Guardianship of Doney, Matter of
| Decision Date | 14 October 1977 |
| Docket Number | No. 13813,13813 |
| Citation | 570 P.2d 575,174 Mont. 282 |
| Parties | In the Matter of the GUARDIANSHIP OF DeAuna D. DONEY and Terrence R. Doney, Minors. |
| Court | Montana Supreme Court |
Berg, Angel, Andriolo & Morgan, Bozeman, Gregory O. Morgan argued, Bozeman, for appellant.
Bolinger & Wellcome, Bozeman, H. A. Bolinger argued, Bozeman, for respondent.
Petitioner, Waide Lewis Doney, appeals from an order of the district court, Gallatin County, denying his petition to terminate respondent's guardianship of petitioner's two minor children, and maintaining custody of the children in respondent "until the further or other order of the court".
Petitioner is the natural father of DeAuna Doney, born March 13, 1974, and Terrence Doney, born July 17, 1975. Petitioner married the children's mother, Leah Doney, on October 26, 1969. Leah Doney was killed in an auto accident on September 28, 1976.
Petitioner testified that he was confused after his wife's death and determined that it would be best for the children if they stayed with Leila Wallace, his deceased wife's sister, for about two months while he composed himself and prepared to take the children into his home. On October 8, 1976, petitioner met with respondent Leila Wallace, respondent's brother and her lawyer, and signed guardianship papers, giving his consent to give temporary custody of the children to Leila Wallace. Petitioner was not represented by counsel at this meeting. The stated understanding of petitioner, respondent, and respondent's lawyer was that petitioner would consent to the guardianship for the sole purpose of allowing respondent Leila Wallace to authorize hospital and medical care for the children in petitioner's absence. Petitioner told respondent's lawyer that he did not want to give up his custodial rights and that it would not be more than two months before he would be ready to make a home for the children. On October 12, 1976, the district court appointed respondent as guardian of the children.
Petitioner married his present wife, Janice, on February 3, 1977. Prior to their marriage they visited the children at respondent Leila Wallace's home in mid-October, early November, and late November, 1976. On their final visit, petitioner requested custody of the children and respondent refused.
On January 14, 1977, petitioner filed a motion to show cause why the guardianship should not be terminated. At the hearing on the motion to show cause, respondent presented no evidence to show that the children were dependent and neglected (section 10-1301, R.C.M. 1947) while in the custody of petitioner. Respondent did present evidence that petitioner was $4,500 in debt, that petitioner had contemplated bankruptcy, that petitioner and his present wife had lived together before his former wife's death, and that petitioner and his wife lived in a one-bedroom house that would be quite cramped with the addition of two children.
Petitioner presented evidence that he and his wife loved and wanted to raise the children, that he earned $800 per month, that they planned to either build another bedroom onto the house or move to a larger home, that his little girl felt much affection and love for him, and that respondent Leila Wallace was trying to make the children think that she and her husband were their true parents.
The judge refused to terminate the guardianship. He based his decision on petitioner's "disgraceful relationship * * * absent benefit of clergy or civil rite" with his present wife before their marriage, petitioner's failure to substantially contribute to his children's support after September, 1975 (refuted by the evidence at the hearing), and on the good care that the children received while in respondent's custody. The court further noted that it did not deem Waide Doney to be a fit and proper custodian. Petitioner appealed the district court's ruling to this Court.
The issue presented on appeal is whether a natural parent may be deprived of custody of his children absent a finding of dependency, abuse or neglect.
Surrender of custody of a minor child by a parent is presumed to be temporary unless the contrary is made to appear. State ex rel. Lessley v. District Court, 132 Mont. 357, 318 P.2d 571 (1957). There is no evidence in this case to rebut that presumption. Rather, it is undisputed that petitioner signed the guardianship papers solely to allow respondent to consent to the children's medical care. Petitioner stated that he thought that he would be ready to take custody of the children within two months of his wife's death. This he attempted to do, but respondent refused to return custody of the children to petitioner.
The order of the district court, though couched in temporary custody and temporary guardianship terms, is tantamount to a permanent custody order. The district court based its order on findings that petitioner had in the past failed to substantially support his children, that petitioner had carried on a disgraceful extramarital affair, that respondent provided a good home. None of these are factors which petitioner can in the future change. The court further found petitioner "not a fit and proper person" to have custody of the children. At the most, the evidence revealed petitioner to be financially troubled, but genuinely concerned about providing a stable and loving home for his children.
Where a child has allegedly been abused or neglected by his natural parent, the state has a clear duty to protect the child by means of a judicial hearing to determine whether the youth is in fact abused or neglected. There are, however, few invasions by the state into the privacy of the individual that are more extreme than that of depriving a natural parent of the custody of his children. For this reason, the legislature carefully enunciated the procedures the...
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In re S.R.
...in the custody and care of their children. In re A.R.A. , 277 Mont. 66, 70-71, 919 P.2d 388, 391 (1996) ; In re Guardianship of Doney , 174 Mont. 282, 286, 570 P.2d 575, 577 (1977) ; Troxel v. Granville , 530 U.S. 57, 65-67, 120 S.Ct. 2054, 2059-60, 147 L.Ed.2d 49 (2000) ; Stanley v. Ill. ,......
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McDermott v. Dougherty
...error for a district court to apply the best interest of the child test rather than the dependency, abuse, and neglect test as set forth in Doney35 to determine custody between the natural father and the maternal grandmother. Brost v. Glasgow, (1982), 200 Mont. 194, 199, 651 P.2d 32,34. In ......
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Kulstad v. Maniaci
...rights of the natural parent over a third party. Pre-1999 Decisions ¶ 55 In the first case, the Court in Matter of Guardianship of Doney, 174 Mont. 282, 570 P.2d 575 (1977), returned the children to the biological father even though the biological father had given their aunt temporary custo......
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A.R.A., In re
...406-07, 698 P.2d 410, 413. We recognized the constitutional rights of a natural parent to parent his or her child in In re Doney (1977), 174 Mont. 282, 570 P.2d 575. This careful protection of parental rights is not merely a matter of legislative grace, but is constitutionally required. Sta......