 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
In re Great-Grandparent/Great-Grandchild contact of Rose9/9/1999
APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.
Submitted on Briefs: March 25, 1999
Justice Jim Regnier
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
Katheryn M. Kelly appeals from the June 11, 1998 Memorandum and Order and the September 16, 1998 Memorandum and Order entered by the District Court for the First Judicial District, Lewis and Clark County. In its June 11, 1998 Memorandum and Order, the District Court dismissed Kelly's Petition for Determination of Great-Grandparent/Great-Grandchild Contact due to Kelly's lack of standing. Following the entry of the June 11, 1998 Memorandum and Order, Kelly filed a Motion to Amend; Motion for a New Trial; Motion to Alter or Amend Judgment; and Motion for Relief from Order and Memorandum. Each of Kelly's motions was denied on the basis of her lack of standing by the District Court in its September 16, 1998 Memorandum and Order.
The dispositive issue on appeal is whether the District Court erred when it dismissed Kelly's petition for great-grandparent contact for lack of standing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 1997, Katheryn Kelly filed a Petition for Determination of Great-Grandparent/Great-Grandchild Contact with regard to her great-granddaughter, Destinie Rose. Kelly lives in Port Angeles, Washington, where Destinie had resided with her from the age of eight months to three and one-half years. Destinie presently lives in Helena, Montana with her natural father, Jeffrey Scott Rose. Destinie's natural mother, Doris Valerie Rose, fled the State of Montana in the fall of 1997 after walking away from the Pre-Release Center in Butte, where she had been sentenced for two felony DUI convictions, and has had no contact with her daughter. Kelly is seeking regularly scheduled contact with Destinie to occur at her residence in Washington.
Jeffrey Scott Rose moved to dismiss Kelly's petition for failure to state a claim upon which relief could be granted on the basis that §§ 40-9-101 and -102, MCA, only allow a court to grant reasonable contact of a child with a grandparent, not a great-grandparent. Kelly responded to Scott's motion by stating that her petition was not brought under the grandparent visitation statutes but that those statutes supplied the standard for the determination of contact, the best interest of the child. Kelly argued that the District Court may grant contact only upon a finding, after a hearing, that contact would be in the best interest of the child.
In addition, Kelly referred to § 40-4-221(2)(f), MCA, relating to the determination of a child's care upon the death of a parent in an attempt to obtain standing to institute a parenting plan under §§ 40-4-233 and -234, MCA, by analogizing the disappearance of Destinie's mother to the death of a parent. Kelly, a Native American, also asked the District Court to consider the Indian Child Welfare Act (ICWA) 25 U.S.C. § 1901, et seq., as authority to grant contact.
The District Court disagreed with Kelly's arguments and dismissed her petition for contact based on her lack of standing. In reaching its decision, the District Court correctly pointed out that § 40-4-2
Page 1 2 3 Montana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|