No. 95-492
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN THE MATTER OF J.B.,
Youth in Need of Care.
APPEAL FROM: District Court of the Thirteenth Judicial District,
1n and for t'he County of Yellowstone,
The Hon. Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chris J. Nelson, Billings, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Cregg W.
Coughlin, Assistant Attorney General, Helena,
Montana; Dennis Paxinos, Yellowstone County
Attorney, Marcia Good Sept, Deputy Yellowstone
County Attorney; Damon L. Gannett, Gannett Law Firm,
Billings, Montana (guardian ad litem)
Submitted on Briefs: May 9, 1996
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
This is an appeal from the judgment of the Thirteenth Judicial
District Court, Yellowstone County, declaring J.B. a youth in need
of care and granting continued temporary custody of J.B. to the
Montana Department of Family Services through May 1996.
We reverse and remand.
We address the following issue as dispositive:
Did the District Court err in granting continued temporary
custody of J.B. to the Montana Department of Family Services?
FACTS
In September 1993, the Yellowstone County Attorney's Office,
on behalf of the Montana Department of Family Services (DFS) ,
petitioned for temporary investigative authority and protective
services for five children of T.B. In a report to the court
attached to the petition, a social worker described the problems
T.B. and her children were having individually and as a family.
The court granted the petition.
On January 20, 1994, the District Court issued an order
declaring all five children to be youths in need of care. The
order granted DFS temporary custody of the children. The court's
order was based on a social worker's report which, like the
September 1993 report, described the difficulties T.B. was having
raising her children. This report mentioned that appellant, the
natural father of one of the children, J.B., had indicated his
desire to obtain custody of J.B. Appellant, who resides in
Boulder, Colorado, was present at this hearing and stipulated to
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DFS's request for temporary custody. On March 29, 1994, the
District Court approved a treatment plan for the appellant which
required that he submit to psychological and chemical dependency
evaluations.
On June 30, 1994, DFS petitioned for permanent legal custody
and termination of parental rights and the right to consent to
adoption. In the petition, both J.B's mother and the appellant
were listed as parents, although the petition requested only the
termination of the mother's parental rights. DFS asked the court
for an order granting temporary custody of J.B. to DFS for an
additional six months. On September 30, 1994, appellant filed his
response to DFS's request and also petitioned the court for custody
of J.B.
A hearing was held on DFS's petition in November 1994.
Appellant again stipulated that DFS could retain temporary custody
for an additional six months. On December 12, 1994, the District
Court issued an order to that effect. This order also terminated
the parental rights of J.B's mother, T.B.
On April 7, 1995, the District Court approved a second
treatment plan for appellant. The treatment plan required
appellant to submit to four random urinalyses per month and to
begin counseling to learn how to meet the emotional needs of his
child. After the approval of the second treatment plan, appellant
again petitioned the court for permanent custody of J.B. DFS
responded by seeking to extend its temporary custody of J.B. for an
additional year.
A hearing on both appellant's petition and DFS's motion for an
extension of custody was scheduled for July 12, 1995. After the
hearing, the District Court determined that DFS should retain
temporary custody of J.B. until May 18, 1996. Appellant filed a
notice of appeal on September 20, 1995.
DISCUSSION
Did the District Court err in granting continued temporary
custody of J.B. to the Montana Department of Family Services?
In their respective briefs, in the context of the grant of
custody to DFS, the parties have raised issues related to but
differently phrased from the issue we pose here. Based on the
record, we conclude that our formulation of this issue is correct
and effectively disposes of those issues raised by the parties.
This Court has held that a non-parent may be entitled to
commence a child custody proceeding. In re Marriage of K.E.V.
(19941, 267 Mont. 323, 883 P.2.d 1246; In re Custody of R.R.K
(19931, 260 Mont. 191, 859 P.2d 998 (provided that the non-parent
can establish standing). Conversely, we have also recognized the
need to uphold the constitutionally protected rights of a natural
parent to his or her child. Babcock v. Wonnacott (1994), 268 Mont.
149, 152, 885 P.2d 522, 524; In re Matter of Doney (1977), 174
Mont. 282, 570 P.2d 575.
