NO. 85-117
I N THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE FATTER OF THE GUARDIANSHIP
OF J. R. G., a minor child.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of TJincoln,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keller & German; Ann C. German, Libby, Montana
For Respondent:
David Harman, Libby, Montana
So1 & Wolfe; Michael Sol, Missoula, Montana
Submitted on briefs: July 25, 1985
Decided: October 31, 1985
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Appellant, Wanda Kill, appeals findings of fact, con-
clusions of law, and judgment of the District Court, Lincoln
County, which granted respondent's petition to terminate
appellant's guardianship of respondent's minor child and
return custody of the child to respondent.
We uphold the judgment of the District Court though we
modify its conclusions of law regarding the scope of guardi-
anship proceedings and consideration of the best interests of
the child.
Appellant raises two issues for the Court as follows:
1. Does a natural mother have to prove that the best
interests of the child will be furthered by a termination of
guardianship in a third party and return of custody to her
before the court may issue such an order?
2. Did the trial court err by failing to properly
consider the child's best interests in terminating the guard-
ianship and awarding custody of the child to his mother?'
A third issue is evident from the parties' briefs and
the District Court's conclusions. Specifically, that issue
is, "Is a guardianship proceeding a proper means to deny a
natural parent return of custody of his or her children?"
This issue will be considered in order to properly dispose of
the other issues and to clarify the law in future
proceedings.
At the hea.ring for termination of guardianship, no
court reporter was available. The parties agreed to proceed
with a tape-recorded record. The tape recorder, however, did
not function properly and much of the taped testimony was
unintelligible. Therefore, the final record comes in large
part from a bystander's memorandum prepared from the trial
judge's notes. The following facts were derived from that
record.
J.R.G. was born November 6, 1979, to Roberta and Ronald
Green. At the time of his birth, J.R.G. had a congenital leg
bone defect that caused one leg to grow faster than the
other. The natural parents' marriage was under severe stress
at this time, and the parties separated shortly after his
birth. The mother testified at the hearing that, at the
time, she was only twenty years old, not employed, had. not
grad.uated from high school and was using marijuana and alco-
hol. She also testified that she had no transportation nor
the financial means to provide access to the Shriner's Hospi-
tal in Spokane, Washington, for the child's necessary medical
care. The natural mother had no source of income and was not
receiving child support from the father. For these reasons,
the child was put under the care of Roberta's mother, Wanda
Hill.
Subsequently, Wanda Hill petitioned for guardianship of
J.R.G. Both of the natural parents consented and signed
consent to guardianship forms prepared by appellant's attor-
ney which contained the following sentence:
Believing it to be for the best inter-
ests of [J.R.G.], I do hereby give my
consent freely and voluntarily to the
guardianship, and due to circumstances
relinquish all my rights and claim to
[J.R.G.] .
The petition for guardianship recites in its paragraph 10:
10. Petitioner's and the parents' prima-
ry purpose in requesting guardianship is
to allow Petitioner to be able to con-
sent to medical treatment and operations
necessary for the wellbeing of the
minor.
The District Court appointed Wanda guardian of J.R.G. on
September 14, 1981. The child was not declared dependent or
neglected by the court.
On November 23, 1983, the District Court in Missoula
County granted a dissolution of marriage of the natural
parents and granted custody of J.R.G. to Roberta. Roberta
married Mark McKinzie in April 1984. Mark is a journeyman
electrician and has been employed continuously over the past
few years. Roberta has developed a stable family life with
Mark.
J.R.G. was in physical custody of Wanda since shortly
after birth until he spent two months during the summer of
1984 with Roberta who had. recently married Mark. This summer
visitation was arranged between Roberta and Wanda as a trial
run after Roberta had expressed her desire to regain custody
of J.R.G. in 1983.
There is conflicting testimony regarding J.R.G.'s
behavior during the time of the visitation. Wanda testified
J.R.G. did not want to stay with Roberta. Roberta and Mark
testified J.R.G. did not want to return to Wanda's home.
Wanda also testified that a leg growth spurt had occurred
during the visitation with Roberta. This spurt, according to
Wanda, was unnoticed by Roberta and was not remedied until
Wanda took J.R.G. to the Shriner's Hospital at the close of
the visit. Roberta said the sudden growth had occurred at
the end of the visitation period and that she had advised
Wanda of the problem prior to J. R. G. ' s returning to Wanda Is
home. A friend of Roberta testified that she had not noticed
any leg problems with the child during her visits to
Roberta's household during the summer. Wanda felt that the
failure of Roberta to notice the problem indicated a lack of
attention on Roberta's part and reenforced her concerns that
Roberta was not capable of caring for J.R.G. Thus, Wanda
refused to return the child to Roberta's permanent custody.
As a result of Wanda's refusal, on October 4, 1984,
Roberta petitioned. the District Court to terminate the guard-
ianship. The first hea.ring on the termination of guardian-
ship was continued at the request of Wanda so that she could
bring the natural father into the proceedings. At that time
the court awarded visitation to Roberta such that custody was
shared by the parties on alternate weeks. The final hearing
on termination of guardianship was held December 21, 1984.
The court entered its findings of fact, concl~usionsof
1a.w and judgment terminating the guardianship on January 2,
1985. The order restored the custody of the minor child to
the natural mother and directed any litigation regarding
custody or visitation between the parents and grandparents be
filed with the court having jurisdiction over the dissolution
of marriage. Wanda filed an appeal to this Court on January
35, 1985.
