                                No.     92-244
            IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                      1993


IN RE THE PATERNITY AND CUSTODY
OF J.D., a minor child
TRACY L. GRUBB,
            Petitioner   and Respondent,
     -vs-
TARENA L. DAPP,
            Respondent   and Appellant.



APPEAL FROM:       District  Court of the Fifth Judicial District,
                   In and for the County of Beaverhead,
                   The Honorable Frank M. Davis, Judge presiding.


COUNSELOF RECORD:
            For Appellant:
                   Tarena L. Dapp, Great      Falls,     Montana,     Pro Se
            For Respondent:
                   Andrew P. Suenram;     Jones,    Hoffman       and Suenram,
                   Dillon, Montana



                                      Submitted    on Briefs:        June 17, 1993
                                                       Decided:      August 9, 1993
Justice           John            Conway      Harrison              delivered                the      Opinion           of     the     Court.


          Tarena             L.      Dapp         (Tarena)          appeals              pro        se    from        an order              of      the

Fifth          Judicial              District            Court,            Beaverhead                    County,         awarding                 sole

custody           of        J.D.,          a minor         child,             to     J.D.'s          father,           Tracy          L.         Grubb

(Tracy).               We affirm.

          J.D.         was born              to     Tarena          and Tracy                on April            26,      1989.             Tarena

and Tracy               were         not     then        and never                 have        been       married,             though             they

lived          together                for         a    few         months              in       1988.                Both       signed                  an

acknowledgement                      of paternity                 naming           Tracy         as J.D.'s             natural         father.

Tracy          also         signed           J.D.'s         birth             certificate.                      For      almost             a year
after        J.D.           was born,              Tracy          kept         her       during           weekends            and      on week

nights         when Tarena                   was working.                  Both          parties           lived        in Great                 Falls

that        year.             Tarena          was working                  part          time       as a poker                dealer              in         a

casino,           while           Tracy       was a full              time           engineering                technician                 for      the

Montana           Department                 of     Transportation.

          J.D.         is     Tarena's             second         child.               Her oldest            child,          Christa,               was

approximately                     three       years         old     when J.D.                 was born.                Tracy         took         care

of      Christa             while      Tarena           was working,                    before           J.D.      was born.                     After

J.D.'s         birth,             Tracy       always         took        Christa             along        when he kept                J.D.              He

testified               that         he      cared         very          much          for      Christa            and       that          he       and

Tarena          had tried              to     keep         the      two        girls         together.
          In      March             1990,         Tarena         and Tracy               entered            a written                agreement

concerning              J.D.'         s custody            and support.                      This        agreement           provided                  for

joint           custody,               with            Tarena            as        the          residential                  parent,                and

visitation                  for     Tracy         on weekends                  and for             two     weeks        in     the     summer.


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Tracy       was         to       pay         Tarena                 $150        per         month               for      child            support                and

maintain              medical           and hospital                          insurance                   for         Tarena.             For          several

months          thereafter,                       Tracy             kept           J.D.         and         Christa              every               weekend,

Friday          night         until           Monday                morning.                    At        the     time        of         the         trial           in

March          1992,         Tracy           was          current               on        his        child             support                obligation,

except          for      a disputed                     half        month's               payment                for     February                1991.

          In      July          1990,             Tracy             married               Christine                    whom         he        had       met          in

November              1989.           Tracy         and Christine                         moved to                Fort        Benton             in August

1990 with              Christine's                  daughter,                   Alisha,              then         age six.                At about               the

same time,              Tarena          moved to Dillon                              with        J.D.           and Christa.                     Tracy           and

Christine              kept          both     girls              for      two weeks                  during            the     summer            of          1990.
          Tarena              became              known             to         the        Montana                 Department                    of         Family

Services               (Family              Services)                    in     Dillon               during             Labor            Day         weekend,

1990.            Her         babysitter's                         mother               called              Family            Services                  because

Tarena          had      not          come back                   overnight                 and there                   was      no food                   in    the

house.           By the          time         Family              Services                responded                   to the        call,            however,

Tarena          had returned                      home.

          About           six         weeks              later,               on       October                  14,      1990,            a     friend               or

acquaintance                    of     Tarena's                  called              Family               Services             at        2:00          a.m.          to

report         that       the         two children                       had been left                      alone         in Tarena's                      house.

A Family              Services              social             worker           and two               police            officers                broke           into

the      house,          found          the        children                   sleeping               in     an upstairs                   bedroom,               and

removed          them         from          the     house.                 Tarena           called              Tracy        the         next         day,       and

he and          Christine               went             to      Dillon              to     pick           up J.D.               Tracy           testified

that        he         took            both             girls,                however,                    because             Family                 Services

"basically                told          us         if          we      wanted             our             daughter             we        had          to        take


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Christa."             Concerned                 about              the     financial               and legal                  consequences                 of

keeping          Christa,            Tracy            and Christine                       consulted              a Fort          Benton           Family
Services            social              worker,                Diann           Button,                 who       later           testified                 on

Tracy's           behalf.               Button               arranged               for      Christa              to     be sent               back        to

Dillon       and placed                  in      foster              care.

          After       a Youth             Court              hearing           before             Judge          Davis         on November                 5,

1990,       J.D.      was placed                      in      foster           care         in     Dillon             with      Christa.                The

two      children             were         returned                  to        Tarena             on      December               14,         1990,         on

condition            that         she attend                   mental              health          counselling                  and parenting

classes.
          Tracy           filed          a petition                      for        determination                       of      paternity               and

modification                 of         custody               on         November                20,      1990,              seeking           primary

physical            custody               of          J.D.                After             Tracy             requested                 a      custody

investigation,                    the     parties                  stipulated               to home studies                           conducted            by

Family       Services.

          The      parties               also              stipulated                that         Tarena              would           continue             as

primary          physical            custodian,                     pending           a hearing                  on Tracy's                 petition,

and that           J-D.      would            visit           Tracy         for      two weeks                in September                    1991 and
two      weeks        in      November                 1991.              Tarena             and        the       two         girls          moved         to

Butte       in     October              1991.

          On December                   11,       1991,             Tarena           gave         birth          to      her      third           child,

Jacob.           Jacob's           father,                 Jeff,         was living               in Dillon.                   At the          hearing

in      March        1992,           Tarena                described                her          relationship                    with         Jeff         as

"stable"           and       "happy"              but         stated           that         she did              not         intend          to      marry

him.        In     her       brief            on appeal                  she reported                     that         Jeff       had        formally

acknowledged                paternity                  on December                    22,        1991,         and in           her         affidavit


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supporting            her petition              to file        her appeal                in forma oauperis,                      she
stated      that       he was paying              $175 a month as child                             support.
          Button       visited           Tracy,        Christine,              and Alisha                  three        times     in
November 1991.                  She had seen J.D.                      with     Tracy's             family          in October
1990,       during            J.D.'s          temporary           placement               with           Tracy,         and      she
testified            that      she saw Christine                       and J.D.            together               in    November
1991.          In     her      home study             report           she described                     their         home as a
"modest,            well      kept       two     bedroom              mobile          home"         in      a Fort           Benton
trailer        court         owned by Christine's                      parents.
          Button           testified           that         she       was      familiar             with           Christine's
extended            family         and described             them as "committed                            to      [J.D.]"       and
looking          forward        to having             her    live       with      Tracy            and Christine                on a
full      time       basis.          She recommended that                       Tracy       have custody                    of J.D.
          Dave Evans,               a social          worker          with      Family         Services                in    Butte,
visited          Tarena's          home three           times          in November and December 1991.
He saw J.D.                there       only     on the third                 visit.           Evans reported                    that
Tarena had moved to Butte                         to obtain             Section           8 housing               and that       she
was living            in a "fairly             older"        two-bedroom                house on the upper west
side      of     Butte.            When he visited,                    by appointment,                       the       house was
"very       clean,          well-maintained,                had proper                utilities,                 and was well-
furnished,"            and contained              ample food and clothing                            for         the children.
          According           to Evans'          home study             report,           Tarena was unemployed.
She had not graduated                     from high           school          but was planning                     to complete
a G.E.D.            Her income as of December 1991 consisted                                               of $300 a month
child       support          from Christa's             father,          who lived            in Seattle,                   and $150
a month child                support          from Tracy.              All     but $16 of her monthly                           rent

                                                                  5
was paid        through       Section             8, and she was receiving                          food        stamps and
Medicaid        benefits.
        Evans included            in his            report             a summary of records                    for     1989-90
from      Family       Services             in      Great           Falls.           He characterized                    their
contents        as a "history               of neglect,"                  summarized           as "[Tarena]              would
leave     the     children       unsupervised,                         would      not pick       them up from the
babysitter         until      the next day and also was involved                                        with     drinking.
The older         child      was also             physically              cruel      to the       infant."
        Evans'       third     visit         occurred               on December 10, 1991,                       soon after
J.D.    had returned            from a two-week                         visit      with      Tracy.        He observed
J.D.    playing       with     Christa             and commented that                     they    "seem very             close
to one another,              as stepsisters."                           Only one day earlier,                        however,
Tarena       had     called       his            office           to     express          concern        about          J.D.'s
emotional         state,     and he had referred                          her to a licensed               professional
counsellor,          Grainger          Brown of Butte.
        Brown saw Tarena and J.D.                            for        two one-hour           visits          in December
1991.        At Tarena's          request,                he wrote              to her       lawyer,       saying          that
Tarena       had described              J.D.          as          "crying         easily,        being         clingy          and
defiant/aggressive,"                   and that             these         behaviors          were "suggestive                    of
anxiety       created        by separation"                       rather         than     by abuse or neglect.
Brown recommended that                      J.D.          visit         her      father      more frequently                   and
for     shorter       periods          of        time.             Brown's          letter       was submitted                   in
evidence        at the trial,               and he also                 testified            on Tarena's             behalf.
        Based on his observations                            of Tarena and her children                              in Butte,
Evans recommended that                  custody              of J.D.            be awarded to Tarena,                   adding
that    Family      Services       "would provide                       temporary,           ongoing       services            and

                                                                   6
follow       up intervention                if       necessary."
           On March         13,         1992,        the     District           Court        heard       testimony            by
Tracy,         Christine,                Tarena,              Button,           Evans,          Brown,            Tarena's
supervising             social      worker            in Dillon,           and a Dillon           police          officer.
Tracy       and Tarena both were represented                                   by counsel.            The court           also
took        judicial          notice            of     the         Youth        Court        abuse        and         neglect
proceeding           before        the same judge.                       On April         7, 1992,        it     filed       its
findings        of fact,           conclusions              of law, and order,                 awarding          exclusive
custody        of J.D.        to Tracy.
           On appeal,         Tarena raises                  no legal          issues      but alleges            numerous
errors       in the        District          Court's           findings            of fact.          Tracy        presents
several         issues,            of      which            only         one     is       dispositive:                whether
substantial              credible           evidence                supports          the      District               Court's
modification             of a de facto                 custody           arrangement.
           Tracy       initiated          this        case by requesting                     a determination                  of
paternity          as well          as a modification                      of custody,          but      the      District
Court       properly        addressed                only     the        custody      issue,      as paternity                is
not in dispute.
           Our standard            of review           for     a custody           determination               is that      the
district        court's          decision            is presumed to be correct                       and will          not be
disturbed          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 clear                  abuse of discretion.                        Matter        of S.P.           (1990),       241
Mont.       190,     194, 786 P.2d 642,                      644;        In re Marriage           of Otto             (1990),
245 Mont.          271,     275,        800 P.2d 706, 708.
           Section        40-4-224(3),                MCA, provides                that      an order           for      joint

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custody              may be modified                          pursuant               to        § 40-4-219,                     MCA, to             terminate

the       joint           custody.                 If         the      proposed                   modification                        merely             changes

living            arrangements                   within               a joint              custody                  situation,                it     need         not

be justified                    by the          relatively                     stringent                    criteria            of     § 40-4-219                 but

instead              may be justified                           by        a review                of         the       best          interest              of     the

child          under            5 40-4-212,                   MCA.             In       re Marriage                      of      Ferguson                (1990),

246 Mont.                 344,         347,       805 P.2d                1334,            1336.

              Here,        no order               for         joint            custody            had ever                    been      entered.                   The

District               Court           appropriately                        treated               the          parties'               agreement                  as a
"de      facto            custody             arrangement,"                      which            may be modified,                            pursuant              to

§ 40-4-219(2),                         MCA,       "in          accordance                      with          the       factors           set         forth          in

40-4-212."                      In      effect,               then,            the         District                    Court's           order             is      the

original               custody           decree           in this               case,            and the               applicable                  statute          is

§ 40-4-224                (1)     ,    MCA, which                   provides               that             joint        custody              is     presumed
to       be     in        the         best      interest                  of        a minor                  child,           "unless              the          court

finds,            under          the         factors           set        forth           in      40-4-212,                   that      joint            custody

is      not       in      the         best      interest               of       the        minor              child."

              The         District               Court              stated                in          its           findings             of         fact           and

conclusions                     of law that               it        had considered                            the      criteria           set         forth         in

§ 40-4-212,                  MCA, and "finds                          for       Tracy            and against                    Tarena             on each of
the       relevant                factors           itemized."                          "Ordinarily,                    'I Judge          Davis            wrote,

he is          "partial                to the           old     presumption                       that           a child             of tender                  years

belongs              in     the        custody            of        the        mother."                     He continued:

              Unfortunately         in this       case that       presumption         if it were
              still    applicable         (which      it isn't)      would be overcome           by
              Tarena's       past      life       style       and     indeed       her   present
              philosophy        in    regard        to    the     family      concept.        She
              discounts      . . . or at least             downplays       the importance        of
              a father's         role       in   the     family      relationship.           This

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         philosophy      is, in the court's     opinion,    wrong.   90% of the
         youths who appear in Youth Court are the product of this
         type      of     philosophy,     i.e.,      single     parents    with
         insufficient         financial  resources       and little      or no
         fatherly     involvement.
         Tarena           interprets               these         comments,              which         unfortunately                  are
consistent             with       the judge's              frequent              interjections               from the bench
during         the       trial,            as      evidence               that      Judge       Davis         discriminated
against        her       based on her                   age,     beliefs            and lifestyle,                 and did           not
take      into       consideration                  the        facts         presented           to     the    court.                Her
concern          about         the         basis         for      the        District           Court's        decision                is
understandable                    in     view      of     a number of                 inappropriate                 remarks            in
Judge Davis'              findings              of fact.          For example,                he stated            that      Tarena
has "an alarming                   and tragic             history            of family          instability.                 At age
three     she became the victim                            of a broken                home.       In her early                 years
she resided              in various              places        with       her natural           mother,        half         sisters
and brothers,                 and multiple               stepfathers."
         In      fact,        the        Family         Services            home study            report           prepared           by
Evans states              that         Tarena's         mother and stepfather                         were divorced                 when
Tarena was five,                       not three;          that           she had only           the one stepfather;
and that           she is              still       in     contact            with       her     natural            father           even

though        he and her                   mother         were        never         married.               No evidence                 of
"alarming"             or "tragic"               events        or circumstances                  appears           anywhere            in
the record.
         Judge         Davis           assigned           considerable                weight          to     the     fact           that
Tarena's         supervising                   social     worker           in Dillon          declined,            in response
to his        direct       question,               to give        an opinion             as to whether                continued
custody        with       Tarena was in J.D.'s                            best      interest.              She said         "It's          a

