                                        No. DA 06-0581

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 106



IN THE MATTER OF THE GUARDIANSHIP
AND CONSERVATORSHIP OF

J.C. and A.N.C.,

              Minor Children.



APPEAL FROM:           The District Court of the Twentieth Judicial District,
                       In and For the County of Sanders, Cause No. DN-05-07,
                       Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                       Naomi R. Leisz, Attorney at Law, Thompson Falls, Montana

              For Respondents:

                       Amy N. Guth, Attorney at Law, Libby, Montana (Hansons)

                       Claude I. Burlingame, Attorney at Law, Thompson Falls, Montana (R.S.)

                       John O. Putikka, Putikka Law Office, Thompson Falls, Montana
                       (Guardian Ad Litem)

                       Ken Claflin, pro se, Plains, Montana



                                                       Submitted on Briefs: February 28, 2007

                                                                  Decided: May 1, 2007

Filed:


                       __________________________________________
                                         Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    J.C. (eleven years old) and her younger sister A.N.C. (eight years old) were living

with their biological father, R.S., when, in July of 2004, R.S. was arrested for deliberate

homicide. R.S. executed a special power of attorney, placing the children into the care of

Greg Hanson, M.D. and his wife Janice (the Hansons). The Hansons had at one time

been foster care providers for J.C. and A.N.C., and had continued to provide significant

financial assistance as well as day care for the girls. A.C., the biological mother of J.C.

and A.N.C., also granted the Hansons temporary permission to care for the girls.

¶2    On July 27, 2004, the Hansons filed a petition for appointment of temporary

guardian for the children, requesting that they be appointed the girls’ temporary guardian

pending the ability of the parents to care for the children. Ken Claflin, A.C.’s brother,

and his wife Melanie (the Claflins) also filed a petition seeking full guardianship of the

girls on the same day. A.C. supported the Claflins’ petition and admitted in an affidavit

filed with the petition that she was unable to adequately care for the girls. The District

Court, during the guardianship proceedings, concluded that A.C.’s parental rights were

suspended by circumstances and eventually granted full guardianship to the Hansons.

A.C. appeals the court’s grant of guardianship to the Hansons as well as its determination

that her parental rights were suspended by circumstances. We affirm.

¶3    We restate the issues as follows:

¶4    I. Did the District Court properly determine that the mother’s parental rights were

suspended by circumstances?


                                          2
¶5     II. Did the District Court err in appointing a temporary and then a permanent

guardian when the mother had withdrawn her consent?

                                    BACKGROUND

¶6     A.C. has cerebral palsy, a permanent impairment of the central nervous system,

and an estimated I.Q. of 67. A.C.’s income is from Social Security benefits. A.C.’s

mother, at the request of the Social Security administration, acts as her payee and pays

A.C.’s bills from A.C.’s funds.

¶7     A.C., with assistance from R.S. and others, parented J.C. for the first two years of

J.C.’s life, though not without difficulty as evidenced by the numerous visits made by the

Department of Public Health and Human Services (the Department) regarding her

parenting. Once A.C. was pregnant with A.N.C., however, she became concerned that

she would be unable to adequately care for J.C. and a newborn. She therefore asked her

brother and his wife, the Claflins, if they would adopt A.N.C. Later she changed her

mind and attempted to care for both J.C. and A.N.C. The Department quickly became

involved, and A.N.C. was determined to be in “immediate or apparent danger of harm”

and was placed in the care of the Department on September 28, 1998. Two months later,

J.C. was also placed in the care of the Department. A.C. once again decided to relinquish

A.N.C. to her brother, because “she [felt] that she [was] unable to care for both children

and keep them safe.”

¶8     The Department, instead, created treatment plans for both A.C. and R.S. Both

parents were initially unsuccessful at meeting the goals established in the treatment plans.

On June 8, 1999, the court found that the children were “youths in need of care” as a
                                         3
result of the unsuccessful treatment plans as well as expert opinion that A.C.’s “ability to

parent [was] extremely tenuous at best.” Additionally, A.C. had admitted, during a

family group conference, that she was not capable of meeting the children’s needs.

