09/01/2026
DA 25-0362
Case Number: DA 25-0362
IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 210N
IN THE MATTER OF THE GUARDIANSHIP OF AND CONSERVATORSHIP FOR:
K.D.G., An Adult.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDG-2024-51 Honorable Michael F. McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ryan Aikin, Aikin Law Office, PLLC, Missoula, Montana For Appellees:
Kathleen Verderber, Silverman Law Office, PLLC, Helena, Montana
Submitted on Briefs: August 12, 2026 Decided: September 1, 2026
Filed:
__________________________________________
Clerk
Justice Katherine M. Bidegaray delivered the Opinion of the Court.
¶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 K.D.G. appeals the First Judicial District Court’s March 24, 2025 Findings of Fact, Conclusions of Law, and Order appointing her two adult daughters as permanent full co-guardians and permanent full co-conservators and continuing her residence at a Utah assisted-living facility pending an appropriate alternative placement. K.D.G. does not challenge the District Court’s October 24, 2024 ex parte order appointing temporary full co-guardians and temporary full co-conservators. Her stated issue is whether the District Court denied her procedural due process by failing to afford a timely opportunity to contest the temporary guardians’ decision to move her from Montana to Utah. We affirm.
¶3 On October 23, 2024, K.D.G.’s daughters filed a verified petition for temporary and permanent guardianship and conservatorship while K.D.G. was a patient at the Montana State Hospital. K.D.G.’s daughters alleged cognitive and mental-health decline, medication-management problems, repeated medical crises, impaired judgment, physical instability, and vulnerability to financial exploitation. The next day, the District Court found that immediate and irreparable injury, loss, or damage would occur before K.D.G. or her attorney could be heard; appointed her daughters as temporary full co-guardians and temporary full co-conservators; appointed counsel, a physician, and a visitor; and set
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further proceedings. The temporary order, which did not limit the guardians’ authority over residence, was to expire on April 4, 2025.
¶4 On November 13, 2024, private counsel appeared for K.D.G. and filed an Emergency Petition for Order Prohibiting Removal to Salt Lake City, Utah. The Emergency Petition alleged that the temporary guardians intended to move K.D.G. from the Montana State Hospital to a Utah facility over her objection and requested an immediate hearing and an order prohibiting the move or requiring her return. K.D.G. proposed returning to her property in Lincoln or, alternatively, receiving treatment at St. Peter’s Hospital in Helena. The District Court did not enter a separate written order on the Emergency Petition. In a letter the District Court received on December 9, 2024, K.D.G. again requested a hearing and stated that she was being held involuntarily in Utah.
¶5 K.D.G.’s representation changed repeatedly during the next several weeks. Her private attorneys moved to withdraw because she wished to proceed through appointed counsel, and the appointed attorney then discovered a conflict. At a December 19 status conference, K.D.G. appeared by videoconference, but the attorney from the Conflict Defender Division attended only to monitor the proceeding and did not represent her. The District Court did not conduct a merits hearing and set a later status conference while the Public Defender reassigned the case. When K.D.G. asked whether she could return home while awaiting a hearing, the court stated that the temporary guardians would decide and that replacement counsel could file another placement motion.
¶6 The Public Defender assigned Teal Mittelstadt to represent K.D.G. on December 20. On January 13, 2025, Mittelstadt requested additional preparation time, although K.D.G.
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personally objected to the delay in a letter to the court. The court-appointed physician filed her report on February 10, and the visitor filed his report on February 21. At the February 27 prehearing conference, K.D.G. appeared with Mittelstadt and chose a bench trial after consulting with counsel. The court proposed a March 7 hearing, but Mittelstadt expressed concern that the date might be too soon. She agreed to March 21, a date before the temporary order expired.
¶7 Mittelstadt then raised the unresolved Emergency Petition and explained that it sought K.D.G.’s return to Montana. The District Court acknowledged that it had not issued an order and initially stated that placement was for the temporary guardians and conservators to decide. The court then addressed the substance of the request, stating that it had no objection to K.D.G.’s return to Montana if adequate care were available but that no one in Montana was then available to care for her and that, particularly in light of the professional reports, a return to her Lincoln residence was not in her best interests. Counsel did not request testimony that day, make a proffer regarding an available Montana placement, seek an interim ruling on a developed record, or request a separate evidentiary hearing before March 21.
¶8 The District Court conducted the contested hearing on March 21, while the temporary order remained in effect. K.D.G. appeared personally with counsel. The parties stipulated to admission of the physician’s and visitor’s reports, and K.D.G.’s counsel cross-examined both professionals, called a longtime friend, presented K.D.G.’s testimony, and argued specifically for K.D.G. to regain control over her residence. The petitioners retained the burden of proof.
