                                      No. 97-1

              IN THE SUPREVE COURT OF THE ST4TE OF MOhTANA

                                           1097


IN RE CUSTODY OF C.K.J., a minor.

RONNIE JACOBSEN and MARTHA J.&COBSEN,

            Pct~tloners Appellants,
                      and



MALISSA JACOBSEN and RODNEY JACOBSEN.

            Respondents and Respondents.



APPEAL FROM:       District Court ofthe Sixth Judicial District,
                   In and for the County of Sweet Grass,
                   The Honorable William Nels Swandal, Judge presiding.


COUUSEL OF RECORD:

            For Appellants:

                   Bard G. Middleton, Attorney at Law,
                   Billings, Montana

            No appearance was made by the respondents.




                                                     Submitted on Briefs: August 28, 1997

                                                                Decided: October 1 0 , 1 9 9 7
Filed:
Justice Jim Regnier delivered the opinion of the Court.

       Pursuant to Section I, Paragraph 3(e), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public docunlent with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing Company.

       Petitioners and appellants, Ronnie and Martha Jacobsen, appeal from an order of the

Thirteenth Judicial District Court, Yellowstone County, denying their petition for custody

of their granddaughter. For the reasons stated below, we affirm.

       Having considered appellants' arguments, we find the following issues dispositivc 011

appeal:

          1.    Did the District Court err in concluding it was in C.K.J.'s best interest to be

transferred from the care and custody of her grandparents to that of her mother?

       2.       Did the District Court e n in finding C.K.J.'s mother did not abandon hcr or

othenvise relinquish her parental rights:'

                     FACTUAL AND PROCEDCRAL BACKGROUYD

       C.K.J. was born on June 26, 1991: to Malissa Danes; her biological mother, and

Rodney Jacobsen, her biological father. Rodney Jacobsen and ,Valissa Danes married in

June 1992, and divorced two years later. The decree of dissolution, entered by a district

court in Nebraska on June 28, 1994, did not decide the issue of custody.

          Petitioners and appellants Ronnie and Martha Jacobsen (the Jaeobsens), are C.K.J.'s

paternal grandparents. The parties do not dispute that, following C.K.J.'s birth in June 1 O N ,

                                               2
Kodney Jacobsen and Malissa Danes, formerly known as Mallssa Jacobsen, experleiiced

financial and marital difficulties which prompted them to place their daughter in the

Jacobsens' care on a number of occasions. Indeed, the record indicates that C.K.J. has spent

the majority of her young life in her grandparents' household. The Jacobsens cared for

C.K.J. on an intermittent basis from her birth until November 1993. Beginning in the fall of

1993, the Jacobsens cared for C.K.J. on a continuous basis tltrough April 1906. Kodney

Jacobsen and Malissa Dancs traveled from Nebraska to Montana in March 1994 in an

attempt to retrieve custody of C.K.J., but failed to do so upon intervention by a social worker

for the Montana Department of Family Senlices. The social worker placed a 48-hour hold

on C.K.J., and Danes testified it was her understanding that the Departnient of Family

Services Itad assumed legal control over her daughter.

        Danes eventually moved to Flor~da, on Aprd 12. 1996, she and her boyfr~cnd,
                                         and

Randy Porter, arrived at the Jacobsens' house, to ptck tip C.K.J. and return wlth her to

Flortda. Danes stated that, prior to her arrwal at the Jacobsens, she had spoken w ~ t ha

Stillwater County Attorney who advised her she could take C.K.J. from the Jacobsen

household. The Jacobsens permitted Danes and Porter to leave with C.K.J. on April 12%

1996.

        On April 23,1996, the Jacobsens filed a petition for custody naming Malissa Jacobsen

a/k/a Danes, and their son, Rodney Jacobsen, as respondents. The Jacobsens also filed an

eyyarte motion for temporary assignn~ent custody, which the court granted on April 25,
                                       of
1996. Rodney Jacobsen subsequently filed an affidavit indicating he did not oppose his

parents' petition for custody of C.K.J.

       Following a show cause hearing on May 14, 1996, the court granted the Jacobsens'

temporary custody of C.K.J. The District Court held a final custody hearing on August 13,

1996. following which it issued an order denying the Jacobsens' petition for custody and

granting custody of C.K.J. to Danes. it is from this order, dated September 13, 1996: that the

Jacobsens now appeal.

