                                                                                               12/13/2016


                                            DA 15-0797
                                                                                           Case Number: DA 15-0797

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 322



IN RE THE PARENTING OF

N.M.V.,

               Minor Child,

DUSTIN E. CROSS,

               Petitioner and Appellant,

         and

ERIN VERPLOEGEN,

               Respondent and Appellee.


APPEAL FROM:            District Court of the Twelfth Judicial District,
                        In and For the County of Hill, Cause No. DR-11-21
                        Honorable Daniel A. Boucher, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Jeremy S. Yellin, Attorney at Law, Havre, Montana

                 For Appellee:

                        Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze PLLP, Havre,
                        Montana


                                                    Submitted on Briefs: October 5, 2016

                                                               Decided: December 13, 2016

Filed:

                                           /S/ ED SMITH
                                               Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Dustin E. Cross appeals from the Findings of Fact, Conclusions of Law, and Final

Visitation Plan entered by the Montana Twelfth Judicial District Court, Hill County,

awarding him visitation rights but denying him a parental interest in N.M.V., a minor

child and daughter of Cross’s former girlfriend, Erin J. Verploegen. We affirm.

                                          ISSUE

¶2     The issue on appeal is whether the District Court abused its discretion in denying

Cross a parental interest in N.M.V.

                                      BACKGROUND

¶3     Cross and Verploegen began dating in December 2001, less than one year after

N.M.V. was born. N.M.V.’s biological father, Roger Gonzales, has had no contact with

N.M.V. and his whereabouts are currently unknown. Verploegen and N.M.V. moved

into Cross’s Bozeman townhome in June 2003. During the time they lived together in

Bozeman, Verploegen made all critical decisions about N.M.V.’s upbringing, including

decisions about healthcare, daycare, and the everyday rules N.M.V. was to abide. Cross

worked long hours and most weekends, but he would read to N.M.V. at night and picked

her up from daycare once or twice when Verploegen was unavailable. Cross paid the rent

on the townhouse while Verploegen paid utilities and bought groceries.

¶4     In the summer of 2004, Cross bought a house in Churchill, Montana, near

Bozeman. Cross changed jobs after moving to Churchill, and claimed that he began to

play a more active role in parenting N.M.V. Cross testified that he and Verploegen

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discussed what school N.M.V. would attend. He also said he began picking up N.M.V.

from daycare more often, cooking food for her, and disciplining her.            Verploegen

continued to pay for utilities and groceries after the move to Churchill, but in 2007, she

began paying an additional $500 per month in rent to Cross.            From time to time,

Verploegen and Cross discussed marriage and Cross’s adoption of N.M.V., but those

talks subsided in 2009 when Cross and Verploegen broke up and Verploegen and N.M.V.

moved to Havre, Montana. In February 2011, Cross petitioned the District Court for a

parenting interest in N.M.V. pursuant to § 40-4-228(2), MCA. The District Court denied

Cross’s petition. He appeals.

                                STANDARD OF REVIEW

¶5     We review a district court’s findings of fact for clear error, and we will affirm

findings if they are supported by substantial credible evidence. Kulstad v. Maniaci, 2009

MT 326, ¶ 51, 352 Mont. 513, 220 P.3d 595. Ultimately, the language of § 40-4-228(2),

MCA, is permissive and a district court’s ruling is discretionary. Thus, under these

circumstances, we will overturn the district court only if it abused its discretion or if its

findings are not supported by substantial credible evidence. In re A.P.P., 2011 MT 50,

¶ 18, 359 Mont. 386, 251 P.3d 127.

                                      DISCUSSION

¶6     Did the District Court abuse its discretion in denying Cross a parental interest in
       N.M.V.?

¶7     A district court may grant a parental interest in a child to a non-parent if the

non-parent shows through clear and convincing evidence that:
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       (a) the natural parent has engaged in conduct that is contrary to the
       child-parent relationship; and
       (b) the nonparent has established with the child a child-parent relationship,
       as defined in 40-4-211, and it is in the best interests of the child to continue
       that relationship.

Section 40-4-228(2), MCA. Here, the District Court denied Cross’s petition after it

determined Cross failed to show by clear and convincing evidence that Verploegen

engaged in conduct contrary to her child-parent relationship. At the same time, the

District Court found that an ongoing relationship between N.M.V. and Cross was in

N.M.V.’s best interests, and therefore awarded Cross visitation rights pursuant to

§ 40-4-228(3), MCA.

¶8     On appeal, Cross argues Verploegen ceded her parental authority to him. Cross

cites Kulstad for the proposition that ceding parental authority is conduct contrary to the

child-parent relationship.    Kulstad is clearly distinguishable.       Kulstad involved a

same-sex couple raising adopted children together over a period of ten years at a time

when the law allowed only one partner to be the adopting parent. Kulstad, ¶ 10. When

the Kulstad couple adopted their children, they intended that both partners would be

co-parents. Both partners exercised equal rights and bore equal responsibilities in raising

the children, and this dynamic was confirmed by social workers involved in the adoption

process. When the couple split, the district court awarded a parental interest to the

partner not named in the adoption papers over the objection of Maniaci, the adopting

parent. We affirmed, stating:

       The District Court has discretionary authority to determine that a parent
       acted contrary to her child-parent relationship when substantial credible
                                              4
       evidence supports its findings. Substantial credible evidence in the record
       supports the District Court’s determination that Maniaci repeatedly and
       continually acted contrary to her child-parent relationship.

Kulstad, ¶ 78 (citation omitted).

¶9     Kulstad illustrates the fact-intensive nature of a district court’s analysis under

§ 40-4-228(2), MCA. Here, substantial credible evidence supports the District Court’s

finding that Verploegen did not cede her parenting authority to Cross, and thus did not

engage in conduct contrary to her child-parent relationship.            Neither Cross nor

Verploegen entered their relationship with the intent that he would be considered a

co-parent.   Verploegen retained decision-making authority in all matters relating to

N.M.V.’s care, and paid for her diapers, clothes, and daycare.          After the move to

Churchill, Verploegen assumed more of the expenses by paying rent to Cross, in addition

to the cost of utilities and groceries. While Cross may have spent more time with N.M.V.

after the move, he never assumed an equal parenting role or equal responsibility with

Verploegen in raising N.M.V., as was the case in Kulstad. We therefore conclude the

District Court did not abuse its discretion in finding Cross failed to satisfy one of the

requirements of § 40-4-228(2), MCA, and in denying Cross’s petition.

¶10    Even though the District Court found Verploegen had not acted contrary to her

child-parent relationship with N.M.V., Cross argues that Gonzales had clearly satisfied

that requirement of § 40-4-228(2), MCA. While we agree that Gonzales’s absence is

contrary to his child-parent relationship with N.M.V., his relationship is not at stake here.

The only parent affected by the present proceeding is Verploegen, who has been

                                             5
N.M.V.’s sole custodial parent. We therefore conclude that Verploegen is “the natural

parent” to be scrutinized under § 40-4-228(2)(a), MCA, and decline Cross’s

interpretation of the statute.

¶11    Finally, we conclude that there was sufficient evidence to support the District

Court’s determination that it was in N.M.V.’s best interests to award Cross visitation

rights with N.M.V. See § 40-4-228(3), MCA. Verploegen has agreed this visitation is in

N.M.V.’s best interests, so we need not address Cross’s visitation rights further.

                                     CONCLUSION

¶12    Because the District Court’s findings of fact were not clearly erroneous and its

ruling on Cross’s parental interest was supported by substantial credible evidence and

was not an abuse of discretion, we affirm.



                                                 /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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