IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE MATTER OF THE ADOPTION OF D.J.V.

APPEAI, FROM: District Court of the Ninth Judicial District, In and for the County of Pondera, The Honorable McPhillips, Judge presiding.

COUI\TSELOF RECORD: For Appellant: Chris Christensen, Keil & Christensen, Kalispell, Montana For Respondent: Scott 0. Swansoll, Pendroy,Montana

submitted: 

### May 5, 1990 Decided: August 20, 1990 Filed:

### Justice John C. Sheehy delivered the Opinion of the Court.

Thisappeal involvesanadoptionproceedingsheld in theNinth Judicial District, Pondera County. Appellant, Kent Keil, the natural fatherand respondentbelow, appealstheJuly 5, 

### 1989 order and decree terminating his parental rights and granting the adoption of his son, D.J.V., by D.J.V. Is stepfather, Albert Blockeel, Jr. The District Court ruled that the natural father's consent was not required for the adoption because he failed to provide support for his son for a period of one year before the filing of the petition for adoption. We affirm the District Court's order and decree. The natural father raises the following issue on appeal: Did the District Court err in finding that the natural father's consent to the adoption of D.J.V. was not required because the natural father did not contribute to the support of D.J.V. during a period of one year before the filing of the petition for adoption? 

### D.J.V. 

### was born on September 2, 

### 1987, in Choteau, Montana. In 1986,CarolynVandenbos (Carolyn),a 17year-old junior inhigh school,began dating Kent Keil (Kent),a college studentatMontana State University. InJanuary of 1987,Carolyn discovered that she was pregnantwith Kent's child; at that time,Kent broke off their relationship. Upondiscovering Carolyn's pregnancy,Kent'sparents, Daleand Sheri Keil, took an active interest in Carolyn's welfare. They

### arranged forher toreceivecounseling. Kent attended one of these sessions, and apparently drove Carolyn home from another, but otherwise did not take part in the counseling sessions. After D.J.V. was born, Dale and Sheri visited several times with the baby in their home. Kent did not see his son until two months after thebirth,when Carolyn's cousin arranged a half hour visit. According to Carolyn, Kent held the baby, but did not appear to take a great deal of interest in him. On another occasion, Kent happened to arrive at his parent's home when Carolyn and D.J.V. were visiting, and two photographs were taken of Kent and the child. Theparties disagree on howmany more times Kent visited with his son. Carolyn remembers only two occasions inwhich Kent sawD.J.V., whereas Kent testified thathe

sawhis son at least fiveor sixtimes. Testimony from theparties alsodifferswhether Kent attempted topay any of Carolyn'smedical expenses. Carolyn claims Kent never offered or paid any of her medical expenses during the pregnancy. In contrast, Kent claims that he specifically requested Carolyn to supply him with the medical bills so that he could pay them. Despite this offer by Kent, the record reveals that Kent failed to pay any of Carolyn's and D.J.V.'s medical expenses. Kent appears from the record to be a rather prosperous young

man. He estimates his net worth as being $200,000 and he also expects a substantial inheritance. Despite his wealth, Kent has not paid anything toward the support of his child. He has given no clothes or gifts of any kind to the boy.In January of 1988, the petitioner, Albert Blockeel, Jr. (Albert), began dating Carolyn. By August, they had decided to marry. As part of theirmarriageplans, theywished tohave D.J.V. adopted by Albert. At the suggestion of their lawyer, Jim Obie, and Dale Keil, who was acting as his son's lawyer, Carolyn and Albert met with Kent and his new wife, Lisa, to discuss the possibility of Kent giving his consent to the adoption. Kent refused to consent to the adoption, and inquired whether Carolyn and Albert wanted child support. The subject of visitation also surfaced. Albert invited Kent and his wife to come to their house at anytime; Kent, however, chose not to take advantage of Albert's invitation to see D.J.V. Later, Carolyn and Albert were married on October 28, 1988, and on February 21, 1989, Albert filed a petition for adoption. After a hearing on April 17, 1989, the District Court ruled that Kent's consent was not required, under 9 40-8-111(1) (a)(v)

### , MCA, since Kent failed to contribute to his son's support for a period of one year prior to the filing of the petition for adoption. The central issue in thisappeal involvestheDistrictCourt's application of the adoption statute, 9 40-8-111, MCA. Section 40- 8-111(1)

## , MCA, generally requires the filing of written consents in an adoption proceeding. However, consent for the adoption 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 

# . . ..Section 40-8-111(1) (a)(v)

## , MCA. Accordingly, a father's rights may be terminated, and an adoption decreed without that parent's consent upon a showing of nonsupport under 

### 5 40-8-111(1)(a)(v), MCA. In re the Adoption of R.M. (Mont. 1990), 785 P.2d 709, 711, 47 St.Rep. 124, 127. As we have previously held, "Parental rights involve a fundamental liberty interest, and a judicial decree terminating such rights must be supported by clear and convincing evidence.'' R M 785 P.2d 711; In re theAdoption of C.R.D. (Mont. 1989), 782 .I P.2d 1280, 1282; Matter of R.B. (1985), 217 Mont. 99, 102-103, 703 P.2d 846, 848, citing Santosky v. Krommer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606. It is a fundamentalprinciple of law,however, that parental rights do not exist without concomitant obligations. As the District Court properly noted, "It is the public policy of the State of Montana that the statutes concerning the termination of parental rights should not be interpreted in favor of those who shun the burden of parental obligations." In re Burton's Adoption, 147 Cal.App.2d 125, 305 P.2d 185, 191; In re the Adoption of S.L.R. (1982), 196 Mont. 411, 415, 640 P.2d 886, 888; In re the Adoption of B.L.P.

