No. 91-061
IN THE SUPREME COURT OF THE STATE OF MONTANA
I N THE MATTER OF THE ADOPTION OF AUG 2 7 1991
J.B.T. and W.D.T., Minors.
CLERK OF S U P R E M E COURI
STATE OF MONTANA
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Daniels,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Loren 3. OtToole, 11; O I T o o l e & O g T o o l e , Plentywood,
Montana
F o r Respondent:
Francis J. McCarvel, Glasgow, Montana
Submitted on Briefs: May 16, 1991
L
pecided: ~ u g u s t27, 1991
Filed:
"Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
The natural mother and stepfather appeal from an order of the
District Court, Fifteenth Judicial District, Daniels County,
denying their petition to terminate the natural father's parental
rights. We affirm.
The parties raise the following issue:
Whether the District Court erred in finding that the evidence
was not clear and convincing that the natural father was able to
contribute to the child support but did not do so for a period of
one year prior to the filing of the petition for adoption pursuant
to 5 40-8-111 (1) (v), MCA.
(a)
Appellant, Teresa Ann (Tryan) Jagiello, and respondent, Bruce
Lee Tryan, were married on February 27, 1982, in Daniels County.
Two children, J . B . T . and W.D.T., were born as a result of the
marriage. The marriage was dissolved on October 14, 1987. The
wife became the custodial parent of the minor children, subject to
the natural father's visitation rights.
The natural father agreed to pay $100 per month per child in
child support and he also agreed to pay all debts contracted under
the marriage. The natural father fell behind in payments, and as
a result, the District Court found the natural father in contempt
for failure to pay child support and house payments. On
October 19, 1988, the court issued an order which awarded the
mother $1226 in back house payments and attorney's fees and
increased the natural father's child support payments of $100 per
month per child to $300 per month to make up the arrearage. The
child support records of the Clerk of the District Court show no
child support payments from July 1989 through August 1990.
During the same period, the natural father was unemployed for
four months. He attempted to find work during this period and
actively contacted a number of construction companies for
employment. From the end of September 1989 through mid-February
1990, t h e n a t u r a l f a t h e r w a s o n l y able to work as a part-time
bartender earning $120 a week in Flaxville. From mid-February 1990
to August 1990, the natural father worked numerous jobs in the
Scobey area with a construction company. He was unemployed in
April of that year and in May, June, and J u l y he worked as a
carpenter.
From March to August 1990, the mother garnished the natural
father's wages in the amount of $597. She applied the proceeds
toward house payments and attorney fees. None of the money was
used f o r child support.
In early August 1990, the stepfather and mother petitioned the
District Court for adoption of the children. The petition alleged
that the natural father's consent was not required because he
failed to contribute to the support the children for a period of
one y e a r , even though he was able to do so. The District Court
denied the petition and found there w a s not clear and convincing
evidence that the natural father was able to contribute to the
child support but did not do so for over a year. It is from this
decision that the mother and stepfather appeal.
Generally, in order for the District Court to decree an
adoption of a child there must be written consents filed by both
parents, if living. Section 40-8-111 (1)(a) , MCA. The statute
provides that consent is not required by either parent if:
[I]t 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 the petition for adoption ....
Section 40-8-111(l) (a)(v), MCA.
For the court to find that a parent's consent is not necessary
to terminate its parental rights, the burden of proof requires that
there must be clear and convincing evidence that the parent has not
contributed to the support of the child for one year and was able
to do so. In re Adoption of S.E. (1988), 232 Mont. 31, 35, 755
P.2d 27, 29. Hence, the statute requires a two-tier analysis
before parental rights can be terminated. Matter of Adoption of
R.A.S. (1984), 208 Mont. 438, 442, 679 P.2d 220, 223. First, the
court must decide if the nonconsenting parent failed to contribute
to the support of the child during a period of one year prior to
the filing of the petition. The court must then determine if the
nonconsenting parent had the ability to pay child support. Matter
of the Adoption of S.L.R. (1982), 196 Mont. 411, 413-414, 640 P.2d
886, 887. The burden of proof falls upon the petitioner to show
that the two-prong test is met. Adoption of R.A.S., 679 P.2d at
223; ~doptionof S.L.R., 640 P.2d at 886-87. Because the natural
parent can forever lose parental rights, this Court requires strict
compliance with the statute, In re Adoption of Biery (1974), 164
Mont. 353, 359, 522 P.2d 1377, 1380.
In a previous case, we interpreted glsupportlg mean the
to
"'financial support that a parent owes a child.Igl Matter of
Adoption of K.L.J.K. (l986), 224 Mont. 418, 422-23, 730 P.2d 1135,
1138. This definition is designed to prevent parents from giving
token child support payments once or twice a year in order to avoid
having their parental rights terminated. Adoption of K.L.J.K., 730
P.2d at 1138. We are much more diligent in deciding whether a
parent is "ablegt to contribute to child support. A d o ~ t i o n of
K.L.J.K., 730 P.2d at 1138. Therefore, when determining whether
a parent is "ablew to contribute w e examine four factors.
I) 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 Is use of his funds to provide for himself
only with the bare necessities of life prior to
providing support for his child.
Ado~tionof K.L.J.K., 730 P.2d at 1139.
In this case, the natural father's ability to earn income was
limited. From July 1989 through August 1990, he was unemployed for
four months. He worked approximately four months as a part-time
bartender earning less than $500 a month. While unemployed, the
natural father demonstrated his willingness to seek employment by
actively contacting numerous construction companies but was
temporarily unsuccessful. He sought unemployment compensation but
was refused benefits. The natural father testified he had
difficulty making rental payments and paying bills while working
because his wages were being garnished by his wife. The District
Court concluded that the wife should have applied the payments to
child support.
We hold that the District Court did not err in finding that
the evidence was not clear and convincing that the natural father
was able to contribute to child support but did not to do so for
a period of one year.
We affirm. /
We concur: ,
'
Chief Justice
August 27, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Loren J. O'Toole I1
O'TOOLE & O'TOOLE
209 North Maint
P.O. Box 529
Plentywood, Mt 59254
Francis J. McCarvel
Attorney at Law
P.O. Box 388
Glasgow, MT 59230
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA