attorney may award 51, 55, 643 P.2d to set Gallinaer, that the District Notwithstanding to Bill, error. were not 719 P.2d at 783. that information, fees and we held Gallinqer, Based on that not changed. not did In the past, failure a decision financial would but in the findings (1982), considered basis, abuse of discretion. both for court 221 Mont. a court's for MCA. (1986), remandable we later the record reasons to Bill A district why attorney Lewis v. Lewis constituted fees must indicate of Gallinger applied case, denial. or order We said However, to set forth attorney to § 40-4-110, court of law, 777, 782 (citing 604, the pursuant In re Marriage in failing denied for a district conclusions err fees? The District set Court fees In the present was informed by § 40-4-110, determined That did of MCA. that information we are granting Court is the has custody not abuse its discretion in directing the parties to in part. fees. Reversed in part and affirmed We concur: 10 -. pay their own attorney Justice James I concur separately our C. Nelson in it Henderson is decided of the and relied context Second, 1139, were address the this enunciated in correctly v. of write addressed in Henderson both 177, 282, § v. and P.2d 40-4-221, 575, MCA, 570 Matter in 1979. in those enunciated of were considered nor addressed in 200 Mont. (1982), 194, 651 P.2d 32, C.G. (1987), on the basis Donev, in 228 of of v. 551. our prior Illinois adoption While we mandated by principles 645, Brost P.2d did the 405 U.S. that, C.G. test of 740 MCA. nor interest now done 118, Brost (1972), Having Mont. § 40-4-221, neither of the best light notwithstanding not discussed remain good law, natural of were neither strictly we have exclusion I 92 S.Ct. and C.G. are overruled. Third, biological P.2d principles Glasgow Stanley 31 L.Ed.2d 2. not that 174 Mont. constitutionality in points out 568 enactment we mentioned statute 1208, 1, (1977), Paternity cases 1 and statute. decided in both point constitut-ional this of issues several to Mont. the Brost and Matter that upon here of on both fair 174 to Accordingly, the only Doney prior concurs. mention. (1977), Guardianship opinion I believe deserve First, cases our because opinion specially parents of parent's that nor attempted wherein to a natural rights. we have we seek or parent overruled to deal have with permitted obtain without custody prior I make no pretention 11 Brost other cases, which other than persons of and C.G. a child termination that this to the of the list is all-inclusive, but (1993), 260 Mont. custody of child see, under example: 859 P.2d 191, for 998 5 40-4-211, Marriage of K.E.V. awarded to non-biological estoppel; neither terminated); 207 objection on basis interest father Uniform test instant Parentage these case cases here we properly parent/child relationship proof or those invasion rights. factual here. analyze question statutory under that these of cases the while, equitable rights 273 Mont. 351, the over child of paternity Chapter 6, and similar schemes permit custody to parent absent the or MCA; rights not remain theories pf or the and/or to a person the 12 that natural in like other the scheme first the being parent(s) of paragraph on different at issue we discuss it face or begs the of other 5 40-4-221, than that termination preceding nevertheless, that, in question viable in biological there proper here, the a statutory schemes, is decisions be awarded in that decision in constitutional it legal our forfeiture to the decisions standpoint absent loss, statutory arguably, such the implicit referred and without whether (child father's 40, grounded relationship different scenarios Hence, Title and have rejected demonstration were decided of presumption from rights of The only have constitutional the Act, seek In re 1246 basis to adopt of to controls). fundamental permits P.2d natural allowed R.R.K. controls); of Adam (1995), father I mention the Paternity of entitled 883 the nor natural of 323, on (non-biological Montana's best Mont. mother's of Custody MCA; § 40-4-212 267 natural re (grandparents father and Matter 903 P.2d under (1994); In MCA, a biological being first terminated remain or to here, otherwise be fought however, addressed this the on future Obviously, battlefields. may be an area of by the to me that the law skirmishes our decision that should be legislature it those Given statutory and clarified Finally, in forfeited. instant seems case is approach we have articulated as follows: 1. Section 40-4-221, MCA, and, by implication, other statutes that allow persons other than biological parents to seek custody of a child to the exclusion of a natural parent, do no more than provide a basis for standing to file a custody petition, assuming that the petitioner meets the statutory criteria specified. her 2. In order for petition, however, been (a) via: lost neglect the (Title (i) 41, (ii) such a person the petitioner rights of the to prevail on his or must prove that: natural terminationforabuse, Chapter 3, MCA);l death parent parent(s) have dependencyor or of both natural parents (§ 40-4-221, MCA); or or the surviving natural procedure relinquished, ceased to (iii) some other statutory basis or on which parental rights have been forfeited, abandoned or terminated or have otherwise exist; and the (b) by granting best interest the petition. of the served If petitioner does or demonstrate the subparagraphs under 2(a) not above, prove then 1 the court child will will be one not of reach the 2(b) I note that our statutory and case law provide that petitions alleging abuse and neglect must be brought by the county or an attorney hired by Department attorney, the attorney general, of Health and Public Services with the consent of either of those Section 41-3-401(l), MCA; Pierce v. Pierce (19821, two officials. 645 P.2d 1353, 1357; Babcock v. Wonnacott 198 Mont. 255, 261, 268 Mont. 149, 154, 885 P.2d 522, 525. (1994), 13 (best but interest Z(b) is 2(a) Case, Bill is Justice of not, has entitled Karla the child). then not to the been petition proven custody M. Gray I~f 2 (a) joins will or - still demonstrated of his in the foregoing or demonstrated, be denied. and, In this accordingly, daughter. 14 ..,,. i s proven special concurrence.
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