No. 13813
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
IN THE MATTER OF THE GUARDIANSHIP
OF DeAUNA D. DONEY and TERRENCE R. DONEY,
Minors.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable Frank E. Blair, Judge presiding.
Counsel of Record:
For Appellant:
Berg, Angel, Andriolo and Morgan, Bozeman, Montana
Gregory Morgan argued, Bozeman, Montana
For Respondent:
Bolinger and Wellcome, Bozeman, Montana
H. A. Bolinger argued, Bozeman, Montana
Submitted: September 16, 1977
Decided: O C T 1 4 1n
9
Filed:
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Clerk
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
Petitioner, Waide Lewis Doney, appeals from an order of
the district court, Gallatin County, denying his petition to
terminate respondent's guardianship of petitioner's two minor
children, and maintaining custody of the children in respon-
dent "until the further or other order of the court".
Petitioner is the natural father of DeAuna Doney, born
March 13, 1974, and Terrence Doney, born July 17, 1975, Petitioner
married the children's mother,Leah Doney, on October 26, 1969.
Leah Doney was killed in an auto accident on September 28, 1976.
Petitioner testified that he was confused after his wife's
death and determined that it would be best for the children if
they stayed with Leila Wallace, his deceased wife's sister, for
about two months while he composed himself and prepared to take
the children into his home. On October 8, 1976, petitioner met
with respondent Leila Wallace, respondent's brother and her lawyer,
and signed guardianship papers, giving his consent to give tem-
porary custody of the children to Leila Wallace. Petitioner was
not represented by counsel at this meeting. The stated under-
standing of petitioner, respondent, and respondent's lawyer was
that petitioner would consent to the guardianship for the sole
purpose of allowing respondent Leila Wallace to authorize hospi-
tal and medical care for the children in petitioner's absence.
Petitioner told respondent's lawyer that he did not want to give
up his custodial rights and that it would not be more than two
months before he would be ready to make a home for the children.
On October 12, 1976, the district court appointed respondent as
guardian of the children.
Petitioner married his present wife, Janice, on February
3, 1977. Prior to their marriage they visited the children at
respondent Leila Wallace's home in mid-October, early November,
and late November, 1976. On their final visit, petitioner re-
quested custody of the children and respondent refused.
On January 14, 1977, petitioner filed a motion to show
cause why the guardianship should not be terminated. At the
hearing on the motion to show cause, respondent presented no
evidence to show that the children were dependent and neglected
(section 10-1301, R.C.M. 1947) while in the custody of petitioner.
Respondent did present evidence that petitioner was $4,500 in
debt, that petitioner had contemplated bankruptcy, that petitioner
and his present wife had lived together before his former wife's
death, and that petitioner and his wife lived in a one-bedroom
house that would be quite cramped with the addition of two children.
Petitioner presented evidence that he and his wife loved
and wanted to raise the children, that he earned $800 per month,
that they planned to either build another bedroom onto the house
or move to a larger home, that his little girl felt much affec-
tion and love for him, and that respondent Leila Wallace was try-
ing to make the children think that she and her husband were
their true parents.
The judge refused to terminate the guardianship. He based
his decision on petitioner's "disgraceful relationship * * * absent
benefit of clergy or civil rite" with his present wife before their
marriage, petitioner's failure to substantially contribute to his
children's support after September, 1975 (refuted by the evidence
at the hearing), and on the good care that the children received
while in respondent's custody. The court further noted that it
did not deem Waide Doney to be a fit and proper custodian. Pe-
titioner appealed the district court's ruling to this Court.
The issue presented on appeal is whether a natural parent
may be deprived of custody of his children absent a finding of
dependency, abuse or neglect.
Surrender of custody of a minor child by a parent is pre-
sumed to be temporary unless the contrary is made to appear.
State ex rel. Lessley v. District Court, 132 Mont. 357, 318 P.2d
571 (1957). There is no evidence in this case to rebut that
presumption. Rather, it is undisputed that petitioner signed the
guardianship papers solely to allow respondent to consent to the
children's medical care. Petitioner stated that he thought that
he would be ready to take custody of the children within two
months of his wife's death. This he attempted to do, but respon-
dent refused to return custody of the children to petitioner.
