No. 81-571
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
BOYD KELLY BROST,
Petitioner and Appellant,
VS .
'VV'APJETA P. GLASGGW,
Respondent and Respondent.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable Diane G. Barz, Judge presiding.
Counsel of Record:
For Appellant:
Berger, Sinclair and Neison, Billings, Montana
E o Respondent:
'r
Olsen, Christensen & Gannett, Billings, Montana
Submitted on briefs: June 10, 1982
Decided: September 3, 1982
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Boyd Kelly Brost, the natural father of two minor children,
petitioned the Thirteenth Judicial District Court, Yellowstone
County, to issue a writ of habeas corpus and remove the children
from the physical custody of Waneta Glasgow, their maternal
grandmother. Thereafter, the grandmother and her second
husband petitioned to adopt the children. The two actions
were consolidated by stipulation of the parties. A hearing
was held and the court determined that it was in the best
interests of the children that the grandmother be awarded
custody. The adoption petition was dismissed for lack of
jurisdiction. Both the natural father and the grandmother
appeal.
We affirm.
The following issues are presented for review:
(1) Whether the District Court lacked jurisdiction to
award custody to the grandmother without first terminating
the natural father's parental rights.
(2) Whether the District Court erred in dismissing the
grandmother's petition for adoption because of lack of
jurisdiction.
Boyd Kelly Brost and Waneta Diane Workman were married
in Lovell, Wyoming, in 1974. At the time of the marriage
both Kelly and Diane were sixteen years of age. A daughter
was born on September 3, 1974, and a son was born on October
5, 1977.
Shortly after the birth of their first child, Kelly and
Diane moved into the quarters where Waneta Glasgow and her
former husband, Mr. Workman, were living. They remained
there approximately three months. During the remainder of
the marriage, Kelly worked at numerous seasonal jobs and the
couple lived in several towns in northern Wyoming.
Kelly and Diane separated in the fall of 1977. After
the separation, Diane initially resided with Kelly's parents.
In August of 1977, Mrs. Glasgow married James M. Glasgow.
The couple moved from Powell, Wyoming, to Laurel, Montana.
In late February of 1978, Diane and the two children moved
to Laurel. Kelly and Diane were divorced on June 5, 1978,
and Diane was awarded care and custody of the children.
Kelly remarried in September of 1978. From January of
1979 until June of 1979, he was without steady employment
and failed to make child support payments. In June of 1979,
he secured employment as a salesman for Hydro-Chem in Crowley,
Wyoming. Kelly could not produce any records to substantiate
his claims that he paid Diane monies for support of the
children for anytime from the date of his separation until
October of 1979. Diane received Aid to Dependent Children
payments and Medicaid assistance from the County Welfare
Department of Yellowstone County, Montana, from May 1978,
until October 1979.
On October 14, 1979, Diane was found dead in her home
following an epileptic seizure. Mrs. Glasgow immediately
took the children into her home. Kelly first learned of the
death of Diane on October 15, 1979, and traveled to Laurel
the following day to get his children. Mrs. Glasgow refused
to turn the children over to Kelly.
On October 24, 1979, Kelly filed a petition seeking a
writ of habeas corpus. The petition requested that the
District Court restore the custody of the children to Kelly.
Mrs. Glasgow responded requesting that the children remain in
her custody. On October 25, 1979, Mrs. Glasgow and her
husband filed a petition for adoption, seeking to adopt the
children. On November 9, 1979, and Xovember 13, 1979, hearings
were held. The District Court denied Kelly's petition for a
writ of habeas corpus and dismissed Mrs. Glasgow's petition
for laclc of jurisdiction. The District Court also determined
that it would be in the best interests of the children that
care, custody and control of the children be awarded to the
grandmother and her husband.
Did the District Court lack jurisdiction to award
custody to the grandmother without first terminating the
natural father's parental rights?
Section 40-4-221, MCA, provides:
"Determination of custody upon death of
custodial parent. (1) Upon the death of a
parent granted custody of a child, custody shall
pass to the noncustodial parent unless one or
more parties named in subsection (2) request
a custody hearing. The noncustodial parent
shall be a party in any proceeding brought under
this section.
" ( 2 ) Upon the death of a parent granted custody
of a child, any of the following parties may
request a custody hearing and seek custody of
the child:
"(a) the noncustodial natural parent;
" (b) the surviving spouse of the deceased
custodial parent;
"(c) a person nominated by the will of the
deceased custodial parent;
"(dl any person nominated by the child if the
child is at least 12 years old;
"(e) any other person if that person has actual
physical control over the child;
"(f) any other party whom, upon showing of good
cause, the court permits to intervene as an in-
terested party.
" ( 3 ) The hearing and determination of custody
shall be governed by this part."
Under the terms of this statute, upon the death of
Diane, the parent to whom custody was granted, custody
"shall pass" to Kelly, the noncustodial parent, unless one
of the parties named requests a custody hearing. Here, upon
Diane's death, Mrs. Glasgow took the children to her home
and refused to give the children to Kelly when he requested
them notwithstanding the foregoing statutory provisions.
Under the statute, Kelly properly could have retained custody
of the children unless a custody hearing was requested. In
addition, Kelly also could have requested a custody hearing.
Kelly filed a petition for a writ of habeas corpus seeking
custody of the children. The District Court treated this
petition as a request for a custody hearing. Nearly twenty
witnesses testified including Kelly, Mrs. Glasgow, the
supervisor of the Yellowstone County Welfare Department, and
a psychologist. Based upon several findings of fact, the
~istrict'courtin conclusion of law I11 held "that it is in
the best interests of the children to be placed in the care,
custody and control of the maternal grandparents, namely,
Waneta P. and James N. Glasgow."
Kelly argues that the District Court erred in applying
the "best interests of the child" test in the instant case.
He cites several cases which have held that the "best interest"
test applies only to custody cases between two parents and
that if a non-parent wants to acquire custody, he must
proceed under far more stringent standards for intervention.
Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177; In
the Matter of Guardianship of Aschenbrenner (19791,
Mont . , 597 P.26 1156, 36 St.Rep. 1282; In the Matter of
Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575.
Section 40-4-221, MCA, "Determination of custody upon
death of custodial parent" was enacted by the 1979 Montana
legislature. Subsection (3) provides that " [t] hearing
he
and determination of custody shall be governed by this
+-
part." Title 40, pas-& Y,, includes section 40-4-212, MCA,
Chapter.
which provides:
"Best interest of child. The court shall
determine custody in accordance with the best
interest of the child. The court shall con-
sider all relevant factors including:
"(1) the wishes of the child's parent or
parents as to his custody;
" (2) the wishes of the child as to his cus-
todian;
"(3) the interaction and interrelationship
of the child with his parent or parents, his
siblings, and any other person who may signi-
ficantly affect the child's best interest;
" (4) the child's adjustment to his home,
school, and community; and
" ( 5 ) the mental and physical health of all
individuals involved."
The findings of fact supported by the record, indicate that
at the time of the hearing, it was in the best interests of
the children to remain with their grandmother.
We hold that in custody hearings resulting after the
death of the custodial parent as provided for in section 40-
4-221, MCA, it is not error for the District Court to apply
the "best interest of the child" test in determining custody
between the natural father and the maternal grandmother.
Did the District Court err in dismissing the grandmother's
petition for adoption because of lack of jurisdiction?
Sections 40-8-101, et seq., MCA, set forth the statutory
procedures and requirements that must be observed in Montana
in accompanying the valid adoption of children. Section
40-8-104, MCA (1979) (amended 1981), which was in effect at
the time of the hearings, defined who may be adopted, and
provided as follows:
"Who- -be a d o p t e d . Any c h i l d p r e s e n t
- may
within t h i s state a t the t i m e the p e t i t i o n
f o r a d o p t i o n i s f i l e d , i r r e s p e c t i v e of
p l a c e o f b i r t h o r p l a c e o f r e s i d e n c e , may
be a d o p t e d . "
S e c t i o n 40-8-106, MCA, s e t s f o r t h a d e s c r i p t i o n of t h o s e
p e r s o n s whc a r e e l i g i b l e t o a d o p t and p r o v i d e s :
"Who may a d o p t . The f o l l o w i n g p e r s o n s a r e
e i i g i E E t o adopt a c h i l d :
" ( 1 ) a husband and w i f e j o i n t l y o r e i t h e r
t h e husband o r w i f e i f t h e o t h e r s p o u s e i s
t h e parent of t h e c h i l d ;
"(2) an unmarried p e r s o n who i s a t l e a s t 18
years old;
" ( 3 ) a m a r r i e d p e r s o n a t l e a s t 18 y e a r s o l d
who i s l e g a l l y s e p a r a t e d from t h e o t h e r s p o u s e ;
"(4) i n t h e c a s e of a n i l l e g i t i m a t e c h i l d ,
i t s unmarried f a t h e r o r mother."