¶9     On November 23, 1999, A.C. appeared in open court and informed the court that

she was willing to relinquish her parental rights. The guardian ad litem (GAL), however,

opposed the termination for two reasons. First, he thought that A.C. was trying to

improve but was hampered by her disability. Second, he did not feel that the father, R.S.,

had been given a fair chance to complete a treatment plan.1 R.S. subsequently completed

his treatment plan, and, sometime between July 31 and October 31, 2000, J.C. and

A.N.C. were permanently placed with R.S. While the Department de facto dropped the

youths in need of care case after the girls were permanently placed with R.S., the case

was not formally dismissed until December 2004, upon motion by the State. The State

moved for dismissal of the case “at the request of the parties.”

¶10    The Hansons provided foster care for A.N.C. and J.C. during the time they were in

the custody of the Department, a period of approximately two years. Even after the

Department placed the girls with R.S., the Hansons continued to provide substantial

childcare and financial assistance. In the opinion of the GAL, the Hansons “were still the

primary caregivers for [both girls] and . . . appeared to do most of the day-to-day

parenting.” The Hansons also facilitated visitation between A.C. and her children. In




1
 Apparently, the Department’s policy is to terminate both parents’ rights, not just the
rights of one parent.
                                          4
particular, they often provided transportation for A.C. The Hansons have acted as the

children’s temporary guardians since R.S.’s arrest and eventual imprisonment.

¶11    The Hansons and the Claflins both submitted petitions for guardianship of the girls

on July 27, 2004. The Claflins’ contact with J.C. and A.N.C., however, had been

somewhat limited up to that point. In fact, the Claflins had only visited the girls on two

occasions prior to petitioning for guardianship. A.C., however, was in favor of her

relatives assuming guardianship. To that end, she signed and filed with the court a

“consent of mother” document in which she stated: “I am unable to care for my children

myself.” Additionally, in the Claflins’ petition for guardianship, they contended that

A.C. was “incapacitated and unable to adequately care for her children . . . .”

¶12    In order to keep the “status quo,” the parties initially stipulated that the Hansons

would keep the girls pending the outcome of the guardianship proceedings.              On

December 21, 2004, the court appointed the Hansons as temporary guardians. The court

later, after several motions, issued a scheduling order requiring that all pretrial motions

be submitted before September 29, 2005. Despite the order, A.C., through her attorney,

filed a motion to dismiss the Hansons’ petition on October 6, 2005, for the first time

raising the issue of the status of A.C.’s parental rights. On October 31, at the hearing

initially scheduled to determine final guardianship, the court determined that, despite

A.C.’s late filing, her motion was of sufficient importance that the matter should be

suspended until all parties could respond. As a result, the court found it necessary to

extend the Hansons’ temporary guardianship.


                                          5
¶13    During the January 3, 2006, scheduling conference the court determined that in

this particular case, a hearing on whether A.C.’s parental rights were suspended was not

required. Nevertheless, the court allowed the parties to brief the matter and reserved

February 7, 2006, for a hearing if one was deemed necessary by the parties. Although

A.C. filed motions with the court on January 12 and March 2, 2006, she failed to request

a hearing in either motion.

¶14    On March 2, 2006, the court determined that A.C.’s parental rights were

“‘suspended or limited’ by circumstances of her disability.” The court denied her motion

to dismiss as untimely and wholly inconsistent with: (1) A.C.’s previous sworn

representations to the court; (2) A.C.’s concessions in support of her brother’s petition;

and (3) the court’s previous rulings. Also on March 2, 2006, A.C., for the first time,

explicitly revoked her previous consent to the Hansons as temporary guardians.

¶15    At the final hearing on April 21, 2006, A.C. did not testify nor did she call any

witnesses. Instead, her attorney explained to the court that, because of the court’s ruling

that A.C.’s rights had been suspended or limited by circumstances, she “did not prepare

today or bring witnesses or anything to present evidence on whether or not [A.C.] is

capable of parenting her children.”     Testimony was received from the Claflins, the

Hansons, and the GAL, as well as a clinical psychologist who had interviewed the girls

and a psychologist and social worker whom J.C. had been seeing in therapy. The GAL

and both psychologists recommended that the girls stay with the Hansons, primarily for

the sake of continuity and because the girls, especially A.N.C., had formed the strongest

attachment to the Hansons.
                                         6
¶16   The court concluded that it was in the girls’ best interests to appoint the Hansons

as full guardians. The court found that the Hansons are in the best position to maintain

relationships with everyone involved, including A.C. and R.S.        The court was also

persuaded by the nature and length of the girls’ relationship with the Hansons and the

testimony that harm would result if the girls were removed from the Hansons’ care. The

court reiterated its former determination that A.C.’s rights had been suspended by

circumstances. Additionally, the court reasoned that a hearing concerning the suspension

of A.C.’s rights was not necessary because § 72-5-222, MCA, does not expressly require

a hearing, and, in any case, A.C. waived her right to a hearing by not requesting one.

Further, the court found that A.C. had, on numerous occasions, admitted that she is unfit

to parent J.C. and A.N.C and she had not had custody of the girls since 1999. In fact, the

first attempt that A.C. made to secure her custodial rights, beyond seeking dismissal of

the Hansons’ petition, was on April 19, 2006, two days before the final hearing.

¶17   A.C. appeals the court’s order granting guardianship to the Hansons and the

court’s determination that A.C.’s parental rights have been suspended by circumstances.

                              STANDARD OF REVIEW

¶18   We review a district court’s conclusions of law related to the appointment of a

guardian to determine if they are correct. In re Guardianship of D.T.N., 275 Mont. 480,

483, 914 P.2d 579, 580 (1996) (citations omitted). We review the underlying factual

findings to determine whether they are clearly erroneous. D.T.N., 275 Mont. at 483, 914

P.2d at 580 (citations omitted). Evidence that a parent is not fit to care for his or her


                                         7
child must be clear and convincing to justify depriving a parent of custody. In the Matter

of Guardianship of Aschenbrenner, 182 Mont. 540, 551, 597 P.2d 1156, 1163 (1979).

                                      DISCUSSION

¶19    I. Did the District Court properly determine that the mother’s parental

rights were suspended by circumstances?

¶20    A.C. contends that the District Court improperly determined that her parental

rights were suspended because: (1) the court did not hold a hearing; (2) A.C. had put

forth sufficient efforts to assert her rights; and (3) a probate proceeding is an improper

forum to determine the status of a parent’s custodial rights.

¶21    A. Was a hearing required?

¶22    According to A.C., the District Court violated her right to due process by not

holding a full hearing prior to determining that her parental rights were “suspended by

circumstances.”

¶23    Under the Uniform Probate Code, as adopted by Montana, “[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.”     Section 72-5-222(1), MCA (emphasis added).       This section does not

explicitly require a hearing to determine whether parental rights have been suspended by

circumstances. A natural parent has a fundamental liberty interest to the care and custody

of her child that must be protected by fundamentally fair procedures. In re C.R.O., 2002

MT 50, ¶ 10, 309 Mont. 48, ¶ 10, 43 P.3d 913, ¶ 10 (citations omitted). Due process does

not, however, require that the defendant in every civil case actually have a hearing on the
                                          8
merits.     Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S. Ct. 780, 786 (1971).

Furthermore, an individual can expressly or impliedly waive her right to a hearing as long

as the waiver is knowledgeable and voluntary. Stuart v. Dept. of Social & Rehab. Serv.,

247 Mont. 433, 437, 807 P.2d 710, 712 (1991) (citations omitted).

¶24       Here, we need not address whether a hearing was required to determine if A.C.’s

rights had been suspended by circumstances because A.C. knowingly and voluntarily

waived her right to a hearing. At the January 3, 2006, scheduling conference, all parties

were in agreement that a hearing on the matter of A.C.’s parental rights was not

necessary. Nonetheless, the court preserved the opportunity for a hearing and informed

all parties, including A.C., that they could request a hearing in their briefs. The court

conditionally set a hearing for February 7, 2006. A.C. did not request a hearing, appear

on that date, or request a hearing on any other date. The court was thus justified in

concluding, based on A.C.’s conduct, that she waived her right to a hearing.

¶25       B. Was there sufficient evidence to overcome A.C.’s assertion of her parental

rights?

¶26       A.C., citing to Aschenbrenner and D.T.N., further contends that the court had

insufficient evidence to find that her parental rights were suspended because she appeared

at every hearing, filed a formal withdrawal of consent, and filed a motion to dismiss the

Hansons’ petition.

¶27       In Aschenbrenner, the mother appealed the district court’s grant of permanent

guardianship to the paternal grandparents. As there was no court order suspending

parental rights, we looked to whether the rights were suspended by circumstances, noting
                                          9
that evidence that a parent is not fit to care for her children “must be clear and convincing

to justify depriving a parent of custody of her children.” Aschenbrenner, 182 Mont. at

546, 551, 597 P.2d at 1160, 1163. The only evidence indicating that the mother had

abandoned her parental rights was that she left her children with their grandparents for a

period of three weeks. Aschenbrenner, 182 Mont. at 547, 597 P.2d at 1161. As such a

temporary event was insufficient to show that the mother’s rights were suspended by

circumstances, and as only one person testified that the mother was unfit, we held that the

order appointing a guardian was not supported by clear and convincing evidence.

Aschenbrenner, 182 Mont. at 550-51, 597 P.2d at 1163.

¶28    In D.T.N., the district court “seemingly ignored the requirements of § 72-5-222(1),

MCA,” and failed to specifically conclude that the mother’s parental rights were

terminated or suspended. D.T.N., 275 Mont. at 483, 914 P.2d at 581. We therefore, as in

Aschenbrenner, analyzed whether the facts supported a conclusion that the mother’s

parental rights were “suspended by circumstances.” We noted that the mother had

“appeared in this action, [withdrawn] her consent to the temporary guardianship, and

filed a petition to terminate the temporary guardianship,” all of which indicated that she

had not voluntarily relinquished her rights. Moreover, the mother’s only relinquishment

of custody was temporary and voluntary. D.T.N., 275 Mont. at 488, 914 P.2d at 583-84.

For these reasons, we concluded that the mother’s rights had not been suspended by

circumstances and reversed the district court’s order of permanent guardianship. D.T.N.,

275 Mont. at 488, 914 P.2d at 584.


                                         10
¶29      Here, unlike the courts in Aschenbrenner or D.T.N., the District Court specifically

determined that A.C.’s parental rights were suspended by circumstances based in part on

the testimony of A.C. who informed the court, both in person and by affidavit, that she

was incapable of caring for her children, and admitted as much to the GAL and to her

brother.

¶30      Additionally, another Montana district court had previously found that the children

were abused or neglected in the 1998 youth in need of care case. In that case the

Department, based on its observations and the opinion of its expert, a psychologist,

opined that A.C.’s ability to parent was “extremely tenuous at best.” Furthermore, A.C.

has a somewhat low I.Q. of 67 and has cerebral palsy, an irreversible neurological

disorder. Finally, A.C. has not had custody of her children since 1999, a significantly

longer period of time than in either Aschenbrenner (three weeks) or D.T.N. (about one

year).

¶31      While A.C. did appear in this action and eventually asserted her parental rights,

she originally joined in the Claflins’ petition for guardianship and voluntarily

relinquished her parental rights by admitting that she was unfit to parent her children.

A.C.’s relinquishment of custody, therefore, was not temporary and was only voluntary in

the sense that she admitted she was unable to parent. Given the clear and convincing

evidence that A.C. was not fit to care for her children, the court was justified in

concluding that her parental rights were suspended by circumstances despite A.C.’s

belated assertion of her custodial rights.


                                             11
¶32    C. Did the District Court have the authority, under § 72-5-222(1), MCA, to

determine that A.C.’s parental rights had been suspended by circumstances?

¶33    A.C. also argues that the actions of the District Court de facto terminated her

parental rights. Such a ruling, according to A.C., was outside the power of the court

because a probate court does not have the power to terminate the rights of a natural

parent. Additionally, A.C. contends the court erred by making findings as to her “fitness”

and “capability.”

¶34    As A.C. notes, we stated in D.T.N. “that the guardianship provisions of the Probate

Code were never intended as a substitute for . . . the prescribed and demanding

procedures established for the termination of parental rights.” 275 Mont. at 487-88, 914

P.2d at 583. Further, in Aschenbrenner, we determined that 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. 182 Mont. at 549, 597 P.2d at 1162.

