NO. 95-299
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN THE MATTER OF THE
ADOPTION OF JANE DOE,
JOHN DOE, and MARY DOE,
APPEAL FROM: District Court of the Nineteenth Judicial District,
1n and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ann C. German, Libby, Montana
For Respondent:
H. James Oleson, Kalispell, Montana
For Amici:
Ann Gilkey, Special Assistant Attorney General,
Department of Public Health and Human Services,
Helena, Mont-ana
Heard: May 8, 1996
Submitted: May 8, 1996
Decided: July 22, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Debra 0. (Debra), the natural mother of Jane Doe, John Doe,
and Mary Doe (the children), appeals the decision of the Nineteenth
Judicial District Court, Lincoln County, terminating her parental
rights and granting the petition to adopt of Debra's mother,
Barbara G. (Barbara). We reverse.
ISSUES
The following restated issues are dispositive of this appeal:
1. Did the District Court err by terminating Debra's parental
rights to her children?
2. Did the District Court err by finding that Debra had
abandoned the children?
3. Did the District Court err by finding that Debra was able
to contribute to the support of the children during the year prior
to the filing of Barbara's petition to adopt the children?
FACTS
Debra is the natural mother of the three children at issue in
this case, who are currently eight, six, and four years old,
respectively. Debra has a history of drug addiction and is
currently incarcerated at the Nevada Women's Prison at Rena,
serving time for narcotics charges and escape. She was
incarcerated in late 1992 to serve a two-year sentence for drug
charges. During her prison term, Debra undertook counseling for
her addiction and began participating in a twelve-step program.
In May of 1993, Debra' began a community-based work-release
program which required her to work at a restaurant during the day
2
and return to a half-way house at night. Shortly thereafter, Debra
walked away from her job, which constituted an escape. Debra
testified that she continued to attend twelve-step meetings and
maintained her sobriety during her escape. She was apprehended
three months later. After her capture in September of 1993, Debra
was charged with escape and also served with an outstanding warrant
for an unresolved narcotics charge from September, 1992. She pled
guilty to both charges and was returned to prison.
Since early 1992, the children have resided with their
grandmother, Barbara, in Montana. It is undisputed that Barbara
has been very involved in the children's upbringing all their
lives. At times she lived with Debra and looked after the
children; at other times, Debra would send the children to live
with Barbara, claiming that she was unable to care for them
herself. In February of 1993, Debra executed documents making
Barbara the guardian of the children and giving her temporary
physical custody of them.
In September of 1994, Barbara petitioned the District Court to
allow her to adopt the children, alleging that Debra had abandoned
them and that, although able, Debra had failed to provide any
support for the children in the year prior to the filing date of
the petition.
The District Court held a hearing in the matter in December of
1994, and issued its findings of fact, conclusions of law, and
order in April of 1995. It found that Debra had both abandoned the
children and failed to contribute to their support even though she
3
was able to do so. For these reasons, the District court
terminated her parental rights and, for the same reasons,
terminated the parental rights of the children's fathers. None of
the children's fathers appeared at the termination hearing and none
of them have appealed the decision of the District Court. At the
same hearing, the District Court granted Barbara's petition to
adopt the children. Debra appeals both the termination of her
parental rights and the subsequent adoption of the children by her
mother.
STANDARD OF REVIEW
The District Court is in the best position to hear testimony
and evaluate evidence in adoption cases. This Court will not
reverse a district court's findings of fact in such cases unless
the findings are clearly erroneous. Rule 52(a), M.R.Civ.P.; In the
Matter of J.S. and P.S. (19941, 269 Mont. 170, 173, 887 P.2d 719,
720. This Court will not reverse a district court's conclusions of
law in such cases unless the conclusions reflect a mistake of law.
In re the Adoption of S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d
297, 298. However, because the termination of parental rights
involves a fundamental liberty interest, a decree which purports to
terminate such rights must be supported by clear and convincing
evidence. Adootion of S.P.M., 880 P.Zd at 298 (citing In re the
Adoption of R.M. (1990), 241 Mont. 111, 114, 785 P.2d 709, 711).
DISCUSSION
Montana law dictates that a district court generally may order
the adoption of a child only when both the child's parents, if
4
living, consent in writing to the adoption. Section 40-8
111(l) (a) , MCA; In re the Adoption of J.B.T. (1991), 250 Mont. 205,
207, 819 P.2d 178, 179. However, 5 40-8-111(l) (a), MCA, contains
six subsections delineating various exceptional circumstances in
which the parent's consent is not required in order to adopt the
child.
