NO. 91-167
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE ADOPTION OF
V.R.O. AND V.N.O.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bryan L. Asay; Kelley & Asay, Helena, Montana
For Respondent:
Linda McNiel; Bozeman, Montana
Submitted on Briefs: June 28, 1991
Decided: October 30, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Respondent is the stepfather of V.R.O. and V.N.O., two minor
children. Respondent filed a petition in the District Court for
the adoption of the two children. Appellant, the natural father of
the children, opposed the petition. The District Court grantedthe
stepfather's motion for partial summary judgment terminating the
natural father's parental rights. The natural father appeals from
this decision. We reverse and remand.
The natural father raises two issues on appeal:
1. Did the District Court properly determine that the
natural father was able to contribute to the support of the
children during the year prior to the filing of the petition for
adoption?
2. Did the District Court err when it concluded that it need
not consider the best interests of the children before terminating
the natural father's parental rights?
V.R.O. and V.N.O. are the natural children of Lydia Crossman
(mother) and appellant Kenneth Osborn (natural father). V.R.O. was
born in 1982, and V.N.O. was born in 1985. In June 1987, Lydia and
Kenneth were divorced. Pursuant to the divorce decree, the
children's primary residence was with their mother. Kenneth was
granted the right to visitation with his children. He was ordered
to pay child support of $120 per month per child.
In January 1988, Lydia married respondent Douglas Crossman
(stepfather). Kenneth has also remarried and lives with his wife
2
and his wife's daughter. In March 1990, Douglas filed a petition
to adopt V.R.O. and V.N.O. Lydia consented to the adoption
pursuant to 5 40-8-111, MCA. In support of his petition for
adoption, Douglas alleged that the natural father had not paid any
child support for more than one year, and that the adoption could
be decreed without the natural father's consent pursuant to
5 40-8-111(1) (a)(v), MCA.
Kenneth opposed the adoption petition. He stated that
although he was willing and desired to support his children, he had
not been able to contribute to their support on a regular basis
during the previous year. He also contended that it was in the
best interests of V.R.O. and V.N.O. to maintain a parent-child
relationship with him and to have regular visitation with their
natural father.
In his answers to interrogatories, Kenneth admitted that he
owed arrearages for child support from 1987 ($960), 1988 ($2880),
1989 ($2880), and 1990 ($1920), and that he had only paid $350 in
child support since the divorce. All of that amount was paid in
the first few months of 1990. Kenneth stated that he had not been
able to pay more because he was trying to start his own business
and the business was not yet financially successful.
The stepfather moved the District Court for partial summary
judgment terminating the natural father's parental rights. Douglas
contended that Kenneth's parental rights could be terminated upon
a showing that Kenneth was able to pay, but did not pay child
3
support for a period of one year before the filing of the petition
for adoption.
The District Court granted Douglas's motion for partial
summary judgment terminating the natural father's parental rights.
The District Court noted that the $350 in child support payments
Kenneth made in 1990 should be applied first to the arrearages from
prior years. See, eg., Matter ofAdoption of l2.A.S. (1984), 2 0 8 Mont. 438,
679 P.2d 220. The District Court determined that Kenneth was able
to pay child support during the year before the filing of the
adoption petition. The District Court concluded that because
Kenneth was able to pay child support, but did not pay, his consent
to the adoption of V.R.O. and V.N.O. was not required pursuant to
5 40-8-111(1) (a)(v), MCA. Further, on the basis of Kenneth's
failure to pay child support, the District Court granted the motion
for partial summary judgment and terminated Kenneth's parental
rights.
Kenneth appeals from this decision.
I
Did the District Court properly determine that the natural
father was able to contribute to the support of the children during
the year prior to the filing of the petition for adoption?
Kenneth admits that he has only paid a total of $350 in child
support since the June 1987 divorce. He does not claim that he
supported his children during the year preceding the filing of the
adoption petition. He contends, however, that the District Court
4
erred when it concluded he was able to pay child support during
this period.
Because parental rights involve a fundamental liberty
interest, a judicial decree terminating such rights must be
supported by clear and convincing evidence. Matter of Adoption of R.M.
(1990)' 241 Mont. 111, 115, 785 P.2d 709, 711. In order to
determine whether a parent is "able" to contribute to child
support, the trial court must examine several factors. These
factors include:
1) The parent's ability to earn an income:
2) The parent's willingness to earn an income and
support his child:
3) The availability of jobs;
4) The parent's use of his funds to provide himself
only with the bare necessities of life prior to providing
support for his child.
MatterofAdoption 0fKL.J.K (1986), 224 Mont. 418, 423, 730 P.2d 1135,
1139.
The District Court must consider the non-supporting parent's
ability or inability to pay as it relates to the year preceding the
filing of the petition for adoption; in this case the period of
March 1989 to March 1990. Section 40-8-111(1)(a)(v), MCA. Income
received during this period is obviously relevant to ability to pay
child support. However, income or property received more than a
year before the filing of the petition may also be available to the
parent for use in paying child support. Further, lack of income
5
duringthe statutory period is not necessarily determinative on the
issue of ability to pay. See, eg., Matter ofAdoptioii of B.L.P. (1986), 224
Mont. 182, 728 P.2d 803 (father voluntarily gave up a steady job
for a potentially more lucrative position which failed to
materialize, and father's financial priorities obviously did not
include providing child support) : MatterofAdoption of S.L.R (1982), 196
Mont. 411, 640 P.2d 886 (parent cannot voluntarily remain
unemployed and then claim inability to pay as an excuse for not
paying child support).
The District Court's order granting partial summary judgment
mentions the following facts in support of its determination that
Kenneth was able to provide child support:
1. Kenneth owned certain assets, including real property in
Flathead County, two guitars, a PA system, two 1970 model vehicles,
rifles, chain saws, and a truck topper:
2. Kenneth received a lump sum workers' compensation
settlement of $24,000 in December 1986;
3. Kenneth did not come into court to attempt to modify the
child support payments, but simply chose not to pay support.
It is not clear, however, whether the listed assets were
convertible to cash which could be used to pay child support, or
whether any of the 1986 workers' compensation settlement remained
available for this use. The real property mentioned is apparently
the home of Kenneth and his new family. Normally, a home should
qualify as a "necessity," and it is not clear that sale of the home
6
would result in additional money being available for child support.
The District Court's findings do not include any discussion of
Kenneth's income or ability to earn income during the relevant
period, or the cost of providing himself with the necessities of
life.
We conclude that the District Court's findings are
insufficient on the issue of Kenneth's ability to pay child
support. Accordingly, we remand this matter to the District Court
for further findings on this issue.
I1
Did the District Court err when it concluded that it need not
consider the best interests of the children before terminating the
natural father's parental rights?
The natural father contends the District Court erred when it
concluded that it need not consider the best interests of the
children before terminating his parental rights. We agree.
A finding under § 40-8-111(1) (a)(v), MCA, that the parent,
although able, failed to contribute child support during the
statutory period, goes to the issue of whether the parent's consent
is required for adoption. Neither the adoption nor the termination
of parental rights follows automatically from this finding. See
5 40-8-lll(l), MCA ("[aln adoption of a child may be decreed
.... [emphasis added]). Having determined that the non-
supporting parent's consent to adoption is not required, the
district court must then exercise its discretion in determining
7
whether the adoption is in the child's best interest. Sections
40-8-123(1) and 40-8-124(6), MCA. After the final decree of
adoption is entered, the adopting parent assumes the legal
relationship of parent to the child, and the natural parent is
relieved of all parental rights and responsibilities. Section
40-8-125(1) and (2), MCA.
In MatterofAdoption of S.T.K (1987), 2 2 6 Mont. 18, 733 P.2d 841,
the district court determined that although the natural father had
failed to pay child support, there was an ongoing beneficial and
loving relationship between the father and the child, and that the
child's interests were best served by continuing that relationship.
Affirming the district court's decision, this Court stated:
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 ( 9 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.
Adoption of S.T.K, 733 P.2d at 842.
Respondent cites certain past decisions of this Court, e.g.,
I Re Adoption 0 f S . E .
n (1988), 232 Mont. 31, 755 P.2d 27, for the
proposition that parental rights may be terminated simply upon a
showing that the parent, without legal excuse, failed to provide
8
child support during the statutory period. This view is in
conflict with our reasoning in cases such as AdoptioitofS.T.V., quoted
above. To the extent that language in our prior cases is in
conflict with Adoption o S . T V . , it is disapproved.
f
The natural parent's rights cannot be terminated under
5 40-8-111, MCA, independent of the determination that adoption is
appropriate. Adoption is not appropriate unless it is found to be
in the child's best interest. In evaluating the child's best
interest for purposes of the chapter on adoption, the court should
consider benefits of the child's relationship with the natural
parent in addition to those benefits derived from financial
support.
For these reasons, we reverse the judgment of the District
Court terminating Kenneth's parental rights and remand this case to
the District Court for further proceedings consistent with this
opinion.
Reversed and remanded.
I ' Jyktice
We concur:
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10
October 30, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Bryan L. Asay
Kelley & Asay
328 Fuller Ave.
Helena, MT 59601
Linda McNiel
Attorney at Law
502 S. 19th, Ste. 201
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
De#utyC 1