No. 8 6 - 2 7 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF THE ADOPTION OF
B. L. P., a minor female child.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Fallon,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marcia Birkenbuel, Great Falls, Montana
For Respondent:
Jeffrey M. Sherlock, Helena, Montana
Submitted on Briefs: Sept. 4, 1 9 8 6
Decided: November 25, 1986
Filed :
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The natural father of minor child B.L.P. appeals an
order of the District Court of the Sixteenth Judicial
District in and for Fallon County, Montana, terminating his
parental rights and allowing the adoption of his minor child
without his consent. We affirm.
J.C.E. filed a petition to adopt the minor child,
B.L.P., April 15, 1985. The petitioner was married to the
child's natural mother at that time. The mother consented to
the adoption. The court granted the adoption May 14, 1985,
although the natural father was not notified of the adoption
proceeding and did not consent to the adoption.
The natural father (appellant here) filed a petition to
set aside the adoption for lack of notice. After a hearing,
it was set aside by the District Court. The original
petition then was re-set for hearing, but the natural father
stipulated to submission of the case to the District Court on
the evidence submitted at the hearing to set aside, the
briefs, and proposed findings and conclusions of counsel. A
second hearing was not held.
The District Court issued its order reinstating the
original decree of adoption, for the reason the natural
father's consent was not necessary to the adoption because he
failed to pay child support, although he was able to
contribute, during a period of one year before the filing of
the petition, pursuant to $ 40-8-111 (1) (a)(v), MCA.
The issue before the Court is whether the District
Court erred in finding the natural father was able to
contribute to the support of B. L. P. , he did not do so, and
consequently his child can be adopted without his consent.
B.L.P. is the legitimate child of her mother and the
appellant. The parents' marriage was dissolved in March,
1982, when B.L.P. was one year old. The mother was awarded
custody and appellant was ordered to pay $100 per month
toward the child's support. Appellant was employed at a
sporting goods store from May, 1982, until June, 1983. He
voluntarily quit this job in an effort to earn more money in
another business. The new business did not materialize,
however. He worked for his grandmother from February through
September, 1984, in return for room and board and the payment
of some of his debts, including $600 of child support.
In the meantime both of B.L.P.'s parents had remarried.
Appellant and his present wife moved to California in
November, 1984, where he obtained steady employment. They
have two children. The child's mother finished college and
obtained a teaching position in August, 1984. Her husband
filed the adoption petition. At the time the adoption
petition was filed, appellant owed approximately $1,700 in
child support.
In adoption cases, we require strict compliance with
the statutes because of the harshness of permanently
terminating parental rights. In the Matter of the Adoption
of Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377, 1380.
See also In the Matter of the Adoption of R.A.S. (Mont.
1984), 679 P.2d 220, 41 St.Rep. 451; and In the Matter of the
Adoption of Smigai (1977), 171 Mont. 537, 560 P.2d 141. The
appropriate statute, 5 40-8-111 (1)(a)(v), MCAr says in
pertinent part:
An adoption of a child may be decreed
when there have been filed written
consents to adoption executed by:
(a) both parents, if living, or the
surviving parent of the child, provided
that consent is not required from a
father or mother:
(v) if it is proven to the satisfaction
of the court that the father or mother,
if able, has not contributed to the
support of the child during a period of 1
year before the filing of the petition
for adoption; ...
Rigid application of the statute must not discount the
necessity for due process. The United States Supreme Court
has ruled that the natural parents' right to care and custody
of their child is a "fundamental liberty interest" to be
protected by fundamentally fair procedures.
The fundamental liberty interest of
natural parents in the care, custody, and
management of their child does not
evaporate simply because they have not
been model parents or have lost temporary
custody of their child to the State.
Even when blood relationships are
strained, parents retain a vital interest
in preventing the irretrievable
destruction of their family life. If
anything, persons faced with forced
dissolution of their parental rights have
a more critical need for procedural
protections than do those resisting state
intervention into ongoing family affairs.
When the State moves to destroy weakened
familial bonds, it must provide the
parents with fundamentally fair
procedures. Santosky v. Kramer (19821,
455 U.S. 745, 753-54, 102 S.Ct. 1388,
[1394-951, 71 L.Ed.2d 599, [606].
In the Matter of R.B. (Mont. 1985), 703 P.2d 846, 848, 42
Section 40-8-111, MCA, does not provide for notice per
se. Nonetheless, waiver of the right of a parent to consent
to the adoption of his child is not a waiver of the due
process right to be heard. While the burden is on the party
seeking to adopt a child to show the non-consenting parent
has not contributed child support, although able to do so,
Biery, supra, 164 Mont. at 359, 522 P.2d at 1380, the
non-consenting parent cannot be deprived of the opportunity
to present evidence to the contrary. The District Court
properly set aside the original order for adoption to allow
the natural father to be heard. After the hearing the
District Court properly applied the two-prong test set out in
5 40-8-111 (1)(a)(v), MCA.
There is no dispute appellant did not contribute to the
support of his child during a period of one year before the
filing of the petition for adoption. If no contribution has
been made, it must be determined whether the non-consenting
parent had the ability to contribute to the child's support.
In the Matter of the Adoption of R.A.S., supra, 679 P.2d at
223, 41 St.Rep. at 453.
Appellant argues he was unable to make support payments
during the year immediately prior to the date the petition
was filed. The District Court found the statutory ability to
pay child support cannot be determined solely by the natural
parent's income. It also encompasses the ability to earn
income and the desire to earn it. We will not overturn the
findings of the District Court unless they are clearly
erroneous. Rule 52 (a), M.R.Civ.P. Nunnally v. Nunnally
(Mont. 1981), 625 P.2d 1159, 1162, 38 St.Rep. 529, 532;
Matter of R.M.B. (Mont. 1984), 689 P.2d 281, 284, 41 St.Rep.
1925, 1929. We have long adhered to the standard of review
which provides that we will consider only whether substantial
credible evidence supports the findings and conclusions of
the trial court. Matter of R.M.B., supra, 689 P.2d at 285,
41 St.Rep. at 1929.
A parent cannot voluntarily become unemployed, fail to
pay court ordered child support, and retain parental rights.
Matter of S.L.R. (1982), 196 Mont. 411, 415, 640 P.2d 886,
888. Appellant voluntarily gave up a steady job in the
expectation he could get a better paying job. He was unable
to find work in the Great Falls area, but did find a steady
job in California in November, 1984, yet made no support
payments prior to April 15, 1985, the day the petition for
adoption was filed, although his income was between $600 and
$1,500 per month. He remarried and is the father of two more
children. He made at least two trips to Montana for sporting
events, while child support payments were in arrears. He did
not see his child on either trip. He is able to pay $2,000
in attorney's fees. The record indicates his priorities were
fundable, but support payments apparently were not a high
priority.
Appellant argues his voluntary termination of
employment in order the secure a job which would provide a
decent salary is indication of a respect for his parental
obligations. The District Court was not convinced by this
argument. The evidence clearly shows that a "respect for
parental obligations" did not motivate him to assume the
burden of those obligations.
"'A statute should not be interpreted in favor of a
father who seeks the benefit of parental rights but shuns the
burden of parental obligations. ' " Matter of S.L.R., supra,
citing with approval In Re Burton's Adoption (Cal. 1956), 305
P.2d 185, 191.
There is substantial evidence appellant did not
contribute to the support of his child, although able to do
so, during a period of one year before the petition for
adoption was filed.
We affirm the order of the District Court.
I
We concur: ,
J I
hie£ Justice