       On March 10, 1997, Danes' attorney filed a motion to withdraw as Danes' counsel of

record in this case. The District Court granted counsel's motion on Marc11 25, 1997. Danes

is thus proceeding pro se for the purposes of this appeal.

                                       DlSCUSSfON

       We review a district court's custodial deteinlination for an abuse of discretion. 1n re

,Mwirt,qe uf i>r-eesbachj1994j,265 Mont. 21 6,220-2 1, 875 P.2d 1018, 102 1 ; 11 re Matter
                                                                               1

rfS.P., C.l'., H.M., J.M., K.M., Y.M. (1090), 241 Mont. 190, 104, 786 P.2d 042, 644. U'e

afford the district court's decision "all reasonable presumptions as to the correctness of the

deterniination" and will not disturb the decision on appeal "unless there is a mistake of law

or a finding of fact not supported by substantial credible evidence that would amount to a

clcar abuse of discretion." In re Mutter qj'S.P., 241 Mont. at 194, 786 P.2d at 644 (quoting

in re iM~~ttel.qf
               K.A.D. (1988), 23 1 Mont. 143, 148,753 P.2d 862,865). See izlso Ilreeslti~ri~,

256 Mont. at 220-21, 875 P.2d at 1021. We thus proceed under the presumption that the
district court's custody determination is correct unless not supported by credible evidence.

112re Matter of' S.P., 241 Mont. at 194, 785 P.2d at 544.

                                            lSSUE 1

       Did the District Court err in concluding it was in C.K.J.'s best interest to he

transferred from the care and custody of her grandparents to that of her natural mother'?

       The Jacobsens petitioned the court for custody of C.K.J. pursuant to 3 40-4-2 1 1(4)(b),

MCA, which pro~ides
                  that a nonparent may commence a custody proceeding only if the

child is not in the physical custody of a parent. Implicit in the Diskict Court's September 13,

1996, order was the conclusion that the Jacobsens had standing to seek custody of C.K.J.

       Where a nonparent properly commences a custody proceeding pursuant to

ij 40-4-21 1 (4)(b), MCA, we have held that, "[olnce tlte standing requirement is met and the

custody proceeding goes forward under the [Uniform Marriage and Divorce] Act, the court

determines custody based on the best interests of the child; a finding of unfitness is not

required." In re Custody of'K.K.K., K.D.K., und L.M. K. (1 993), 260 Mont. 191, 199-200,

859 P.2d 998, 1004.

       Accordingly, the District Court applied the best interest stmdard in making a custody

determination in this case. Following consideration of the record before it, the District Court

concluded that "this court must carefully protect parental rights, and it is in [C.K.J.'s] best

interest that she be returned to the custody and control of her mother subject to visitation with

[the Jacobsens] and [her father]." The Jacobsens argue the court erred in so concluding.
       7 he Jacobsens first contend the court crrcd by failing to state the facts upon w11tcb it

rel~ed determining it was in C.K.J.'s best interest that her mother receive custody. In a
     in

related argument, the Jacobsens additionally contend tlie District Court failed to enter

appropriate findings of fact to support its conclusion that it was in C.K.J.'s best interest to

be ret~lrned the custody of her mother. Specifically, the Jacobscns note that the Distrtct
           to

Cout-t made no specific findings of fact regarding "the interaction and interrelationship of thc

child with the child's parent or parents and siblings and with any other person \tho may

           affect the chtld's best interest." See
s~gn~ficantly                                         5 40-4-212(1)(c), MCA.     Thc Jacobsetis

also contend the court should have entered findings of fact regarding C.K.J.'s "adjustment

to home, school, and community." See 5 40-4-212(1)(d), MCA.

       Sectton 40-4-212, MCA, del~neatestliose factors whtch a court shall consider tn

making a custody determination in accordance with the best interest of the child. 'fhosc

factors include:

               (a)    the wishes of the child's parent or parents as to custody;
               (b)    the wishes of the child as to a custodian;
               (c)    the interaction and interrelationsliip of the child with the child's
       parent or parents and siblings and with any other person who may significantly
       affect the child's best interest:
               (d)    the child's adjustment to home, school, and community;
               ( e ) the mental and physical health of all individuals involved;
               (0 physical abuse or threat of physical abuse by one parent against
       tlie other parent or the child; and
               (g)    cheiiiical dependency, as defined in 53-24-103, or chemical
       abuse on the part of either parent.

