                                                                                    November 5 2014


                                     DA 14-0231

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2014 MT 290



IN RE THE GRANDPARENT/GRANDCHILD
CONTACT OF C.A.G. and E.J.M.G.,

CLAIRE GARDNER,

         Petitioner and Appellee,

ANGELA GARDNER,

         Respondent and Appellant.



APPEAL FROM:       District Court of the Thirteenth Judicial District,
                   In and For the County of Yellowstone, Cause No. DR 13-1101
                   Honorable Ingrid G. Gustafson, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Kevin T. Sweeney, Attorney at Law, Billings, Montana

            For Appellee:

                   Jeff A. Turner, Tow, Ball, Mackey, Sommerfeld & Turner, PLLP,
                   Billings, Montana



                                                Submitted on Briefs: October 15, 2014
                                                           Decided: November 5, 2014

Filed:




                                Q/J1tuirClerk
Chief Justice Mike McGrath delivered the Opinion of the Court.



¶1     Angela Gardner (Angela) appeals the order entered in the Thirteenth Judicial

District Court, Yellowstone County, awarding contact between her two minor children

and their paternal grandmother, Claire Gardner (Claire). We affirm in part, reverse in

part, and remand to the District Court.

¶2     We rephrase the issues as:

¶3     Issue One:       Whether the District Court misapplied provisions of the
       grandparent-grandchild contact statute by granting visitation rights over the
       objection of the natural mother?

¶4     Issue Two: Whether the District Court erred by adopting parenting-plan rights and
       duties in the Grandparent-Grandchild Contact Plan?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶5     Angela and Paul Gardner were married and had two children, C.A.G., born

November 2005, and E.J.M.G., born August 2007 (hereinafter “the children”). Angela

has another child from a previous relationship. Claire is the paternal grandmother of the

children. In March 2011, the parties were in the process of dissolving their marriage

when Paul died. Angela has since remarried and resides in Billings, Montana. Claire

lives in Issaquah, Washington, with her daughter and son-in-law.

¶6     In October 2013, Claire petitioned the District Court for grandparent-grandchild

contact and a hearing was held on March 31, 2014. The District Court granted Claire

weekly phone contact, occasional weekend visits in Billings, Montana, and two weeks at




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Claire’s home in Washington during the summer. Claire is responsible for all travel costs

associated with the visits and must provide advance notice to Angela.

¶7     The record indicates a history of contact between Claire and the children. Claire

lived with the family for extended periods of time, including when the couple first

married, when both children were born, and when Angela decided to continue her

education. During these times, Claire provided childcare for the three children. When

not living with Angela and Paul, Claire enjoyed frequent weekend visits.               The

relationship was positive and warm.

¶8     After Angela and Paul separated contact continued, however the relationship

between Claire and Angela deteriorated. The parties characterize the divorce as “messy”

and Claire served as a supervisor for Paul’s visits with the children. After Paul died, the

parties’ relationship continued to decline, with each blaming the other for communication

problems. Eventually, Angela blocked Claire’s number and relocated without informing

her of the new address.

¶9     Angela expressed concern over Claire’s pain medication regimen. In 2005, Claire

was injured at work and now takes a series of medications including Percocet and

morphine. Claire testified that she takes her medication in accordance with her daily

level of physical activity. She currently works as a nanny for four-year-old twins and

testified that her injuries and medications do not interfere with her ability to care for

children. George Blackard, a family friend who serves on a veteran’s advocacy board

with Claire, also testified to her competency and ability with children.




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                              STANDARD OF REVIEW

¶10    “We review a district court’s interpretation and application of statutes for

correctness.” Polasek v. Omura, 2006 MT 103, ¶ 8, 332 Mont. 157, 136 P.3d 519

(citations omitted).

                                     DISCUSSION

¶11    Issue One: Whether the District Court misapplied provisions of the
       grandparent-grandchild contact statute by granting visitation rights over the
       objection of the natural mother?

¶12    The Legislature has adopted provisions providing for grandparent-grandchild

contact along with procedures to be followed in such cases. Sections 40-9-101 to 103,

MCA. The Court is required to make a determination as to whether the objecting parent

is a fit parent, that is, whether the parent adequately cares for the child.       Section

40-9-102(2), MCA. Contact may be granted over a fit parent’s objections, if clear and

convincing evidence establishes that the contact would be in the best interest of the child

and the presumption in favor of the parent’s wishes has been rebutted.             Section

40-9-102(4), MCA; Polasek, ¶ 15.

¶13    Angela argues that the District Court misapplied the statute by not according her

wishes proper deference.     Angela testified she did not oppose contact between the

children and Claire, offered a specific proposal, but indicated that she was opposed to

extended stays in Washington. She maintains that, in light of the United States Supreme

Court’s holding in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000) and this

Court’s decision in Polasek, the District Court erred in dismissing the Mother’s




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arguments.     Angela argues that the District Court incorrectly substituted its own

judgment in place of her wishes for the children.

