 No




                                                                No. 98-627

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 209N




IN RE THE GREAT-GRANDPARENT/

GREAT-GRANCHILD CONTACT OF

DESTINIE ROSE

KATHERYN M. KELLY,

Petitioner/Appellant,

and

JEFFREY SCOTT ROSE,

Respondent/Respondent.




                                                          APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-627%20Opinion.htm (1 of 6)4/9/2007 11:12:32 AM
 No


COUNSEL OF RECORD:

For Appellant:

Mark P. Yeshe, Attorney at Law; Helena, Montana

For Respondent:

Charles A. Smith, Attorney at Law; Helena, Montana




                                                                                              Submitted on Briefs: March 25, 1999

                                                                                                          Decided: September 9, 1999

Filed:




__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶ Katheryn M. Kelly appeals from the June 11, 1998 Memorandum and Order and the
September 16, 1998 Memorandum and Order entered by the District Court for the First
Judicial District, Lewis and Clark County. In its June 11, 1998 Memorandum and Order,
the District Court dismissed Kelly’s Petition for Determination of Great-Grandparent/
Great-Grandchild Contact due to Kelly’s lack of standing. Following the entry of the June

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-627%20Opinion.htm (2 of 6)4/9/2007 11:12:32 AM
 No


11, 1998 Memorandum and Order, Kelly filed a Motion to Amend; Motion for a New
Trial; Motion to Alter or Amend Judgment; and Motion for Relief from Order and
Memorandum. Each of Kelly’s motions was denied on the basis of her lack of standing by
the District Court in its September 16, 1998 Memorandum and Order.

¶ The dispositive issue on appeal is whether the District Court erred when it dismissed
Kelly’s petition for great-grandparent contact for lack of standing. We affirm.

                             FACTUAL AND PROCEDURAL BACKGROUND

¶ On December 18, 1997, Katheryn Kelly filed a Petition for Determination of Great-
Grandparent/Great-Grandchild Contact with regard to her great-granddaughter, Destinie
Rose. Kelly lives in Port Angeles, Washington, where Destinie had resided with her from
the age of eight months to three and one-half years. Destinie presently lives in Helena,
Montana with her natural father, Jeffrey Scott Rose. Destinie’s natural mother, Doris
Valerie Rose, fled the State of Montana in the fall of 1997 after walking away from the
Pre-Release Center in Butte, where she had been sentenced for two felony DUI
convictions, and has had no contact with her daughter. Kelly is seeking regularly
scheduled contact with Destinie to occur at her residence in Washington.

¶ Jeffrey Scott Rose moved to dismiss Kelly’s petition for failure to state a claim upon
which relief could be granted on the basis that §§ 40-9-101 and -102, MCA, only allow a
court to grant reasonable contact of a child with a grandparent, not a great-grandparent.
Kelly responded to Scott’s motion by stating that her petition was not brought under the
grandparent visitation statutes but that those statutes supplied the standard for the
determination of contact, the best interest of the child. Kelly argued that the District Court
may grant contact only upon a finding, after a hearing, that contact would be in the best
interest of the child.

¶ In addition, Kelly referred to § 40-4-221(2)(f), MCA, relating to the determination of a
child’s care upon the death of a parent in an attempt to obtain standing to institute a
parenting plan under §§ 40-4-233 and -234, MCA, by analogizing the disappearance of
Destinie’s mother to the death of a parent. Kelly, a Native American, also asked the
District Court to consider the Indian Child Welfare Act (ICWA) 25 U.S.C. § 1901, et seq.,
as authority to grant contact.

