CUSTODY PATERNITY OF J D
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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, -vsTARENA L. DAPP, Respondent APPEAL FROM: and Appellant. 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; Dillon, Montana Jones, Submitted Hoffman on Briefs: Decided: and Suenram, June 17, 1993 August 9, 1993 Justice John Conway Tarena Fifth L. of (Tracy). delivered (Tarena) appeals Dapp Judicial custody Harrison District J.D., lived to were child, then not for acknowledgement to Tarena of from the Court. an order County, J.D.'s signed after J.D. was born, of awarding father, while Montana Department is Tracy Christa Tarena's J.D.'s birth, the sole L. Grubb testified Tarena that had tried In March concerning Tarena J.D.' custody, for he during parties part time with Tracy father. a year and on week in Great lived Falls as a poker dealer technician Her oldest when J.D. took very keep Tarena s custody child. was working, cared 1990, an almost weekends engineering they signed natural For her Tarena though Both as J.D.'s Both old always to married, 1988. Tracy 1989. in for a the Transportation. years Tracy in time second three while kept was a full of been 26, certificate. was working Tracy approximately birth was working. Tarena casino, J.D. months Tracy on April have naming J.D.'s when Tarena year. few of paternity also nights and Tracy and never a Tracy visitation se Beaverhead a minor together joint pro Court, was born and Tracy of Opinion We affirm. J.D. that the the Christa two along for as on weekends entered the and for 2 Christa, Tracy was took was born. when he kept and care After J.D. He he and that together. This and support. J.D. Christa girls and Tracy Tarena was born. before much child, a written agreement provided weeks in for parent, residential two agreement and the summer. Tracy was to pay Tarena $150 per maintain medical and hospital months thereafter, Tracy kept Friday night until Monday morning. March 1992, Tracy except for a disputed month In July November was Tarena Christine kept Tarena Services 1990. had house. By the Tarena and Christine report that A Family house, them he and Christine that he "basically from took told responded social the the worker house. to both had Benton met in in August At about the Tracy and summer Labor of was 1990. of Day Family weekend, Services because no food to the 14, Family and two sleeping Tarena Dillon girls, if October call, we to wanted 3 police called however, our at alone in pick 1990, Services had been left children went us on called two children found removed later, Tarena's Services 1991. Department Family in obligation, he the and there Services trial and Christa. during called the age six. during several in the however, home. weeks the J.D. Dillon overnight Family Fort and weekend, February whom Montana mother come back of the in for then with of support moved to two weeks to Services) six child Alisha, for known time acquaintance the girls had returned About his For every time Christine moved to Dillon both not on the married babysitter's Tarena At support Christa Tracy became Her current daughter, (Family and J.D. child Tarena. payment Christine's same time, for month's Tracy 1990 with insurance half 1990, 1989. for a friend 2:00 a.m. in Tarena's officers an upstairs Tracy up J.D. or to house. broke into bedroom, the next Tracy and day, and testified because Family Services daughter we to had take Christa." Concerned keeping Christa, Services Tracy social Tracy's 1990, and Christine consulted Button arranged for in a Youth foster Court was placed children were condition and legal Button, J.D. two financial Diann and placed After the worker, behalf. Dillon about that a Fort later who Benton of testified Christa to Family be sent on back to on November 5, care. hearing before foster care in consequences returned Tarena mental health Davis Dillon in to she attend Judge with on Christa. December 14, counselling The 1990, on and parenting classes. Tracy filed modification of physical Family of the primary November 20, After of Tracy J.D. parties parties also physical and that stipulated J-D. would in in October 1990, paternity seeking requested and primary a to home studies Jacob's March "stable" custody conducted by 11, for 1991. 1991, father, 1992, continue would a hearing as on Tracy's two weeks Tarena her brief paternity Tarena Jeff, Tarena "happy" acknowledged Tracy Tarena and petition, in September the two 1991 and girls moved to 1991. and In that pending visit November On December Jacob. stipulated custodian, weeks Butte him. on determination Services. The in for custody custody investigation, two a petition gave was living described but stated on appeal birth her that 4 1991, child, hearing with not that third At the relationship she did 22, her in Dillon. she reported on December to intend Jeff and in had her Jeff to as marry formally affidavit supporting stated her petition that he was paying Button visited November 1991. 