                                                                                      July 10 2012


                                        DA 12-0019

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2012 MT 148N



IN THE MATTER OF THE
GUARDIANSHIP OF:

R.T.,

         A Minor.




APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DG 10-3
                      Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Marybeth M. Sampsel; Measure, Sampsel, Sullivan & O’Brien, P.C.,
                      Kalispell, Montana

               For Appellee:

                      David W. Harman, Attorney at Law, Libby, Montana


                                                  Submitted on Briefs: June 6, 2012
                                                             Decided: July 9, 2012




Filed:

                      __________________________________________
                                        Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1      Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2      R.T. was born in 2009. L.T., R.T.’s natural mother (Mother), was killed in a motor

vehicle accident on February 12, 2010. R.T.’s natural father, K.S. (Father), was a minor at

the time of Mother’s death, and temporarily staying at a half-way house. R.T.’s natural

maternal grandfather, J.T. (Grandfather), petitioned for guardianship/conservatorship of R.T.

on March 10, 2010. Grandfather was appointed guardian/conservator of R.T. on April 12,

2010.

¶3      On September 23, 2011, D.B., R.T.’s natural maternal grandmother (Grandmother),

residing permanently in Hawaii, petitioned to be substituted as R.T.’s guardian/conservator.

Grandmother claimed it was not in the best interest of R.T.’s physical health to remain

exposed to second-hand cigarette and marijuana smoke within Grandfather’s home.

Grandmother stated that the developmental needs of R.T. were not being met as Grandfather

and his wife both worked full time, leaving R.T. with babysitters. Grandmother further

claimed in an affidavit that R.T. was exposed to unsanitary living conditions within the

home.

¶4      On January 3, 2012, a hearing was held on Grandmother’s petition. On January 4,

2012, the District Court issued its findings of fact, conclusions of law, and an order granting
                                              2
Grandmother’s petition. The District Court found, pursuant to § 72-5-234, MCA, that it was

in the best interests of R.T. to have Grandmother as her guardian/conservator. The District

Court found that R.T. was exposed to second-hand cigarette and marijuana smoke within

Grandfather’s home. Grandfather’s wife testified that she and Grandfather had borrowed

money from R.T.’s account1 and would subsequently have to determine the amount to

replace. Pursuant to the District Court’s order, Grandmother was granted immediate custody

of R.T. and her belongings, and was authorized to transport R.T. to Grandmother’s residence

in Hawaii. The District Court ordered Grandfather to account for and pay to Grandmother the

monies remaining for the support, maintenance, and education of R.T.

¶5         Grandfather appeals, arguing the District Court erred in appointing Grandmother as

R.T.’s guardian/conservator according to § 72-5-222, MCA. Grandfather argues that Father’s

parental rights have not been terminated or suspended by a prior court order and Father’s

parental rights were not limited by circumstance.

¶6         We review a district court's conclusions of law relating to the appointment of a

guardian to determine if they are correct, and we review a district court's factual findings to

determine if they are clearly erroneous. In re the Guardianship of M.R.O., 2008 MT 280,

¶ 15, 345 Mont. 309, 190 P.3d 1109. Evidence that a parent is not fit to care for his or her

child must be clear and convincing to justify depriving a parent of custody. In re

Guardianship & Conservatorship of J.C., 2007 MT 106, ¶ 18, 337 Mont. 156, 157 P.3d

1130.

1
    R.T.’s account contained settlement monies awarded to R.T. for R.T.’s support, maintenance, and education following
                                                            3
¶7      Section 72-5-222(1), MCA, provides “[t]he court may appoint a guardian for an

unmarried minor if all parental rights of custody have been terminated or if parental rights

have been suspended or limited by circumstances or prior court order.” Grandfather was

appointed R.T.’s guardian under this Section upon the finding that “[Father’s] rights are

suspended by the circumstances of his temporary incapability of meeting [R.T.’s] needs.”

¶8      Grandmother then petitioned under § 72-5-234, MCA, to be substituted as

guardian/conservator. That section states, in relevant part, “[a]ny person interested in the

welfare of a ward or the ward, if 14 years of age or older, may petition for removal of a

guardian on the ground that removal would be in the best interests of the ward.” Section 72-

5-234(1), MCA. After notice and a hearing, the District Court “may terminate the

guardianship and make any further order that may be appropriate.” Section 72-5-234(2),

MCA.

¶9      We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our

Internal Operating Rules which provides for memorandum opinions. After reviewing the

record, we conclude the legal issues are controlled by settled Montana law which the District

Court correctly interpreted and its factual findings are not clearly erroneous. The District

Court already appointed a guardian for the reason that Father’s parental rights were

suspended by circumstance, and the only issue in this appeal is whether the substitution of

the guardian was in R.T.’s best interests. The record supports the District Court’s conclusion

to substitute Grandmother as R.T.’s guardian/conservator.


the death of Mother.
                                              4
¶10   Affirmed.

                       /S/ MICHAEL E WHEAT



We Concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




                   5
