In Re the Adoption of D. J. V.

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF THE ADOPTION
OF D.J.V.

APPEAI, FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable McPhillips, Judge presiding.

COUI\TSEL OF RECORD:
For Appellant:
Chris Christensen, Keil & Christensen, Kalispell,
Montana
For Respondent:
Scott 0. Swansoll, Pendroy, Montana

submitted: May 5, 1990
Decided: August 20, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.

This appeal involves an adoption proceedings held in the Ninth
Judicial District, Pondera County. Appellant, Kent Keil, the
natural father and respondent below, appeals the July 5, 1989 order
and decree terminating his parental rights and granting the
adoption of his son, D.J.V., by D.J.V. Is stepfather, Albert
Blockeel, Jr. The District Court ruled that the natural father's
consent was not required for the adoption because he failed to
provide support for his son for a period of one year before the
filing of the petition for adoption. We affirm the District
Court's order and decree.
The natural father raises the following issue on appeal:
Did the District Court err in finding that the natural
father's consent to the adoption of D. J.V. was not required because
the natural father did not contribute to the support of D.J.V.
during a period of one year before the filing of the petition for

adoption?

D.J.V. was born on September 2, 1987, in Choteau, Montana.
In 1986, Carolyn Vandenbos (Carolyn), a 17 year-old junior in high
school, began dating Kent Keil (Kent), a college student at Montana
State University. In January of 1987, Carolyn discovered that she
was pregnant with Kent's child; at that time, Kent broke off their
relationship.
Upon discovering Carolyn's pregnancy, Kent's parents, Dale and
Sheri Keil, took an active interest in Carolyn's welfare. They
arranged for her to receive counseling. Kent attended one of these
sessions, and apparently drove Carolyn home from another, but
otherwise did not take part in the counseling sessions.
After D.J.V. was born, Dale and Sheri visited several times
with the baby in their home. Kent did not see his son until two
months after the birth, when Carolyn's cousin arranged a half hour
visit. According to Carolyn, Kent held the baby, but did not
appear to take a great deal of interest in him.
On another occasion, Kent happened to arrive at his parent's
home when Carolyn and D.J.V. were visiting, and two photographs
were taken of Kent and the child. The parties disagree on how many
more times Kent visited with his son. Carolyn remembers only two
occasions in which Kent saw D.J.V., whereas Kent testified that he
saw his son at least five or six times. Testimony from the parties
also differs whether Kent attempted to pay any of Carolyn's medical
expenses. Carolyn claims Kent never offered or paid any of her
medical expenses during the pregnancy. In contrast, Kent claims
that he specifically requested Carolyn to supply him with the
medical bills so that he could pay them. Despite this offer by
Kent, the record reveals that Kent failed to pay any of Carolyn's
and D.J.V.'s medical expenses.
Kent appears from the record to be a rather prosperous young
man. He estimates his net worth as being $200,000 and he also
expects a substantial inheritance. Despite his wealth, Kent has
not paid anything toward the support of his child. He has given
no clothes or gifts of any kind to the boy.
 In January of 1988, the petitioner, Albert Blockeel, Jr.

(Albert), began dating Carolyn. By August, they had decided to
marry. As part of their marriage plans, they wished to have D.J .V.
adopted by Albert. At the suggestion of their lawyer, Jim Obie,
and Dale Keil, who was acting as his son's lawyer, Carolyn and
Albert met with Kent and his new wife, Lisa, to discuss the
possibility of Kent giving his consent to the adoption. Kent
refused to consent to the adoption, and inquired whether Carolyn
and Albert wanted child support. The subject of visitation also
surfaced. Albert invited Kent and his wife to come to their house
at anytime; Kent, however, chose not to take advantage of Albert's
invitation to see D.J.V.
Later, Carolyn and Albert were married on October 28, 1988,
and on February 21, 1989, Albert filed a petition for adoption.
After a hearing on April 17, 1989, the District Court ruled that
Kent's consent was not required, under 9 40-8-111(1)(a)(v), MCA,
since Kent failed to contribute to his son's support for a period
of one year prior to the filing of the petition for adoption.
The central issue in this appeal involves the District Court's
application of the adoption statute, 9 40-8-111, MCA. Section 40-
8-111 (1), MCA, generally requires the filing of written consents
in an adoption proceeding. However, consent for the adoption 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 . . ..
 Section 40-8-111(1) (a)(v), MCA.
Accordingly, a father's rights may be terminated, and an
adoption decreed without that parent's consent upon a showing of
nonsupport under 5 40-8-111(1)(a)(v), MCA. In re the Adoption of
R.M. (Mont. 1990), 785 P.2d 709, 711, 47 St.Rep. 124, 127.
As we have previously held, "Parental rights involve a
fundamental liberty interest, and a judicial decree terminating
such rights must be supported by clear and convincing evidence.''

I R M
. 785 P.2d 711; In re the Adoption of C.R.D. (Mont. 1989), 782
P.2d 1280, 1282; Matter of R.B. (1985), 217 Mont. 99, 102-103, 703
P.2d 846, 848, citing Santosky v. Krommer (1982), 455 U.S. 745,
753-54, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606. It is a
fundamental principle of law, however, that parental rights do not
exist without concomitant obligations. As the District Court
properly noted, "It is the public policy of the State of 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 re Burton's Adoption, 147 Cal.App.2d
125, 305 P.2d 185, 191; In re the Adoption of S.L.R. (1982), 196
Mont. 411, 415, 640 P.2d 886, 888; In re the Adoption of B.L.P.
(1986), 224 Mont. 182, 186, 728 P.2d 803, 805; In re the Adoption
of R.G.C. (1987), 228 Mont. 345, 349, 742 P.2d 471, 474.
As the District Court notes, the central issue in this case
is whether Kent has contributed to the support of D.J.V. during a
period of one year before the filing of the petition. The District
Court found Kent had failed to pay any support, and therefore his
consent was not needed under 5 40-8-411(1)(a)(v), MCA.
Kent argues that because there was no court order requiring

him to pay child support, the District Court cannot terminate his
parental rights pursuant to 5 40-8-111 (1)(a)(v), MCA. Furthermore,
Kent contends that virtually all of the Montana cases decided under
5 4-8-lll(l)(a)(v), MCA, involve court-ordered child support.
Kent is correct; most of the adoption cases under the statute
involve court-ordered support; however, a parent's obligation to
his child is not dependent on an order of the court. Section 40-
6-211, MCA. There is no requirement under 5 40-8-111 (1)(a)(v),
MCA, that the child support be court-ordered. If the father has
provided no support during the one year period prior to the filing
of the petition for adoption and the father is able to provide
support, then consent is not required. The absence of a child
support order does not absolve Kent of his legal duty to support
his child.
Next, Kent argues that his parental rights should not be
terminated because he made an offer concerning support at a meeting
in the Keg Restaurant in Conrad, Montana. At the meeting, Carolyn
and Albert met with Kent and his new wife, Lisa, to discuss Albert

adopting D.J.V. At the meeting, Kent asked Carolyn if she needed
support, and she refused. According to Kent, this offer showed his
willingness to pay the support, and thus his rights should not be
terminated under 5 40-8-411(1)(a)(v), MCA. We disagree, and adopt
the District Court's reasoning set forth in its memorandum:
 This Court agrees with the Petitioner that, at most, the
discussion which occurred during July or August of 1988
was a mere inquiry concerning support which was
insufficient to exempt the father from the requirements
of 5 40-8-111, MCA. The discussion took place one year
subsequent to the birth of the child. There was no
promise or offer to pay any child support for the
preceding year. There was not a promise or offer to pay
any of the expenses of the pregnancy or delivery. There
was no specific dollar amount of future child support.
No checks were written. No trust account was set up for
the child. No health insurance policy was provided for
the child. The father merely inquired of the Petitioner
whether or not she wanted any support to be paid. The
Petitioner, who was not yet married to the child's
mother, answered "no.'I The father has not ever actually
contributed any money whatsoever to this child's support
or ever made a specific offer of child support.
In the past, this Court has strictly upheld the child support
requirements under 5 40-8-111, MCA. In in re the Adoption of
R.A.S. (1984), 208 Mont. 438, 679 P.2d 220, the father had paid the
sum of $450.00 child support during the one year period immediately
preceding the filing of the petition for adoption. However, this
payment was properly attributable to a child support obligation
which had accrued prior to the one year period preceding the filing
of the petition for adoption. Therefore, the requirement of
support during the one year period before the filing of the
adoption petition was not met and the father's consent to the
adoption was not required. R.A.S., 679 P.2d at 223, 224. If
actual payment of some child support, under R.A.S., does not toll
the running of 5 40-8-111(l) (a)(v), MCA, then Kent's mere inquiry
regarding child support is surely insufficient to toll the statute.
It is uncontroverted that Kent has not contributed financial
support to D.J.V., in the preceding one year or at any time. By
Kent's own admission, he has not paid any expenses of Carolyn's
pregnancy or hospitalization, or any child support since the birth
of D.J.V. This is not a case where the father is suffering
financial hardship. Thus, there is ample "clear and convincing
evidence1' to support the District Court1 termination of Kent s
s
parental rights.
Finally, Kent argues the doctrine of equitable estoppel should
preclude petitioner (Albert) from asserting that Kent failed to pay
child support. According to Kent, both Albert and Carolyn cleverly
refused his "offer" of child support at the Keg Restaurant, in
order to later assert at the adoption proceeding that Kent's
consent was not necessary. Kent claims that Albert and Carolyn
should not be allowed to induce him to forego making child support
payments, and then utilize 5 40-8-411 (1) (a)(v), MCA, which deprives
Kent of his parental rights for his failure to pay child support.
Equitable estoppel is a principle of equity, Cremer v. Cremer
Rodeo Lands and Livestock Co. (1979), 181 Mont. 87, 93, 592 P.2d

485, 489, used to promote justice, honesty, fairdealing and to
prevent injustice. Keneco v. Cantrell (1977), 174 Mont. 130, 135,
568 P.2d 1225, 1228. Furthermore, the object of equitable estoppel
is to prevent a party from taking advantage of his own wrong while
asserting his strict legal right. Matter of Shaw (1990), 189 Mont.
310, 316, 615 P.2d 910, 915. We cannot adopt Kent's argument of
equitable estoppel. Carolyn has done no wrong giving rise to
estoppel. Since the birth of D.J.V., Kent has not performed his
legal responsibility as a parent. Equitable estoppel is
unavailable to Kent in this case. We affirm the District Court
order.
1

+ / d, g-3
Justice
We Concur: /

Chief Justice