1990, testified "modest, trailer full two report bedroom family that "very of furnished," only worker child Tracy with times to obtain to Evans' Section home study report, school a month child support father, from Tracy. and on a of J.D. in Butte, Evans reported 8 housing and that that she house on the upper west the utilities, house was and was wellfor the children. Tarena was unemployed. but was planning who lived All 5 [J.D.]" Services ample food and clothing from Christa's to by appointment, had proper from high Benton Christine's have custody Her income as of December 1991 consisted support a Fort and Christine visit. two-bedroom When he visited, and contained November in November and December 1991. on the third older" she home as a with Family She had not graduated a G.E.D. with a social well-maintained, According familiar Tracy in a "fairly clean, was She recommended that there Butte. in live Tarena had moved to Butte side their to having home three and in them as "committed Tarena's in October together home" in parents. she her times Tracy, and described basis. was living family with mobile owned by Christine's testified He saw J.D. placement three she described Dave Evans, visited Tracy's and J.D. forward time with temporary kept court looking and Alisha home study well extended Christine, she support. she saw Christine her Button in forma oauperis, $175 a month as child Tracy, J.D.'s that In her appeal She had seen J.D. during 1991. to file to complete of $300 a month in Seattle, and $150 but $16 of her monthly rent was paid through Medicaid Section benefits. Evans included from Family contents leave in his Services children babysitter child Evans' playing visit had emotional counsellor, occurred his At Tarena's Tarena J.D. shorter evidence to periods Evans recommended that Services express would drinking. infant." soon after Tracy. they He observed "seem very concern her to a licensed J.D. of two one-hour time. these close however, about J.D.'s professional behaviors visit than her saying being clingy "would provide 6 of and was submitted on Tarena's ongoing in behalf. in Butte, be awarded to Tarena, temporary, and more frequently of Tarena and her children of J.D. that by abuse or neglect. letter testified in December were "suggestive father Brown's visits lawyer, easily, rather and he also custody to her "crying by separation" at the trial, Family for as Based on his observations that with he wrote and that Brown recommended that for with Only one day earlier, office request, defiant/aggressive," created visit their Brown of Butte. had described anxiety to the and commented that Brown saw Tarena and J.D. 1991. 1989-90 them up from the on December 10, 1991, and he had referred Grainger for as "[Tarena] not pick cruel as stepsisters." called state, would physically Christa stamps and He characterized summarized from a two-week with to one another, Falls. of neglect," was also had returned J.D. Great the next day and also was involved third J.D. food a summary of records unsupervised, until The older report in as a "history the Tarena 8, and she was receiving adding services and follow up intervention On March Tracy, if 13, 1992, Christine, supervising necessary." the District Button, Tarena, social worker Court Evans, in Dillon, and Tarena both were represented took judicial proceeding findings before conclusions of J.D. in the several District of which credible modification of a de facto Court initiated officer. The court abuse and 7, 1992, only also neglect it filed awarding its exclusive is the Tracy presents whether District Court's arrangement. case by requesting only numerous dispositive: supports custody but alleges of fact. one as a modification addressed issues findings evidence this as well properly On April no legal Court's substantial paternity Court of law, and order, Tarena raises issues, Tracy Youth Tarena's police by counsel. by to Tracy. On appeal, errors the the same judge. of fact, custody of testimony Brown, and a Dillon Tracy notice heard a determination of custody, the custody but issue, the of District as paternity is not in dispute. Our standard district court's of review decision disturbed on appeal of fact not supported amount to a clear Mont. 190, 245 Mont. unless for there Section is by substantial a mistake credible abuse of discretion. 275, determination is presumed to be correct 194, 786 P.2d 642, 271, a custody 644; Matter is that and will the not be of law or a finding evidence of S.P. In re Marriage that would (1990), of Otto 241 (1990), 800 P.2d 706, 708. 40-4-224(3), MCA, provides 7 that an order for joint custody the may be modified joint living be justified instead the by the under 246 Mont. relatively Here, District 347, Court facto § 40-4-219(2), In be (1) in the finds, under is in best not The the the factors in to the custody old of Tracy its mother." custody the in is the is is presumed the joint court custody of criteria and against that forth "unless that set Tarena 'I Judge a child fact and forth in on each of Davis wrote, of tender 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 8 to statute applicable findings "Ordinarily, presumption pursuant child." had considered the as a order 40-4-212, in itemized." agreement child, stated the The Court's minor factors the a minor of for the (1990), set joint interest MCA, and "finds belongs that in it of factors and the forth § 40-4-212, "partial the Court best set but entered. may be modified, case, provides been parties' District of law that he is had ever the the of not 1336. which interest District relevant Ferguson then, conclusions the of with MCA, which , § 40-4-219 re Marriage custody in this need interest accordance decree of best treated "in changes it the 1334, joint effect, custody § 40-4-224 In arrangement," MCA, 40-4-212." original MCA. situation, of terminate merely criteria a review appropriately custody