Section 40-2-212(1), MCA.
       On appcal, the Jacobsens argue the District Court erred in failing to enter findings of

fi~ct
    regarding C.K.J.'s interaction with her parents, siblings, or with anyone else who might

significantly affect her best interest, and similarly failed to enter findings regarding C.K.J.'s

"adjustment to home, school, and community." See         5 40-4-212(1)(c), (d), MCA.     Indeed,

review of the District Court's findings of fact indicates that, apart from its observation that

there was no evidence to suggest that Danes and C.K.J. did not have a good relationship with

one anotl~er, District Court did not enter specific findings of fact addressing these factors.
            the

       We have held, however, that "[a]ll the [best interest of the child] statute requires is

that the court consider the factors listed. It is not required to make specific findings

concerning each clement, though it must express the essential and determining facts upon

which its conclusions rest." In re Marr-iage ofLSyver:wrz
                                                        (Mont. 1997), 93 1 P.2d 591, 703-04,

54 St. Rep. 32, 40 (quoti~~g re h r r i a g e qfFesolowitz (1993), 258 Mont. 380, 388. 852
                          In

P.2d 658, 663). We review a district court's findings of fact regarding custody to determine

whether the findings in question are clearly erroneous. ,Syver-sorz, 931 P.2d at 703,54 St. Rep.

at 40. Findings of fact upon which a custody determination rests "are clearly erroneous if

they are not supported by substantial evidence, the court misapprehends the effect of the

evidence, or this Court's review of the record convinces it that a mistake has been made."

Sj~veisotz, 1 P.2d at 903, 54 St. Rep. at 40.
          93

       Here, anlong the findings of fict upon which the District Court based its conclusion

that it would be in C.K.J.'s best interest to return to the custody of her mother were the

following:

                                               7
              (a)     While the Court finds that respondent Malissa Danes could have
       been in more contact with [C.K.J.] and could have used different means in
       reaching her goal of being reunited with her daughter, there is no evidence
       other than Malissa Danes has a good mother'daughter relationship with
       [C.K..I.] at present and would now s e n e as a fit caretaker for the child.
       [Finding of Fact No. 9.1

              (b)    That [Danes] is presently going to school, has a part-time job,
       has completed a parentmg class, and tt appears to the Court that she has taken
       steps to improve her ltfe and that she can provtde a good home for [C.K.J.].
       [Finding of Fact No. 12.1

                 (c)It is clear that the respondent Malissa Danes will provide a
       suitable home and environment for [C.K.J.]. [Finding of Fact S o . 13.1

             (d)     That it is in [C.K.J.'s] best interests to have visitation with [the
       Jacobseiisl and her father.

In its remaining findings, the court additionally noted that, at the trmc of its decision, Danes

had an elcvcn-month-old daughter living with her, and had undergone a "financral and

lifestyle tra~isformatron"which would enable her to properly parent her daughter.

       Further, although the court made no specific findings regarding certain factors

delineated in ji 40-4-212, MCA, it heard testimony at two separate custody hearings which

addressed those factors and supports the court's conclusion that it was in C.K.J.'s best

intcrest that she be returned to licr mother's custody. For example, the court heard testrmony

regardung "the   M rshes   of the child's parent or parents as to custody." Both C'.K.J.'s mother

and father testified at the hearings, as did Ronnie and Martha Jacobsen.

       The court additionally heard test~mony regarding C.K.J.'s "tnteractlon and

sntenelationship" wlth her mother and her eleven-month-old half-s~ster,
                                                                      B.D., as well as w ~ t h

the Jacobsens and their ch~ldren. Finally, testimony was offered rcgarding ('.I<.J.'s
"adjustment to home, school, and community," not only while in the care of the Jacobsens,

but also while in her mother's care in Florida during April 1995. In addition, as the court

noted in its findings of fact, it reviewed and relied upon both a written report aud deposition

testimony givcn by an investigating social worker who indicated she would not hcsitate in

recommending placing C.K.J. with her mother.

          Operating as we do, under the presumption that the district court's ct~stody

determination is correct, we hold the court's finding that Danes had a good relationship with

her daughter and was able to provide her with a suitable home adequately set h r t h the

essential and determining facts upon which it relied in concluding it was in C.K.J.'s best

interest that her mother receive custody. Further, having reviewed the entire record, we hold

that substantial evidence existed to support the findings of h c t upon which the cotlrl restcd

its custody determination. The court did not misapprehend the effect of the evidence?and

our review of the record does not convince us the court made any mistakes. ,4ccordingly,

we hold the court's findings of fact are not clearly erroneous and will not be disturbed on

appeal.

       In a final argument attacking the court's application of the best interest test, the

Jacobsens contend the District Court incorrectly deviated &om its consideration of C.IC.J.'s

best interest by bestowing a preference upon the child's natural mother in reaching a custody

determination. The Jacobsens point to the court's conclusion that it nus st carefully protect

parental rights" as evidence that it afforded Danes preference as a matter of law in the

custody proceeding. The Jacobsens argue that, once they established their entitlement to

                                              9
standing pursuant to (i 40-4-21 1(4)(b), MCA, the fact that Danes was C.K.J.'s natural mother

should have had no bearing on the court's ultirnate award of custody. They maintain the

court should only have considered those factors relevant to C.K.J.'s best interest, and erred

in giving Danes preference as a matter of law.

       Having held that the District Court properly set forth the essential and determining

factors upon which it concluded C.K.J.'s best interest required returning her to the custody

of her mother, we need not address the Jacobsens' final argument. Whether or not the Court

afforded Danes preference as a matter of law is immaterial, as the court otherwise provided

adequate support for its conclusion that it was in C.K.J.'s best interest to return to the custody

of her mother.

                                            ISSUE 2

       Did the District Court e n in finding that Danes did not abandon C.K.J. or relinquish

her parental rights?

       In its September 13, 1996, custody order, the District Court found that Danes "did not

abandon or relinquish her parental rights to" C.K.J. The court further concluded that

although Danes "abandoned her child . . . for a two-year period pursuant to              5   40-4-

2 1 1( l )jc)(i), and that constitutes neglect pursuant to   5   41-3- 102(5)(a)(ii) and (7), the

abandoninent was not meant to be pernlanent, but temporary." The Jacobsens contend the

District Court's finding on this point is clearly erroneous and constitutes an abusc of

discretion.
        As discussed above, we have held that if a nonparent establishes standing to seek

custody pursuant to     5   40-4-21 1(4)(b), MCA, the court will base its ensuing custody

determination exclusively on the best interest of the child pursuant to 5 40-4-212, MCA. I n

re   K.R.K.,260 Mont. at 199-200, 859 P.2d at 1004. In I n re K.R.K., specifically
                                                                    we

recognized that a "finding of unfitness [on the part of the natural parent] is not required" for

a nonparent to successfully seek custody. In I-eR.R.K., Mont. at 199-200, 859 P.2d at
                                                      260

lOO4.

        Having held the District Court correctly concluded it was in C.K.J.'s best interest that

she be returned to the cnstody of her mother, we need not address the question of whether

the District Court erred in finding Danes did not abandon her daughter or otherwise

relinquish her parental rights.

        We hold the District Court did not abuse its discretion in concluding it was in C.K.J.'s

best interest to be transferred firon1 the care and custody of her grandparents to that of her

natural mother.     Specifically, we hold the court properly set forth the essential and

determining hcts upon which it rested its conclusion regarding C.K.J.'s best interest, and did

not e n in failing to enter specific findings regarding certain factors set forth in   5 40-4-2 12,
MCA. Based on the foregoing, we affirm the decision of the District Court, and hold the

court did not abuse it discretion in denying the Jacobsens' petition for custody.
We Concur:
                                        October 10, 1997


                                  CERTIFICATE OF SERVICE

I hereby certifj that the following certified order was sent by United States mail, prepaid, to the
following named:

BARD G. MIDDLETON
ATTORNEY AT LAW
PO BOX 1084
BILLINGS MT 59103-1084

MALISSA DANES
20620 COUNTYLINE ROAD
BROOKVILLE FL 34610



                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
