Rehbein v. Rehbein (In re L.M.A.R.)

552 P.3d 678

2024 MT 148

IN RE the Parenting Plan of L.M.A.R. and N.R.R.:

Jesse B. Rehbein, Petitioner and Appellant,

and

Danielle C. Buck, Respondent and Appellant,

v.Annette Rehbein and Doug Rehbein, Intervenors, Third-Party Parents, and Appellees.

DA 23-0574

Supreme Court of Montana.

Submitted on Briefs: May 22, 2024

Decided: July 16, 2024

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-18-281(A) Honorable Amy Eddy, Presiding Judge

For Appellant: Kevin S. Brown, Paoli & Brown, PC, Livingston, Montana, Mary Kate Moss, Gravis Law, PLLC, Kalispell, Montana

For Appellee: Emily von Jentzen, Kaufman Vidal Hileman, Ellingson, PC, Kalispell, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Jesse Rehbein (Jesse) and Danielle Buck (Danielle) appeal the September 6, 2023 Amended Final Parenting Plan and Findings of Fact, Conclusions of Law, and Order issued by the Eleventh Judicial District Court, Flathead County. The parenting plan gave a third-party parental interest to Jesse’s father and stepmother, Doug and Annette Rehbein (the grandparents), over Jesse and Danielle’s two children, N.R.R. and L.M.A.R.

¶2 We affirm and restate the issue on appeal as follows:

Whether the District Court erred by granting the grandparents a parental interest in N.R.R. and L.M A.R. under § 40-4-228, MCA, instead of § 40-9-102, MCA, and over the objection of the children’s natural, fit parents.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Jesse and Danielle are the natural parents of L.M.A.R. and N.R.R. In January 2018, the Department of Child and Family Services (the Department) removed the children from Jesse and Danielle’s care. The Department removed the children based on a number of concerns, including the parents’ failure to address N.R.R.’s serious dental needs, N.R.R.’s lack of education, L.M.A.R.’s testing positive for methamphetamines and THC as well as being behind on her wellness appointments, Jesse and Danielle’s history of domestic violence and their struggle with substance abuse, and their lack of motivation and parenting skills to care for the children.

¶4 The Department placed the children with the grandparents in March 2018, and the children have been in their care ever since. In April 2018, Jesse and the Department entered an agreement, that resulted in Jesse starting therapy, facilitating N.R.R.’s participation in therapy, undergoing drug testing, taking parenting classes, and addressing the children’s medical, dental, and educational needs. Danielle also maintained some contact with the children, although she refused to wear a drug patch and undergo treatment. In October 2018, the Department determined Jesse was able to safely parent the children. Also in October 2018, the grandparents petitioned for guardianship of both children. Jesse voluntarily signed the consent documents agreeing to the guardianship. The grandparents were appointed as guardians in February 2019.

¶5 During the guardianship, the grandparents have allowed for supervised visits between the children and Jesse and Danielle. Visitation was limited when Jesse was incarcerated for unrelated offenses from April to December 2019. After he was released, he reunited with Danielle and helped her get sober. Visitation increased gradually to include overnights on the weekends. The frequency of visitation ranged from every weekend to every other weekend.

¶6 On April 13, 2022, Jesse and Danielle filed a Motion to Terminate the Guardianship. On May 6, 2022, the grandparents filed a Petition to Intervene and requested the court to grant them a third-party parental interest under § 40-4-228, MCA. In August 2022, the parties stipulated to the appointment of a Guardian ad Litem (GAL). The GAL investigated and delivered a report that recommended the grandparents be granted a parental interest, the children continue residing with the grandparents, and Jesse and Danielle continue to have supervised visitation. The District Court issued its Final Amended Parenting Plan along with its Findings of Fact, Conclusions of Law, and Order on September 6, 2023. The parenting plan designated the grandparents as third-party parents and provided the children shall reside primarily with the grandparents with Jesse and Danielle having unsupervised parenting time every other weekend.