S e c t i o n 40-8-111, MCA (1979) (amended 1 9 8 1 ) , d e a l s w i t h
t h e s u b j e c t of c o n s e n t r e q u i r e d i n an a d o p t i o n and i s s e t
f o r t h , i n p a r t , a s it provided a t t h e t i m e of t h e hearings:
"Consent r e q u i r e d f o r a d o p t i o n . (1) An
a d o p t i o n o f a c h i l d may be d e c r e e d when t h e r e
have been f i l e d w r i t t e n c o n s e n t s t o a d o p t i o n
e x e c u t e d by:
" ( a ) both parents, i f l i v i n g , o r t h e surviving
p a r e n t of a c h i l d , provided t h a t consent i s n o t
r e q u i r e d from a f a t h e r o r mother:
" ( i ) adjudged g u i l t y by a c o u r t o f competent
j u r i s d i c t i o n of p h y s i c a l c r u e l t y toward t h e
child;
" ( i i ) who h a s been j u d i c i a l l y d e p r i v e d o f t h e
c u s t o d y o f t h e c h i l d on a c c o u n t o f c r u e l t y o r
n e g l e c t toward t h e c h i l d ;
" ( i i i ) who h a s , i n t h e s t a t e o f Montana o r i n
any o t h e r s t a t e of t h e U n i t e d S t a t e s , w i l l f u l l y
abandoned t h e c h i l d ;
" ( i v ) who h a s caused t h e c h i l d t o be m a i n t a i n e d
by any p u b l i c o r p r i v a t e c h i l d r e n ' s i n s t i t u t i o n ,
c h a r i t a b l e agency, o r any l i c e n s e d a d o p t i o n
agency o r t h e department o f s o c i a l and r e h a b i l i t a -
t i o n s e r v i c e s o f t h e s t a t e of Montana f o r a
period of 1 year without c o n t r i b u t i n g t o t h e
s u p p o r t of t h e c h i l d d u r i n g s a i d p e r i o d , i f a b l e ;
" ( v ) i f it i s proven t o t h e s a t i s f a c t i o n o f t h e
c o u r t t h a t t h e f a t h e r o r mother, i f a b l e , h a s
n o t c o n t r i b u t e d t o t h e s u p p o r t of t h e c h i l d
d u r i n g a p e r i o d o f 1 y e a r b e f o r e t h e f i l i n g of
a p e t i t i o n f o r adoption; o r
" ( v i ) whose p a r e n t a l r i g h t s have been j u d i c i a l l y
terminated;"
The f i n d i n g s of f a c t , c o n c l u s i o n s o f law and o r d e r
which w e r e e n t e r e d by t h e D i s t r i c t C o u r t on December 1 3 ,
1979, s t a t e i n p e r t i n e n t p a r t a s f o l l o w s :
" F i n d i n g s of F a c t
"That between F e b r u a r y , 1978, and O c t o b e r , 1979,
t h e s a i d BOYD KELLY BROST d i d n o t p r o v i d e sup-
p o r t t o t h e minor c h i l d r e n ; t h a t s i n c e J u n e ,
1978, s a i d BOYD KELLY BROST h a s n o t p r o v i d e d
s u p p o r t a s p r o v i d e d by t h e Wyoming d e c r e e ; and
t h a t when s a i d BOYD KELLY BROST was working
and c a p a b l e of p r o v i d i n g s u p p o r t , he f a i l e d
t o do s o f o r one (1) y e a r o r more.
"That t h e s a i d Waneta Diane B r o s t r e c e i v e d
Aid t o Dependent C h i l d r e n f o r t h e minor c h i l -
d r e n from t h e S t a t e of Wyoming and Montana
d u r i n g t h e p e r i o d between December, 1977, and
October, 1979; and t h a t t h e r e c o r d s of t h e
Yellowstone County Welfare Department do n o t
i n d i c a t e s a i d BOYD KELLY BROST c o n t r i b u t e d t o
t h e s u p p o r t of t h e minor c h i l d r e n .
" C o n c l u s i o n s of Law
" T h a t t h e s a i d Boyd K e l l y B r o s t h a s f a i l e d
t o s u p p o r t t h e two minor c h i l d r e n f o r a
p e r i o d o f more t h a n one y e a r and h a s n o t m e t
t h e minimum s t a n d a r d s o f p a r e n t h o o d and g e n e r -
a l l y n e g l e c t e d s a i d two minor c h i l d r e n .
"That the Petition for adoption by Waneta P.
Glasgow and James M. Glasgow be dismissed because
in the Court's judgment there is no jurisdic-
tion nor appropriate proceeding to consider
same at this time."
Conclusion of law I1 finds that Kelly neglected the
children. Section 40-8-111 (1)(a)(ii), MCA (1979), provided
that consent is not needed from a parent "who has been
judicially deprived of the custody of the child on account
of . . . neglect toward the child." In the Matter of the
Guardianship of Doney (1977), 174 Mont. 282, 286, 570 P.2d
575, 577, this Court held that a determination of neglect
should be made in a proceeding under section 10-1301, R.C.M.