The District Court cited three of these subsections as reasons
why Debra's consent to the adoption was not necessary--abandonment,
lack of support, and judicial termination of parental rights.
Section 40-8-111(l) (a) (iii), MCA, provides that "consent is not
required from a father or mother . . who has, in the state of
Montana or in any other state of the United States, willfully
abandoned the child . .'I Section 40-8-111(l) (a) (iv), MCA,
provides that
consent is not required from a father or mother . . . who
has caused the child to be maintained by any public or
private children's institution, any charitable agency, or
any licensed adoption agency or the department of public
health and human services of the state of Montana for a
period of one year without contributing to the support of
the child during that period, if able . .
Section 40-8-111(1)(a) (vi), MCA, provides that "consent is not
required from a father or mother whose parental rights have
been judicially terminated."
ISSUE 1
Did the District Court err by terminating Debra's parental
rights to her children?
In this case, the District Court declared Debra's parental
rights to be judicially terminated and, accordingly, deemed that
her consent was not required before the adoption of the children.
5
However, judicial termination of parental rights cannot be
considered an independent reason for authorizing this adoption
because the determination of whether Debra's parental rights should
be terminated was not independently made.
We have held that, absent parental consent, termination of
parental rights "is a necessary procedural stop before an adoption
proceeding can be initiated." In the Matter of the Parental Rights
of Baby Girl W. (1991), 249 Mont. 206, 210, 814 P.2d 976, 978
(emphasis added). Moreover, § 40-8-111(l) (a) (vi), MCA, provides
that consent need not be obtained from a parent whose parental
rights have m terminated. This subsection of the statute,
therefore, contemplates a situation where the parent's rights were
terminated by a separate hearing or action at some point in the
past. Section 40-8-iil(lj(a) (vi), MCA, does not contemplate a
concomitant termination of the parent's rights & adoption of the
child by another party, especially where, as here, it is unclear
which procedure occurred first.
In any event, the reasons cited for the District Court's order
terminating Debra's parental rights were the same as the remaining
two reasons cited as the rationale for authorizing the adoption--
namely, that Debra abandoned the children or, in the alternative,
failed to support them for one year before the hearing even though
she was able to do so. Accordingly, we review the District Court's
findings and conclusions regarding abandonment and non-support to
discover whether they justify either the termination of Debra's
parental rights or the adoption of the children without her
6
consent. For the reasons set forth in issues two and three we hold
that the court erred in terminating Debra's parental rights.
ISSUE 2
Did the District Court err by finding that Debra had abandoned
the children?
One of the reasons given by the District Court for judicially
terminating Debra's parental rights and allowing the adoption was
that Debra had abandoned the children. As the petitioner, Barbara
had the burden of proving that the children were in fact abandoned.
Adoption of S.P.M., 880 P.Zd at 298 (citing In re Adoption of
S.L.R. (19821, 196 Mont. 411, 640 P.2d 886).
As used in the child welfare statutes, abandonment is defined
leaving the child under circumstances that make
reasonable the belief that the parent or other person
does not intend to resume care of the child in the future
or willfully surrenders physical custody for a period of
6 months and during that period does not manifest to the
child and the person having physical custody of the child
a firm intention to resume physical custody or to make
permanent legal arrangements for the care of the
child . . . .
Section 41-3-102(7) (e), MCA. Under this definition, the period for
establishing abandonment is six months. In the Matter of M.J.D.
(19871, 225 Mont. 200, 205, 731 P.2d 937, 940.
In this case, Debra was incarcerated for almost two years
prior to the filing of Barbara's petition. It is unquestionable
that Debra willingly left the children with Barbara before she went
to prison. We therefore must ask whether Debra failed to manifest
a firm intention to resume physical custody, or whether the
circumstances of this case supported a reasonable belief that Debra
did not intend to resume caring for the children in the future.
The District Court did not make specific findings regarding
abandonment even though it listed abandonment as a reason for
terminating Debra's parental rights and allowing Barbara's adoption
of the children. However, the trial testimony of both Barbara and
Debra indicate that both parties understood that Debra wanted
Barbara to care for the children only temporarily:
Q: Has Debbie ever mentioned to you that you could adopt
the kids?
Barbara: No, she has always been against that.
Q: Has she ever mentioned to you that you should have
guardianship of the kids?
Barbara: The only thing that she has ever been agreeable
to is temporary custody.
Q: And why was that, please.