¶7 In the District Court’s Findings of Fact and Conclusions of Law, it relied on § 40-4-228, MCA to grant the grandparents a third-party parental interest over the children. Jesse and Danielle argued the Montana Supreme Court has previously held in Schwarz v. Schwarz, 2018 MT 48, ¶ 9, 390 Mont. 366, 414 P.3d 285, that grandparents were required to seek visitation rights under § 40-9-102, MCA. However, the District Court acknowledged. the Montana Legislature’s subsequent amendment to Title 40 that declared a grandparent is not precluded from seeking third-party parental status as long as they meet the requirements under the statute.

STANDARD OF REVIEW

[1–3] ¶8 This Court reviews a district court’s findings of fact regarding parenting plans and related agreements for clear error. King v. Chilcott (In re Parenting of K.J.K.), 2020 MT 224, ¶ 17, 401 Mont. 204, 472 P.3d 155. "A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake." Chilcott, ¶ 17. We review a district court’s interpretation and application of statutes for correctness. Chilcott, ¶ 17.

DISCUSSION

¶9 Whether the District Court erred by granting the grandparents a parental interest in N.R.R. and L.M.A.R. under § 40-4-228, MCA instead of § 40-9-102, MCA, and over the objection of the children’s natural, fit parents.

¶10 Section 40-4-228, MCA, pertains to parenting and visitation between a natural parent and a third party. It allows a court to award a parental interest to a third person when it is shown by clear and convincing evidence "the natural parent has engaged in conduct that is contrary to the child-parent relationship; and the nonparent has established with the child a child-parent relationship, … and it is in the best interests of the child to continue that relationship." Section 40-4-228(2), MCA. A child-parent relationship is defined as one "in which a person provides or provided for the physical needs of a child by supplying food, shelter, and clothing and provides or provided the child with necessary care, education, and discipline," or exists "through interaction, companionship, interplay, and mutuality that fulfill the child’s psychological needs for a parent as well as the child’s physical needs," or "meets or met the child’s need for continuity of care by providing permanency or stability in residence, schooling, and activities outside of the home." Section 40-4-211, MCA.

¶11 When considering the best interest of a child, the court shall consider factors including, but not limited to:

(a) the wishes of the child’s parent or parents; (b) the wishes of the child; (c) the interaction and interrelationship of the child with the child’s parent or parents and siblings and with any other person who significantly affects the child’s best interest; (d) the child’s adjustment to home, school, and community; (e) the mental and physical health of all individuals involved; (f) physical abuse or threat of physical abuse by one parent against the other parent or the child; (g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent; (h) continuity and stability of care; (i) developmental needs of the child; (j) whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay, which is considered to be not in the child’s best interests; (k) whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child’s best interests; (l) whether the child has frequent and continuing contact with both parents, which is considered to be in the child’s best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child’s best interests. In making that determination, the court shall consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child, including but not limited to whether a parent or other person residing in that parent’s household has been convicted of any of the crimes enumerated in 40-4-219(8)(b); (m) adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.

Section 40-4-212, MCA.

[4] ¶12 The court does not need to find the natural parents unfit before awarding a third-party parental interest. Section 40-4-228(3), MCA. Additionally, the Montana Legislature has pointed out "that while it is in the best interests of a child to maintain a relationship with a natural parent, a natural parent’s inchoate interest in the child requires constitutional protection only when the parent has demonstrated a timely commitment to the responsibilities of parenthood." Section 40-4-227(2)(a), MCA. Further, "a parent’s constitutionally protected interest in the parental control of a child should yield to the best interests of the child when the parent’s conduct is contrary to the childparent relationship." Section 40-4-227(2)(b), MCA.

¶13 Section 40-9-102, MCA, pertains to grandparent and grandchild visitation rights. A district court may grant a grandparent reasonable rights of contact with the child. Section 40-9-102(1), MCA. Unlike § 40-4-228, MCA, the court must determine whether a parent is fit if they object to grandparentgrandchild contact. Section 40-9-102(2), MCA. The court may grant the grandparent’s petition over the objection of an unfit parent only if it is in the best interests of the child. Section 40-9-102(...