                                                                                       October 16 2012


                                            DA 12-0125

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2012 MT 228


IN RE THE PARENTING OF
M.M.G.,

GAIL ARMSTRONG and
RONALD ARMSTRONG,

              Petitioners and Appellants,

         v.

ARRAH MARIE LANE and
MICHAEL SHANE GRUMAN,

              Respondents and Appellees.



APPEAL FROM:           District Court of the Fourteenth Judicial District,
                       In and For the County of Musselshell, Cause No. DR 11-14
                       Honorable Randal I. Spaulding, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Michelle R. Lee, Harper Law Firm, P.C., Billings, Montana

                For Appellee (Arrah Marie Lane):

                       George T. Radovich, Radovich Law Firm, Billings, Montana



                                                     Submitted on Briefs: August 22, 2012
                                                                Decided: October 16, 2012



Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Gail and Ron Armstrong (Armstrongs) seek a parental interest in child M.M.G.

Armstrongs filed a petition for a proposed parenting plan in the Fourteenth Judicial District,

Musselshell County. The District Court dismissed Armstrongs’ petition for lack of

jurisdiction. We reverse and remand.

¶2     Armstrongs present the following issue on appeal:

¶3     Whether the District Court possessed jurisdiction to grant parental rights to

Armstrongs even though the natural mother’s parental rights have not been terminated.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶4     Armstrongs began raising M.M.G. when the child was approximately one year old.

Gail was stopped at a gas station in Roundup, Montana, one Friday in 2001 when she saw

Arrah Lane (Lane) holding the child M.M.G. Gail did not know Lane. Gail commented to

Lane what a beautiful child M.M.G. was. Lane then asked Gail if she wanted M.M.G. Lane

proceeded to gather M.M.G.’s things from her vehicle and hand them to Gail.

¶5     Armstrongs cared for M.M.G. for the weekend. Lane contacted Gail the following

Monday to pick up M.M.G. Gail told Lane she was willing to care for M.M.G. if Lane

needed help. Lane began leaving M.M.G. with Gail several days a week. This arrangement

progressed to the point where Lane began leaving M.M.G. with Armstrongs for weeks at a

time until M.M.G. lived primarily with Armstrongs.

¶6     When M.M.G. was four, Lane informed Armstrongs that she was no longer interested

in parenting M.M.G. Lane left M.M.G. with Armstrongs. Armstrongs enrolled M.M.G. in

school in Roundup and in associated extracurricular activities. Armstrongs cared for
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M.M.G. as they would a child of their own. Lane visited M.M.G. a few times a year for the

next six years. In 2011, when M.M.G. was ten years old, Lane took M.M.G. for a weekend

visit. Lane called Armstrongs to inform them that she was moving to Wyoming with

M.M.G.

¶7    Armstrongs filed a petition for a parenting plan. The District Court initially granted

an interim parenting plan that provided that M.M.G. would continue to live with Armstrongs.

The District Court reversed course, however, when Lane objected. The District Court

concluded that Armstrongs could not seek a parenting plan unless Lane’s parental rights had

been terminated. The District Court dismissed Armstrong’s petition for the parenting plan

for lack of jurisdiction. The court further determined that the interim parenting plan was

without legal effect. Armstrongs appeal.

                                  STANDARD OF REVIEW

¶8    We review de novo a district court’s determination regarding its subject matter

jurisdiction. BNSF Ry. Co. v. Cringle, 2010 MT 290, ¶ 11, 359 Mont. 20, 247 P.3d 706.

                                      DISCUSSION

¶9    Whether the District Court possessed jurisdiction to grant parental rights to

Armstrongs even though the natural mother’s parental rights have not been terminated.

¶10   The District Court declined to apply the nonparental statutes because Armstrongs

proposed a parenting plan that places M.M.G. almost exclusively with Armstrongs, rather

than merely allowing Armstrongs to visit M.M.G. We deemed this distinction important in

In re Parenting of J.N.P. v. Knopp, 2001 MT 120, ¶ 6, 305 Mont. 351, 27 P.3d 953. Knopps

had not established a child-parent relationship, however, so they were able to seek only
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visitation. Here Armstrongs seek to prove that they have established a child-parent

relationship. The nonparental statutes place no restrictions on the type of parenting plans

that a nonparent may seek after the nonparent has established a child-parent relationship.

The District Court must consider the proposed parenting plan based on the best interests of

the child. Section 40-4-228(2), MCA. In rare cases, the best interests of the child may result

in a child living primarily with a third-party nonparent.

¶11    The District Court dismissed Armstrongs’ petition for lack of jurisdiction because

M.M.G.’s natural parents’ parental rights had not been terminated. The District Court relied

on J.N.P. to support its dismissal of Armstrongs’ petition. A third party petitioned for a

parenting plan in J.N.P. after a child had lived with them for two months. The natural

mother had intended to leave temporarily the child with the Knopps, her aunt and uncle,

while she found a place to live and employment in a new city. We agreed with the district

court that it could not adopt Knopps’ parenting plan under these circumstances unless the

natural mother’s parental rights had been terminated. J.N.P., ¶ 25. Knopps had not

established a child-parent relationship with J.N.P. As a result, the Knopps were not able to

seek a parenting plan pursuant to the nonparent statutes set forth in § 40-4-228, MCA.