                                                                      9
hard      question             to     answer          because        I        do think         Tarena           has tried."
Earlier       in her testimony,                        however,          she told         the court              that        Tarena
had "very          much improved"                    in her parenting                  abilities,               and that        she
felt      comfortable                leaving          the     children           in Tarena's               care.             In his
findings           of     fact,           Judge       Davis      rendered              this        statement             as    "She
reportedly              made some improvement                            in     her     parenting               skills"         and
continued,              "While            her      parenting         skills            may have            improved,            her
morals       did        not.          She again             became pregnant.                   .    .     . The putative
father      is reportedly                    out of the state."
          These latter                comments contradict                      Tarena's        testimony,               in which
she stated              that        the new baby's              father          was still            living         in Dillon
and that          her relationship                     with    him was stable                  and happy.
          Apart         from         these          inappropriate               observations,                   however,         we
conclude           that             the         District        Court's            decision               was      based         on
substantial             credible            evidence,          and that          the court          did not abuse its
discretion              in awarding              sole custody            to Tracy.            We require            only that
the court          express            "the        essential       and determining                       facts     upon which
its    conclusions               rest."            In re Marriage               of Ulland           (1991),         251 Mont.
160, 167, 823 P.2d 864, 869.                                Judge Davis met this                        requirement            when
he wrote,          in a concluding                     comment, that:
          The court is being asked to place the child with a 22
          year old single mother with a sad record of abuse and
          neglect,  limited   resources and job skills,   two additional
          children    to care for and support,        and little      or no
          prospects    that the living   and parenting   situation      will
          improve.    . . . Comparing this bleak prospect         with the
          stable environment      of the father  in Fort Benton leaves
          the court with no alternative.
          Even if         Judge Davis                 did     exaggerate           the        "sad record               of    abuse
and neglect,"                  the    record          demonstrates              that      Tarena          does have very
                                                                10
limited          resources               and job skills:                 that     she depends for                      most         of    her

income on child                    support            from two men              other      than Tracy,                 one of whom
lives          in Seattle:               and that        she did not complete                       high         school             or any
other          program            that     would         qualify          her       for     employment                 at     a level
adequate              to        support         her     without          the      public          assistance                  she now
receives              in the        form of food stamps and a housing                                     subsidy.
          Tracy,             on the         other        hand,        has        a long-term,                   full         time         job
paying          approximately                   $384 a week at              the time           of the hearing.                            His
wife      was earning                    additional          income as a babysitter,                                   which         meant
that      she was available                       to serve           as a full            time      caretaker                 for        J.D.
The record             contains            ample evidence                that     Tracy and Christine                          possess
adequate,              even superior                  parenting           skills.            Even Tarena                    testified
that      Tracy            is    an "excellent               father,"            while       conflicting                    testimony
was offered                 concerning            Tarena's           parenting            skills.
          It     is the function                      of the district               court        to resolve                 conflicts
in testimony                    and evidence,            and to decide                  how much weight                     should         be
assigned          to a given               witness        I testimony             or to a particular                          piece         of
evidence.                  Ulland,         823        P.2d   at 870.              We will           not     substitute                    our
judgment              for        that      of     the     district              court       unless         it          has     clearly
abused its                 discretion.             Otto,      800 P.2d at 708: Ulland,                                 823 P.2d at
870.       Erroneous                findings           of fact       that        are not necessary                      to support
the trial             court's            judgment        are not grounds                  for reversal.                     Ferouson,
805 P.2d at 1337.

          Although               the      court        displayed            a deplorable                insensitivity                       to
issues           of        gender         bias        and    alternative                  lifestyles,                  substantial
credible              evidence           does support              its      award of exclusive                          custody             of

                                                                   11
J.D.     to    her     father,       based        on J.D.'s        best       interest.

         AFFIRMED.

Pursuant         to    Section       I,     Paragraph          3(c),      Montana           Supreme        Court         1988

Internal          Operating          Rules,         this      decision             shall      not     be         cited        as

precedent         and shall          be published            by its       filing           as a public           document

with     the     Clerk      of     the     Supreme         Court       and by a report              of     its       result

to     Montana         Law Week,          State    Reporter            and West        Publishing           Company.




We concur:



               Chief     Justice




                                                             12
Chief      Justice         J.   A.     Turnage          specially            concurring:

          I concur         in   the     result          reached            by the    Court       in   this     Opinion.

However,        I    do not           agree      with         all      of    the    statements          made     in    the

opinion        attributed              to     comments                of    the     District          Judge.          Such

statements           are    not       necessary          to         a resolution         of    this    case.




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