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¶9 The evidence addressed residence and possible alternatives in detail. The physician testified that medication compliance had enabled K.D.G. to live independently in the past, but her report recommended supervised care and staff-administered medication. The visitor acknowledged that K.D.G. could converse rationally and make some decisions with support, but he remained concerned that she would deteriorate without help managing her health and medication. One daughter agreed that K.D.G.’s nearly completed Lincoln house was physically suitable and that the Utah facility provided more support than K.D.G. needed, but she identified Lincoln’s limited medical and mental-health services, the distance to providers, and K.D.G.’s uncertain ability to drive as substantial concerns. She remained open to an appropriate Montana placement.
¶10 K.D.G.’s friend testified that K.D.G. sounded clearer in recent telephone conversations and that daily calls and technology could support her at home, although the friend had not seen K.D.G. in person for approximately five years. K.D.G. testified that she wanted to return to her Lincoln home with home-health services and travel to Missoula for medical and psychiatric care. She was willing to have her daughters continue paying her bills and coordinating her medical care, but she wanted control over her residence, transportation, and dogs. K.D.G. also acknowledged that facility staff administered her medications, her daughter paid her bills, an attempted medication adjustment had resulted in hospitalization, and she intended to continue a relationship that her daughters and the visitor considered destabilizing.
¶11 The District Court found that K.D.G. could not safely live alone at that time. It relied on her medication history, uncertain driving ability, Lincoln’s remoteness, and the
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limited access to appropriate providers. The court directed that she remain at the Utah facility until her daughters could transfer her to an appropriate mental-health or medical facility in Missoula or another appropriate facility, while expressing hope that she eventually could return to her home with adequate support. Its March 24 written order incorporated those findings and concluded that K.D.G.’s needs could not then be met through a less restrictive alternative.
¶12 We review a claim that a district court violated constitutional due process de novo. In re T.W., 2005 MT 340, ¶ 11, 330 Mont. 84, 126 P.3d 491. We review the factual findings that inform the constitutional analysis for clear error and the district court’s conclusions of law for correctness. In re Guardianship & Conservatorship of J.F.R., 2024 MT 223, ¶¶ 13-14, 418 Mont. 185, 557 P.3d 45. On appeal, K.D.G. does not present a separate substantial-evidence challenge to the permanent findings; the question is whether the procedure afforded her a meaningful and sufficiently timely opportunity to contest residence.
¶13 Although K.D.G. does not challenge the October 24, 2024 ex parte emergency order as invalid when entered, she asks us to vacate it. An order granting a temporary guardianship is immediately appealable, and a notice of appeal must be filed within thirty days. M. R. App. P. 6(4)(a), 4(5)(a)(i); In re Guardianship & Conservatorship of A.M.M., 2015 MT 250, ¶ 22, 380 Mont. 451, 356 P.3d 474. K.D.G. did not appeal the October 24 order within thirty days. We therefore decline to consider her request to vacate that order. In re A.M.M., ¶¶ 22-23. Her narrower claim rests on events after October 24, and the
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March 24 permanent order continued the disputed placement. We therefore address whether the later process was constitutionally timely and meaningful.
¶14 Article II, Section 17, of the Montana Constitution and the Fourteenth Amendment to the Unites States Constitution prohibit the deprivation of liberty without due process of law. The fundamental requirement is notice and an opportunity to be heard appropriate to the nature of the case. In re Klos, 284 Mont. 197, 205, 943 P.2d 1277, 1281 (1997) (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656 (1950)). The opportunity must be afforded at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965). Due process remains flexible and requires the protections that the particular circumstances demand. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976).
¶15 Because K.D.G. does not challenge the initial emergency order, the question is whether the review that followed was timely and meaningful. A delay in providing review after an emergency order can itself violate due process. FDIC v. Mallen, 486 U.S. 230, 242, 108 S. Ct. 1780, 1788 (1988). In evaluating delay, we consider the importance of the private interest and the harm caused by delay, the reason for the delay and its relationship to the protective interest at stake, and the likelihood that the temporary placement decision was mistaken. Mallen, 486 U.S. at 242-43, 108 S. Ct. at 1788-89; see also Mathews, 424 U.S. at 335, 96 S. Ct. at 903.
¶16 Montana’s guardianship statutes protect both safety and personal independence. A guardianship may extend only as far as necessary to protect the person’s well-being and must encourage maximum self-reliance and independence. Section 72-5-306, MCA.
