No. 86-433

INTHE SUPREMECOURT OF THE STATEOF MONTANA
1987

INRE THEADOPTION OF J.M.G., J.J.G., and C.C.G.

APPEAL FROM: District Court of theNineteenth JudicialDistrict, Inand for the County of Lincoln, TheHonorableRobertM. Holter,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Measure, Ogle & Ellingson; Darrell S. Worm,Kalispell, Montana

For Respondent: WilliamA. Douglas, Libby,Montana

Submitted onBriefs: March 26, 1987 Decided: 

### May 13, 1987

Filed: 

### MAY

### 1 3

## 1987Mr. Justice Fred J. Weber delivered the Opinion of the Court.

The natural father of J.M.G., J.J.G., and C.C.G., appeals the June 10, 1986, judgment of the Nineteenth Judicial District Court, County of Lincoln, terminating the parental rights of the natural father and granting adoption to the stepfather. We affirm. The natural father and natural mother were married in 1975. Three children were born of the marriage. The parties' marriage was dissolved on March 4, 1983,and the natural mother awarded custody of the children. The natural fathermoved to Oregonwhile the naturalmother and children remained in Libby,Montana. On April 7, 1983, the natural father was charged with custodial interference,a felony,and subsequentlywas incarcerated on the charge from July 18, 1983, to September 7, 1983. The natural father spent three days of this period at St. John's Hospital in Libby for treatment of anxiety and psychosis. On October 11, 1983, the natural father entered a guilty plea to the charge of custodial interference and received a twoyear deferred imposition of sentence. The natural mother was remarried to S.A. May 5, 1984. On September 11, 1984,S.A. filed apetition to adopt J.M.G., J.J.G., and C.C.G. In the petition, S.A. alleged thatpursuant to S 40-8-111(1)(a)(v)

## ,MCA, the natural father's consent

was not required due to his failure to provide child support during the year preceding the filing of the petition. Following the natural father's failure to appear the District Court granted the adoption on October 24, 1984. This decree

was subsequently set aside and the District Court ordered that thematter be set for trial following discovery. Thematter came on for hearing March 26, 1986. Testimony was heard from the natural father and his mother, thenaturalmother,and a former attorney for thenatural father. The parties did not dispute the fact that the natural father did not provide any support tohis children during theperiod in question, September 11, 1983, through September 11, 1984. The natural father testified that he was physically and mentally incapable of working at that time. He had injured his knee in 1981 while working as a logger and was still unable to perform heavy labor. A workers' compensation settlement of $9500 was received by the natural father in July, 1983,which he gave to his mother and $2400was applied to child support. The natural father and his mother testified that his major problems during thatperiod werepsychological. Hewas taking thorazine, an antidepressant, and expressed suicidal ideas,had trouble sleeping, and his mother felt he was not competent to be left alone. The natural father assisted his mother in her sign business but his only compensation was

room and board. The natural father did not perform any remunerative work until 1985. Up to that time his mother felthe was incapable ofperforming simple tasks. David Harmon, the natural father's attorney during 1983 and early 1984, testified that conversing with the natural father during his incarcerationwasuselessdue to his anxiety andparanoia. However,the natural father'smental condition improved greatly following his release from jail. Harmon represented the natural father at hearings during October and November of 1983,and found him to be capable of discussing his legal problems. Harmon did not consider the natural father to be mentally impaired at that time, but found him tobe obsessedwith thepossibility that his childrenmight be taken away fromhim. The natural mother testified that the natural father visited with the children inNovember, 1983,and exhibited nosigns of mental problems. The natural mother further testified that following the natural father's knee injury he had performed some photography work, raised chickens which involved carrying heavy bags of feed and 5gallonbuckets,plus he jogged on adailybasis. TheDistrict Court entered its findings of fact,conclusionsof lawand judgmentJune 10, 1986. The court found the natural father's consent to adoption to be unnecessary for failure to provide child support from July 11, 1983,through July 3, 1985, and granted the adoption. The natural father appeals and raises the following issues: 1) Whether there is substantial credible evidence supporting the termination of the natural father's parental rights? 2) Whether the District Court committed reversible

errors of law in admitting certain evidence and in entering a decree of adoption? The natural father contends several of the District Court's findings of fact are not supported by substantial evidence. Specifically, the natural father takes issuewith the findings of the court that his emotional problems were best characterized as self-induced, that a portion of his lump sum settlement should have been applied toward child support, that he was able tomaintain employment but did not by choice, and that he has voluntarily chosen a lifestyle to avoid gainful employment while allowing others to support him. We find substantial credible evidence in the record to support these findings. The natural fatherwas released from jail pending trial

