NO. 93-430
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
JOHN BABCOCK,
Plaintiff and Appellant, NOV 29 1994
v.
LISA LYNN WONNACOTT,
Defendant and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel R. Sweeney, Attorney at Law,
Butte, Montana
For Respondent:
Lisa Lynn Wonnacott, Pro Se,
Butte, Montana
Submitted on Briefs: September 1, 1994
Decided: November 29, 1994
Filed:
I
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant John Babcock appeals from an order of the Second
Judicial District Court, Silver Bow County, granting temporary
custody of his minor child, B.B., to a maternal great aunt.
Reversed and remanded.
We state the issue as follows:
Did the District Court err in granting temporary custody of a
minor child to a maternal great aunt during a modification of
custody proceeding between the biological mother who had been
granted physical and legal custody of the child at dissolution, but
who, at the time of the hearing, was in the Montana State Prison,
and the biological father who was granted visitation rights by the
court in the dissolution, and who now had custody of the child?
On October 31, 1991, B.B. was born to appellant John Babcock
and respondent Lisa Wonnocott, an unmarried couple living together.
After the couple separated, appellant filed a motion to establish
paternity and to request temporary custody. On April 15, 1992, the
court entered an order establishing appellant as the natural father
of B.B. The court granted respondent legal and physical custody of
B.B., with visitation rights granted to appellant.
In June 1993, respondent was convicted of felony forgery and
sentenced to a term of five years, with one year suspended, to be
served at the Women's Correctional Facility in Warm Springs. The
Montana Department of Social and Rehabilitation Services had
custody of the child and turned that custody over to appellant. In
an effort to gain permanent custody of B. B., appellant filed a
2
motion on July 12, 1993, to modify the April 15, 1992, order which
granted respondent full custody of B.B. The court ordered
respondent to show cause why appellant's motion to modify should
not be granted. A hearing on the show cause order was held on
August 6, 1993. In addition to other witnesses, B.B.'s maternal
great aunt gave testimony concerning her employment, the number of
bedrooms in her home, her relationship with B.B., her perceptions
of B.B.'s physical and emotional condition, her relationship with
appellant, her care of B.B.'s halg-brother, and her willingness to
assume temporary custody of B.B.
On August 12, 1993, the court issued its findings of fact,
conclusions of law, and order. The court found that it was in the
best interest of B.B. that he remain in the legal custody of
respondent, but placed in the temporary custody of his great aunt.
The court concluded that the environment provided for B.B. by
appellant seriously endangered B.B.'s emotional health. The court
then ordered that B.B. be placed in the temporary custody of his
great aunt while respondent served the remainder of her sentence.
Appellant was granted week-day visitation rights to allow B.B. to
visit respondent on weekends. Appellant appeals the court's order.
Did the District Court err in granting temporary custody of a
minor child to a maternal great aunt during a modification of
custody proceeding between the biological mother who had been
granted physical and legal custody of the child at dissolution, but
who, at the time of the hearing, was in the Montana State Prison,
and the biological father who was granted visitation rights by the
court in the dissolution, and who now had custody of the child?
This Court will review a district court's conclusions of law
to determine whether the district court's interpretation of the law
was correct. In re Marriage of Schara (Mont. 1994), 878 P.2d 908,
910, 51 St. Rep. 676, 677; In re Marriage of Barnard (1994), 264
Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage of Burris
(1993), 258 Mont. 265, 269, 852 P.2d 616, 619).
Respondent is unable to care for B.B. during her
incarceration, therefore, appellant is entitled to custody under
5 40-6-221, MCA, which provides that:
The father and mother of an unmarried minor child are
equally entitled to the custody, services, and earnings
of the child. If either parent be dead or unable or
refuses to take the custody or has abandoned his or her
family, the other is entitled to the custody ...
of the
child ....
We have held that the right of a parent to custody of his or
her child is a fundamental, constitutional right. In re
Guardianship of Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d
1156, 1160; Matter of Guardianship of Doney (1977), 174 Mont. 282,
288, 570 P.2d 575, 577. This constitutionally protected right is
not weakened by the fact that a child is born out of wedlock.
Matter of M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998.
The district court is powerless to deprive a natural parent of
custody of a minor child because it determines that a non-parent
enjoys more financial resources or leads a more preferable life-
style than does the parent. Donev, 570 P.2d at 576. Any showing
that the great aunt might have been able to provide a better
environment for B. B. was irrelevant to the question of custody, as
between appellant and respondent, in view of the statutory and
constitutional rights of a parent to custody.
It has long been the law in Montana that where a third party
seeks custody to the exclusion of a natural parent, the right of
the natural parent prevails until a showing of forfeiture of that
right. Aschenbrenner, 597 P.2d at 1162-63 (citing Henderson v.
Henderson (l977), 174 Mont. 1, 10, 568 P.2d 177, 181-82); Matter of
Fisher (1976), 169 Mont. 254, 259, 545 P.2d 654, 657. "[Albsent a
finding of abuse or neglect based on clear and convincing evidence,
parental rights may not be terminated." M.G.M., 654 P.2d at 997;
Donev, 570 P.2d at 577; In re Matter of J . L . B . (1979), 182 Mont.
100, 109, 594 P.2d 1127, 1131. A finding of abuse, neglect, or
dependency is the jurisdictional prerequisite for any court-ordered
transfer of custody from a natural parent to a third party.
M.G.M., 654 P.2d at 998; In re Gore (l977), 174 Mont. 321, 327, 570
P.2d 1110, 1113. Abuse, neglect, and dependency are defined by
5 41-3-102, MCA, which provides in pertinent part that:
(2) "Abused or neglectedn means the state or
condition of a child who has suffered child abuse or
neglect.
. . * .
(5) (a) "Child abuse or neglect1'means:
(i) harm to a child's health or welfare, as defined
in subsection (8); or
(ii) threatened harm to a child's health or welfare,
as defined in subsection (15).
(b) The term includes harm or threatened harm to a
child's health or welfare by the acts or omissions of a
person responsible for the child's welfare.
(7) "Dependent youth" means a youth:
(a) who is abandoned;
(b) who is without parents or guardian or not under
the care and supervision of a suitable adult;.
(c) who has no proper guidance to provide for
necessary physical, moral, and emotional well-being;
(d) who is destitute;
(e) who is dependent upon the public for support;
or
(f) whose parent or parents have voluntarily
relinquished custody and whose legal custody has been
transferred to a licensed agency.
(8) "Harm to a child's health or welfare1'means the
harm that occurs whenever the parent or other person
responsible for the child's welfare:
(a) inflicts or allows to be inflicted upon the
child physical or mental injury:
(b) commits or allows to be committed sexual abuse
or exploitation of the child;
(c) causes failure to thrive or otherwise fails to
supply the child with adequate food or fails to supply
clothing, shelter, education, or adequate health care,
though financially able to do so or offered financial or
other reasonable means to do so;
(d) abandons the child by leaving the child under
circumstances that make reasonable the belief that the
parent or other person does not intend to resume care of
the child in the future or by willfully surrendering
physical custody for a period of 6 months and during that
period does not manifest to the child and the person
having physical custody of the child a firm intention to
resume physical custody or to make permanent legal
arrangements for the care of the child; or
(e) is unknown and has been unknown for a period of
90 days and reasonable efforts to identify and locate the
parents have failed.
....
(15) "Threatened harm to a child's health or
welfare" means substantial risk of harm to the child's
health or welfare.
The Legislature has established the procedure under
5 41-3-401, MCA, which the State must follow, and the findings the
court must make, before custody of a child may be taken from a
natural parent. For example, the county attorney did not file a
petition alleging abuse, neglect, or dependency as required by
5 41-3-401(1), MCA. As a result, there was no petition alleging
abuse, neglect, or dependency as required by fr 41-3-401(9) (a), MCA,
and appellant was not served with a copy of the petition under
5 41-3-401(4), MCA. Finally, no citation was served on the
Department of Family Services prior to the hearing, as required by
5 41-3-401(8), MCA.
Considerable testimony and evidence was offered challenging
appellant's parenting skills while establishing the great aunt's
ability to provide adequate care for B.B. In response, the court
based its findings and conclusions on a "best interest of the
child" analysis. The District Court concluded that the best
interest of B.B. was served by allowing respondent to retain
custody and by granting temporary custody to the great aunt.
However, the "best interest of the childt1analysis should only be
used after a showing of dependency, abuse, or neglect by the
natural parent pursuant to § 41-3-102, MCA, or during a custody
dispute between two natural parents. By relying on a "best
interest of the child1' analysis, the court did not meet the
jurisdictional and procedural prerequisites for depriving appellant
custody of B.B. in favor of the great aunt. Without meeting these
prerequisites, the District Court had no jurisdiction to deprive
appellant of custody. Aschenbrenner, 597 P.2d at 1162; Doney, 570
P.2d at 578.
After reviewing the record, we conclude that the District
Court's interpretation of the law was incorrect, and that the award
of temporary custody to the great aunt was improper and must be
reversed.
We hold that the District Court erred in granting temporary
custody of the minor child, B.B., to a maternal great aunt during
a modification of custody proceeding between the biological parents
of the minor child.
Reversed and remanded for further proceedings in accordance
with this opinion.
Justice
We concur:
Justices
Justice Karla M. Gray specially concurring.
I concur in the Court's opinion. It is my view, however, that
additional clarification is necessary to prevent confusion in this
important area of child custody.
The Court is careful to state that this case involves a child
custody modification proceeding between the biological mother and
the biological father. This case does not involve a proceeding in
which the child's maternal great-aunt sought legal custody of the
child. Notwithstanding the nature of the proceeding before it, the
District Court granted temporary custody of the child to the great-
aunt. The Court holds, and I agree, that the District Court erred
in doing so.
In reaching its decision, the Court correctly states that
under circumstances and statutes not before us here involving an
abused, neglected or dependent child, custody might be granted to
a nonparent. It does not address any other circumstances in which
custody might be granted to a nonparent.
We held in In re Custody of R.R.K. (1993), 260 Mont. 191, 859
P.2d 998, that a nonparent could seek custody of a child pursuant
to the provisions contained in g 40-4-211(4)(b), MCA. I specially
concur here only to express my understanding that the Court's
failure to mention this alternative basis through which nonparents
properly might be granted custody--which, like the situation
involving an abused, neglected or dependent child, also is not
before us--is not in any way a negation of our decision in In re
Custody of R.R.K.
November 29, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
DANIEL R. SWEENEY
Attorney at Law
P.O. Box 3725
Butte, MT 59701
Lisa Lynn Wonnacott
25 E. Granite
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA