In re Parenting of JNP

• Decision Date: 23 July 2001
• Docket Number: No. 99-675.,99-675.
• Citation: 27 P.3d 953,2001 MT 120,305 Mont. 351
• Parties: In re the Matter of the PARENTING OF J.N.P., a minor child. Gordon L. Knopp and Judith E. Knopp, Petitioners and Appellants, v. Tammy Lynn Knopp and Shane Lee Parenteau, Respondents and Respondents.
• Court: Montana Supreme Court

27 P.3d 953

2001 MT 120

305 Mont. 351

In re the Matter of the PARENTING OF J.N.P., a minor child.

Gordon L. Knopp and Judith E. Knopp, Petitioners and Appellants, v. Tammy Lynn Knopp and Shane Lee Parenteau, Respondents and Respondents.

No. 99-675.

Supreme Court of Montana.

Submitted on Briefs January 9, 2001.

Decided July 23, 2001.

For Appellants: Dean D. Chisholm, Kaplan & Chisholm, PLLP, Columbia Falls, MT.

For Respondent: Paula Johnson, Attorney at Law, Whitefish, MT, (For Tammy Lynn Knopp).

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Petitioners, Gordon L. and Judith E. Knopp, filed a petition for a parenting plan of a minor child, J.N.P., the natural daughter of Tammy Lynn Knopp, in the District Court for the Eleventh Judicial District in Flathead County. The District Court concluded that it had no authority to grant a parenting plan to Knopps absent termination or suspension of Tammy Lynn's parental rights. Therefore, the Court dismissed Knopps' petition for a parenting plan. Knopps appeal from the District Court's order dismissing their petition. We affirm the order and judgment of the District Court.

¶ 2 The sole issue on appeal is whether the District Court erred when it concluded that it had no authority to grant the Knopps' petition for a parenting plan absent suspension or termination of the natural parents' parental rights.

¶ 3 The District Court dismissed Knopps' petition based on its conclusion of law that it was without authority to grant the petition. We review a district court's conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

FACTUAL BACKGROUND

¶ 4 Tammy Lynn Knopp is the young and single mother of J.N.P. Gordon and Judith Knopp are her uncle and aunt.

¶ 5 When Tammy was financially unable to provide for her children, she left one son who is uninvolved in this case with her mother until she could care for him. Knopps offered to take care of her daughter, J.N.P., until Tammy "got on her feet." She agreed to leave J.N.P. with Knopps at their residence on a temporary basis until she found employment and a place to live in Great Falls. Tammy signed a document prepared by Gordon entitled "temporary guardianship" which purportedly was for the sole purpose of authorizing Knopps to seek medical attention for Tammy's daughter if it became necessary.

¶ 6 Tammy placed her daughter in the temporary care of the Knopps on December 30, 1998, and left for Great Falls to look for employment. This action was commenced on March 5, 1999, when Gordon and Judith Knopp petitioned for a parenting plan and child support for J.N.P. Although the document they filed is referred to as a "petition for parenting plan, child support and medical support," the petition sought designation of Knopps as custodians of the child, sought an order that the child reside with Knopps and sought to limit the natural mother and father to restricted and supervised visitation. If it had been granted, the parenting plan would have given Knopps authority to make the child's medical decisions, day-to-day decisions, educational decisions, non-emergency health care decisions, decisions about her spiritual development, and required Knopps' consent for the child to marry, obtain a driver's license, enlist in the armed services, get a tattoo or have any part of her body pierced. In other words, the Knopps' petition was the functional equivalent of a petition for custody of J.N.P.

¶ 7 Knopps applied for temporary custody and received it on an ex parte basis so that when Tammy Lynn returned and sought to remove her daughter to their new home, she was not allowed to do so.

¶ 8 On July 1, 1999, Tammy Lynn appeared through her attorney and moved the court to terminate the guardianship and restore her parental rights. In support of her motion, she represented that she left her daughter temporarily with Knopps on December 28, 1998, until she could get financially established in a new community, and that she was now employed full time and had a stable residence but that her aunt and uncle (Knopps) had denied her custody of her child. She also pointed out that her parental rights had never been terminated nor suspended.

¶ 9 In support of her motion to dismiss the petition, J.N.P.'s mother argued that parental rights can only be terminated pursuant to Title 41 and that this Court had previously held that a temporary guardianship granted by a mother to a non-parent did not amount to a termination by circumstances. She cited and relied on Guardianship of D.T.N. (1996), 275 Mont. 480, 914 P.2d 579. She argued that as a matter of law, Knopps were not proper parties to a parenting plan prior to termination of her parental rights.

¶ 10 Knopps objected to the mother's motion to dismiss based on § 40-4-211, MCA, and the "best interest" standard found at § 212.

¶ 11 The District Court held a hearing to consider Knopps' petition and the mother's motion to dismiss on August 24, 1999. Prior to that hearing, the natural mother filed a supplemental brief in which she again restated that the court did not have legal authority to award custody to a non-parent until the natural parent's rights have been terminated. She again cited to our decision in D.T.N. and made other statutory arguments.

¶ 12 At the hearing to consider Knopps' petition, the District Court heard testimony from Gordon L. Knopp and Tammy Lynn. The essence of their testimony was summarized previously in this opinion. However, in addition, both agreed that no proceedings had ever been commenced by the state or county to terminate Tammy Lynn's parental rights. Nor was there any effort to demonstrate that the child had ever been abused, dependent or neglected. At the conclusion of the testimony, the District Court made the following statements in open court:

THE COURT: Well, I just read this D.T.N. case. Have you read that?

MS. LEATZOW: No, I have not.

THE COURT: I hadn't either. It's cited in Paula's brief. I don't think that I have any resource-let me read to you from this case. This is a 1996 decision authored by Justice Trieweiler reversing the Ravalli County District Court—an order of the Ravalli County District Court, which granted a petition similar to the petition here, and the mother appealed.

And in that decision the court said that— they cited the Aschenbrenner case, which was a decision where they terminated the custodial rights of a natural parent. They held that parental rights could not be terminated in that matter. They went on to say, then, in this decision, whether the grandparents—this was grandparents seeking a petition similar to this—whether the grandparents were better able to provide a good environment for the children—excuse me, let me read this again: Whether the grandparents were better able to provide a good environment for the children than the mother was irrelevant because the mother had a fundamental constitutional right to the custody of her children.

Quoting down, they said: The "best interest of the child" test is only relevant after there has been a showing of dependency or abuse or neglect pursuant to our termination of parental rights statutes, or in custody disputes between two natural parents. However, where third parties seek custody, it has long been the law in Montana that the right of the natural parents prevails until a showing of a forfeiture of this right. We have held that that kind of determination could not be made in a guardianship proceeding instituted by paternal grandparents, but only in a proceeding instituted to have children declared dependent and neglected, brought by the county attorney pursuant to Title 41, Chapter 3 of Montana Code Annotated. I don't necessarily—it doesn't matter whether I necessarily agree with that or not, but the Montana Supreme Court has unequivocally said in this decision, and did so in a decision just a matter of weeks ago, reversing a decision in this court terminating parental rights that a—that parental rights are a fundamental, constitutional right. They don't talk anything about responsibility, they talk about rights.

Now, that may not necessarily be correct, but that's the law in Montana, promulgated by the Supremes, and I'm obliged to follow it. And under the circumstances here, I don't see—unless you can argue something contrary to why this is not applicable law—that I have any recourse but to dismiss the petition.

¶ 13 The District Court's written order was entered on September 7, 1999, and J.N.P. has been with her mother since that time.

DISCUSSION

¶ 14 An understanding of the current posture of the case requires an understanding of three relevant cases. They are In Re Guardianship of D.T.N. (1996), 275 Mont. 480, 914 P.2d 579; In Re A.R.A. (1996), 277 Mont. 66, 919 P.2d 388; and Girard v. Williams, 1998 MT 231, 291 Mont. 49, 966 P.2d 1155.

¶ 15 In DTN, a child's paternal grandparents petitioned for guardianship pursuant to the guardianship provisions of the Uniform Probate Code found at §§ 72-5-201 through 234, MCA. The district court granted their petition over opposition by the natural mother based on provisions of that Act as well as provisions of the Uniform Marriage and Divorce Act, including § 40-4-212, MCA, which bases custody on a child's best interest. We limited our review to the probate code which limited appointment of a guardian for an unmarried minor to situations where "all parental rights of custody have been terminated or ... suspended ... by circumstances or prior court order." Section 72-5-222(1), MCA. However, in arriving at our decision we relied on In Re Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156, which also addressed the Uniform Marriage and Divorce Act. There we stated:

However, where third parties seek custody, it has long been the law in Montana that the right of the natural parent prevails until a showing of a forfeiture of this

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