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A temporary full guardian receives care and custody of the person, and the other statutory provisions concerning guardians apply. Section 72-5-317(4), MCA. Except as a court order limits the authority, a full guardian may establish the person’s residence inside or outside Montana. Section 72-5-321(2)(a), MCA. The court nevertheless may not grant a temporary guardian more power than the emergency circumstances require. Section 72-5-317(2), MCA. The daughters therefore had statutory authority to establish K.D.G.’s residence, but the District Court retained authority to limit that choice. The statutes do not set a specific deadline for deciding an objection made after appointment to a temporary guardian’s residence decision.
¶17 K.D.G.’s private interest was substantial. The move separated her from her home, property, dogs, preferred rural environment, friends, and Montana providers and placed her in a supervised facility hundreds of miles away. The four months she spent in Utah before the contested hearing could not later be restored. This interest favored direct and prompt judicial review.
¶18 An earlier hearing at which both sides could present and test evidence also had potential value for K.D.G. Although the verified petition supported immediate protective action, it did not establish through contested evidence that Utah was the only safe placement or that no Montana alternative could meet her needs. The March hearing brought forward evidence that medication compliance had allowed K.D.G. to live independently, her new house was physically suitable, the Utah facility provided more assistance than she needed, and supports short of facility placement might be possible. At the same time, the risk of error did not point in only one direction: the petition and
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professional reports documented severe medical and mental-health crises, repeated medication problems, unsafe departures from treatment, impaired judgment, and financial vulnerability. That evidence also supported continued supervision.
¶19 The interval between the November 13 Emergency Petition and the March 21 hearing was longer than desirable, but the record does not show an unexplained four-month refusal to act. The record does not explain why the District Court did not address the petition before private counsel withdrew in December, and a prompt written ruling would have been preferable. By December 19, however, K.D.G. lacked counsel who could represent her at a merits hearing because private counsel had withdrawn and appointed counsel had a conflict. Taking evidence while she lacked counsel would have raised a different and serious due process concern. Replacement counsel then requested preparation time, the physician and visitor completed their evaluations, and the parties prepared for the hearing that would determine whether the guardianship and residence restrictions should continue.
¶20 When replacement counsel raised the Emergency Petition on February 27, the District Court acknowledged the unresolved request and considered a Montana return in light of the reports then available. The court scheduled the contested hearing twenty-two days later and before the temporary order expired. Counsel did not request an earlier evidentiary hearing or identify evidence that could not await the March 21 hearing. These circumstances distinguish this case from an arbitrary or indefinite delay in review.
¶21 The March 21 hearing provided the protections that § 72-5-315(4), MCA, gives a person facing guardianship. K.D.G. attended in person with counsel, heard the evidence,
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cross-examined the physician and visitor, presented evidence, testified, and argued that available supports would permit her to return to Lincoln. Residence was not incidental to the hearing; it was the central disputed issue in K.D.G.’s evidence and closing argument. The District Court considered Lincoln, Missoula, Utah, home-health care, medication supervision, transportation, and the daughters’ willingness to move K.D.G. closer to home. It expressly decided residence before entering the permanent order.
¶22 Armstrong does not require a different result. There, a hearing after entry of a completed adoption failed to cure the lack of notice because the affected parent appeared for the first time burdened with overcoming an existing decree. Armstrong, 380 U.S. at 551-53, 85 S. Ct. at 1191. Here, the permanent guardianship petition had not yet been adjudicated, the petitioners retained the burden at the permanent hearing, and the District Court considered residence on a contested record before continuing the placement in its permanent order.
¶23 Klos also is materially distinguishable. The district court there entered a temporary guardianship ex parte without notice, a record, or emergency findings; never ruled on the motion to set aside the appointment; and never afforded Klos an appropriate opportunity to contest the temporary guardianship. Klos, 284 Mont. at 203-06, 943 P.2d at 1281-82. Here, the emergency findings and temporary order are not challenged, the District Court appointed counsel and neutral professionals, K.D.G. appeared at interim conferences, and she received a full contested hearing before the temporary order expired. The absence of a separate ruling on the Emergency Petition does not equate to the complete absence of constitutionally required process in Klos.
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¶24 Considering the private interest, the risk of error, the reasons for delay, and the process actually afforded, we conclude that K.D.G. received an opportunity to contest residence at a meaningful time and in a meaningful manner under the specific circumstances of this case. We do not hold that a guardian’s statutory residence authority is immune from judicial review or that a district court may defer every focused placement objection until the permanent hearing. K.D.G.’s objection to her out-of-state placement warranted direct and reasonably prompt consideration. On this record, however, the absence of a separate placement hearing before March 21 did not deny her due process. The March 21 hearing, held before the temporary order expired, gave her a full opportunity to contest residence before the District Court continued the placement in its permanent order.
¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.
¶26 Affirmed.
/S/ KATHERINE M. BIDEGARAY We Concur:
/S/ CORY J. SWANSON /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE