In re Custody of Krause, 00-104.

• Decision Date: 01 March 2001
• Docket Number: No. 00-104.,00-104.
• Citation: 19 P.3d 811,2001 MT 37,304 Mont. 202
• Parties: In re the CUSTODY OF John Remington KRAUSE, Kade Krause, Petitioner and Appellant, v. Julie E. Sisk, Respondent and Respondent.
• Court: Montana Supreme Court

19 P.3d 811

2001 MT 37

304 Mont. 202

In re the CUSTODY OF John Remington KRAUSE,

Kade Krause, Petitioner and Appellant, v. Julie E. Sisk, Respondent and Respondent.

No. 00-104.

Supreme Court of Montana.

Submitted on Briefs September 28, 2000.

Decided March 1, 2001.

Christine D. Somers, Attorney at Law, Butte, MT, For Appellant.

Andrew P. Suenram, Hoffman and Suenram, Dillon, MT, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Kade Krause (Krause) appeals from the final parenting determination of the Montana Fifth Judicial District Court, granting primary custody of his son to the boy's mother, Julie Sisk (Sisk). Krause contends that the District Court's appointment and use of a guardian ad litem violated his due process rights as a parent. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Krause and Sisk lived together in Jackson, Montana, but were never married. The subject of the custody proceeding, John Remington Krause (John), is their infant son. The couple had what was described as a volatile relationship, and in July of 1999 Sisk moved to Michigan, taking John with her.

¶ 3 Krause immediately retained counsel and filed an ex parte petition for a parenting determination pursuant to § 40-4-220(2)(a), MCA. The District Court temporarily adopted Krause's interim parenting plan, granted him temporary custody of his son and set the matter for a hearing. Sisk filed motions for appointment of a guardian ad litem and to quash the interim parenting plan. Three days later, the District Court appointed Mary Shafaieh (Shafaieh), a local volunteer, to serve as guardian ad litem. She was instructed to conduct interviews and recommend an appropriate parenting plan.

¶ 4 The District Court conducted a hearing on August 31, 1999, although the parties disagree as to whether this was a show cause hearing on the interim parenting plan or an evidentiary hearing for a final parenting determination. Both Krause and Sisk were represented by counsel and each called a number of witnesses. The guardian ad litem was also present. Although neither party asked her to testify, she apparently gave the District Court a preliminary recommendation in chambers. At the conclusion of the hearing, the District Court issued a temporary order vacating its interim parenting plan for thirty days and approving Sisk's interim parenting plan for the same period. It also ordered Shafaieh to provide copies of her final report to the parties within ten days and directed the parties to submit proposed findings of fact, conclusions of law and orders no more than 20 days thereafter. The District Court declared that, upon submission of the final report and proposed findings, the matter would be deemed submitted for a final decision.

¶ 5 The guardian filed her report with the District Court on September 10, 1999. In it she expressed a concern that Krause may "have a short temper and low tolerance for stressful situations." Noting that Sisk had a stable environment and a good support system with family members in Michigan, Shafaieh recommended that the child remain with his mother. Krause and Sisk each received a copy of the report.

¶ 6 Following release of the report, Krause sought discovery of the guardian ad litem's records and filed motions to terminate Shafaieh and appoint a new guardian. The District Court denied the attempted discovery as well as both motions.

DISCUSSION

¶ 7 Krause couches most of his issues in terms of due process violations. However, in large part, his due process claims merely allege that the District Court either made incorrect discretionary rulings or misapplied the law. Where appropriate, we have restated the issues in those terms.

¶ 8 Issue 1. Did the District Court err when it appointed a lay volunteer as guardian ad litem without a prior hearing?

¶ 9 Characterizing the guardian ad litem as an expert witness, Krause argues that the District Court erred by appointing a "lay volunteer with no experience or qualifications" and by making the appointment without first providing him an opportunity to examine or contest her qualifications. He contends that he should have been allowed ten days in which to respond to Julie's motion for appointment and that he was entitled to a hearing on the matter.

¶ 10 A. Did the District Court err by appointing a lay volunteer to act as guardian ad litem?

¶ 11 Krause likens a guardian ad litem to an expert witness and contends that a lay volunteer is unqualified to serve in that capacity. He argues that the District Court committed reversible error by appointing a citizen volunteer with "no known or disclosed experience or qualifications ... and who could not have qualified to testify as an expert witness with respect to her recommendations or opinions." This view fundamentally misconstrues the role of the guardian ad litem in a child custody proceeding.