The order of the district court, though couched in tem-
porary custody and temporary guardianship terms, is tantamount to
a permanent custody order. The district court based its order on
findings that petitioner had in the past failed to substantially
support his children, that petitioner had carried on a disgraceful
extramarital affair, that respondent provided a good home. None
of these are factors which petitioner can in the future change.
The court further found petitioner "not a fit and proper person"
to have custody of the children. At the most, the evidence
revealed petitioner to be financially troubled, but genuinely
concerned about providing a stable and loving home for his children.
Where a child has allegedly been abused or neglected by
his natural parent, the state has a clear duty to protect the
child by means of a judicial hearing to determine whether the
youth is in fact abused or neglected. There are, however, few
invasions by the state into the privacy of the individual that are
more extreme than that of depriving a natural parent of the cus-
tody of his children. For this reason, the legislature carefully
enunciated the procedures the state must follow and the findings
which the court must make before custody of a child may legally
be taken from his natural parent. A judicial hearing and finding
of dependency and neglect under Title 10, Chapter 13, R.C.M.
1947, or judicial finding of willful abandonment or willful
nonsupport under section 61-205, R.C.M. 1947, are the exclusive
means by which a natural parent may be involuntarily deprived
of custody of his children. In the absence of such showing,
the natural parent is legally entitled to the custody of his
minor children. Section 61-105, R.C.M. 1947.
This careful protection of parental rights is not merely
a matter of legislative grace, but is constitutionally required.
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L ed 2d 551
(1972). " * * * The integrity of the family unit has found pro-
tection in the Due Process Clause of the Fourteenth Amendment,
Meyer v. Nebraska, supra at 399, 67 L.Ed at 1045, the Equal Pro-
tection Clause of the Fourteenth Amendment, Skinner v. Oklahoma,
supra at 541, 86 L.Ed at 1660, and the Ninth Amendment, Griswold
v. Connecticut, 381 U.S. 479, 496, 14 L Ed 2d 510, 522, 85 S.Ct.
1678 (1965) (Goldberg, J., concurring)." Stanley, 31 L ed 2d at
559.
The judgment of the district court in this case must be
reversed, and custody of the children returned to petitioner,
since there was no showing under Title 10, Chapter 13 that the
children were abused or neglected. Nor may the district court
indefinitely deprive petitioner of the custody of his children by
means of the subterfuge of a guardianship which has outlived the
purposes for which it was created.
Respondent argues that the best interests of the children
dictate that she, rather than the children's natural father, re-
tain custody. Respondent cites Foss v. Leifer, Mont .- c
550 P.2d 1309, 1311, 33 St.Rep. 528 (1976) for the proposition
that " * * * the lodestar of the district court in exercise of its
discretion is the welfare and best interests of the child, and
not the parent." This "best interests of the child" test, however,
is used only after a showing of dependency or abuse or neglect
by the natural parent, as defined in section 10-1301, R.C.M.
1947, or in custody disputes between two natural parents. In re
Declaring Fish a Dependent and Neglected Child, Mont . I
P.2d , 34 St.Rep. 1080 (1977); Henderson v. Henderson,
Mont .--
1
P.2d , 34 St.Rep. 942, (1977); See, August
v. Burns, 79 Mont. 198, 255 P. 737 (1927). Without the required
statutory showing that petitioner had abused or neglected his
children, the district court under the facts of this case had no
jurisdiction deprive the natural father their custody.
The state is entirely powerless to deprive a natural parent of the
custody of his minor children merely because a district judge or
a state agency might feel that a nonparent has more financial
resources or pursues a "preferable" lifestyle.
"Manifestly, the expression 'welfare of the
child' was never intended to penalize a parent
because he may not be financially able to pro-
vide his child with the comforts and advantages
which more fortunate parents may provide for
their children. All the law requires is that
the parent be honest and respectable, with
disposition and capacity to maintain and edu-
cate his child." Ex Parte Bourquin, 88 Mont.
118, 124, 290 P. 250 (1930).
The judgment of the district court is reversed and custody
of the children is ordered to be returned to petitioner.
We concur:
Chief Justice
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Justices /