1947 [now section 41-3-101, MCA], which requires a petition
filed by a county attorney alleging neglect. The District
Court's conclusion at the custody hearing that Kelly neglected
his children is not sufficient to invoke section 40-8-
111 (1)(a)(ii), MCA (1979), excusing the need for Kelly's
consent to adoption.
The District Court found that the children received aid
from the Yellowstone County Welfare Department and that for
the one year period prior to the filing of the petition,
Kelly had failed to support the children during the periods
he was working and capable of providing support. Mrs.
Glasgow argues that either of these findings does away with
the need for Kelly's consent to adoption under sections 40-
8-111 (1)(a)(iv) and (v), MCA (1979) .
The Commissioners' Note for section 40-8-111, MCA
annot., "Consent required for adoption," provides:
"It is the theory of this act that the adop-
tion proceedings should be based on consent.
Only then can the adoption court devote its
entire attention to the inquiry whether the
adoptive home will serve the best interests
of the child and whether the child is properly
placed in the adoptive home.
"Under this theory controversies respecting
the termination of parental rights should be
settled in other proceedings in a court with
jurisdiction of the parties before the adop-
tion proceedings are brought. Once the par-
ental rights are terminated the adoption court
in the adoption proceedings has no other func-
tion in this respect except to recognize that
the parental rights have been legally termin-
ated by consent or by the order of a court
of competent jurisdiction, followed by consent
of a person, agency or court having authority
to consent.
"The issues to be tried in a controversy over
the termination of parental rights, ie., the
degree of unfitness of a parent, are quite
different than the inquiry properly before an
adoption court. The two should not be mixed.
The trial of controversial issues over par-
ental rights should not cast an influence in
the adoption proceedings where the sole inquiry
should be the future best interests of the child."
The 1981 legislature's amendment to section 40-8-111,
MCA, is consistent with the Commissioners' Note emphasizing
separate proceedings. The current section 40-8-111, MCA,
provides, in part:
"(1) An adoption of child may be decreed when
there have been filed written consents to adop-
tion executed by:
"(a) both parents, if living, or the surviving
parent of a child, provided that consent is not
required from a father or mother:
"(i) adjudged guilty by a court of competent
jurisdiction of assault on the child, as provi-
ded in 45-5-201; endangering the welfare of
children, concerning the child, as provided in
45-5-622; or sexual abuse of children, toward
the child, as provided in 45-5-625;
"(ii) who has been judicially deprived of
the custody of the child on account of cruelty
or neglect toward the child;
"(iii) who has, in the state of Montana or
in any other state of the United States, will-
fully abandoned the child, as defined in 41-
3-102 (3)(d);
" (iv) who has caused the child to be maintain-
ed by any public or private children's institu-
tion, charitable agency, or any licensed adoption
agency or the department of social and re-
habilitation services of the state of Montana
for a period of 1 year without contributing
to the support of the child during said period,
if able;
" ( v ) if it is proven to the satisfaction of
the court that the father or mother, if able,
has not contributed to the support of the child
during a period of 1 year before the filing of
a petition for adoption; or
"(vi) whose parental rights have been judicially
terminated;"
The statute now requires findings separate from the adoption
proceeding before excusing the consent requirement of the
parents.
This is also consistent with In the Matter of Adoption
of T.G.K. (1981), Mont . -- , 630 P.2d 740, 38 St.Rep.
1030, where a stepfather attempted to adopt a child claiming
natural father's consent was not needed because the child
was maintained by a public or private children's institution.
Section 40-8-111 (1)(a)(iv), MCA. The District Court dismissed
the adoption petition because the father's consent had not
been obtained. In affirming the lower court, this Court
stated: "If the appellant wishes to use this statutory
exception to consent, the petition should be drafted on that
basis and a specific hearing held thereon to determine its
applicability." T.G.K., 630 P.2d at 743, 38 St.Rep. at
1033. Mrs. Glasgow did not allege the welfare payments
received by the children as a grounds for excusing the
consent of Kelly's requirement. There was no hearing to
determine if there were any grounds for excusing the consent
requirement prior to the hearing requesting the adoption.
It is the holding of this Court that the trial court's
dismissal of the petition for adoption "because in the
court's judgment there is no jurisdiction nor appropriate
proceeding to consider same at this time" was proper. The
father had not given his consent nor had a specific hearing
been held to determine if the consent requirement could be
waived.
We affirm.
We Concur:
Chief Justice