No. 8 9 - 1 8 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF THE
ADOPTION OF: C. R. D.,
A Minor.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge Presidjnq.
COUNSEL OF RECORD:
For Appellant:
Joan E. Cook; Miller & Cook, Great Falls, Montana
For Respondent:
Virginia Bryan, Billings, Montana
Submitted on Briefs: October 13, 1989
Decided: November 30, 1989
---- Y -
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
J.M.S. (father) appeals the decree of the Thirteenth
Judicial District Court, Yellowstone County, granting the
adoption of his natural daughter, C.R.D. (daughter) by
respondents J.E. D. and A.C .D. (qrandparents) . The
respondents are the maternal grandparents of the child and
have been her legal guardians since 1985. In granting the
petition, the District Court held that the father's consent
to the adoption was not required because he failed to pay
child support and had abandoned his daughter. We affirm the
District Court's decree on the grounds that the appellant
abandoned the child according to Montana law.
Appellant raises the following issues on appeal:
(1) Did the District Court err in concluding that the
father's consent to the adoption was not required because he
had abandoned his daughter according to Montana law?
(2) Did the District Court err in allowing evidence of
the child's best interests?
(3) Did the District Court err when it concluded that
the father's consent to the adoption was not required because
he failed to pay for the support of his daughter?
(4) Did the District Court err in concluding that the
grandparents, as appointed guardians, had the authority to
consent to their own adoption of the child?
Father and V.D. (mother) were married on January 2, 1981
in Billings, Montana. The mother was eight weeks pregnant
with the child at the time of the marriage. The couple lived
together as husband and wife for approximately two weeks
following the marriage, and separated on or about January 15,
1981. After the separation, the mother returned and resided
at the home of her parents, the petitioners, where she lived
when the daughter was born.
Mother filed for divorce on April 3rd, 1981. A decree
dissolving the marriage was entered on June 22, 1981. Mother
and father signed a Separation, Custody, Support, and
Property Settlement Agreement on December 14, 1982. The
agreement was incorporated into the decree of dissolution the
following August. It established mother as the custodial
parent of the child and obligated the father to pay $100.00
per month in child support. During the mother's pregnancy
and at no time since the birth of the child has the father
provided financial assistance to either the mother or the
child.
The father was jailed on November 15, 1983 in the
Yellowstone County Jail. He was later transferred to the
Montana State Prison at Deer Lodge where he currently
resides. Prior to this incarceration, he had two thirty
minute visits with his daughter in 1982, when she was
approximately nine months old. Both visits were conducted at
the business establishment of the petitioner's. There have
been no further personal visits between father and daughter
since 1982.
In May of 1984, the mother moved from her parent's home
to seek employment in another state. Not wanting to disrupt
her daughter's development, she consented to her parents
becoming the legal guardians of her daughter. The father was
served with the guardianship petition on February 15, 1985.
He failed to contest the action, and the petition was granted
by default on March 19, 1985.
On February 11, 1985, and October 27, 1986, the
grandparents received letters from the father. Neither
letter included support for the child. The grandparents have
never received any money from the father for his daughter's
support.
The petitioners have been the sole providers of their
grandaughter's daily and medical needs since her birth. The
girl has become integrated into the petitioners' home. She
refers to the petitioners' as her parents and the
petitioner's other children as her brothers and sisters. She
is also named as a beneficiary in the petitioners' will.
The father's mother, has visited with her qrandaughter
on five or six occasions totaling approximately 15 hours
during 1985. During these visits, the father had one or two
telephone visits with his daughter. There have been no
telephone visits since 1985 or visits with father's mother
since 1985. Father sent his daughter a Christmas card in
1987 and a birthday card in July 1988. No other
correspondence has taken place between father and his
daughter.
On two occasions, prior to father's incarceration,
visitation had been arranged and the father failed to show up
at the designated time and place. No requests for visitation
with the child by either the father or the father's mother
have ever been denied.
Prior to his incarceration, appellant was employed as a
school bus driver from August 1980, to the fall of 1981; as
an air freight attendant from June to December, 1982 and as a
restaurant worker. He earned $16.00 per day as a bus driver,
$900.00 per month with the freight company, and minimum wage
at the restaurant. At the adoption hearing, he acknowledged
he has earned in excess of $2,000.00 while an inmate at
Montana State Prison. He testified that while incarcerated
he gave $20.00 to one of the petitioners' sons for his
daughter and opened up a savinqs account for her with hie
prison earnings. He has offered no documentary proof of
these or any other payment for his daughter's support.
At the hearing, the father testified that in 1985 he
began efforts to have the child's last name changed to his
because he was not recorded as the father on the birth
certificate. He testified that this change required the
consent of the mother which she refused to give. Father
filed a petition to change his daughter's surname to his own
on February 9, 1988. The grandparents filed this action for
adoption of the child on October 5, 1988. The mother has
consented to the adoption. The father has not consented and
has indicated his intentions to seek custody of his daughter
upon his release from prison. Father's petition to chanqe
his daughter's surname was denied and the petition for
adoption was granted on February 13, 1989. The natural
father now has appealed the adoption decree, raisin9 the
aforementioned issues.
I.
Montana law generally requires the filing of written
consents in an adoption proceeding. Section 40-8-111 (11,
MCA. However, where a child has been willfully abandoned by
a parent, that parent's consent is not required for the
adoption. Section 40-8-11 1 a ( i , MCA. Abandoning a
child is defined as:
. . . leaving him under circumstances that make
reasonable the belief that the parent or other
person does not intend to resume care of the child
in the fut.ure or by willf.ully surrendering physical
custody for a p e r i o d of 6 months and during that
period does not manifest to the child and the
person having physical custody of the child a firm
intention to resume physical custody or to make
permanent legal arrangements for the care of the
child. . . . (Emphasis added.)
S e c t i o n 41-3-102 ( 3 ) ( d ) , MCA. Thus, a p a r e n t ' s r i g h t s may b e
terminated, and an adoption subsequently executed without
t h a t p a r e n t ' s c o n s e n t upon a showing o f abandonment u n d e r §§
40-8-111 and 4 1 - 3 - 1 0 2 ( 3 ) ( d ) , MCA. -In
See R e Adoption o f S.E.
(Mont. 1 9 8 8 ) , 755 P.2d 27, 45 St.Rep. 843; Matter of R.R
( 1 9 8 5 ) , 217 Mont. 99, 103-104, 703 P.2d 846, 848. Because
parental rights involve a fundamental liberty interest, a
j u d i c i a l d e c r e e t e r m i n a t i n g s u c h r i g h t s must be s u p p o r t e d by
c l e a r and c o n v i n c i n g e v i d e n c e . R.B., 703 P.2d a t 848, c i t i n g
Santosky v . Kramer ( 1 9 8 2 ) , 455 U.S. 745, 753-754, 102 S . C t .
1388, 1394-1395, 71 L.Ed.2d 599, 606; S.E., 755 P.2d a t 29;
M a t t e r o f Adoption of E . S . R . ( 1 9 8 5 ) , 218 Mont. 1 1 8 , 1 2 0 , 706
P.2d 1 3 2 , 133.
In the case at bar, the record contains clear and
convincing evidence that the natural father willfully
abandoned his daughter. Father has never provided any
financial support f o r t h e child. H e has only v i s i t e d with
h e r p e r s o n a l l y on two o c c a s i o n s i n 1982 and v i s i t e d w i t h h e r
o v e r t h e phone on two o c c a s i o n s d u r i n g t h e y e a r 1985. There
i s no e v i d e n c e t h a t t h e f a t h e r e v e n a t t e m p t e d t o c o n t a c t h i s
daughter in 1983, and he failed to show up at scheduled
v i s i t s i n 1984. T h i s amounts t o o n l y f o u r p e r s o n a l c o n t a c t s
between the child and her natural parent over some e i g h t
years. Father did not contest t h e proceeding t o name t h e
grandparents as the child's guardians. The evidence of
abandonment as found by the District Court is clear and
convincing. -,
See M a t t e r o f M.W. (Mont. 1 9 8 8 ) , 764 P.2d 1279,
1282, 45 St.Rep. 2107, 2 1 1 0 .
The r e c o r d d o e s s u g g e s t t h a t t h e n a t u r a l f a t h e r may h a v e
had some renewed interest in his daughter after his
incarceration. He s e n t h e r a C h r i s t m a s c a r d i n 1987 and a
birthday card i n July, 1988. The f a t h e r t e s t i f i e d t h a t h e
began a t t e m p t s t o h a v e h i s d a u g h t e r ' s l a s t name changed t o
his own in 1985, and filed a petition to have her name
changed in 1988. However, this evidence is insufficient to
demonstrate that the father has terminated or repented from
his abandonment of his daughter. "Abandonment is not an
ambulatory thing the legal effects of which a parent may
dissipate at will by token efforts at reclaiming a discarded
child." Matter of Adoption of David C. (1978), 479 Pa. 1,
387 A.2d 804, 811; In Re Ad.option of Simonton (1982), 211
Neb. 777, 320 N.W.2d 449, 454. The record clearly
demonstrates that the child has been fully integrated into
the home of her grandparents. It is the only home she has
ever had. Considerinq the length of the abandonment, the
father's efforts at reclaiming his daughter while
incarcerated can only be characterized as token. The
District Court did not abuse its discretion in concluding
that the father had abandoned his dauqhter and had not
terminated that abandonment.
11.
The father also contends that the District Court erred
in allowing evidence of the best interests of the child
before there was a judicial determination terminating his
parental rights. He contends that the District Court
prematurely admitted best interest evidence illustrating his
daughter's well adjusted and happy life with her
grandparents. The father argues that such evidence is
irrelevant toward the issues of abandonment and nonsupport
and their effect on termination of his parental rights.
Thus, father contends that the admission of this evidence
before it became relevant to the adoption was prejudicial.
We disagree. Generally, "the 'best interest' test is
applied .under S 40-8-123 or 124, MCA, after the parental
rights have been terminated, in determining whether the
adoption should be allowed." - 755 P.2d at 29. However,
S.E,
once an abandonment is shown to have existed by clear and
convincing evidence to the extent shown here, the evidence is
sufficient to support the conclusion of the court, and if
admission of evidence relating to best interest of the child
is in error, such error would not rise in gravity so as to
overturn the findings and conclusions of the court as a
result of a bench trial.
111. and IV.
The natural father also argues that the District Court
erred in concluding that his consent was not required for the
adoption because 1) he failed to pay support for his
daughter; and 2) the grandparents, as appointed guardians,
had the authority to consent to their own adoption of the
child. Nonsupport is a ground for excusing the consent
requirement for an adoption under S 40-8-111(l) (a)( v ) , MCA.
However, the District Court need only find one of the
substitutes for consent enumerated by the statute in order to
proceed with the adoption. Section 40-8-111, MCA. In light
of the overwhelming evidence of abandonment in this case, we
need not address the sufficiency of the evidence as it
relates to nonsupport. Furthermore, because the natural
father's consent was excused when his parental rights were
terminated, we need not discuss the guardians' authority to
consent because consent was no longer required to complete
the adoption.
We find that there is clear and convincing evidence in
the record to support the District Court's finding that the
father abandoned his daughter. The District Court did not
abuse its discretion in terminating the father's parental
riqhts and granting the qrandparents' petition for adoption.
AFFIRMED.
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