¶12    If Armstrongs can demonstrate that they have established a child-parent relationship

with M.M.G., the District Court will have jurisdiction to consider whether to grant

Armstrongs a parental interest in M.M.G. Section 40-4-211(4)(b), MCA. To establish a

child-parent relationship, Armstrongs first must show that they provided for the physical

needs of M.M.G. by supplying food, shelter, and clothing.            Armstrongs also must

demonstrate that they provided M.M.G. with necessary care, education, and discipline.
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Section 40-4-211(6)(a), MCA. Armstrongs must then establish that their relationship with

M.M.G. existed on a day-to-day basis through interaction, companionship, interplay, and

mutuality that fulfilled M.M.G.’s psychological needs for a parent as well as M.M.G.’s

physical needs. Section 40-4-211(6)(b), MCA. And finally, Armstrongs must demonstrate

that they met M.M.G.’s need for continuity of care by providing permanency or stability in

residence, schooling, and activities outside of the home. Section 40-4-211(6)(c), MCA.

¶13    Armstrongs’ petition asserts facts that, taken as true, could establish a child-parent

relationship. Armstrongs cared for M.M.G. nearly full-time from 2004 to 2011. Armstrongs

provided M.M.G. with food, shelter, clothing, and a stable home. Armstrongs enrolled

M.M.G. in school. They have helped M.M.G. with homework, have attended her parent

teacher conferences, and her school plays.        Proof of these factual allegations could

demonstrate that Armstrongs have established a child-parent relationship with M.M.G.

Section 40-4-211(6), MCA.

¶14    If Armstrongs can persuade the District Court that they have established a child-

parent relationship with M.M.G., the District Court will have jurisdiction to hear their

petition for a parenting plan. Section 40-4-211(4), MCA. The District Court may then

award Armstrongs a parental interest if Armstrongs can show that M.M.G.’s natural parents

acted contrary to their child-parent relationship with M.M.G., and that it would be in the best

interests of M.M.G. to continue her child-parent relationship with Armstrongs. Section 40-4-

228, MCA. Armstrongs must present clear and convincing evidence that Lane and M.M.G.’s

natural father, Michael Gruman, engaged in conduct contrary to the child-parent relationship.

Section 40-4-228(2)(a).
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¶15    This Court twice has determined that a parent acted contrary to her child-parent

relationship when the parent ceded her exclusive parenting authority to a nonparent by

allowing the nonparent to help raise the children. Kulstad v. Maniaci, 2009 MT 326, 352

Mont. 513, 220 P.3d 595; Filpula v. Ankney, 2009 MT 363, 353 Mont. 220, 220 P.3d 391.

The nonparent in each case functioned in a parental role with her same sex partner for an

extended period. We declined in Kulstad to allow the adoptive parent to “rewrite the

history” of the fact that she and her partner had lived together for more than ten years and

jointly had raised the children in the household. Kulstad, ¶ 78. The District Court in Filpula

did not abuse its discretion in finding the natural parent’s conduct in allowing her partner “to

act as a parent to these children” constituted action “contrary to the child-parent

relationship.” Filpula, ¶ 22. More recently in Grice v. Price, 2011 MT 50, 359 Mont. 386,

251 P.3d 127, we rejected the natural father’s claim that missed visitations and failure to pay

child support did not constitute conduct contrary to the child-parent relationship. Grice, ¶

18.

¶16    Armstrongs further must establish by clear and convincing evidence that it would be

in M.M.G.’s best interest to continue the child-parent relationship that they have developed.

Section 40-4-228(2)(b), MCA. Nothing in the Montana nonparental statutes require Lane

and Gruman be found unfit before a court may award a parental interest to Armstrongs.

Section 40-4-228(5), MCA; Kulstad, ¶ 75. The nonparental statutes recognize that a parent

possesses a constitutional right to raise her child. This standard further recognizes, however,

that the parent may forfeit that exclusive right when the parent acts contrary to the child-

parent relationship. Section 40-4-228(2)(a), MCA. Montana law considers the best interests
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of the child when a parent has acted contrary to her child-parent relationship. Section 40-4-

227(2)(b), MCA.

¶17    We remand to the District Court to conduct a hearing in accordance with § 40-4-228,

MCA, to determine whether Armstrongs have established a child-parent relationship with

M.M.G. A determination by the District Court that Armstrongs have established a child-

parent relationship with M.M.G. would allow the District Court to decide whether to grant

Armstrongs a parental interest, and to consider Armstrongs’ proposed parenting plan.

Section 40-4-211(4)(b), MCA. In order to grant Armstrongs a parental interest, the District

Court must determine that M.M.G.’s natural parents acted contrary to their child-parent

relationship with M.M.G. Section 40-4-228(2)(a), MCA. The court further must evaluate

whether a decision to continue M.M.G.’s child-parent relationship with Armstrongs would

be in M.M.G.’s best interest. Section 40-4-228(2)(b), MCA. We further determine that the

District Court’s August 25, 2011 “Ex Parte Order Adopting Joint Petitioner’s Proposed

Parenting Plan” and the October 31, 2011 “Order Reinstating Interim Parenting Plan Pending

Further Proceedings” should be reinstated immediately pending the outcome of these

proceedings.


                                                  /S/ BRIAN MORRIS



We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
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