¶35   The Probate Code, at § 72-5-222(1), MCA, however, does allow a district court to

determine, in a guardianship proceeding, that a parent’s rights are suspended by

circumstances. Section 72-5-222(1), MCA, permits a court to appoint a guardian if

parental rights have been: (1) terminated; (2) suspended or limited by circumstances; or

(3) suspended or limited by a prior court order.       The probate court in the present

guardianship proceeding is the appropriate court to determine whether parental rights

have been suspended by circumstances. In the case at bar the court determined, without

objection, that R.S.’s parental rights were suspended by circumstances because he was in
                                        12
prison serving a life sentence. Although no prior court had terminated or suspended

R.S.’s parental rights, his rights were suspended by the circumstances of his

imprisonment, and the court had the authority to make that determination pursuant to the

Probate Code at § 72-5-222(1), MCA.

¶36    Additionally, while the District Court did consider the best interests of the

children, it was in the context of appointing the Hansons, as opposed to the Claflins, as

guardians for the girls, not in the context of determining that A.C.’s parental rights were

suspended by circumstances. In fact, the court was required by § 72-5-225, MCA, to

determine that “the welfare and best interests of the minor will be served by the requested

appointment . . . .”

¶37    Thus the court did not improperly terminate A.C.’s rights but instead determined,

pursuant to § 72-5-222(1), MCA, that A.C.’s parental rights were suspended by

circumstances based on clear and convincing evidence.

¶38    II.   Did the District Court err in appointing a temporary and then a

permanent guardian when the mother had withdrawn her consent?

¶39    A.C. also contends that her October 6, 2005, motion to dismiss should have

terminated the Hansons’ temporary guardianship. She asserts that a guardianship based

on parental consent must terminate when that consent is withdrawn.              Here, the

guardianship was based on the consent of the parties and she contends the court should

have surmised that by submitting a motion to dismiss the Hansons’ petition, A.C. was

implicitly revoking her prior consent to the Hansons’ temporary guardianship as well.


                                        13
Additionally, even if A.C.’s withdrawal of consent did not serve to immediately

terminate the guardianship, it should have expired, by law, six months from October 6.

¶40    Section 72-5-224, MCA, allows a court to appoint a temporary guardian, but limits

the authority of the temporary guardian to six months. Section 72-5-224, MCA, does not,

however, explicitly prevent a court from re-appointing a temporary guardian after the

initial six months if extra time is needed to properly complete the requirements of § 72-5-

225, MCA (listing the procedures for appointment of a permanent guardian).               In

Aschenbrenner, we noted, with disapproval, that the temporary guardianship had been

continued for fourteen months. Aschenbrenner, 182 Mont. at 552, 597 P.2d at 1164. We

were concerned, in Aschenbrenner, with the extended length of the temporary

guardianship primarily because the mother’s parental rights were not suspended by

circumstances or court order.

¶41    Here, as described above, A.C.’s parental rights were suspended by circumstances.

Also, the court extended the temporary guardianship past October 6, 2005, specifically

because A.C. had filed a motion to dismiss after the September 29, 2005, deadline for

pretrial motions. Furthermore, during the October 31, 2005, hearing, which had been

scheduled as the final guardianship hearing, A.C. again agreed to maintain the status quo

while A.C.’s new issues were addressed. Finally, A.C. had originally consented to the

Hansons’ temporary guardianship in July of 2004 and did not expressly revoke her

consent until March 2, 2006, some eighteen months later. The District Court thus did not

err by extending the Hansons’ temporary guardianship and thereby maintaining the status

quo until it was able to appoint a permanent guardian.
                                        14
¶42    Finally, the court did not err by appointing the Hansons as permanent guardians

over A.C.’s objection. By April 21, 2006, the date of the final hearing, the parental rights

of both parents were suspended by circumstances. Consequently, the court did not need

either parent’s consent to appoint a guardian. Rather, the court was bound by the

requirements of § 72-5-225, MCA.

                                     CONCLUSION

¶43    The District Court properly determined that A.C.’s parental rights were suspended

by circumstances and did not err by appointing the Hansons as temporary and then

permanent guardians. We therefore affirm the judgment of the District Court.



                                                 /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ JIM RICE




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