12/13/2016
DA 15-0797
Case Number: DA 15-0797
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 322
IN RE THE PARENTING OF
N.M.V.,
Minor Child,
DUSTIN E. CROSS,
Petitioner and Appellant,
and
ERIN VERPLOEGEN,
Respondent and Appellee.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DR-11-21
Honorable Daniel A. Boucher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Havre, Montana
For Appellee:
Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze PLLP, Havre,
Montana
Submitted on Briefs: October 5, 2016
Decided: December 13, 2016
Filed:
/S/ ED SMITH
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Dustin E. Cross appeals from the Findings of Fact, Conclusions of Law, and Final
Visitation Plan entered by the Montana Twelfth Judicial District Court, Hill County,
awarding him visitation rights but denying him a parental interest in N.M.V., a minor
child and daughter of Cross’s former girlfriend, Erin J. Verploegen. We affirm.
ISSUE
¶2 The issue on appeal is whether the District Court abused its discretion in denying
Cross a parental interest in N.M.V.
BACKGROUND
¶3 Cross and Verploegen began dating in December 2001, less than one year after
N.M.V. was born. N.M.V.’s biological father, Roger Gonzales, has had no contact with
N.M.V. and his whereabouts are currently unknown. Verploegen and N.M.V. moved
into Cross’s Bozeman townhome in June 2003. During the time they lived together in
Bozeman, Verploegen made all critical decisions about N.M.V.’s upbringing, including
decisions about healthcare, daycare, and the everyday rules N.M.V. was to abide. Cross
worked long hours and most weekends, but he would read to N.M.V. at night and picked
her up from daycare once or twice when Verploegen was unavailable. Cross paid the rent
on the townhouse while Verploegen paid utilities and bought groceries.
¶4 In the summer of 2004, Cross bought a house in Churchill, Montana, near
Bozeman. Cross changed jobs after moving to Churchill, and claimed that he began to
play a more active role in parenting N.M.V. Cross testified that he and Verploegen
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discussed what school N.M.V. would attend. He also said he began picking up N.M.V.
from daycare more often, cooking food for her, and disciplining her. Verploegen
continued to pay for utilities and groceries after the move to Churchill, but in 2007, she
began paying an additional $500 per month in rent to Cross. From time to time,
Verploegen and Cross discussed marriage and Cross’s adoption of N.M.V., but those
talks subsided in 2009 when Cross and Verploegen broke up and Verploegen and N.M.V.
moved to Havre, Montana. In February 2011, Cross petitioned the District Court for a
parenting interest in N.M.V. pursuant to § 40-4-228(2), MCA. The District Court denied
Cross’s petition. He appeals.
STANDARD OF REVIEW
¶5 We review a district court’s findings of fact for clear error, and we will affirm
findings if they are supported by substantial credible evidence. Kulstad v. Maniaci, 2009
MT 326, ¶ 51, 352 Mont. 513, 220 P.3d 595. Ultimately, the language of § 40-4-228(2),
MCA, is permissive and a district court’s ruling is discretionary. Thus, under these
circumstances, we will overturn the district court only if it abused its discretion or if its
findings are not supported by substantial credible evidence. In re A.P.P., 2011 MT 50,
¶ 18, 359 Mont. 386, 251 P.3d 127.
DISCUSSION
¶6 Did the District Court abuse its discretion in denying Cross a parental interest in
N.M.V.?
¶7 A district court may grant a parental interest in a child to a non-parent if the
non-parent shows through clear and convincing evidence that:
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(a) the natural parent has engaged in conduct that is contrary to the
child-parent relationship; and
(b) the nonparent has established with the child a child-parent relationship,
as defined in 40-4-211, and it is in the best interests of the child to continue
that relationship.
Section 40-4-228(2), MCA. Here, the District Court denied Cross’s petition after it
determined Cross failed to show by clear and convincing evidence that Verploegen
engaged in conduct contrary to her child-parent relationship. At the same time, the
District Court found that an ongoing relationship between N.M.V. and Cross was in
N.M.V.’s best interests, and therefore awarded Cross visitation rights pursuant to
§ 40-4-228(3), MCA.
¶8 On appeal, Cross argues Verploegen ceded her parental authority to him. Cross
cites Kulstad for the proposition that ceding parental authority is conduct contrary to the
child-parent relationship. Kulstad is clearly distinguishable. Kulstad involved a
same-sex couple raising adopted children together over a period of ten years at a time
when the law allowed only one partner to be the adopting parent. Kulstad, ¶ 10. When
the Kulstad couple adopted their children, they intended that both partners would be
co-parents. Both partners exercised equal rights and bore equal responsibilities in raising
the children, and this dynamic was confirmed by social workers involved in the adoption
process. When the couple split, the district court awarded a parental interest to the
partner not named in the adoption papers over the objection of Maniaci, the adopting
parent. We affirmed, stating:
The District Court has discretionary authority to determine that a parent
acted contrary to her child-parent relationship when substantial credible
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evidence supports its findings. Substantial credible evidence in the record
supports the District Court’s determination that Maniaci repeatedly and
continually acted contrary to her child-parent relationship.
Kulstad, ¶ 78 (citation omitted).
¶9 Kulstad illustrates the fact-intensive nature of a district court’s analysis under
§ 40-4-228(2), MCA. Here, substantial credible evidence supports the District Court’s
finding that Verploegen did not cede her parenting authority to Cross, and thus did not
engage in conduct contrary to her child-parent relationship. Neither Cross nor
Verploegen entered their relationship with the intent that he would be considered a
co-parent. Verploegen retained decision-making authority in all matters relating to
N.M.V.’s care, and paid for her diapers, clothes, and daycare. After the move to
Churchill, Verploegen assumed more of the expenses by paying rent to Cross, in addition
to the cost of utilities and groceries. While Cross may have spent more time with N.M.V.
after the move, he never assumed an equal parenting role or equal responsibility with
Verploegen in raising N.M.V., as was the case in Kulstad. We therefore conclude the
District Court did not abuse its discretion in finding Cross failed to satisfy one of the
requirements of § 40-4-228(2), MCA, and in denying Cross’s petition.
¶10 Even though the District Court found Verploegen had not acted contrary to her
child-parent relationship with N.M.V., Cross argues that Gonzales had clearly satisfied
that requirement of § 40-4-228(2), MCA. While we agree that Gonzales’s absence is
contrary to his child-parent relationship with N.M.V., his relationship is not at stake here.
The only parent affected by the present proceeding is Verploegen, who has been
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N.M.V.’s sole custodial parent. We therefore conclude that Verploegen is “the natural
parent” to be scrutinized under § 40-4-228(2)(a), MCA, and decline Cross’s
interpretation of the statute.
¶11 Finally, we conclude that there was sufficient evidence to support the District
Court’s determination that it was in N.M.V.’s best interests to award Cross visitation
rights with N.M.V. See § 40-4-228(3), MCA. Verploegen has agreed this visitation is in
N.M.V.’s best interests, so we need not address Cross’s visitation rights further.
CONCLUSION
¶12 Because the District Court’s findings of fact were not clearly erroneous and its
ruling on Cross’s parental interest was supported by substantial credible evidence and
was not an abuse of discretion, we affirm.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
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