Adoption of C.F.B. Jr. ( 1984 )

No. 83-431
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF THE ADOPTION OF
C.F.B., JR., a minor.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. V. Barron, Great Falls, Montana
For Respondent :
Brett Asselstine, Great Falls, Montana
Submitted on briefs: November 3, 1983
Decided: March 29, 1984
?dAR 2 9 i984
Filed:
Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
The natural father, C.F.B., Sr., appeals the Cascade
County District Court's termination of his parental rights
to C.F.B., Jr., a minor. We affirm.
The natural mother and C.F.B., Sr., the natural
father, were married in Great Falls, Montana, in 1977. One
child, a son, was born as issue of the marriage. The
marriage was dissolved on October 4, 1979. The natural
mother was awarded custody of the minor child and the
natural father was ordered to pay $100 per month for his
support plus dental, hospital, optical and medical bills for
the child.
The natural mother married J.F.B., the adoptive
father, on December 21, 1980. The adoptive father filed a
petition to adopt C.F.B., Jr., on July 8, 1983. The
petition alleged that the natural father had not contributed
to the support of the child during the previous three years
and was $4,200 in arrears in support payments.
On July 10, 1983, the adoptive father filed a petition
to terminate the parental rights of the natural father
pursuant to Section 4-8-lll(l)(a)(v), MCA which provides
that consent for adoption is not required from the natural
father if he does not contribute to the support of the child
during a period of one year before the filing of the
petition for adoption.
The natural father made a support payment of $100 to
the Clerk of Court on July 8, 1983, the same date the
adoptive father filed a petition for the adoption of the
child. H e a l s o made a $150 payment on J u l y 26, 1 9 8 3 , and a
$100 payment on A u g u s t 1 6 , 1983. The r e c o r d i n d i c a t e s n o
o t h e r s u p p o r t p a y m e n t s w e r e made.
A hearing on the motion to terminate the natural
f a t h e r ' s p a r e n t a l r i g h t s was h e l d on A u g u s t 2 2 , 1983. The
D i s t r i c t C o u r t f o u n d t h a t t h e n a t u r a l f a t h e r was a b l e t o p a y
c h i l d s u p p o r t b u t f a i l e d t o do s o d u r i n g t h e p e r i o d of t h r e e
y e a r s and n i n e m o n t h s p r i o r t o t h e f i l i n g of the petition
for adoption and his consent to the adoption was not
r e q u i r e d under t h e p r o v i s i o n s of S e c t i o n 4 0 - 8 - l l l ( l ) ( a ) ( v ) ,
MCA. Hence, the D i s t r i c t Court ordered that the natural
f a t h e r ' s p a r e n t a l r i g h t s be terminated.
The n a t u r a l f a t h e r t h e n a p p l i e d t o t h e D i s t r i c t C o u r t
for a stay of execution of its order terminating his
parental r i g h t s pending this appeal. The D i s t r i c t Court
g r a n t e d t h e a p p l i c a t i o n and t h e n a t u r a l f a t h e r b r i n g s t h i s
a p p e a l r a i s i n g one i s s u e f o r our c o n s i d e r a t i o n : Was t h e r e
sufficient evidence to support a finding that the
requirements of Section 4-8-lll(l)(a)(v), MCA, were
satisfied, thus terminating the parental rights of
appellant?
Appellant contends t h a t t h e r e is i n s u f f i c i e n t evidence
t h a t he d i d n o t c o n t r i b u t e t o h i s s o n ' s s u p p o r t d u r i n g t h e
year preceding the f i l i n g of the petition for adoption.
Appellant b a s e s h i s a s s e r t i o n on t h e f a c t t h a t h e made a
$100 payment t o t h e C l e r k o f C o u r t o n t h e d a y t h e p e t i t i o n
was f i l e d and r e s p o n d e n t h a s f a i l e d t o c a r r y h i s b u r d e n o f
proof t h a t appellant has not contributed t o t h e support of
the child during the year preceding the filing of the
petition.
Section 40-8-lll(l)(a)(v), MCA, provides:
"(1) An adoption of a child may be
decreed when there have been filed
written consents to adoption executed by:
"(a) both parents, if living, or the
surviving parent of a child, provided
that consent is not required from a
father or mother:
"(v) 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;"
Thus, Section 4-8-lll(l)(a)(v), MCA, sets forth a
two-pronged test to determine whether the natural parent's
consent is required for adoption. First, it must be
determined whether the nonconsenting parent has not
contributed to the support of the child during a period of
one year before the filing of the petition for adoption and,
second, it must be determined whether the nonconsenting
parent had the ability to contribute to the child's support.
In the Matter of the Adoption of S.L.R. (Mont. 1982), 640
P.2d 886, 39 St.Rep. 156. The burden rests on the
petitioner to show that the requirements of Section
4-8-lll(l)(a)(v), MCA, have been met and strict statutory
compliance is required. In the Matter of Challeen (1977),
172 Mont. 362, 563 P.2d 1120; In re Adoption of Biery
(1974), 164 Mont. 353, 522 P.2d 1377. Our basic policy in
adoption cases has been that a statute should not be
interpreted in favor of a parent who seeks the benefit of
parental rights but shuns the burden of parental
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obligations. In Re Burton's Adoption (1956), =Cal.App.2d
125, 305 P.2d 185; cited with approval in In the Matter of
t h e A d o p t i o n o f R.A.S. (Mont. 1 9 8 4 ) , No. 83-175 and I n t h e
M a t t e r o f t h e A d o p t i o n o f S.L.R., supra.
I n t h e r e c e n t c a s e of I n t h e Matter of t h e Adoption of
R.A.S., s u p r a , w e d e c i d e d a q u e s t i o n t h a t is d i s p o s i t i v e o f
the issue presented i n the case a t bar. I n holding t h a t the
consent of the natural father was not required for the
a d o p t i o n o f t h e minor c h i l d w e s a i d :
". . . W hold t h a t t o construe the
e
s t a t u t e a s requiring t h e nonconsenting
p a r e n t t o remain c u r r e n t w i t h i n one y e a r
on h i s o r h e r s u p p o r t p a y m e n t s i s i n
accord w i t h t h e p o l i c y of t h e a d o p t i o n
statutes and the intent of the
legislature."
In the case at bar, appellant was three years and
$4,200 b e h i n d on h i s c h i l d s u p p o r t p a y m e n t s . It is c l e a r
from t h e record t h a t h e had the ability t o make support
payments. Thus, it n e e d o n l y b e d e t e r m i n e d w h e t h e r h e had
not contributed t o the support of the c h i l d during a period
of one year prior to the filing of the petition for
adoption. S i n c e t h e n a t u r a l f a t h e r ' s payments o f $100 on
J u l y 8 , 1 9 8 3 , $150 on J u l y 2 6 , 1 9 8 3 a n d $100 o n A u g u s t 1 6 ,
1983 were insufficient to bring him current in support
payments w i t h i n one y e a r p r i o r t o t h e f i l i n g of t h e p e t i t i o n
f o r adoption our decision i n I n t h e Matter of t h e Adoption
o f R.A.S., supra, clearly indicates his consent to the
a d o p t i o n was n o t r e q u i r e d .
Affirmed.
We concur:
Chief Justice
Justices
M
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. Chief Justice Haswell, d-issenting.
I respectfully dissent from the majority opinion.
unable to approve the majori.tyls statutory construction of
I am
section 40-8-111(1), MCA.
The statute provides in pertinent part:
" (1) An adoption of a child may be de-
creed ...
" (v) if it is proven to the satisfaction
of the court that the father ... if
able, has not contributed to the support
of the child during a period of one year
before the filing of a petition for
adoption; . . ."
Here the petition was filed on the same day that the
natural father contributed $100 to the support of the minor
child. Thus, the father contributed to the support of the
child "during a period of one year before the filing of a
petition for adoption" and his consent to the ad-option was
required.
This Court has long required strict compliance with the
adoption statute because of the harshness of permanently
terminating parental rights. Adoption of Biery (1974), 164
Mont. 353, 522 P.2d 1377; In the Matter of the Adoption of
Smigaj (1977), 171 Mont. 537, 560 P.2d 141; In the Matter of
Challeen (1977), 172 Mont. 362, 563 P.2d 1120; Matter of the
Adoption of S.L.R. (Mont. 1982), 640 P.2d 886, 39 St.Rep.
The decision in this case today and in the companion
case of Adoption of RAS (1984), No. 83-175, indicate that
only lip service will be given to this rule in the future in
order to achieve result-oriented decisions.
I would reverse the District Court.
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Chief Justice
We join in the foregoing dissent of Chief Justice Baswell.