ADOPTION OF R M
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No. 89-253 IN THE SUPREME COURT OF THE STATE OF MONTANA --- a- + * C- r-: I 1 . . - IN RE THE MATTER OF THE ADOPTION OF R.M., S.P.M., and R.M., minor children. APPEAL FROM: , - ' %2 L P (7') - ' 7 T 2 !-n w 2 - 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: Decided: Filed: r : ; Clerk Dec. 1, 1989 January 18, 1990 Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves an adoption proceeding held in the Thirteenth Judicial Appellant, R . E . M , District Court, Yellowstone the natural father and respondent below, appeals the January 13, 1989 order and January decree terminating his parental rights and adoption of his children by their stepfather. Court ruled that County. the natural father's 31, 1989 granting the The District 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. The We affirm. 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 and i s now t e n y e a r s o l d . c h i l d a d o p t e d by R.E.M. 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., and age R.C.M., five. During t h e i r marriage, age e i g h t , 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 9, 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 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 Missoula, in Missoula. The t o o k h i s s o n S.P.M. natural father went to 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 Billings, father Montana. receive determination pending, the S.P.M. other two Billings. relations January the resided in the the w i t h him this time, conducted a children. While dissolution i n Billings, was Court study Services and still Montana t h e i r mother, the and also in Domestic recommended on 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 children natural all children resided with department 22, of custody During custodian. the 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 custody of the Thirteenth Judicial D i s t r i c t , with the The p a r t i e s ' father J a n u a r y o f 1986. knew wife as the primary residential testimony c o n f l i c t s a s t o whether the contents of this report in That same month, with the dissolution proceeding still pending, the natural father left Billings with S.P.M. moved to Kennewick, Washington. and 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. served by publication and did not appear. The mother was 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 father's of dissolution attorney. served upon the natural 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 obligation was because 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 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 . evidence the i n d i c a t e s t h a t h e and S.P.M. natural contact father's was November made of parents with 1987, the the occasionally visited i n t h e Missoula mother natural or The other father area, but children. was arrested no In 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, down his charges S.P.M. business in 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 MCA. in Montana. Washington After the in order natural to answer father' s 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 arrest, 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., a petition petition for adoption of alleged that the t h e m o t h e r ' s new h u s b a n d , f i l e d t h e t h r e e minor natural father's children. The consent the to 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 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 t h e s u p p o r t of 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 See -S so. On 40-8-111 (1)( a ) ( v ) , MCA. January findings of 13, fact 1989 and terminated the n a t u r a l t o s u p p o r t b a s e d on § the District conclusions of Court entered law. The its court father's parental rights for failure 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 1989. 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., 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 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 , § the District 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 However, adoption consent proceeding. for the Section adoption 40-8-111 1 i s not required , MCA. 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 40-8-111 (1)( a ) ( v ) , MCA. of non-support under Parental rights involve a fundamental liberty interest, and a judicial decree terminating such rights supported by clear and convincing evidence. (Mont. 1989) , -- Adoption of C.R.D. rep. 1979, 1982; Matter of R.B. P. 2d must be Matter of the -, - I 46 St. (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. time they spent in Washington. during the 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. to support their children. Parents are obligated Sections 40-6-211, 40-6-214, MCA. See also -- 5 s 41-3-101, 41-3-102(3), MCA. releasing him of this responsibility Absent a court order 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. agreement. applied Here, there is no evidence of such an oral Furthermore, any payment of support must first be 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. 208 Mont. 438, 443-444, 679 P.2d 220, 223. (1984), Thus, under this rationale, even if the District Court had considered the support provided S.P.M. actual monetary credit of in Washington as a substitute for an child equivalent of support this payments, in-kind applying support over the 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 for the support of two residential custody of awarded to the other should not be able to is legally required to pay or more minor children the whom has been judicially parent, the payor parent 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. dissolution constituted Here, service of the decree of 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. See e.g. - - Bennet v. Bennet (N.C.App. 1984), 322 439, 440. S.E.2d 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. notice Service of the decree upon his attorney is all the 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 filing of the the four months adoption immediately preceding petition. The natural the 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 possible under the circumstances. whatever payments are See e.g., - - In re Marriage 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 payments were made during or prior to this time. that no 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 H e contends 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. 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 conclusion that evidence, the we need adoption only examine w h e t h e r in is the children's 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 . re A d o p t i o n o f the Here, supporting the children's record best includes the contains conclusion that interest. June Family S e r v i c e s , ( 1 9 8 7 ) , 226 Mont. J.M.G 8, 1988 525, report wherein Larry G. 736 P.2d adoption Specifically, from Burns, the that he would like his stepfather In 967. evidence was this in the evidence Department of 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. him best See e . g . -- substantial the the to be related t o 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. /" Justice Justices k
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