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In re Parenting of D.E.L.-W.

Supreme Court of Montana

January 29, 2019

IN RE THE PARENTING OF: D.E.L.-W., a Minor Child, SHARMANE MARIE WARNER, Petitioner and Appellee, and STEVEN DUANE LEE, Respondent and Appellant.

          Submitted on Briefs: August 29,

          APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DR-17-030 Honorable Olivia Rieger, Presiding Judge

          For Appellant: James C. Reuss, Guthals, Hunnes & Reuss, P.C., Billings, Montana

          For Appellee: Rennie Wittman, Lucas & Tonn, P.C., Miles City, Montana

          DIRK SANDEFUR JUSTICE

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Steven Duane Lee appeals from the judgment of the Montana Seventh Judicial District Court, Dawson County, imposing a final parenting plan, filed February 21, 2018, governing the parenting of the minor child D.E.L.-W. We affirm.

         ¶3 At the time of hearing and decision in this case, D.E.L.-W., was an infant child born June 11, 2016. Steven and Appellee Sharmane Marie Warner are the biological parents of D.E.L.-W. Sharmane and Steven are unmarried and did not live together. Both reside in Glendive, Montana. D.E.L.-W. has resided with Sharmane since birth. D.E.L.-W. was not subject to a prior parenting plan.

         ¶4 Upon hearing, the District Court found that Sharmane is employed full-time (approximately 40 hours per week) as a certified nursing assistant at the Eastern Montana Veteran's Home in Glendive. She is also a member of the Army National Guard and attends Guard training one weekend per month and two weeks in the summer. Steven is employed full-time by Crisafulli Pumps in Glendive where he generally works four 10-hour days per week.

         ¶5 The District Court made various findings pertinent to who should have custody and care of the child. Inter alia, the court found that Sharmane has been the child's primary custodian and caregiver since birth and has provided for all of the child's physical and emotional needs. In contrast, though he desires to be more involved with the child's parenting, the court found that Steven has exercised only limited parenting time with the child and has never cared for the child overnight. Both parents acknowledged that it is important for the child to have a bonded relationship with the other. The court further found that Sharmane wants Steven to build a bond with the child over time under an extended period of graduated visitation. Steven proposed a parenting plan under which the parents would share custody after a graduated schedule over a few weeks.

         ¶6 The District Court found that, though they have differing views on the child's best interests, the parents each agreed that the other is a "good parent" and that neither is concerned about the safety of the child with the other. The court found that the child is "fully integrated" into Sharmane's home and adequately cared for in her custody with the assistance of third-party day care and the maternal grandparents when she is working or otherwise unable.

         ¶7 Based on the evidence presented, the District Court made express or manifestly implicit findings of fact specifically relevant to the statutory criteria specified by § 40-4-212(1)(a) through (j), and (1), MCA. With specific reference to § 40-4-212(1)(h), MCA, the court found that "continuity and stability of care" for the young child "is of greatest concern" under the totality of the circumstances of record. In regard to § 40-4-212(1)(1), MCA ("whether the child has frequent and continuing contact with both parents"), the Court found that:

Mother has the most frequent and continuing contact with the Minor Child . . . . Father has attempted to have more contact with the Minor Child. There is no evidence . . . that contact with either parent would be detrimental to the Minor Child's best interests.

         ¶8 Based on its findings of fact, the District Court ultimately found and imposed the following parenting ...


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