November 10 2015
DA 15-0273
Case Number: DA 15-0273
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 316
In Re the Adoption of:
P.T.H.,
A Minor Child.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DA-14-12
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Daniel R. Sweeney, Sweeny Law Firm, Butte, Montana
For Appellee:
Kristine M. Akland, Matrium Law Group, Missoula, Montana
Submitted on Briefs: October 14, 2015
Decided: November 10, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Petitioner B.C. appeals from the District Court’s Findings of Fact, Conclusions of
Law and Order filed April 16, 2015, denying his petition for adoption of P.T.H. We
affirm.
¶2 We restate the issues for review as follows:
Issue 1: Whether the District Court erred by giving full faith and credit to the
parenting plan and child support order entered by the Superior Court of California.
Issue 2: Whether the District Court erred by refusing to terminate the parental
rights of the father.
BACKGROUND
¶3 P.T.H was born in 2008 and is the natural son of T.C. (mother) and R.H. (father).
The parents were divorced in California in 2009 but then remarried each other. They
subsequently separated and divorced a second time. The parties agreed to a parenting
plan that was approved by the Kern County (California) Superior Court. That agreement
specified that R.H. did not have to pay any child support, and that provision was adopted
by the Kern County Court as part of its final order. Since that time neither T.C. nor R.H.
has sought to modify the parenting plan or child support provision in the California
court’s order.
¶4 In 2010 T.C. moved to Montana and is now married to B.C., who is the petitioner
for adoption in this case. B.C.’s petition, filed in 2014, seeks to terminate R.H’s parental
rights so that B.C. can adopt P.T.H. The sole basis for the petition to terminate R.H.’s
parental rights is the allegation that R.H. is an unfit parent because he failed to pay child
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support during the year prior to the filing date of the petition. R.H. responded to the
petition, consented to the jurisdiction of the Montana court, but also requested that the
District Court modify the California parenting plan. The District Court bifurcated the
parenting plan issues pending resolution of the adoption case. After a hearing at which
T.C., R.H. and R. H.’s mother testified, the District Court found that there was no basis
for terminating R.H.’s parental rights and dismissed the petition.
¶5 The District Court reviewed the 2010 California court order and found that it
provided that “child support is set at zero,” based upon the stipulation of the parties. The
District Court found that neither party had sought to modify that order. The District
Court found that during the four years prior to the present petition, R.H. made three
payments to T.C. that he noted as “child support” and that he sent periodic packages of
clothes and presents for P.T.H. The District Court also found that R.H. has generally
been employed during the four years prior to the petition, working in construction for
wages between $11.00 and $15.00 per hour.
¶6 The District Court concluded that the United States Constitution (Article IV,
Section 1) and Montana law (§§ 40-5-149 and 40-4-210(2), MCA) require that “full faith
and credit” be given to child support orders entered by courts in other states, including
the order of the California court in this case. The District Court concluded that the child
support order from the California court must be recognized and enforced in Montana
unless modified.
¶7 In Montana a child cannot be adopted without the consent of the natural parent.
Section 42-2-301, MCA. Parental consent to an adoption is not required if there is a
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judicial determination that the parent is unfit. Section 42-2-607(2), MCA. The District
Court concluded that in this case the only ground for R.H.’s alleged unfitness is based
upon § 42-2-608(1)(c), MCA, which provides that the court
may terminate parental rights for purposes of making a child available for
adoption on the grounds of unfitness if it is proved to the satisfaction of the
court that the parent, if able, has not contributed to the support of the child
for an aggregate of 1 year before the filing of a petition for adoption.
The District Court noted the factors for determining whether a parent is “able” to support
the child, as set out in In re the Adoption of C.R.N., 1999 MT 92, ¶ 15, 294 Mont. 202,
979 P.2d 210.
¶8 The District Court noted that under Montana law, when there is no child support
order in place, a parent still must support his or her child or, again, risk being found unfit
for purposes of an adoption. In re the Adoption of R.M., 241 Mont. 111, 115, 785 P.2d
709, 711 (1990). The District Court concluded that because R.H. had been “able” to
make child support payments for the year prior to the petition, he risked being declared
unfit except for the unique facts of this case: that there was an existing court order
providing for “zero” child support. The District Court concluded that “[i]f another state’s
court order releases a parent of the responsibility to pay child support, this Court cannot
later disregard that order and mandate that child support should have been paid. . . . .
Such an act would disregard the Full Faith and Credit clause of the U.S. Constitution and
other Montana laws.”
¶9 The District Court then concluded that there were no grounds for finding R.H. to
be an unfit parent, and refused to terminate his parental rights. Further, the District Court
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ordered that the parties’ child support obligations be re-determined under the Montana
Child Support Guidelines, and that the 2010 California order would be followed until that
re-determination was completed. B.C. appeals.