¶14    The District Court applied the grandparent contact statute as interpreted in Troxel

and Polasek.    In Troxel, the paternal grandparents petitioned for contact with their

grandchildren. The Washington statute under which they requested contact provided that

“any person may petition the court for visitation rights at any time.” Troxel, 120 S. Ct. at

2054 (citing Wash. Rev. Code § 26.10.160(3) (emphasis added)). The United States

Supreme Court invalidated the statute as “breathtakingly broad,” noting that it gave no

weight to the parent’s wishes, instead relying “solely on the judge’s determination of the

child’s best interest.” Troxel, 120 S. Ct. at 2061. In Polasek, this Court concluded that

the Montana’s grandparent statute is consistent with the Troxel analysis. Polasek, ¶ 14.

¶15    In the case at bar, all parties agree that Angela is a fit parent and thus, there is a

presumption in favor of her wishes. Moreover, Angela does not oppose grandparent

contact.   The only question here is whether Claire has established by clear and

convincing evidence that it is in the children’s best interest to have extended visits in

Washington State despite Angela’s wishes to the contrary.

¶16    Angela opposes the visits to Washington for a number of reasons. First, she

voiced concern over Claire’s ability to physically keep up with the children and her use

of prescription pain medication, particularly while driving with the children. Second, she

testified that she was unfamiliar with Claire’s family and the children had little contact

with Claire in recent years. Lastly, she expressed reservations due to the children’s

young ages and the fact that they had spent very little time away from their mother. In


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particular, Angela noted that C.A.G. suffers from Attention Deficit Hyperactive Disorder

and worried that Claire would be unable to meet the demands of caring for a special

needs child.

¶17    The District Court considered a number of factors that support reestablishing

contact. Claire is the only link to the children’s deceased father’s family and a continued

relationship with the paternal side of their family is in the best interest of the children.

Angela’s concern over Claire’s medication was countered by evidence that Claire is

under a physician’s care, has no symptoms of substance abuse, and successfully manages

the pain while caring for other young children.         Mr. Blackard’s testimony further

bolstered the evidence rebutting Angela’s concern over Claire’s competency.

¶18    Testimony at the hearing established the long-term relationship between Claire

and the children. She cared for them as infants, enjoyed a loving relationship with them

while the parents were still married, and attempted to maintain that relationship after their

father’s death. Angela’s concerns regarding the children’s unfamiliarity with Claire was

rebutted by evidence that the children knew who Claire was, referred to her as “Meema,”

and expressed an interest in seeing her again. Further, the breakdown in communication

between Claire and the children was caused, at least in part, by Angela’s decision to

block Claire’s phone number and not provide her with an updated address. And, the plan

enables the children to build a relationship via phone conversations, Skype, and visits in

Billings.

¶19    However, as to the extended visits in Washington State, the District Court

incorrectly concluded that the presumption in favor of Angela’s wishes was rebutted.


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Angela had concerns about whether an extended visit would be appropriate for her young

children. Claire failed to present clear and convincing evidence regarding the extended

visits sufficient to rebut the statutory presumption in favor of the mother’s wishes.

Moreover, Angela did not rule out such contact in the future. Claire’s brief argues that

“[f]irst and foremost, Angela did not make a compelling case that she has been acting in

the children's best interests.”    That argument misconstrues the statutorily created

rebuttable presumption. It is the grandparent who must supply the evidence to overcome

the presumption. The District Court did not specifically list any factors to support the

two separate weeks of visitation in Washington State and failed to afford Angela’s wishes

proper deference. Angela offered reasoned objections that were not rebutted by Claire.

¶20    Therefore, we affirm the order of the District Court with the exception of the

provisions regarding extended visits in Washington State, which are reversed and

remanded to the District Court to be stricken from the order.

¶21    Issue Two: Whether the District Court erred by adopting parenting-plan rights
       and duties in the Grandparent-Grandchild Contact Plan?

¶22 Angela argues that the District Court erred by inserting parenting-plan rights and

duties into the Grandparent-Grandchild Contact Plan. We have held, given the different

constitutional interests involved, it is inappropriate to apply parenting plan standards to a

grandparent contact plan. Snyder v. Spaulding, 2010 MT 151, ¶ 10, 357 Mont. 34, 235

P.3d 578.

¶23 Although the District Court used parenting plan terminology in the plan, the order

addressed the requirements of the grandparent-grandchild contact statute. It is clear from



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the objectives of the plan that the purpose was to provide for a relationship between the

grandmother and the children, not to establish a parent-child relationship with its

associated rights and obligations.

¶24 Angela further maintains that the plan’s “sharing information” section suggests that

Claire would be involved in health and education decision making. This argument is

incorrect. The section requires that the parties keep each other informed about the

children’s ongoing health and educational needs.          The exchange of information is

necessary to ensure that the children are appropriately cared for during visits and

provides no decision making power to Claire.

                                      CONCLUSION

¶25 The District Court correctly interpreted and applied the grandparent-grandchild

contact statute, with the exception of the out-of-state visitation provisions adopted over

the mother’s objections. The order of the District Court is affirmed in part, reversed in

part, and remanded to the District Court to strike the out-of-state visitation provisions.



                                                  /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA




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