Custody Paternity of J.D

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
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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
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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
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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
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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
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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
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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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