In the present action, there are two parties petitioning for
custody of the child: J.B.'s natural father and the State of
Montana (through DFS). For a court to have jurisdictional
authority to grant custody to a non-parent, certain steps must be
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followed. When the State is a party to a custody proceeding, it
initially must file a petition in a district court alleging the
nature of the legal custodian's abuse or neglect. Section 41-3-
401, MCA. After the submission of the petition, a court will then
hold an adjudicatory hearing to determine if the child is a "youth
in need of care." Section 41-3-404, MCA. If the child is
determined to be a youth in need of care, the court will then set
a date for a dispositional hearing. At the dispositional hearing,
the court has the authority to transfer legal custody of the child.
Section 41-3-406, MCA.
In this matter, such a petition was submitted. All five
children were declared youths in need of care. However, the
allegations of abuse and neglect were made in the context of the
termination of parental rights of the then custodial parent, J.B's
mother T.B. In addition to the rights parents may have as a
couple, they also have individual rights with respect to their
children. In re Matter of T.E.R. (1979), 180 Mont. 340, 346, 590
P.2d 1117, 1121.
The State did not petition for the termination of appellant's
parental rights. Indeed, upon the termination of the mother's
parental and custodial rights, appellant was entitled to custody of
J.B. Babcock, 885 P.2d at 524.
In Babcock, the mother was unable to provide care for the
child due to incarceration. The district court in that case
awarded custody to the child's great aunt. This Court reversed,
holding that since the mother was unable to care for the child, the
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father was entitled to the custody of the child. Babcock, 885 P.2d
at 524. This Court based its decision in part on the
constitutionally protected rights parents have to a child. Stanley
v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.
The Court further relied on 5 40-6-221, MCA, which provides in part
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, services,
and earnings of the child, unless custody is determined
otherwise pursuant to 40-4-221. (Emphasis added.)
We conclude that when the court terminated T.B.'s parental
rights, she was unable to take custody of J.B. Therefore,
appellant, the other parent, Was entitled to custody. This
entitlement is not immune from contest, but the contesting party,
here DFS, must follow the proper procedure outlined above in order
to obtain custody. A parent's right to custody in this situation
is not so fleeting that it can hinge on a court's disposition of a
related yet distinct matter. The District Court determined J.B. to
be a youth in need of care and granted temporary custody to DFS
based on its consideration of T.B.'s conduct toward the child; to
relieve appellant of custody, the court was required to consider
his conduct as well.
In other words, in order to have the jurisdictional authority
to award DES temporary custody, the court must determine that J.B.
is a youth in need of care. The court must make this determination
on the basis of evidence of appellant's abuse or neglect. Section
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41-3-102(17), MCA, defines a youth in need of care as a "youth who
is abused or neglected." Section 41-3-102(5) (a), MCA, defines
"child abuse or neglect" as:
(i) harm to a child's health or welfare; or
(ii) threatened harm to a child's health or welfare.
(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.
DFS's original petition does not allege abuse or neglect on
the part of appellant. However, both DFS and the court raised
concerns about appellant's prior chemical dependency problems.
Appellant stated and various examinations confirmed that he had not
used alcohol or drugs for years. The concerns of DFS and the court
were based largely on the results of a urinalysis in which
appellant tested positive, but the record shows that the test
results were incomplete and should properly have been considered
inconclusive. In any event, these concerns clearly do not amount
to a consideration of allegations of child abuse or neglect on the
part of appellant, and do not provide a sufficient basis on which
to conclude that J.B. would be in danger of harm or threatened
harm. See In re Matter of M.G.M (1992), 201 Mont. 400, 408, 654
P.2d 994, 998.
The court failed to address any evidence of appellant's abuse
or neglect of the child. "[Al finding of abuse, neglect, or
dependency is the 'jurisdictional prerequisite for any court
ordered transfer of custody.'" M.G.M., 654 P.Zd 998 (citations
omitted). We hold that the District Court erred in concluding that
J.B. was a youth in need of care, and therefore the court erred in
granting DFS temporary custody
Our holding effectively disposes of the other issues raised by
the parties. We reverse and remand for proceedings consistent with
this opinion
Justices
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September 19, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Chris J. Nelson
Attorney at Law
1643 Lewis Ave., Ste. 214
Billings, MT 59102
Hon. Joseoh P. &zurek. A.G.
Cregg W.*Coughlin, Assistant
215 N. Sanders
Helena. MT 5 9 6 2 0
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA