Adoption of C.F.B. Jr.

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 I7 4 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 1 I . 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.

Footnotes

[3] 49.gq4 4 Chief Justice We join in the foregoing dissent of Chief Justice Baswell.