I
The threshold issue is whether or not a guardianship
proceeding is proper to deny custody to a natural parent. We
must deal with this issue because of the trial court's reli-
ance on our holding in Guardianship of Aschenbrenner (1979),
182 Mont. 540, 552, 597 P.2d 1156, 1164, that "a guardianship
proceeding is not a proper means to terminate a parent's
constitutional right to custody of his or her children."
While we adhere to that holding, we do not believe that it is
applicable to the instant case.
Aschenbrenner involved a situation where the paternal
grandparents attempted to take custody of a minor child away
from the natural mother by petitioning the court for award of
guardianship to the grandparents. We determined that the
mother's parental right of custody had never "been terminated
or suspended by circumstances or prior court order" as re-
quired by the language of S 72-5-222 ( I ) , MCA, before the
court may appoint a guardianship. The natural mother still
had custody, and guardianship proceedings were improper to
terminate that custody. Thus, we were compelled to reverse
the District Court's order which had granted guardianship to
the grandparents because the proper statutory procedures had
not been followed.
The instant case differs from Aschenbrenner because
there is already a properly implemented guardianship. Here,
the District Court ordered the guardianship to ensure proper
medical treatment for J.R.G. There was a hearing, and all
interested parties consented. The court determined that the
welfare and best interests of the child would be served by
the guardianship. We now hold that return of pa-rental rights
of custody can properly be denied in termination of guardian-
ship proceedings where the best interest of the child would
be served by continuance of the guardianship.
I1
We will now consider appellant's contention that a
natural- mother must prove that the best interests of the
child will be furthered by a restoration of custody and
termination of guardianship in a third party before the court
may so order. The applicable statute is § 72-5-234(1), MCA,
which provides:
Any person interested in the welfare of
a ward or the ward, if 14 or more years
of age, may petition for removal of a
guardian on the ground that removal
would be in the best interest of the
ward.
Thus, the statute expressly requires the court to consider
the best interest of the minor child before terminating a
guardianship. However, the trial court in this matter relied
on this Court's decision in Henderson v. Henderson (19771,
174 Mont. 1, 568 P.2d 177, to conclude that the "best inter-
ests" test is not applicable in the instant case. In Hender-
- we determined that the District Court had no jurisdiction
son
to take children away from their natural mother absent a
showing of abuse, dependency or neglect. Henderson, 568 P.2d
at 181. As in Aschenbrenner, Henderson deals with a situa-
tion where the third party was seeking to take custod-y away
from a natural parent without the parent's consent. As such,
Henderson is unlike and inapplicable to the instant case.
Respondent's brief relies heavily on our holding in
Matter of Guardianship of Doney (19771, 174 Mont- 282, 287,
570 P.2d 575, 578, for the proposition that the State is
entirely powerless to deprive a natural parent of the custody
of his minor children merely because a district judge might
feel that a nonparent has more financial resources or prefer-
able lifestyle. Doney, however, although superficially
similar, is also distinguishable from the instant case. In
Doney we reversed an order of the District Court denying a
natural parent's petition to terminate guardianship of his
children in a grandparent. However, we found that the order
of the District Court in Doney, though couched in temporary
custody and temporary guardianship terms, wa.s in reality a
permanent custody order. Doney, 570 P.2d at 577. The order
deprived the parent of his ability to regain custody of his
children because it was based on past occurrences which could
never change.
If a District Court were to merely refuse a natural
parent's petition to terminate a guardianship because at
present the best interests of the child dictate that the
guardianship continue, we would not be compelled to reverse
the order. In such cases the guardianship would be presumed
temporary, Doney, 570 P.2d at 577, and the natural parent
could petition the court to regain custody when the circum-
stances upon which the guardianship was created change.
We now hold that the District Court must consider the
best interests of the child as required by 5 72-5-234, MCA,
when a natural parent petitions to have a properly instituted
guardianship terminated and custody returned to the parent.
This holding is qualified by the condition that the natural
parent retain the ability to regain custody when circumstanc-
es change such that the best interests of the child would be
served by returning the child to the parent.
Up until this point this decision has ruled in favor of
the appellant on the issues of law. We do not, however,
agree with appellant that the burden was on the natural
mother to prove that the best interests of the child would be
furthered by a return of custody to her. On the contrary,
the burden was on appellant to prove that the best interest
of the child would be served by a continuation of the guardi-
anship. Tr reach this result because of the presumption in
ie
other jurisdictions, and now adopted by this Court, that the
best interest of a child is served in custody of natural
parents. Hutchinson v. Hutchinson (Utah 1982), 649 P.2d 38,
40; Doe v. Doe (1977), 92 Misc.2d 184, 399 N.Y.S.2d 977, 982;
Shorty v. Scott (1975), 87 N.M. 490, 535 ~ . 2 d1341, 1344.
Having thus determined that the best interests of the
child should have been considered by the District Court, we
now turn to the issue of whether there was reversible error
in the failure to make that consideration. We hold that
there was no reversible error.
The District Court found "no showing of any substantial
abuse, dependency or neglect of [ J . R . G I by Roberta," and that
Roberta's situation "is such that she can care for him and
provide for his needs." There is substantial evidence in the
record to support those findings. In view of these findings
of fact, appellant has not established that the best interest
of the child would be served by continuance of the
guardianship.
Therefore, the order of the District Court stands and
custody of J.R.G. is returned to the natural mother, Roberta.
We concur: