Matter of L.E.B. ( 1993 )

No. 92-554
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN THE MATTER OF L.E.B.,
a minor child.
APPEAL FROM: District Court Of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
iti'
For Appellant: ud& 2 @I
.r:
William K. Hammer and Gary S. Deschenes,
Deschenes Law Office, Great Falls, Montana
Submitted on Briefs: March 4, 1993
~ecided: J u l y 2 9 , 1 9 9 3
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The mother of L.E.B., a minor child, appeals from an order of
the District Court for the Eighth Judicial District, Cascade
County, which terminated the mother's parental rights and granted
the child's grandparents* petition for adoption.
We affirm.
The issue on appeal is restated as follows:
Did the District Court err when it terminated the mother's
parental rights and concluded that her consent to the adoption was
not necessary?
L.E.B. was born on July 10, 1981, when his mother, Donna, was
seventeen years old. Although the natural father's identity is
known, he has never been involved in the care or support of L.E.B.,
is not a party to this lawsuit, and does not challenge the court's
termination of his parental rights.
With the exception of a few brief periods when he resided with
his mother, L.E.B. has lived with his maternal grandparents in
Great Falls since birth. In 1984, when L.E.B. was three years old,
Donna enlisted in the Montana Air National Guard. At Donna's
request, and pursuant to National Guard regulations which require
single parents to name a guardian for their minor children during
the term of enlistment, the child's grandparents petitioned the
trial court to appoint them as co-guardians of L.E.B. This request
was granted on August 10, 1984.
After spending approximately one year in the National Guard,
Donna transferred to the Army and was subsequently discharged on
October 11, 1985, for medical reasons. Without informing her
parents of her discharge, Donna moved to California where she has
resided ever since. At that time, she did not terminate the
guardianship nor seek to have L.E.B. returned to her care.
In June 1987, Donna's parents took L.E.B. to California to
visit her for the summer. L.E.B. remained in California with Donna
and attended first grade during the 1987-88 school year.
After discovering that L.E.B. was having serious difficulties
in school due to dyslexia, his mother testified that she and her
parents agreed that L.E.B. would spend the next three years with
his grandparents in order to take advantage of a special education
program available in the public school system in Great Falls. The
grandparents, however, deny that there was a discussion regarding
a time limit on L.E.B. Is return to Montana. In fact, they
testified that, in addition to L . E . B . ' s problems with dyslexia,
they brought him back to Montana due to concerns about Donna's
drinking and the care L.E.B. was receiving.
Donna visited L.E.B. during the summer and Christmas of 1989,
but had virtually no other contact with L.E.B. up until July, 1991.
Furthermore, although gainfully employed throughout much of the
time that her parents were caring for L.E.B., Donna never provided
financial support for L.E.B. other than occasional gifts and
clothing.
During the summer of 1991, when Donna arrived in Great Falls
with the intention of returning L.E.B. to California, her parents
refused to release L.E.B. to her custody, citing their rights as
guardians. As a result, Donna petitioned the District Court on
August 6, 1991, for custody and termination of the guardianship.
Her parents countered with a petition to terminate Donna's parental
rights and to adopt L.E.B.
A non-jury trial was held on April 9, 1992 and July 2, 1992.
At the conclusion of the trial, the court granted the grandparentse
petition and allowed them to adopt L.E.B., thereby terminating
Donnatsparental rights. In its Findings of Fact and conclusions
of Law, issued on October 5, 1992, the court found that Donna had
no contact with L.E.B. since the summer of 1989, had not provided
financial support for him since 1984, and would not be able to
provide L.E.B. with a stable and loving home environment. The
court also found that Donna's testimony was not credible due to
numerous inconsistencies and her "history of lies and deceit.*' The
court concluded that it would be in L.E.B.'s best interests to be
adopted by his grandparents. That conclusion is not contested on
appeal. The court further determined that his motheres consent to
the adoption was not required due to her failure to provide support
for him during the year preceding the filing of the petition, and
her willful abandonment of L.E.B.
From the court's Findings of Fact, Conclusions of Law, and
Decree, Donna appeals.
Did the District Court err when it terminated Donna's parental
rights and concluded that her consent to the adoption was not
necessary?
Citing In theMatterofAschenbrenner (1979), 182 Mont. 540, 597 P.2d
1156, Donna contends that, since the guardianship was still in
effect, the court was required to find abuse and neglect before
terminating her parental rights in favor of a non-parent. She
argues that the court improperly considered only the adoption
statute without considering the statutes governing guardianship,
jurisdiction of child custody, and termination of the parent-child
relationship.
However, the grandparents' petition for adoption was commenced
pursuant to the provisions of the Uniform Adoption Act found at
g g 40-8-101 through -136, MCA. On appeal, this Court must consider
whether the trial court properly found that the statutory criteria
for adoption of a minor, without the consent of a parent or
parents, were satisfied. The authority Donna relies on involved an
attempt to terminate parental rights through a guardianship
proceeding, and this Court held that such a proceeding was not a
proper means to terminate a parent's constitutional right to
custody of his or her children. Aschenbrenner, 597 P.2d at 1164, In
this instance, the guardianship was not the basis for terminating
Donna's rights.
We have recognized on several occasions that there is some
overlap in the statutes pertaining to parent-child relationships
and have cautioned the district courts to identify and adhere to
the proper procedures and standards to be used in the proceedings
before them. GuardiamhipofNeIson (1983), 204 Mont. 90, 663 P.2d 316;
Aschenbrenner, 597 P.2d at 1156. Here, the proceeding initiated by
Donna's parents was an adoption proceeding, and the record shows
that the court properly considered the applicable criteria and
procedures for the adoption of minors in the absence of parental
consent.
Generally, before the District Court can allow the adoption of
a child there must be parental consent. Section 40-8-lll(1) (a),
MCA. However, the statute provides, in pertinent part, that an
adoption of a minor can be judicially decreed without the consent
of the parent(s) "if it 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
a petition for adoption," or if it is shown that the parent(s)
mwillfully abandoned the child, as defined in 41-3-102(3)(d).t'
Sections 40-8-lll(1) (a)(iii) and (v), MCA. Once a final decree of
adoption is entered, the natural parent(s) are thereafter relieved
of all parental responsibilities and have no rights to the adopted
child. Section 40-8-125, MCA.
Turning first to the question of support, we have held that in
order for the court to find that a parent's consent is not
necessaryto terminate parental rights and allow an adoption, 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. Adoption ofJ.B.T. (1991), 250 Mont. 205, 207, 819 P.2d 178,
179.
In this instance, the District Court found that Donna had not
contributed to L.E.B.'s support during a period of one year prior
to the filing of the petition for adoption. A review of the record
demonstrates that the testimony was undisputed that she had not
contributed to L.E.B.'s support at any time during the
guardianship, and specifically, had not provided support from
Augiist 1990 through August 1991, the year preceding the adoption
petition. By her own admissions, she has been employed as an
accountant since 1989, and her ability to provide support for
L.E.B. is not an issue. She contends, however, that the
guardianship order did not contain support provisions, and that her
parents never requested support from her. Furthermore, she argues
that she provided full support for L.E.B. during the times that he
was in her custody, paid for his transportation to and from
California for visits, covered him on her health insurance plan,
and gave him gifts, school clothes, and spending money.
We note first that this Court recently held that "a parent's
obligation to support his child is not dependent on an order of the
Court .... There is no requirement under !
j 40-8-lll(l)(a)(v),
MCA, that child support be court ordered. Adoption o D.J.I/: (1990),
f
244 Mont. 209, 213, 796 P.2d 1076, 1078. Moreover, we have
repeatedly held that providing occasional articles of clothing or
other gifts does not satisfy a parent's obligation to provide
financial support. Adoption ofKL.J.K (1986), 224 Mont. 418, 421, 730
P.2d 1135, 1137; AdoptionofS.L.R (1982), 196 Mont. 411, 414-15, 640
P.2d 886, 888. Donna's health insurance only covered L.E.B. when
he resided in California. It is uncontroverted that L.E.B. has
resided with his grandparents in Great Falls since May 1988, and
the evidence clearly denionstrates that L.E.B.'s medical bills have
always been paid for by his grandparents' health insurance, rather
than his mother's. Finally, it is undisputed that Donna did not
see L.E.B. &iring the rslevant year in question. Even if payment
of travel expenses c~uld construed as a f o m of support, there
be
were no such expenses incurred during this time.
We conclude that there was clear and convincing evidence to
support the District Court's findings that Donna failed to support
L.E.B. although financially able to do so. Therefore, we do not
need to evaluate the evidence of abandonment, which is a separate
and independent basis for allowing adoption without parental
consent. The trial court need only find one of the statutorily
enumerated substitutes for consent in order to proceed with an
adoption. Adoption o C.RD. (1989), 240 Mont. 106, 782 P.2d 1280.
f
We hold that the court did not err when it terminated Donna's
parental rights and allowed her parents to adopt L.E.B. on the
grounds that Donna's consent to the adoption was not necessary due
to her failure to provide support. The order of the District Court
is affirmed.
We concur:
July 29, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Barbara E. Bell
Bell & Marra
9 3rd Street N., 201 Liberty Center
Great Falls, MT 59401
Gary S. Deschenes
Attorney at Law
P. 0. Box 3502
Great Falls, MT 59403-3502
ED SMITH
CLERK OF THE SUPREME COURT
STATE-OF MONTANA