(1986), 224 Mont. 182, 186, 728 P.2d 803, 805; In re the Adoption of R.G.C. (1987), 228 Mont. 345, 349, 742 P.2d 471, 474. As the District Court notes, the central issue in this case is whether Kent has contributed to the support of D.J.V. during a period of oneyearbefore the filing of thepetition. The DistrictCourt found Kent had failed to pay any support, and therefore his consent was not needed under 5 40-8-411(1)(a)(v), MCA. Kent argues that because there was no court order requiring him to pay child support, the District Court cannot terminate his parental rightspursuant to

### 5 40-8-111(1)(a)(v)

### ,MCA. Furthermore, Kent contends thatvirtually all of theMontana cases decided under 5 4-8-lll(l)(a)(v), MCA, involve court-ordered child support. Kent is correct; most of the adoption cases under the statute involve court-ordered support; however, a parent's obligation to his child is not dependent on an order of the court. Section 40- 6-211, MCA. There is no requirement under 5 40-8-111(1) (a) (v)

### , MCA, that the child support be court-ordered. If the father has provided no supportduring the one year period prior to the filing of the petition for adoption and the father is able to provide support, then consent is not required. The absence of a child support order does not absolve Kent of his legal duty to support his child. Next, Kent argues that his parental rights should not be terminated becausehemade an offer concerning support at ameeting in the Keg Restaurant in Conrad,Montana. At themeeting, Carolyn and Albert met with Kent and his new wife, Lisa, to discussAlbert adopting 

### D.J.V. At the meeting, Kent asked Carolyn if she needed support,and she refused. According toKent, this offer showedhis willingness to pay the support, and thus his rights should not be terminated under 

### 5 40-8-411(1) (a)(v)

### ,MCA. We disagree, and adopt the District Court's reasoning set forth in its memorandum:

### This Court agrees with the Petitioner that, atmost, the discussion which occurred during July or August of 1988 was a mere inquiry concerning support which was insufficient to exempt the father from the requirements of 

### 5 40-8-111, MCA. The discussion took place one year subsequent to the birth of the child. There was no promise or offer to pay any child support for the preceding year. There was not a promise or offer topay any of the expenses of thepregnancy or delivery. There was no specific dollar amount of future child support. No checkswere written. No trust account was setup for the child. No health insurance policy was provided for the child. The fathermerely inquired of the Petitioner whether or not she wanted any support to be paid. The Petitioner, who was not yet married to the child's mother, answered "no.'I 

### The fatherhas not ever actually contributed anymoney whatsoever to this child's support or ever made a specific offer of child support. In thepast, this Court has strictlyupheld the child support requirements under 5 

### 40-8-111, MCA. In in re the Adoption of R.A.S. (1984),208Mont. 438, 679 P.2d 220,the fatherhad paid the

sum of $450.00 child supportduring the oneyearperiod immediately preceding the filing of the petition for adoption. However, this payment was properly attributable to a child support obligation which had accruedprior to theoneyearperiod preceding the filing of the petition for adoption. Therefore, the requirement of support during the one year period before the filing of the adoption petition was not met and the father's consent to the adoption was not required. R.A.S., 679 P.2d at 223, 224. If 

### actual payment of some child support, under R.A.S., does not toll the running of 5 

### 40-8-111(l) (a)(v), MCA, then Kent's mere inquiry regardingchild support is surely insufficienttotoll the statute. It is uncontroverted that Kent has not contributed financial support to D.J.V., 

### in the preceding one year or at any time. ByKent's own admission, he has not paid any expenses of Carolyn's pregnancy or hospitalization, or any child support since thebirth of 

### D.J.V. This is not a case where the father is suffering financial hardship. Thus, there is ample "clear and convincing evidence1'to support the District Court1 s termination of Kent s parental rights. Finally,Kent argues thedoctrine ofequitable estoppel should preclude petitioner (Albert) fromasserting thatKent failed topay child support. According toKent, bothAlbert and Carolyn cleverly refused his "offer" of child support at the Keg Restaurant, in order to later assert at the adoption proceeding that Kent's consent was not necessary. Kent claims that Albert and Carolyn should not be allowed to inducehim to forego making child support payments,and then utilize 

### 5 40-8-411(1)(a)(v)

### ,MCA, whichdeprives Kent of his parental rights for his failure to pay child support. Equitable estoppel is a principle of equity, Cremerv. Cremer Rodeo Lands and Livestock Co. (1979)

## , 181 Mont. 87, 93, 592 

### P.2d 485, 489, used to promote justice, honesty, fairdealing and to prevent injustice. Keneco

### v. Cantrell (1977), 174 Mont. 130, 135, 568 P.2d 1225, 1228. Furthermore, the object of equitable estoppel is to prevent a party from taking advantage of his own wrong while asserting his strict legal right. Matter of Shaw (1990),189Mont. 310, 316, 615 P.2d 910, 915. We cannot adopt Kent's argument of equitable estoppel. Carolyn has done no wrong giving rise to estoppel. Since the birth of 

### D.J.V., Kent has not performed his legal responsibility as a parent. Equitable estoppel isunavailable to Kent in this case. We affirm the District Court order. 1

/+ 

# d,

# g-3
Justice We Concur: 

### /

Chief Justice