No. 90-267 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF THE ADOPTION OF 

C.J.H., W.L.H., T.A.H., Minors 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald L. Harris; Crowley, Haughey, Hanson, Toole 

& Dietrich; Billings, Montana 

For Respondent: 

Marvin R. Ventrell; Gannett & Ventrell; Billings, 

Montana (R.W.K., Petitioner) 

Submitted on Briefs: October 19, 1990 

Decided: December 13, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

This appeal involves an adoption proceeding held in the 

Thirteenth Judicial District, Yellowstone County. Robert Kimpton, 

the stepfather of three minor children, filed a petition for their 

adoption. The childrenst natural father, Warren Hoffman, did not 

consent. Following trial the Court entered its decree of adoption 

terminating the natural father's parental rights. He appeals. We 

affirm. 

The issues before us are: 

1. Did the District Court act within its discretion when it 

granted the Petition for Adoption and terminated the natural 

father's rights? 

2. Is § 4-8-ll(1) (a) (v) , MCA, constitutional under the 

United States Constitution and the Constitution of the State of 

Montana? 

Warren Hoffman (Warren) and Chris Anderson (Chris) were 

married February 15, 1975. Three children were born of the 

marriage. 

Warren and Chris were divorced in 1986 and were awarded joint 

custody by decree. Warren was ordered to pay a total of $375 per 

month in child support and carry medical insurance for the 

children. 

Later that year, Chris married Robert Kimpton (Robert), and 

the couple have resided together with the three children since that 

time . In 1989, Robert filed a Petition for Adoption of the 

children, alleging that Warren's consent was not required because 
he failed to support the children during the one year preceding 

the filing of the Petition, and that the adoption would be in the 

best interests of the children. Chris consented to the adoption; 

the Department of Family Services approved the adoption; and Warren 

objected to the adoption. 

Prior to granting the adoption and terminating Warren's 

parental rights, the District Court made the following pertinent 

findings of fact: In December, 1987, Warren paid $200 in child 

support rather than the required $375 per month. He had failed to 

maintain medical insurance forthe children at least since December 

of 1987. In 1988, Warren paid no child support. He maintained 

that he obtained a $100 money order and gave it to Chris, but that 

she gave it back. Warren claimed that the $100 was the best he 

could do and Chris maintained it was not enough. The Petition for 

Adoption was filed January 3, 1989. Warren furnished payments to 

Chris since the beginning of the year 1989 as follows: $40 in 

February, $40 in March, $100 in May and an additional $100 in May 

of 1989. Warren had a gross income during 1988 of at least 

$10,000. 

The District Court also found that there is not a good 

relationship between Warren and the three children and continued 

contact between Warren and the children seriously endangered the 

childrens' physical and emotional welfare. It found that a good 

relationship did exist between Robert and the children and that it 

would be in the best interests of the children if they were adopted 

by Robert. 
The court concluded that the parental rights of Warren may be 

terminated without his consent. It further determined that it is 

in the best interests of the children that they be adopted by their 

stepfather, Robert. From that decision, Warren appeals. 

I 

Did the District Court act within its discretion when it 

granted the Petition for Adoption and terminated the natural 

father's rights? 

Warren contends that his consent was required since he paid 

as much child support as he was financially able. He maintains 

that his offer of the $100 money order and a coat he purchased for 

one of the children was sufficient to require that he must still 

give his consent to the adoption. 

Robert and Chris maintain that Warren failed to provide 

support for his children during the one year period preceding the 

filing of the adoption petition. They contend that Warren refused 

to hand over the $100 money order after Chris made it clear to him 

that it in no way satisfied his child support obligation. They 

further maintain that payments in kind, (ie. the coat), do not 

apply as child support. Rather, they maintain that child support 

means financial support. 

Section 40-8-111, MCA, defines the consent required for 

adoption. 

(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, a father's rights may be terminated, and an adoption decreed 

without his consent upon a showing of nonsupport under the above 

statute. It is the public policy in 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 the Matter of the Adoption of D. J.V. (Mont. 1990) , 

796 P.2d 1076, 1078, 47 %.Rep. 1522, 1524. The District Court 

found Warren failed in his child support obligation, and therefore 

his consent was not needed under 5 40-8-111(1)(a)(v), MCA. 

In determining whether child support was paid during the one 

year period immediately preceding the filing of the petition for 

adoption, this Court has stated that any payment of support must 

first be applied to satisfy the earliest arrearage before it is 

applied to the support owed during the year before the filing of 

the Petition for Adoption. Warren maintains that the payments 

totalling $180 made in 1989 exceeded arrearages accrued prior to 

the filing of the petition for adoption. Chris and Robert maintain 

that payments made after the filing may not be applied to the preadoption year. We agree. Otherwise, any parent delinquent with 

child support payments could wait until after the filing of the 

petition for adoption to prevent the adoption, even when contrary 

to the best interests of the children. The payments made in 1989 
by Warren were de minimus at best, considering the child support 

ordered was $375 per month and no medical insurance was provided. 

We hold that the District Court acted within its discretion when 

it granted the Petition for Adoption and terminated the natural 

father's rights. 

Is 1 40-8-111(1)(a)(v), MCA, constitutional under the United 

States Constitution and the Constitution of the State of Montana? 

Warren maintains that 40-8-111 (1 (a) (v) , MCA, is 

unconstitutional because a liberty interest has been taken away 

without the existence of a compelling state interest. However, we 

note that Warren has not complied with Rule 38, M.R.App.P., which 

states: 

It shall be the duty of counsel who challenges the 

constitutionality of any act of the Montana legislature 

in any suit or proceeding in the supreme court to which 

the state of Montana, or any agency thereof, or any 

officer or employee thereof, as such officer or employee, 

is not a party, upon the filinq of the record to qive 

immediate notice in writinq to the court of the existence 

of said question, specifying the section of the code or 

the chapter of the session law to be construed. The 

clerk shall thereupon certify such fact to the attorney 

general of the state of Montana (Emphasis added). 

Warren filed notice of appeal on May 7, 1990. The record was filed 

on May 25, 1990. Warren did not file his notice of constitutional 

challenge until June 13, 1990, twenty days later. A delay of 

twenty days does not constitute llimmediatell notice as prescribed 

by Rule 38, M.R.App.P. Warren offers no explanation for his delay 

in filing notice of constitutional challenge. 

What exactly "immediatet1 means under Rule 38 has not been 
defined. However, this Court has held that a delay of 3 days was 

sufficiently to file an affidavit of disqualification 

of a judge when the reason for the delay was reasonable. 

(Plaintiff resided in Lake County but had to travel to Missoula 

County to sign an affidavit of disqualification and the 

Thanksgiving holiday was the day after he received notice.) See 

Wheeler v. Moe (1973), 163 Mont. 154, 515 P.2d 679. 

llImmediatell is defined in Blackls Law Dictionary, 6th ed. 

(1990) as follows: 

Present; at once; without delay; not deferred by any 

interval of time. . . . A reasonable time in view of 

particular facts and circumstances of case under 

consideration. . . . 

We conclude that Warren has presented no facts to explain the delay 

of twenty days in filing his notice of constitutional challenge. 

We therefore conclude that he has failed to comply with the 

requirements of Rule 38, M.R.App.P. We will not address the 

question of the constitutional challenge. 

Affirmed . 

We Concur: 

.-- ,I V 

Chief Justice 
Justice R. C. McDonough dissenting. 

A parent has a "fundamental liberty interestgt in continuing 

his parental relationship with his children. See Santosky v. 

Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-5, 71 

L.Ed.2d 599, 606. A decree terminating the parental relationship 

must be supported by clear and convincing evidence. See Matter of 

Adoption of R.M., S.P.M. and R.M. (1990), 241 Mont. 111, 118, 785 

P.2d 709, 713. 

Strict compliance with the statute is required. Matter of 

adoption of B.L.P. (1986), 224 Mont. 182, 184, 728 P.2d 803, 804. 

The petitioner by statute must prove by clear and convincing 

evidence the failure to support for the one year while being able 

to do so. Here the record fails to show by clear and convincing 

evidence the ability of the appellant to pay the support; and the 

District Court did not make any finding as to the appellantgs 

ability to pay. 

I would reverse and dismiss the petition. 

Justice Wm. E. Hunt, Sr. joins in the foregoing dissent. 

Justice