¶ The District Court disagreed with Kelly’s arguments and dismissed her petition for


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-627%20Opinion.htm (3 of 6)4/9/2007 11:12:32 AM
 No


contact based on her lack of standing. In reaching its decision, the District Court correctly
pointed out that § 40-4-211(4)(b), MCA, only allows a person other than a parent to
commence a parenting proceeding if the child is not physically residing with one of the
child’s parents. Further, the District Court declined Kelly’s request to extend § 40-4-221(2)
(f), MCA, to the disappearance of a parent. The District Court also refused to consider
ICWA since this was not a custody proceeding and Kelly lacked standing to initiate such a
proceeding. Kelly does not raise consideration of ICWA on appeal.

¶ Following entry of the District Court’s order, Kelly made a motion to amend; motion for
a new trial; motion to alter or amend judgment; and motion for relief from order. The
District Court denied Kelly’s motions because she lacked standing to bring the action.

                                                            DISCUSSION

¶ Did the District Court err when it dismissed Kelly’s petition for great-grandparent
contact for lack of standing?

¶ The District Court dismissed Kelly’s petition for great-grandparent contact based on its
conclusion that Kelly lacked standing to bring such an action. We review a district court’s
conclusions of law to determine whether they are correct. Matter of Estate of Alcorn
(1994), 263 Mont. 353, 355, 868 P.2d 629, 630.

¶ This Court’s examination of standing involves:

[W]hether the litigant is entitled to have the court decide the merits of the dispute or of
particular issues. Furthermore, when standing is placed at issue in a case, the question is
whether the person whose standing is challenged is a proper party to request an
adjudication of a particular issue and not whether the issue itself is justiciable.

Gryczan v. State (1997), 283 Mont. 433, 442, 942 P.2d 112, 118 (citations omitted). Kelly
argues that the question of standing to bring an action for contact with a child is not
resolved only by statute. Kelly suggests that a court should look beyond the statutes if they
do not apply to the facts before it and conduct a hearing to determine whether the contact
sought would be in the best interest of the child.

¶ Kelly also argues that the District Court erred when it failed to conduct a hearing to
determine whether the contact sought would be in the best interest of the child. Kelly is


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-627%20Opinion.htm (4 of 6)4/9/2007 11:12:32 AM
 No


seeking visitation with her great-granddaughter based on a period of over two years where
the child resided with her.

¶ Kelly urges us to look past the issue of whether a matter is properly before the court and
proceed to render a determination on the merits. However, to do so would ignore the
constitutional principle of standing. Gryczan, 283 Mont. at 440-46, 942 P.2d at 117-20.

¶ "Under the common law, grandparents had no right to visit their grandchildren without
parental consent." Kanvick v. Reilly (1988), 233 Mont. 324, 327, 760 P.2d 743, 745
(citation omitted). In 1979, the Montana Legislature established a procedure under

§ 40-9-102, MCA, for a grandparent to seek contact with a grandchild. Section 40-9-102,
MCA, provides:

(1) [T]he district court may grant to a grandparent of a child reasonable rights to contact
with the child . . . .

(2) Grandparent-grandchild contact granted under this section may be granted only upon a
finding by the court, after a hearing, that the contact would be in the best interest of the
child.

The legislature has clearly limited those persons to whom visitation rights may be granted
to grandparents. In view of this limitation, the Court declines to expand the category, and
leaves that to the legislature if they elect so to do. As such, we conclude that Kelly, a great-
grandparent, lacks standing to petition the court for contact with her great-granddaughter.
Neither common law nor statutes provides Kelly with standing to bring an action for
contact with her great-granddaughter, who resides with her natural father.

¶ Therefore, we conclude that the District Court did not err when it dismissed Kelly’s
Petition for Determination of Great-Grandparent/Great-Grandchild Contact nor when it
denied Kelly’s Motion to Amend; Motion for a New Trial; Motion to Alter or Amend
Judgment; Motion for Relief from Order and Memorandum based on Kelly’s lack of
standing.

¶ Affirmed.

/S/ JIM REGNIER


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-627%20Opinion.htm (5 of 6)4/9/2007 11:12:32 AM
 No




We Concur:

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-627%20Opinion.htm (6 of 6)4/9/2007 11:12:32 AM
