No. 8 6 - 4 3 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE ADOPTION OF
J.M.G., J.J.G., and C.C.G.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Measure, Ogle & Ellingson; Darrell S. Worm, Kalispell,
Montana
For Respondent :
William A. Douglas, Libby, Montana
Submitted on Briefs: March 26, 1 9 8 7
Decided: May 13, 1987
Filed: MAY 13 1987
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The natural father of J.M.G., J.J.G., and C.C.G., ap-
peals the June 10, 1986, judgment of the Nineteenth Judicial
District Court, County of Lincoln, terminating the parental
rights of the natural father and granting adoption to the
stepfather. We affirm.
The natural father and natural mother were married in
1975. Three children were born of the marriage. The par-
ties' marriage was dissolved on March 4, 1983, and the natu-
ral mother awarded custody of the children. The natural
father moved to Oregon while the natural mother and children
remained in Libby, Montana.
On April 7, 1983, the natural father was charged with
custodial interference, a felony, and subsequently was incar-
cerated on the charge from July 18, 1983, to September 7,
1983. The natural father spent three days of this period at
St. John's Hospital in Libby for treatment of anxiety and
psychosis. On October 11, 1983, the natural father entered a
guilty plea to the charge of custodial interference and
received a two year deferred imposition of sentence.
The natural mother was remarried to S.A. May 5, 1984.
On September 11, 1984, S.A. filed a petition to adopt J.M.G.,
J.J.G., and C.C.G. In the petition, S.A. alleged that pursu-
ant to S 40-8-111 (1)(a)(v), MCA, the natural father's consent
was not required due to his failure to provide child support
during the year preceding the filing of the petition. Fol-
lowing the natural father's failure to appear the District
Court granted the adoption on October 24, 1984. This decree
was subsequently set aside and the District Court ordered
that the matter be set for trial following discovery.
The matter came on for hearing March 26, 1986. Testimo-
ny was heard from the natural father and his mother, the
natural mother, and a former attorney for the natural father.
The parties did not dispute the fact that the natural father
did not provide any support to his children during the period
in question, September 11, 1983, through September 11, 1984.
The natural father testified that he was physically and
mentally incapable of working at that time. He had injured
his knee in 1981 while working as a logger and was still
unable to perform heavy labor. A workers' compensation
settlement of $9500 was received by the natural father in
July, 1983, which he gave to his mother and $2400 was applied
to child support.
The natural father and his mother testified that his
major problems during that period were psychological. He was
taking thorazine, an antidepressant, and expressed suicidal
ideas, had trouble sleeping, and his mother felt he was not
competent to be left alone. The natural father assisted his
mother in her sign business but his only compensation was
room and board. The natural father did not perform any
remunerative work until 1985. Up to that time his mother
felt he was incapable of performing simple tasks.
David Harmon, the natural father's attorney during 1983
and early 1984, testified that conversing with the natural
father during his incarceration was useless due to his anxie-
ty and paranoia. However, the natural father's mental condi-
tion improved greatly following his release from jail.
Harmon represented the natural father at hearings during
October and November of 1983, and found him to be capable of
discussing his legal problems. Harmon did not consider the
natural father to be mentally impaired at that time, but
found him to be obsessed with the possibility that his chil-
dren might be taken away from him.
The natural mother testified that the natural father
visited with the children in November, 1983, and exhibited no
signs of mental problems. The natural mother further testi-
fied that following the natural father's knee injury he had
performed some photography work, raised chickens which in-
volved carrying heavy bags of feed and 5 gallon buckets, plus
he jogged on a daily basis.
The District Court entered its findings of fact, conclu-
sions of law and judgment June 10, 1986. The court found the
natural father's consent to adoption to be unnecessary for
failure to provide child support from July 11, 1983, through
July 3, 1985, and granted the adoption. The natural father
appeals and raises the following issues:
1) Whether there is substantial credible evidence
supporting the termination of the natural father's parental
rights?
2) Whether the District Court committed reversible
errors of law in admitting certain evidence and in entering a
decree of adoption?
The natural father contends several of the District
Court's findings of fact are not supported by substantial
evidence. Specifically, the natural father takes issue with
the findings of the court that his emotional problems were
best characterized as self-induced, that a portion of his
lump sum settlement should have been applied toward child
support, that he was able to maintain employment but did not
by choice, and that he has voluntarily chosen a lifestyle to
avoid gainful employment while allowing others to support
him. We find substantial credible evidence in the record to
support these findings.
The natural father was released from jail pending trial
on the custodial interference charge. The release was due to
his medical condition. The hospital record shows a final
diagnosis of acute psychosis and anxiety but also contains a
notation by one of the examining physicians that the natural
father's condition might have been an act. The testimony of
his former lawyer and the natural mother indicate that fol-
lowing release from incarceration the natural father was
experiencing some anxiety but was not impaired in any manner.
The natural father asserts that his testimony as well as
his mother's compel a finding that he was not mentally able
to hold a job from September 11, 1983, to September 11, 1984.
However, the natural father has offered no medical evidence
of his condition during that period and admits that he did
not visit any physicians or psychologists in regard to his
alleged condition. Evidence concerning the natural father's
mental condition during the year in question consisted solely
of non-medical testimony. In a non-jury trial witness credi-
bility and the weight of the testimony are matters to be
determined by the District Court and we will not substitute
our judgment for that of the District Court. Kuhlman v.
Rivera (Mont. 1985), 701 P.2d 982, 986, 42 St.Rep. 863, 868.
In this instance, the District Court relied on testimony
that the natural father was not mentally impaired in deter-
mining that the natural father did not work by choice. We
will not substitute our judgment for that of the district
judge. Substantial evidence supports his conclusion.
Section 40-8-111 (1)(a)(v), MCA, provides that the con-
sent of the natural father is not required for adoption, "if
it is proven to the satisfaction of the court that the father
. . . if able, has not contributed to the support of the
child during a period of 1 year before the filing of a peti-
tion for adoption." This Court has previously held that the
question of ability to pay child support also encompasses the
ability to earn income and the desire to earn it. Matter of
Adoption of B.L.P. (Mont. 1986), 728 P.2d 803, 43 St.Rep.
2116.
In the present case, the District Court found that the
natural father should have applied his lump sum settlement to
child support. The record reflects he paid $2400 out of the
$9500 settlement to clear up child support arrearage, but the
remainder was given to his mother who spent it. We find no
abuse of discretion in the court's determination that this
money should have been applied to child support.
The District Court found that the natural father volun-
tarily chose a lifestyle to avoid gainful employment while
allowing others to support him. The court further found that
the natural father did not have any income from September,
1983, to December, 1984, and that he did not pay child sup-
port for a period of two years. Each of these findings is
supported by the record. The natural father testified he
wasn't capable of doing anything the first four or five
months after his release from jail in September, 1983, yet he
failed to make any serious efforts at obtaining employment
and did not find remunerative employment until December of
1984. We agree with the District Court that the natural
father was capable of maintaining regular employment but did
not.
The second issue is whether the District Court committed
reversible errors of law in admitting certain evidence and in
entering a decree of adoption. The natural father contends
the court erred in receiving evidence of events before and
after the one year period preceding the filing of the adop-
tion petition and permitting questions concerning the natural
father's homosexuality. We find no reversible error in the
court's admission of evidence.
The primary question before the District Court was the
natural father's ability to work during the year in question.
Evidence concerning events outside of that one year period
were relevant as to the natural father's mental and physical
condition during the subject year. The natural father's knee
injury in 1981 and his activities thereafter including jog-
ging, raising chickens, and performing photography, all
related to the question of his physical condition.
The natural father's relationships with others were
relevant as to his emotional and mental condition. The
natural father claims he was mentally incapable of regular
employment from September, 1983, through September, 1984.
The District Court permitted testimony that following that
year the natural father did find employment yet he still
relied on others to support him. There is no indication that
evidence of the natural father's homosexuality prejudiced him
in any manner. The record supports the court's finding that
the natural father has voluntarily chosen a lifestyle which
permits him to avoid gainful employment while allowing others
to support him.
The natural father contends that there should have been
a two-step hearing process. First, a hearing as to terminat-
ing the natural father's parental rights, second, a hearing
concerning fitness of the adoptive father and the best inter-
ests of the children. The record indicates the second step
did occur but there is no transcript in the record.
The District Court granted the petition for adoption
based upon its findings that the adoptive father is a fit and
proper person to be allowed care and custody and that the
adoption is in the best interests of the children. The
natural father contends the decree of adoption was entered
prematurely and is not supported by substantial evidence.
The record shows a hearing was held October 22, 1984,
concerning the petition to adopt. The District Court granted
the adoption finding it to be in the best interests of the
children and the stepfather to be a fit and proper parent.
The decree of adoption was subsequently set aside to allow
the natural father to appear in the proceedings to determine
whether the natural father had abandoned the children. There
is no indication the stepfather's fitness to be an adoptive
parent and the best interests of the children was
relitigated.
Rule 9(b), M0nt.App.R.Civ.P. provides in pertinent part:
In all cases where the appellant intends to urge
insufficiency of the evidence to support the ver-
dict, order or judgment in the district court, it
shall be the duty of the appellant to order the
entire transcript of the evidence. Wherever the
sufficiency of the evidence to support a special
verdict or answer by a jury to an interrogatory, or
to support a specific finding of fact by the trial
court, is to be raised on the appeal by the appel-
lant, he shall be under a duty to include in the
transcript all evidence relevant to such verdict,
answer or finding.
The appellant natural father has not provided the entire
transcript of the proceedings of the October 22, 1984, hear-
ing concerning the original petition to adopt. Therefore we
will not address whether substantial evidence supports the
finding that adoption by the stepfather is in the best inter-
ests of the children.
The District Court judgment is affirmed.
We Concur: -/
/kT%x Chief Justice