custody by for MCA, to modification stringent 805 P.2d no order § 40-4-219, a joint 5 40-4-212, 344, to proposed within may be justified child to If custody. arrangements "de pursuant years 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., parents with single insufficient financial resources and little or no fatherly involvement. Tarena interprets consistent with these the judge's during the trial, against her based on her take into concern as the understandable Judge Davis' the of and tragic and multiple and brothers, In fact, Evans states the that Tarena's and that still "alarming" in mother or "tragic" Her decision home. is remarks that At age In her early mother, in Tarena instability. home study mother and stepfather not three; he and her court. he stated her natural Services Tarena was five, though the not half years sisters stepfathers." Family she is and did Court's of family with discriminated inappropriate of a broken places to District are from the bench and lifestyle, For example, history unfortunately Davis presented the of fact. in various Judge a number of she became the victim she resided beliefs facts which interjections that for view findings has "an alarming three age, basis in frequent evidence consideration about comments, that were events with never prepared were divorced she had only contact report by when the one stepfather; her natural married. or circumstances father even No evidence appears of anywhere in the record. Judge Tarena's Davis assigned supervising to his direct custody with question, social considerable worker to give weight in Dillon an opinion Tarena was in J.D.'s best 9 to the declined, as to whether interest. fact that in response continued She said "It's a hard question Earlier answer because in her testimony, had "very felt to however, much improved" comfortable findings of the Judge Davis made some improvement "While morals did not. father is reportedly her she stated and that that She again substantial the court its the conclusions was still In his as "She and improved, her . The putative living him was stable inappropriate observations, evidence, and that the court "the essential rest." in a concluding to Tracy. was We require of Ulland we based on did not abuse its and determining In re Marriage in Dillon however, decision sole custody in which and happy. Court's 160, 167, 823 P.2d 864, 869. he wrote, . she skills" testimony, District in awarding express may have Tarena's father with these credible discretion care. parenting . Tarena and that statement became pregnant. the new baby's that her skills comments contradict from this that out of the state." her relationship Apart conclude parenting the court in Tarena's in has tried." abilities, rendered continued, Tarena she told children reportedly These latter do think in her parenting leaving fact, I only that facts upon which (1991), 251 Mont. Judge Davis met this requirement when 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 and neglect," Judge Davis the record did exaggerate demonstrates 10 the that "sad record Tarena of abuse does have very limited resources income on child and job skills: support lives in Seattle: other program from two men and that for support Tracy, her without the other was earning that she was available additional The record contains adequate, to a given evidence. Ulland, judgment for abused its 870. 823 of discretion. the court's parenting Otto, judgment subsidy. full caretaker meant for J.D. possess conflicting testimony skills. to resolve conflicts how much weight should be piece of or to a particular We will court that job His which not unless substitute it 800 P.2d at 708: Ulland, of fact time testified court at 870. district she now Even Tarena and to decide P.2d findings time while I testimony a level Tracy and Christine of the district witness that Erroneous the trial Tarena's at of the hearing. skills. father," and evidence, assigned that parenting an "excellent is the function the time her or any assistance a long-term, as a full ample evidence concerning school income as a babysitter, to serve even superior in testimony has $384 a week at wife is hand, of one of whom employment form of food stamps and a housing on the was offered high public approximately It she did not complete her in the most than Tracy, qualify receives Tracy other would to that she depends for that adequate paying that are not necessary are not grounds for reversal. has our clearly 823 P.2d at to support Ferouson, 805 P.2d at 1337. Although issues credible of the court gender bias evidence displayed and a deplorable alternative does support its 11 insensitivity lifestyles, award of exclusive to substantial custody of J.D. to her father, based on J.D.'s best interest. AFFIRMED. Pursuant to Internal Operating Rules, precedent and shall be published with to the Section Clerk Montana of I, the Law Week, Paragraph this Supreme State decision by its Court Reporter We concur: Chief Montana 3(c), Justice 12 Supreme shall filing not be Publishing of 1988 cited as a public and by a report and West Court as document its result Company. Justice J. A. Turnage specially I concur Chief in the result reached However, opinion statements I do not attributed are agree to not with all to by the of comments necessary concurring: of the the a resolution 13 Court in statements District of this made Judge. this case. Opinion. in the Such
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