No. 90-267
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN THE MATTER OF THE ADOPTION OF
C.J.H., W.L.H., T.A.H., Minors
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald L. Harris; Crowley, Haughey, Hanson, Toole
& Dietrich; Billings, Montana
For Respondent:
Marvin R. Ventrell; Gannett & Ventrell; Billings,
Montana (R.W.K., Petitioner)
Submitted on Briefs: October 19, 1990
Decided: December 13, 1990
Justice Fred J. Weber delivered the Opinion of the Court.
This appeal involves an adoption proceeding held in the
Thirteenth Judicial District, Yellowstone County. Robert Kimpton,
the stepfather of three minor children, filed a petition for their
adoption. The childrenst natural father, Warren Hoffman, did not
consent. Following trial the Court entered its decree of adoption
terminating the natural father's parental rights. He appeals. We
affirm.
The issues before us are:
1. Did the District Court act within its discretion when it
granted the Petition for Adoption and terminated the natural
father's rights?
2. Is § 4-8-ll(1) (a)(v), MCA, constitutional under the
United States Constitution and the Constitution of the State of
Montana?
Warren Hoffman (Warren) and Chris Anderson (Chris) were
married February 15, 1975. Three children were born of the
marriage.
Warren and Chris were divorced in 1986 and were awarded joint
custody by decree. Warren was ordered to pay a total of $375 per
month in child support and carry medical insurance for the
children.
Later that year, Chris married Robert Kimpton (Robert), and
the couple have resided together with the three children since that
time . In 1989, Robert filed a Petition for Adoption of the
children, alleging that Warren's consent was not required because
he failed to support the children during the one year preceding
the filing of the Petition, and that the adoption would be in the
best interests of the children. Chris consented to the adoption;
the Department of Family Services approved the adoption; and Warren
objected to the adoption.
Prior to granting the adoption and terminating Warren's
parental rights, the District Court made the following pertinent
findings of fact: In December, 1987, Warren paid $200 in child
support rather than the required $375 per month. He had failed to
maintain medical insurance forthe children at least since December
of 1987. In 1988, Warren paid no child support. He maintained
that he obtained a $100 money order and gave it to Chris, but that
she gave it back. Warren claimed that the $100 was the best he
could do and Chris maintained it was not enough. The Petition for
Adoption was filed January 3, 1989. Warren furnished payments to
Chris since the beginning of the year 1989 as follows: $40 in
February, $40 in March, $100 in May and an additional $100 in May
of 1989. Warren had a gross income during 1988 of at least
$10,000.
The District Court also found that there is not a good
relationship between Warren and the three children and continued
contact between Warren and the children seriously endangered the
childrens' physical and emotional welfare. It found that a good
relationship did exist between Robert and the children and that it
would be in the best interests of the children if they were adopted
by Robert.
The court concluded that the parental rights of Warren may be
terminated without his consent. It further determined that it is
in the best interests of the children that they be adopted by their
stepfather, Robert. From that decision, Warren appeals.
I
Did the District Court act within its discretion when it
granted the Petition for Adoption and terminated the natural
father's rights?
Warren contends that his consent was required since he paid
as much child support as he was financially able. He maintains
that his offer of the $100 money order and a coat he purchased for
one of the children was sufficient to require that he must still
give his consent to the adoption.
Robert and Chris maintain that Warren failed to provide
support for his children during the one year period preceding the
filing of the adoption petition. They contend that Warren refused
to hand over the $100 money order after Chris made it clear to him
that it in no way satisfied his child support obligation. They
further maintain that payments in kind, (ie. the coat), do not
apply as child support. Rather, they maintain that child support
means financial support.
Section 40-8-111, MCA, defines the consent required for
adoption.
(1) 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
a 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 a petition for adoption; . . .
Thus, a father's rights may be terminated, and an adoption decreed
without his consent upon a showing of nonsupport under the above
statute. It is the public policy in Montana that the statutes
concerning the termination of parental rights should not be
interpreted in favor of those who shun the burden of parental
obligations. In the Matter of the Adoption of D.J.V. (Mont. 1 9 9 0 ) ,
796 P.2d 1076, 1078, 47 %.Rep. 1522, 1524. The District Court
found Warren failed in his child support obligation, and therefore
his consent was not needed under 5 40-8-111(1)(a)(v), MCA.
In determining whether child support was paid during the one
year period immediately preceding the filing of the petition for
adoption, this Court has stated that any payment of support must
first be applied to satisfy the earliest arrearage before it is
applied to the support owed during the year before the filing of
the Petition for Adoption. Warren maintains that the payments
totalling $180 made in 1989 exceeded arrearages accrued prior to
the filing of the petition for adoption. Chris and Robert maintain
that payments made after the filing may not be applied to the pre-
adoption year. We agree. Otherwise, any parent delinquent with
child support payments could wait until after the filing of the
petition for adoption to prevent the adoption, even when contrary
to the best interests of the children. The payments made in 1 9 8 9
by Warren were de minimus at best, considering the child support
ordered was $375 per month and no medical insurance was provided.
We hold that the District Court acted within its discretion when
it granted the Petition for Adoption and terminated the natural
father's rights.
Is 1 40-8-111(1)(a)(v), MCA, constitutional under the United
States Constitution and the Constitution of the State of Montana?
Warren maintains that 40-8-111 ( 1 (a)(v), MCA, is
unconstitutional because a liberty interest has been taken away
without the existence of a compelling state interest. However, we
note that Warren has not complied with Rule 38, M.R.App.P., which
states:
It shall be the duty of counsel who challenges the
constitutionality of any act of the Montana legislature
in any suit or proceeding in the supreme court to which
the state of Montana, or any agency thereof, or any
officer or employee thereof, as such officer or employee,
is not a party, upon the filinq of the record to qive
immediate notice in writinq to the court of the existence
of said question, specifying the section of the code or
the chapter of the session law to be construed. The
clerk shall thereupon certify such fact to the attorney
general of the state of Montana (Emphasis added).
Warren filed notice of appeal on May 7, 1990. The record was filed
on May 25, 1990. Warren did not file his notice of constitutional
challenge until June 13, 1990, twenty days later. A delay of
twenty days does not constitute llimmediatell
notice as prescribed
by Rule 38, M.R.App.P. Warren offers no explanation for his delay
in filing notice of constitutional challenge.
What exactly "immediatet1means under Rule 38 has not been
defined. However, this Court has held that a delay of 3 days was
sufficiently to file an affidavit of disqualification
of a judge when the reason for the delay was reasonable.
(Plaintiff resided in Lake County but had to travel to Missoula
County to sign an affidavit of disqualification and the
Thanksgiving holiday was the day after he received notice.) See
Wheeler v. Moe (1973), 163 Mont. 154, 515 P.2d 679.
llImmediatell defined in Blackls Law Dictionary, 6th ed.
is
(1990) as follows:
Present; at once; without delay; not deferred by any
interval of time. . . .
A reasonable time in view of
particular facts and circumstances of case under
consideration. ...
We conclude that Warren has presented no facts to explain the delay
of twenty days in filing his notice of constitutional challenge.
We therefore conclude that he has failed to comply with the
requirements of Rule 38, M.R.App.P. We will not address the
question of the constitutional challenge.
Affirmed .
We Concur:
.-- ,I V
Chief Justice
Justice R. C. McDonough dissenting.
A parent has a "fundamental liberty interestgtin continuing
his parental relationship with his children. See Santosky v.
Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-5, 71
L.Ed.2d 599, 606. A decree terminating the parental relationship
must be supported by clear and convincing evidence. See Matter of
Adoption of R.M., S.P.M. and R.M. (1990), 241 Mont. 111, 118, 785
P.2d 709, 713.
Strict compliance with the statute is required. Matter of
adoption of B.L.P. (1986), 224 Mont. 182, 184, 728 P.2d 803, 804.
The petitioner by statute must prove by clear and convincing
evidence the failure to support for the one year while being able
to do so. Here the record fails to show by clear and convincing
evidence the ability of the appellant to pay the support; and the
District Court did not make any finding as to the appellantgs
ability to pay.
I would reverse and dismiss the petition.
Justice Wm. E. Hunt, Sr. joins in the foregoing dissent.
Justice