No. 89-253
IN THE SUPREME COURT OF THE STATE OF MONTANA
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IN RE THE MATTER OF THE ADOPTION OF !-n
R.M., S.P.M., and R.M., minor children. ,
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APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorahle William Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kristine Davenport, Missoula, Montana
For Respondent:
Brad Arndorfer, Billings, Montana
Submitted on Briefs: Dec. 1, 1989
Decided: January 18, 1990
Filed:
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; Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
This appeal involves an adoption proceeding held in the
Thirteenth Judicial District Court, Yellowstone County.
Appellant, R . E . M , the natural father and respondent below,
appeals the January 13, 1989 order and January 31, 1989
decree terminating his parental rights and granting the
adoption of his children by their stepfather. The District
Court ruled that the natural father's consent was not
required for the adoption because he had failed to provide
support to his children pursuant to a court ordered decree of
dissolution. We affirm.
The natural father raises the following issues on
appeal :
1) Did the District Court err and abuse its discretion
in finding that the natural father's consent to the adoption
of S.P.M. was not required because the natural father did not
contribute to the support of all three children during a
period of one year before the filing of the petition for
adoption?
2) Did the District Court err and abuse its discretion
in finding that it was in the children's best interests to
allow the stepfather to adopt them?
The natural father and the mother, C. R. S. , were married
in August of 1980. Their oldest child, R.R.M., is the
mother's c h i l d a d o p t e d by R.E.M. and i s now t e n y e a r s o l d .
The o t h e r two c h i l d r e n o f t h e m a r r i a g e a r e S.P.M., age e i g h t ,
and R.C.M., age five. During t h e i r marriage, the natural
f a t h e r r a n a b u s i n e s s i n B i l l i n g s c a l l e d Minute Man P i z z a .
Testimony i n d i c a t e d t h a t p r o f i t s from t h e b u s i n e s s p r o v i d e d
t h e f a m i l y w i t h a p p r o x i m a t e l y $ 1 , 0 0 0 p e r month.
The n a t u r a l f a t h e r t e s t i f i e d t h a t a p p r o x i m a t e l y August
9, 1 9 8 5 , h i s w i f e s e n t a l l t h e c h i l d r e n from B i l l i n g s t o h e r
parents house in Missoula. The natural father went to
Missoula, t o o k h i s s o n S.P.M. back from h i s w i f e ' s p a r e n t s ,
and r e t u r n e d t o B i l l i n g s w i t h him. On August 1 9 , 1 9 8 5 , t h e
n a t u r a l f a t h e r f i l e d a P e t i t i o n f o r D i s s o l u t i o n of Marriaqe
i n t h e D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t ,
Billings, Montana. The p e t i t i o n r e q u e s t e d t h a t t h e n a t u r a l
father receive custody of all the children. While the
determination of custody in the dissolution was still
pending, S.P.M. resided w i t h him i n Billings, Montana and
the other two children resided with t h e i r mother, also in
Billings. During this time, Court Services Domestic
relations department conducted a study and recommended on
January 22, 1986 t h a t t h e p a r t i e s h a v e j o i n t c u s t o d y o f a l l
the children with the wife as the primary residential
custodian. The p a r t i e s ' testimony c o n f l i c t s a s t o whether
the natural father knew the contents of this report in
J a n u a r y o f 1986.
That same month, with the dissolution proceeding still
pending, the natural father left Billings with S.P.M. and
moved to Kennewick, Washington. The natural father did not
have any further contact with his attorney concerning the
dissolution case, he testified that he did not think the
dissolution would proceed in his absence and that he told his
attorney to "let the matter slide." The natural father also
told his attorney that he was considering moving to Mazatlan,
Mexico. He did not tell his attorney of his true
whereabouts, nor did he tell or inform the mother as to his
leaving or his whereabouts.
On March 13, 1986, the natural father filed a petition
for dissolution in Lincoln County, Washington, in which he
requested custody of the three children. The mother was
served by publication and did not appear. A decree of
dissolution was entered by default in Washington on July 16,
1986, awarding custody of the children to the natural father.
On November 13, 1986, the Montana dissolution proceeding
was heard in the natural father's absence. The motion for
continuance made by the natural father's attorney at that
time on the grounds that he was unable to contact his client
was denied.
The trial court granted the mother's request for custody
of the three minor children and ordered the natural father to
pay $100.00 per month, per child as child support. A copy of
the decree of dissolution was served upon the natural
father's attorney. The n a t u r a l f a t h e r a l l e g e s t h a t h e d i d
n o t r e c e i v e a copy o f t h e d e c r e e and n o t i c e o f h i s s u p p o r t
obligation because his attorney was unable to l o c a t e him.
Meanwhile, i n Washington, t h e n a t u r a l f a t h e r opened up a
b u s i n e s s s i m i l a r t o t h e one h e had o p e r a t e d i n B i l l i n g s . The
evidence i n d i c a t e s t h a t h e and S.P.M. occasionally visited
the natural father's parents i n t h e Missoula area, but no
contact was made with the mother or other children. In
November of 1987, the natural father was arrested in
Washington and c h a r g e d w i t h c u s t o d i a l i n t e r f e r e n c e p u r s u a n t
t o S 45-5-304, MCA. The n a t u r a l f a t h e r was f o r c e d t o c l o s e
down his business in Washington in order to answer the
charges in Montana. After the natural father' s arrest,
S.P.M. was p l a c e d i n t h e c u s t o d y o f t h e m o t h e r . The c h a r g e s
o f c u s t o d i a l i n t e r f e r e n c e were d i s m i s s e d b e c a u s e i n s u f f i c i e n t
f a c t s were a l l e g e d i n t h e i n i t i a l a f f i d a v i t t o s u p p o r t t h e
f i l i n g of t h e information. The n a t u r a l f a t h e r t e s t i f i e d t h a t
a f t e r h i s e x t r a d i t i o n t o Montana was t h e f i r s t t i m e h e was
aware o f a d e c r e e of d i s s o l u t i o n o r d e r i n g him t o pay c h i l d
support.
On May 9 , 1 9 8 8 , R.H.S., t h e m o t h e r ' s new h u s b a n d , f i l e d
a petition for adoption of t h e t h r e e minor children. The
petition alleged that the natural father's consent to the
a d o p t i o n was n o t r e q u i r e d b e c a u s e h e had n o t c o n t r i b u t e d t o
t h e s u p p o r t of t h e minor c h i l d r e n f o r a p e r i o d o f one y e a r
b e f o r e t h e f i l i n g o f t h e p e t i t i o n and t h a t h e was a b l e t o do
so. -S
See 40-8-111 (1)( a ) ( v ) , MCA.
On January 13, 1989 the District Court entered its
findings of fact and conclusions of law. The court
terminated the n a t u r a l father's parental rights for failure
t o s u p p o r t b a s e d on § 40-8-111(1) ( a ) (v), MCA, and a l s o found
t h a t t h e a d o p t i o n was i n t h e b e s t i n t e r e s t s o f t h e c h i l d r e n
and entered a d e c r e e g r a n t i n g t h e a d o p t i o n on J a n u a r y 31.,
1989. The n a t u r a l f a t h e r now a p p e a l s .
The p r i m a r y issue in this case involves the District
Court's a p p l i c a t i o n of t h e adoption s t a t u t e , § 40-8-111, MCA.
The s t a t u t e g e n e r a l l y r e q u i r e s t h e f i l i n g of w r i t t e n c o n s e n t s
in an adoption proceeding. Section 40-8-111 1 , MCA.
However, consent for the adoption i s not required from a
f a t h e r o r mother:
(v) i f i t i s proven t o t h e s a t i s f a c t i o n of
t h e c o u r t t h a t t h e f a t h e r o r mother, i f a b l e , has
not contributed t o t h e support of t h e c h i l d during
a period of 1 year before t h e f i l i n g of a p e t i t i o n
f o r adoption. ...
S e c t i o n 40-8-111 (1)( a ) ( v ) , MCA. Thus, a p a r e n t ' s r i g h t s may
be t e r m i n a t e d , and an a d o p t i o n d e c r e e d w i t h o u t t h a t p a r e n t ' s
consent upon a showing of non-support under
§ 40-8-111 (1)( a ) ( v ) , MCA.
Parental rights involve a fundamental liberty interest,
and a judicial decree terminating such rights must be
supported by clear and convincing evidence. Matter of the
Adoption of C.R.D. (Mont. 1989) , -- P. 2d - I -, 46 St.
rep. 1979, 1982; Matter of R.B. (1985), 217 Mont. 99,
103-104, 703 P.2d 846, 848, citing Santosky v. Kramer (1982),
455 U.S. 745, 753-754, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d
599, 606. Persons faced with loss of their parental rights
have a critical need for procedural protections, therefore
when parental rights are judicially terminated the parents
must be provided with fundamentally fair procedures.
Santosky, 455 U.S. at 753-754.
The natural father maintains, and the District Court
found, that the natural father supported S.P.M. during the
time they spent in Washington. This support continued up
until the natural father's arrest four months prior to filing
of the petition. Because he did not fail to support S.P.M.
for a year prior to filing of the petition, the natural
father contends that his consent is necessary for the
adoption of S.P.M.
This contention is without merit. Parents are obligated
to support their children. Sections 40-6-211, 40-6-214, MCA.
-- 5 s 41-3-101, 41-3-102(3), MCA.
See also Absent a court order
releasing him of this responsibility or altering this
obligation the natural father w a s obligated to support --
all
three children. He failed to meet this obligation. Also,
there is no authority in Montana that supports crediting the
natural father for the in-kind support provided for S.P.M.
against the entire support obligation for all three children
in this case. In our decision in In re Adoption of E.S.R.
(1985), 218 Mont. 118, 706 P.2d 132, we did hold that in
spite of a court order requiring. husband to pay monthly child
support, a subsequent oral agreement between the parties for
each to support one child was valid and no support payments
were necessary. Here, there is no evidence of such an oral
agreement. Furthermore, 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 filing of
the petition for adoption. In re Adoption of R.A.S. (1984),
208 Mont. 438, 443-444, 679 P.2d 220, 223. Thus, under this
rationale, even if the District Court had considered the
support provided S.P.M. in Washington as a substitute for an
actual credit of child support payments, applying the
monetary equivalent of this in-kind support over the
obligation to support all three children would still create
an arrearage for all the support payments owed. And finally,
we endorse the District Court's finding that:
. .
. where one parent is legally required to pay
for the support of two or more minor children the
residential custody of whom has been judicially
awarded to the other parent, the payor parent
should not be able to prevent the spouse of the
custodial parent from adopting all the minor
children by providing support specifically to one
of the children even if the payor parent remains
current in child support to that minor child
within one year immediately preceding a petition
for adoption.
(Order of January 13, 1989, Finding No. 8.) Allowing
parents to choose to support some of their minor children
while neglecting others is contrary to the spirit of the law.
Applying the equivalent of the support provided S.P.M. over
the obligation to support all three children, the evidence of
non-support over the required time is clear and convincing.
The natural father also maintains that the District
Court did not consider the principles of Santosky when it
terminated his parental rights. He contends that he was
denied due process because he did not receive reasonable
notice of his duty to pay child support.
We disagree. Due process requires that a party have
notice of an action or judgment and a reasonable opportunity
to be heard. In re Marriage of Robbins (1985), 219 Mont.
130, 711 P.2d 1347, 1352. Here, service of the decree of
dissolution constituted sufficient notice of the natural
father's obligation to pay child support and did not deprive
him of his due process rights, particularly where there was
nothing in the record to indicate that the natural father's
original attorney was relieved before or after the child
support order was entered, and where he failed to keep in
contact with his attorney after he instituted the divorce
proceedings. - - Bennet v. Bennet (N.C.App. 1984), 322
See e.g.
S.E.2d 439, 440. Furthermore, at all times that the natural
father resided with S.P.M. in Washington he knew of the
whereabouts of his former wife and other two children. He
made no effort to provide for the support of the other two
children during his absence. If he had he would have been
apprised of the divorce decree and his obligation to pay
support. Service of the decree upon his attorney is all the
notice that due process requires in this case, and if
appellant failed to receive actual notice of the support
obligation it was the result of his own lack of diligence or
possibly his own intentional acts.
The natural father also contends that his arrest and
extradition to Montana for custodial interference forced the
closure of his new business in Washington. He testified that
upon returning to Montana to face the charges he was
basically indiqent and unemployed, except for some part time
work, during the four months immediately preceding the
filing of the adoption petition. The natural father
maintains that the District Court erred in finding that his
consent was not required for the adoption due to his failure
to support because he did not have the ability to pay as
ordered by the divorce decree. See
-- S 40-8-111 (1)(a)( v ) , MCA.
We disagree. Although the evidence does indicate that
it would have been difficult for the natural father to pay
the full amount of child support during this time, no
evidence exists that the natural father was totally unable to
pay any support at all during the one year period prior to
the adoption. Indeed, when a parent is unable to pay his or
her entire support obligation because of financial hardship,
that parent is still obligated to make a diligent effort to
comply with the decree and make whatever payments are
possible under the circumstances. - - In re Marriage
See e.g.,
of Smith (1984), 214 Mont. 66, 692 P.2d 1221. Otherwise, the
payor parent should move the court for a modification of the
support order in the divorce decree based upon a change of
circumstances. -- 5 40-4-208 (2)(b)(i), MCA.
See Here, there is
no evidence that the appellant made any effort at all to
comply nor did he move for a modification of the support
order. The evidence is clear and convincing that he was able
to make at least some payment at some time during the one
year preceding the filing of the petition and that no
payments were made during or prior to this time. We see no
abuse of discretion by the District Court in finding that the
appellant was able to pay at least a minimal amount of child
support and failed to do so.
A p p e l l a n t a l s o c o n t e n d s t h a t t h e D i s t r i c t C o u r t abused
i t s d i s c r e t i o n i n f i n d i n g t h a t it was i n t h e c h i l d r e n ' s b e s t
i n t e r e s t s t o a l l o w t h e s t e p f a t h e r t o a d o p t them. H e contends
that the stepfather did not present clear and convincing
e v i d e n c e t h a t i t was i n t h e c h i l d r e n ' s h e s t i n t e r e s t s f o r t h e
adoption t o be g r a n t e d .
The n a t u r a l f a t h e r m i s s t a t e s t h e a p p r o p r i a t e s t a n d a r d of
review of the "best interest" question. The "clear and
convincing evidence" standard of review a p p l i e s only t o t h e
t e r m i n a t i o n of p a r e n t a l r i g h t s . Once t h i s C o u r t h a s r e v i e w e d
w h e t h e r t e r m i n a t i o n o f p a r e n t a l r i g h t s i s s u p p o r t e d by c l e a r
and convincing evidence, we need only examine w h e t h e r the
conclusion that the adoption is in the children's best
i n t e r e s t s i s s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . See e . g .
-- In
re A d o p t i o n o f J.M.G ( 1 9 8 7 ) , 226 Mont. 525, 736 P.2d 967.
Here, the record contains substantial evidence
supporting the conclusion that the adoption was in the
children's best interest. Specifically, this evidence
includes the June 8, 1988 report from the Department of
Family S e r v i c e s , wherein Larry G. Burns, a Family r e s o u r c e
S p e c i a l i s t f o r t h e D e p a r t m e n t , r e p o r t s t h a t S.P.M. related t o
him that he would like his stepfather to be his father.
( r e p o r t o f t h e Department o f Family S e r v i c e s , J u n e 8 , 1 9 8 8 ,
p.6) The s t e p f a t h e r t e s t i f i e d t h a t h e t h o u g h t h e c o u l d g i v e
the children a good life and love them, and he testified that
he concurred in the recommendations and statements about the
home life of the family in the report, which were over-
whelmingly favorable toward the adoption. Because there is
substantial evidence supporting the conclusion of the Court
that the adoption was in the children's best interests, the
District Court did not abuse its discretion.
AFFIRMED.
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Justice
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Justices