Guardianship of Aschenbrenner, Matter of, 14610

• Decision Date: 17 July 1979
• Docket Number: No. 14610,14610
• Citation: 182 Mont. 540,597 P.2d 1156,36 St.Rep. 1282
• Parties: In the Matter of the GUARDIANSHIP of Ronald ASCHENBRENNER, Terri Lynn Aschenbrenner et al.
• Court: Montana Supreme Court

Page 1156

597 P.2d 1156

182 Mont. 540

In the Matter of the GUARDIANSHIP of Ronald ASCHENBRENNER Terri Lynn Aschenbrenner et al.

No. 14610.

Supreme Court of Montana.

Submitted June 11, 1979.

Decided July 17, 1979.

Lewis F. Rotering, argued, Butte, for appellants.

Leonard J. Haxby, argued, Butte, for respondent.

SHEEHY, Justice.

Mary Aschenbrenner, natural mother of Ronald, Terri Lynn and Jason Jacob Aschenbrenner, appeals from the findings, conclusions and order of the District Court, Silver Bow County, granting letters of guardianship and custody of the three minor children to A. B. (Bud) and L. V. (Lillian) Aschenbrenner, the paternal grandparents.

The facts leading to this appeal are:

On December 27, 1976, Mary Aschenbrenner by the terms of a divorce decree was awarded the care, custody, and control of her three minor children, at that time aged eight, four, and one and a half years old.

Following the divorce, the mother lived alone with the children until the middle of May 1977, when she began living with one Jay McClosky. Her relationship with McClosky was stormy and following one particular incident, the mother asked the grandparents to care for the children while Mary found another place for herself and the children to live. The grandparents had custody of the children from May 19 until June 9, 1977, when Mary resumed custody. Part of this three-week period apparently coincided with her ex-husband's annual two-week summer visitation period during which he sometimes left the children with his parents while he was out working on the road.

Following another incident with McClosky, Mary again requested the grandparents to care for the children on June 30, 1977. The whole family, including Mary, her ex-husband, the children, and the grandparents, vacationed together over the Fourth of July weekend. When the mother attempted to obtain the return of the children the following week, however, she was denied. When she tried to enlist the assistance of the county attorney, she was served with a citation and order to show cause on July 21, 1977. The order to show cause, dated July 21, 1977, and issued in response to a petition for appointment of guardian of minors filed by the grandparents on June 15, contained a provision awarding temporary custody of the children to the grandparents.

Subsequent to the issuance of this order to show cause, several hearings over several months were held by the District Court. At these later hearings, the District Court heard testimony from the parties and from Roger LaVoie, a county social worker. The court kept in effect its grant of temporary custody, modifying it at times to allow the mother reasonable visitation rights to her children on weekends. During the course of the proceedings, the relationship between the mother and the grandparents, especially the grandfather, was strained. The grandfather seemed to embark on a course of interfering with or hindering Mary's attempts to talk to the children on the phone or otherwise visit with them.

As to the children's well-being, the court questioned them in chambers. They seemed to express no strong preference for living with either their mother or grandparents. According to the social worker's report, however, the school work and attitude of the eldest child had markedly improved, the middle child had a positive attitude toward school and all three children seemed to be better cared for by the grandparents. Although during his testimony the social worker declined to label Mary an "unfit" parent, he did classify her as "deficient" in some respects in her ability as a parent. This classification was based on her tendency to "party" excessively, leaving the children alone, on her inability to make sure the children attended school, and on her generally unsettled emotional status and living arrangements. It was his recommendation that the children remain in the custody of the grandparents.

After maintaining the temporary custody status for over a year, the District Court, on August 14, 1978, issued its findings and conclusions. Significant among its findings were that there had been a material change in the circumstances of the mother since the entry of the divorce decree; that she had not had adequate, permanent housing; and had not conducted herself as a fit and proper mother by continually going out and leaving the children alone and unattended. The District Court also found that while in his mother's care, the eldest child's schoolwork suffered materially but improved while in the care of his grandparents. The court found that the mother was not a fit and proper person to have custody of the children by virtue of her irresponsible behavior and concluded that the children were dependent and neglected.

Based on these findings, the court ordered that the grandparents be granted guardianship of the children with reasonable rights of visitation in the mother, including custody of the children during June and July. From this order, the mother appeals.

The issues presented for review on appeal are:

1. Whether the appellant was denied procedural due process by the District Court's award of a temporary custody order without prior notice and opportunity for a hearing?

2. Whether a guardianship proceeding may be used to terminate the custodial rights of a natural parent?

3. Whether the District Court abused its discretion in awarding the guardianship and custody of the children to the respondents?

The right of a parent to custody of his child has been recognized by this Court as being a fundamental constitutional right. Matter of Guardianship of Doney (1977), Mont., 570 P.2d 575, 577, 34 St.Rep. 1107, 1110. In view of this, we must, look closely at any action by the State which interferes with this right. Our examination of the procedure utilized in the District Court in this case leads us to conclude that the termination of the mother's custody and the award of guardianship to the grandparents was improper and must be reversed.

The grandparents instituted this action by filing a petition for appointment of guardian of minors. We thus begin our analysis by examining the statutes governing the appointment of such guardians. Part 2, Chapter 5, Title 91A, 1947 Revised Codes of Montana, now Part 2, Chapter 5, Title 72 Montana Code Annotated.

Initially, we note that under section 91A-5-204, R.C.M.1947, now section 72-5-222(1) MCA, that a "court may appoint a guardian for an unmarried minor if All parental rights of custody have been terminated Or suspended by circumstances or prior court order." The District Court is required, however, to following very specific procedures in the appointment of the guardian:

"(1) Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor is to be given by the petitioner in the manner prescribed by section 91A-1-401 to:

"(a) the minor, if he is fourteen (14) or more years of age;

"(b) the person who has had the principal care and custody of the minor during the sixty (60) days preceding the date of the petition; and

"(c) any living parent of the minor.

"(2) Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of section 91A-5-204 have been met, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases the court may dismiss the proceedings, or make any other disposition of the matter that will best serve the interest of the minor." Section 91A-5-207, R.C.M.1947, now section 72-5-225 MCA.

Under section 91A-5-207(3), R.C.M.1947, now section 72-5-224 MCA, the court is authorized "if necessary, (to) appoint a temporary guardian with the status of an ordinary guardian of a minor, But the authority of a temporary guardian shall not last longer than 6 months."

With these principles in mind, we examine the sequence of events in the District Court. As noted above, before any guardian may be appointed for a minor, All parental rights of custody must be terminated or suspended by circumstances or prior court order. Both parties concede that there was no prior court order terminating or suspending the mother's parental right of custody. To the contrary, only six months prior to the institution of this action, the mother was awarded custody of these children following her divorce.

It thus becomes necessary to determine whether the mother's parental rights of custody were "suspended by circumstances" in the language of section 72-5-222(1) MCA. To so determine, we examine with particularity the following sequence of events:

May 19, 1977 The mother, after a fight with her paramour, leaves the children with the grandparents while she looks for another place to live. This period of time coincides with her ex-husband's annual two-week visitation period during which he often left the children with his parents, the petitioners.

June 9, 1977 The mother resumes custody of the children.

June 15, 1977 The grandparents file their petition for appointment of guardian of minors. This petition stated, apparently inaccurately, that the children were presently in the care and custody of their paternal grandparents and had been in their custody since about May 18.

June 20, 1977 The District Court, based exclusively on the grandparents' petition and affording neither notice nor hearing to the mother, awards temporary custody of the children to the grandparents and sets July 30 as the hearing date on whether the grandparents should be awarded permanent custody.

June 30, 1977 The mother again leaves the children with the grandparents.

July 2, 3, 4, 1977 The entire family, including the mother, her ex-husband, the children, and the grandparents, vacation together at Canyon Ferry Lake. Although by this time the grandparents had been awarded temporary custody of the children, they neither discussed nor...