STANDARD OF REVIEW
¶10 This Court reviews a district court’s findings of fact to determine whether they are
clearly erroneous, and conclusions of law to determine whether they are correct. Because
the termination of parental rights involves a fundamental liberty interest, a decree
terminating those rights must be supported by clear and convincing evidence. See
generally In re the Adoption of C.R.N, ¶ 7.
DISCUSSION
¶11 Issue 1: Whether the District Court erred by giving full faith and credit to the
parenting plan and child support order entered by the Superior Court of
California.
¶12 The United States Constitution requires that “[f]ull faith and credit shall be given
in each state to the . . . judicial proceedings of every other state.” U.S. Const. art. IV, § 1.
The requirement to give full faith and credit is “exacting” and a state court judgment
qualifies for recognition “throughout the land” for claim and issue preclusion purposes.
Baker v. GM, 522 U.S. 222, 233, 118 S. Ct. 657, 663-64 (1998). Federal law requires
that each state “shall enforce according to its terms a child support order” from the court
of another state. 28 USC § 1738B. In this case it is not contested that the Superior Court
of California had full jurisdiction to enter the 2010 order setting the amount of child
support owed by R.H. at “zero,” and it is not contested that neither party has since
obtained a modification of that order.
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¶13 Montana law requires:
A court of this state shall accord full faith and credit to an order issued by
another state and consistent with this chapter that enforces a child custody
determination by a court of another state unless the order has been vacated,
stayed, or modified by a court having jurisdiction to do so under 40-7-105,
40-7-107 through 40-7-110, 40-7-112, and part 2 of this chapter.
Section 40-7-313, MCA. See also § 40-5-186, MCA, providing for registration and
enforcement of support orders. Section 40-4-210(2), MCA, provides that a Montana
court “shall recognize and, if petitioned to do so, enforce according to its terms a child
support order issued by a court or administrative agency of another state if the order was
made consistent with the full faith and credit provisions of 28 USC 1738B.” Both federal
and Montana law allow Montana courts to modify child support orders issued by other
state courts upon meeting the proper standards. Section 40-4-210(6), MCA. Therefore,
the California order setting the support obligation at “zero” has the same legal effect as if
that order had been issued by a district court in Montana, but its provisions may be
modified pursuant to new proceedings in this State.
¶14 Petitioner’s argument is based upon the premise that this is a case in which there
was “no court-ordered support order” and therefore R.H. nonetheless had an obligation to
provide support. Adoption of R.M., 241 Mont. at 115, 785 P.2d at 711. However, there
clearly was a court order in this case setting the amount of support at zero. As this Court
recognized in Adoption of R.M., 241 Mont. at 115-16, 785 P.2d 709, the parental support
obligation exists “absent a court order releasing . . . this responsibility or altering this
obligation . . . .” Therefore, we hold that the District Court properly concluded that it was
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required to recognize the 2010 order of the California court which set R.H.’s support
obligation at “zero.”
¶15 Issue 2: Whether the District Court erred by refusing to terminate the parental
rights of the father.
¶16 As previously noted, a child may be adopted only with consent of the natural
parents, § 42-2-301, MCA, but consent is not required if the parental rights have been
terminated, § 42-2-607, MCA. R.H. has not consented to the proposed adoption, and the
only ground for declaring him to be unfit is based upon § 42-7-608(1)(c), MCA. That
section allows, but does not require, a district court to terminate a parent’s rights to his
child for purposes of adoption if it is “proven to the satisfaction of the court that the
parent, if able, has not contributed to the support of the child for an aggregate period of 1
year before the filing of a petition for adoption.” In re the Adoption of D.J.V., 244 Mont.
209, 213, 796 P.2d 1076, 1078 (1990).
¶17 As the District Court here recognized, this is a different situation because there is a
support order in place that currently governs the obligations of the parents. T.C., the
mother, consented to that order. Recognizing it as a controlling order in this case is
entirely consistent with the requirements of Full Faith and Credit, and with the obligation
of a parent to comply with a support order if one is entered. Parents often agree and
courts often order that there be no child support, such as when the parents share equally
in custodial time with the child. Allowing termination of parental rights in such a
situation after a year has gone by is clearly a trap for the unwary parent and would
undermine the authority of the district courts to set the amount of support in each case.
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¶18 Termination of parental rights impacts the parent’s fundamental liberty interest,
and a decree terminating those rights must be supported by clear and convincing
evidence. A parent cannot be declared unfit and have his or her child adopted by another
person after complying with a court order setting the amount of support due.
¶19 The order of the District Court is affirmed and this matter is remanded for further
proceedings regarding proposed modification to the parenting plan.
/S/ MIKE McGRATH
We Concur:
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
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