No. 8 6 - 5 2 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN THE MATTER OF THE ADOPTION OF
S.T.V.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larrivee Law Offices; Noel K. Larrivee, Missoula,
Montana
For Respondent :
Terry Wallace, Missoula, Montana
Submitted on Briefs: Feb. 5, 1 9 8 7
Decided: March 4, 1987
Filed:
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Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
The District Court of the Fourth Judicial District
denied T.R.P.'s petition to adopt the natural child of his
wife. T.R.P. appeals.
S.T.V. is the natural daughter of N.V. (father) and E.P.
.
(mother) They were divorced in 1975 when S.T.V. was
approximately 18 months old. The mother was granted custody,
with reasonable rights of visitation awarded to the father.
The father was ordered to pay $50 a month child support. No
monetary child support has ever been paid. The father owed
over $6,000 in child support at the time of the hearing.
The mother subsequently married appellant, T.R.P.
Appellant wishes to adopt S.T.V. in order to ensure the
child's future financial security. Specifically, appellant
and the mother each testified that the petition to adopt was
motivated by their desire to guarantee that if "something
happened to [appellant]," the mother would receive social
security benefits on behalf of S.T.V., and if the mother
died, appellant would be able to raise S.T.V.
In addition, both the mother and appellant testified
that S.T.V.'s relationship with the natural father was very
good, "cordial, warm, affectionate." The mother also related
that she had no intention of altering the natural father's
visitation rights should the petition to adopt be granted.
S.T.V., who was fourteen at the time, testified pursuant
to § 40-8-113, MCA, that she consented to the adoption.
At the close of the hearing on September 8, 1986, the
trial judge issued his ruling from the bench:
... My view of this case is that there's a
two-step approach that must be made. First step is
to determine whether or not, in this case, the
father was able but did not pay child support. I
find that he was able and that he did not pay child
support during the one year preceding the filing of
the petition.
The second step is for the Court to determine
what's in the best interest of the child. Therein
lies the most troubling aspect of this case.
There's been no showing by the Petitioner ..
.
that the visitation with the father is harmful to
[S.T.V.] . In fact, the mother wants this
visitation to continue. Unfortunately, the law
does not provide for continued visitation in the
event that the petition for adoption is
granted.. . .
Tr. p. 101, In. 17-25; p. 102, In. 1-5.
The trial judge thereafter discussed the reasons why the
petition to adopt was filed. He concluded that potential
social security benefits are not sufficient reason for
depriving a parent of parental rights. Further, concerns
regarding the care of S.T.V. in the event of her mother's
death are remedied by 5 40-4-221, MCA, which provides that
appellant could petition for custody at that time. The judge
then concluded that the petition to adopt was not in S.T.V.'s
best interests.
T.R.P. filed a notice of appeal ten days later,
September 18, 1986. That same day, the trial judge filed his
written findings of fact, conclusions of law and order
denying the petition to adopt. The trial judge expounded on
his reasons for denying the petition:
Because of the ongoing beneficial, loving, strong
relationship between [S.T .V.1 and her natural
father, her best interests are served by continuing
the parent-child relationship between them.
Conclusion of law no. 5.
The timing of the notice of appeal vis-A-vis the written
order raises a question as to whether the trial judge had
jurisdiction to enter his order. "Except for ancillary
matters, once a notice of appeal is filed with this Court,
the trial court loses jurisdiction." Churchhill v. Holly
Sugar Corporation (Mont. 1981), 629 P.2d 758, 760, 38 St.Rep.
860, 862, citing Northern Plains Resource Council v. Board of
Health and Environmental Sciences (1979), 184 Mont. 466, 603
P.2d 684. In Churchhill, supra, this Court held that the
lower court lacked jurisdiction to file supplementary
findings of fact and conclusions of law seven days after a
notice of appeal was filed as "[ilt is unfair to the
appealing party to permit the trial court to clean up the
evidentiary and legal record after the notice of appeal has
been filed." 629 P.2d at 760, 38 St.Rep. at 863. However,
in this instance the documents were filed on the same day.
There was no time for the trial judge to "clean up the
evidentiary and legal record." In fact, the written order
reflected the oral order almost exactly.
No time of filing is indicated, but the judge's
findings, conclusions and order are placed ahead of the
notice of appeal in the District Court file. We engage the
presumption that things which are to be done are done,
(S 1-3-220, MCA, and proceed under the assumption that the
trial judge's order was entered prior to the filing of the
notice of appeal.
We must next consider whether the trial judge abused his
discretion in considering the best interests of S.T.V. after
determining that her natural father's consent for the
adoption was not required. We find no abuse of discretion.
Appellant's assertion that an adoption petition should
be granted immediately upon determination that the natural
father's consent is not required has no basis in law. It
focuses solely upon the father's failure to provide financial
support and disregards completely the needs of the child.
The child's best interest is one of the most important
factors to be considered in determining whether a petition to
adopt should be granted. Section 40-8-124(6), MCA. Once the
statutory requirements for consent to an adoption are met
( S 40-8-111, MCA), the best interests of the child becomes
the paramount consideration. In the Matter of the Adoption
of Smigaj (1977), 171 Mont. 537, 560 P.2d 141.
The trial judge acted properly in considering the best
interests of S .T.V. His determination that S.T.V.'s
interests would be best served by continuing regular contact
with her natural father is completely supported by the
evidence.
Affirmed.
We concur:
w ief Justice
Justices
Mr. Justice John C. Harrison, dissenting.
There is an old saying in the law that bad facts make
bad law. In my opinion, in this case, good facts have made
bad law. We have here a young lady over the age of ten, who
has given her personal consent to be adopted by her
step-father, and would benefit from his estate. He has given
her love and affection far in excess of that she has received
from her natural father, yet is denied the final step of
having her step-father be declared her father. To me, this
is a clear abuse of discretion on the part of the District
Court, in view of the good facts of the case.
Following a divorce from the natural father, S.T.V.'s
mother remarried when S.T.V. was approximately eighteen
months old. The mother was awarded custody, with reasonable
visitation rights granted to the natural father. S.T.V.'s
natural father was ordered to pay $50 per month child support
commencing in 1975. No monetary support has ever been paid.
At the time of the petition to adopt, the father owed over
$6,000 in child support. The mother, in spite of never
receiving any support monies from the father, has allowed the
relationship with the child and the natural father to develop
into one which is "cordial, warm, [and] affectionate." The
mother testified she had no intention of altering that
relationship, or the natural father's visitation rights, if
the petition to adopt was granted. Because she is far more
tolerant than most ex-wifes, both she and S.T.V., in my
opinion, are being penalized by the decision of the District
Court in not allowing the adoption.
The District Court Judge in discussing the reasons why
the petition should be denied, concluded that the potential
social security benefits of the adoptive father are not
sufficient reason for depriving the natural father of his
parental rights. In addition, the mother testified she
wanted her present husband to care for S.T.V. in the event of
her death. In the District Court's opinion, should this
occur, the remedy is found in 5 40-4-221, MCA, which allows
the appellant to petition for custody at that time. The
District Court Judge concluded, that the petition was not in
S.T.V.'s best interest.
In my opinion, if ever a case cried out for a reversal,
this case does. First, the child has consented, 5 40-8-113,
MCA. Second, the very fact that the natural father has not,
for over ten years, although able to do so, paid one dime of
support money to the child, deprives him of any legal right
to protest the adoption. Section 40-8-111(a) (v), MCA.
Third, S.T.V. should have a right to inherit from her
adoptive father, the evidence clearly showing that she would
inherit nothing from her natural father. Finally, it would
be in her best interest, should there be an emergency in
which the mother could not make a decision and the natural
father not available, that her step-father should have the
legal authority of her father to step in and make a decision
as her father. These facts are not sufficient to support a
finding it would be in the child's best interest not to be
adopted by appellant.
In my opinion, S.T.V.'s best interests are served by
the "natural mother's desire to obtain the petitioner's
social security benefits in the event of his decline in
health. " This is a sufficient cause to terminate the
respondent's parental rights with the daughter, particularly
in view of the fact there is absolutely no indication that
the natural father has any desire to give the child anything
but his "affection." The natural father appears to be that
kind of parent who "seeks the benefits of parental rights but
shuns the burden of parental obligations." We have held that
the statute cannot be interpreted in favor o f a parent who
has done what the father has done in this case. Matter of
S.L.R. (1982), 196 Mont. 411, 640 P.2d 886.
I would remand this case to the District Court to grant
the petition for adoption.
A
Mr. Justice John C. joins in the foregoing
dissent of Mr. Justice John C.