¶ 12 A guardian ad litem is an officer of the court, assigned to represent the interests of a minor. Therefore, selection of a guardian ad litem is a matter which is committed largely to the discretion of the appointing judge. This Court will interfere with the exercise of that discretion only in a case of clear abuse. Matter of Watson (1997), 283 Mont. 57, 60, 939 P.2d 982, 984 (citing Matter of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316, 318).

¶ 13 Montana law provides few restrictions on the court's discretion to choose a guardian ad litem. Generally, the court may appoint any person whose appointment would be in the best interests of the child. See § 72-5-223, MCA. There is no requirement that the person appointed even be a wholly disinterested or neutral person. Watson, 283 Mont. at 61, 939 P.2d at 985. The only specific requirement is that the person appointed must not have interests adverse to those of the child. Watson, 283 Mont. at 60, 939 P.2d at 984. Although Krause sought to terminate the guardian and strike her report, he has never alleged, either to the District Court or to this Court on appeal, that the guardian ad litem was unqualified under this standard.

¶ 14 Krause's argument, in fact, is not addressed so much to the guardian's qualifications as it is to the conclusions in her report. He argues that the report contains inaccuracies and that the guardian ad litem "failed to disclose her work product to the parties as required by law." These are serious contentions that properly should have been brought to the District Court's attention during a final hearing-but that is a separate issue. Nonetheless, allegations about the guardian's conclusions are not relevant to the question of whether the District Court had the authority to appoint a lay volunteer in the first instance. Krause never argues that the guardian ad litem had anything but the child's best interests at heart or that her interests were in any way adverse to those of the child. As such, he provides this Court with no basis to conclude that the District Court abused its discretion when it appointed a lay volunteer to act as guardian ad litem.

¶ 15 B. Did the District Court violate Krause's due process rights when it appointed a guardian ad litem without a prior hearing?

¶ 16 Our review of constitutional questions is plenary. State v. Pritchett, 2000 MT 261, ¶ 27, 302 Mont. 1, ¶ 27, 11 P.3d 539, ¶ 27 (citing State v. Anderson, 1998 MT 258, ¶ 6, 291 Mont. 242, ¶ 6, 967 P.2d 413, ¶ 6). Our standard of review for conclusions of law is whether the trial judge's interpretation of the law is correct. In re A.R.A. (1996), 277 Mont. 66, 70, 919 P.2d 388, 391.

¶ 17 Montana law permits a court to appoint a guardian ad litem to represent the interests of a minor dependent child. Section 40-4-205(1), MCA. This appointment may be made by the court on motion of either parent or by the court on its own motion. See Commissioner's Note to § 40-4-205(1), MCA. Krause concedes that the District Court has authority to appoint a guardian ad litem on its own motion but contends that the District Court should have afforded him an opportunity for a hearing and that, when it did not do so, it violated his right to due process under Article II, Section 17, of the Montana Constitution and under the Fourteenth Amendment to the United States Constitution.

¶ 18 Krause argues that both the Montana and United States constitutions provide that no person shall be deprived of liberty without due process of law; that parents have a protected liberty interest in the care, custody and management of their children; and that due process requires both notice and a hearing. This argument is well-taken, as far as it goes, but Krause fails to argue or provide any authority for the necessary premise of his challenge-that by appointing a guardian ad litem, the District Court in some way deprived him of a fundamental liberty.

¶ 19 This Court has consistently held that parents have a liberty interest in the custody of their children. However, absent any showing that appointment of a guardian ad litem somehow infringes upon this fundamental interest, we cannot override the District Court's clear statutory authority to appoint a guardian ad litem on its own motion.

¶ 20 Issue 2. Did the District Court err by not allowing the parties access to the data and reports of the guardian ad litem prior to the custody hearing?

¶ 21 The District Court appointed the guardian ad litem on August 23, 1999, just seven days before the temporary custody hearing. The guardian did not file her final written report with the District Court and the parties until September 10, 1999. After the August 31, 1999 hearing but before the District Court issued its final ruling, Krause sent a discovery request to the guardian ad litem, which included interrogatories directed toward her qualifications and to studies or reference materials she relied upon in forming her recommendation to the court. Sisk objected to this discovery, arguing that, as the temporary...