No. 13537
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
IN THE MATTER OF THE ADOPTION OF
WAYNE GERALD CHALLEEN and MICHAEL
SHANE CHALLEEN, minors.
Appeal from: District Court of the Second Judicial District,
Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
For Appellant:
Ferguson and Berry, Missoula, Montana
Jeannette Ellen Berry argued, Missoula, Montana
For Respondent :
Nadine D.Scott argued, Butte, Montana
Submitted: April 13, 1977
Filed:
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
The natural father appeals from an order of the second
judicial district of the State of Montana, in and for the County
of Silver Bow, allowing the adoption of his two minor sons,
Wayne Gerald Challeen, age 7, and Michael Shane Challeen, age
6, without his consent.
These children were born in Butte, Montana, an issue
of the marriage of Nancy Mae Challeen and appellant, Wayne
Lawrence Challeen. Upon their divorce on November 24, 1971,
the mother was awarded custody of the children, and appellant
was ordered to pay $100 per month as child support. It is agreed
by all parties that appellant has never paid any child support
since the date of this divorce.
As far as the record shows, appellant was not permanently
employed from 1971 until 1974. After an operation for the re-
moval of his eye, appellant ceased to attend the Butte Vocational
Technical Center, whereupon his GLBill terminated. From 1971
until June, 1974, appellant was unemployed for a majority of the
time, interspersed with short term jobs. During this period
appellant lived with friends and relatives. In June, 1974,
appellant was charged with aggravated assault stemming from an
incident where he threatened his ex-wife with a gun. Appellant
spent three months in the county jail before obtaining bond.
Thereafter, he attended school until he was convicted and sentenced
to the state prison on the aggravated charge. He remained in
prison, earning from twenty to sixty cents per day, until February,
1976. At this time, appellant used his remaining G . Bill to
I
attend the University of Montana. He admits that he was financi-
ally able to pay the child support during the spring of 1976,
and had intended to. However, he claims he did not know how to
accomplish this in light of his parole conditions requiring him
to avoid going to Butte without permission and to avoid contact
with his ex-wife and children except through legal channels.
Appellant's G.I. Bill terminated at the end of spring quarter,
1976, and from that time on he has been unemployed.
Nancy Mae and Jeffrey Pankovich, the respondents, were
married in 1973, and since have resided in Butte. The children
have lived with and have been supported by them throughout this
entire period. After receiving appellant's offer of child support,
respondents filed their petition for adoption on May 28, 1976,
whereupon a hearing was held June 25, 1976. Thereafter the
district court entered the decree of adoption on August 10, 1976,
finding that appellant had not contributed to the support of the
children for more than five years and that the children's best
interests would be served by adoption by Jeffrey Pankovich.
Appellant contends that respondents did not meet their
burden of proving that appellant's consent was not required under
section 61-205, R.C.M. 1947. We agree.
As recently held in Matter of Adoption of Smigaj,
Mont . , 560 P.2d 141, 34 St.Rep. 16 (1977), the statutory
requirements concerning consent must first be met before the
welfare of the child becomes paramount. In Smigaj at p. 143,
citing Adoption of Biery, 164 Mont. 353, 359, 522 P.2d 1377
(1974), we stated:
"While the best interests of the child are
of utmost concern in both custody and adoption
cases we have required strict compliance with
section 61-205, R.C.M. 1947, because of the
harshness of permanently terminating parental
rights. "
The statutory exception relied upon by respondents, section
61-205(1)(f), R.C.M. 1947, states that the father's consent to
the adoption is not required:
"if it is proven to the satisfaction of the
court that said father or mother, if able,
has not contributed to the support of said
child during a period of one (1) year before
the filing of a petition for adoption * * *".
The burden on the petitioners for adoption under this
section is to prove that the parent was able and failed to
give support during this period. In re Adoption of Biery,
supra,359. This respondents failed to do. They did show that
appellant failed to contribute support for more than five years,
but they did not show that he had the ability to provide support.
Nor did the district court make such a finding to support re-
spondents' argument.
As in Smigaj it appears that respondents were attempting
to argue that appellant had abandoned his children, and therefore,
his consent was not required under section 61-205(1)(d), R.C.M.
1947. If such is the case, the petition for adoption can be
amended on this basis and a hearing held thereon to determine if
the statutory requirements are met. For these reasons the cause
is reversed and remanded without prejudice to refiling or amend-
ment of the petition for ado
-
We concur:
Chief Justice
u
Justices
0'