Barbara: I just don't think that she wants to give them
up.
.
Q: Now, I wanted to ask you just a little bit about this
adoption proceeding. You understand your mother wants to
adopt your three children, your three oldest children?
Debra: Yes, I do.
;;,,nd what is your feeling about that?
I don't want her to adopt my children. I love my
mother very much. And I entrust her with my children to
take care of but I am their mother. And I want a chance
to get out and prove to the courts and my mom that I'm
capable of taking care of my children.
As Barbara admitted, Debra never assented to anything more than
temporary custody because she fully intended to resume the
responsibility for her children once she was released from prison.
In addition, Debra corresponded regularly with her mother and the
children, sending them let'ters and drawings once or twice each
month.
In short, there is no evidence in the record reflecting any
action on Debra's part that establishes abandonment. On the
contrary, she has attempted to stay in contact with the children
from prison and has repeatedly and firmly refused to grant
permanent custody of them to her mother. While she unquestionably
has been separated from them for an extended period due to her
incarceration and also has left them in her mother's care for
extended periods of time before that, such separations, voluntary
or involuntary, do not rise to the level of abandonment.
We hold that the District Court erred by finding that Debra
had abandoned the children.
ISSUE 3
Did the District Court err by finding that Debra was able to
contribute to the support of the children during the year prior to
the filing of Barbara's petition to adopt the children?
The District Court also terminated Debra's parental rights and
authorized Barbara's adoption of the children because it found
that, although able, Debra had failed to contribute to the support
of the children for a period of one year before the filing of the
petition, during which period the children were dependent upon
state aid. As noted above, this is an acceptable reason for
authorizing adoption proceedings without first obtaining parental
consent. Section 40-8-111(l) (a) (iv), MCA.
Application of this statutory provision requires a two-tiered
analysis. First, the court must determine if the nonconsenting
parent failed to contribute to the support of the children during
a period of one year prior to the filing of the petition. Second,
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the court must determine if the nonconsenting parent had the
ability to contribute to the support of the children during that
year. In re the Adoption of J.B.T. (1991), 250 Mont. 205, 209, 819
P.2d 178, 179 (citations omitted). In determining whether a parent
was able to contribute support, a district court must examine
several factors, including:
(1) the parent's ability to earn an income;
(2) the parent's willingness to earn an income and
support his or her child or children;
(3) the availability of jobs; and
(4) the parent's use of his or her funds to obtain only
the bare necessities of life prior to contributing
support to the child or children.
In re the Adoption of K.L.J.K. (1986), 224 Mont. 418, 423, 730 P.2d
1135, 1139; In re the Adoption of V.R.O. (lYYl), 250 Mont. 517,
520-21, 822 P.Zd 83, 85.
In this case, Debra admits that she has not contributed to the
support of the children during the year preceding the filing of
Barbara's petition. She claims, however, that she was unable to
contribute to the children's support during that year because she
was in prison the entire time. The District Court found otherwise,
noting that Debra sustained a $50 to $100 per day drug habit, as
evinced by her plea of guilty to an additional drug charge after
being recaptured in September of 1993
Debra's admitted drug addiction alone cannot serve as clear
and convincing evidence that she had the means to contribute to her
children's support. The relevant inquiry is whether she obtained
funds which could have been used for the support of the children
which, instead, she chose to spend on drugs. Debra, however,
10
receive any pay for her prison job; the job allowed her only to
accumulate additional good -time.
No evidence was presented to rebut Debra's uncontroverted
testimony that she has been incarcerated for the entire year
preceding institution of the adoption proceedings and that she has
not had the ability to contribute money to her children's support
during that time. The District Court's inference that her past
drug activity indicates a present ability to pay child support was
not supported by clear or convincing evidence. The District Court
therefore erred by concluding that Debra had the ability to
contribute to the support of the children during the year preceding
Barbara's petition and further erred by terminating her parental
rights and allowing the adoption on that basis.
Reversed.
We Concur: A?===-
rFDT’=TrA- OF SERVICE
I hereby certify that the mail, prepaid, to the
following named:
Ann C. German
Attorney at Law
P.O. Box 1530
Libby, MT 59923
Mr. H. James Oleson
Attorney at Law
P.O. Box 2036
Kalispell, MT 59903-2036
Ann Gilkev. Soecial Asst. AttvGeneral
~,
Departmeit’of-Public Health and Human Services
P.O. Box 8005
Helena, MT 59604
ED SMITH
CLERK OF THE SUPREME
STATE OF MONTANA