on the custodial interferencecharge. The releasewas due to his medical condition. The hospital record shows a final diagnosis of acute psychosis and anxiety but also contains a notation by one of the examining physicians that the naturalfather's condition might have been an act. The testimony of his former lawyer and the natural mother indicate that following release from incarceration the natural father was experiencing some anxietybutwas not impaired in anymanner. The natural fatherasserts thathis testimony aswell as his mother's compel a finding that he was notmentally able to hold a job from September 11, 1983,to September 11, 1984. However, the natural father has offered no medical evidence of his condition during that period and admits that he did not visit any physicians or psychologists in regard to his alleged condition. Evidence concerning the natural father's mental condition during theyear in question consisted solely ofnon-medical testimony. Ina non-jury trial witness credibility and the weight of the testimony are matters to be determined by the District Court and we will not substitute

our judgment for that of the District Court. Kuhlman 

### v. Rivera (Mont. 1985), 701 P.2d 982, 986, 42 St.Rep. 863, 868. In this instance, the District Court relied on testimony that the natural fatherwas not mentally impaired in determining that the natural father did not work by choice. We will not substitute our judgment for that of the district judge. Substantial evidence supportshis conclusion. Section 40-8-111(1) (a)(v)

## ,MCA, provides that the consent of the natural father is not required for adoption, "if it isproven to the satisfactionof the court that the father



# .. . if able, has not contributed to the support of the child during a period of 1 yearbefore the filing of a petition for adoption." This Court has previously held that the question of ability topay child support also encompasses the ability to earn income and the desire to earn it. Matter of Adoption of B.L.P. (Mont. 1986), 728 P.2d 803, 43 St.Rep. 2116.In the present case, the District Court found that the natural father should have appliedhis lump sum settlementto child support. The record reflectshe paid $2400 out of the $9500 settlementto clearup child support arrearage,but the remainderwas given to his mother who spent it. We find no abuse of discretion in the court's determination that this money should have been applied to child support. The District Court found that the natural father voluntarily chose a lifestyle to avoid gainful employment while allowing others to supporthim. The court further found that the natural father did not have any income from September, 1983, to December, 1984, and that he did not pay child support for a period of two years. Each of these findings is supported by the record. The natural father testified he wasn't capable of doing anything the first four or five months afterhis release from jail in September, 1983,yethe failed to make any serious efforts at obtaining employment and did not find remunerative employment until December of 1984. We agree with the District Court that the natural fatherwas capable of maintaining regular employmentbut did not. The second issue iswhether theDistrictCourt committed reversible errors of law in admitting certain evidence and in entering a decree of adoption. The natural father contends the court erred in receiving evidence of events before and after the one year period preceding the filing of the adoption petition and permitting questions concerning the natural father's homosexuality. We find no reversible error in the court's admissionof evidence. The primary question before the District Court was the natural father's ability towork during the year inquestion. Evidence concerning events outside of that one year period were relevant as to the natural father's mental and physicalcondition during the subjectyear. Thenatural father's knee injury in 1981 and his activities thereafter including jogging, raising chickens, and performing photography, all related to the questionofhisphysical condition. The natural father's relationships with others were relevant as to his emotional and mental condition. The natural father claims he was mentally incapable of regular employment from September, 1983, through September, 1984. The District Court permitted testimony that following that year the natural father did find employment yet he still relied on others to supporthim. There is no indication that evidence of the natural father's homosexuality prejudiced him in any manner. The record supports the court's finding that the natural father has voluntarily chosen a lifestyle which permits him to avoid gainful employment while allowing others to supporthim. The natural father contends that there should have been a two-stephearing process. First,a hearing as to terminating the natural father's parental rights, second, a hearing concerning fitness of the adoptive father and the best interests of the children. The record indicates the second step did occur but there is no transcript in the record. The District Court granted the petition for adoption based upon its findings that the adoptive father is a fit and proper person to be allowed care and custody and that the adoption is in the best interests of the children. The natural father contends the decree of adoption was entered prematurely and is not supported by substantial evidence. The record shows a hearing was held October 22, 1984, concerning the petition to adopt. The District Court granted the adoption finding it to be in the best interests of the children and the stepfather to be a fit and proper parent. The decree of adoption was subsequently set aside to allowthe natural father to appear in the proceedings to determine whether the natural fatherhad abandoned the children. There is no indication the stepfather's fitness to be an adoptive parent and the best interests of the children was relitigated. Rule 9(b),M0nt.App.R.Civ.P. provides in pertinentpart:

In all cases where the appellant intends to urge insufficiency of the evidence to support the verdict, order or judgment in the district court, it shall be the duty of the appellant to order the entire transcript of the evidence. Wherever the sufficiency of the evidence to support a special verdict or answerby a jury to an interrogatory, or to support a specific finding of factby the trial court, is to be raised on the appealby the appellant, he shall be under a duty to include in the transcript all evidence relevant to such verdict, answer or finding.
The appellant natural father has not provided the entire transcript of the proceedings of the October 22, 1984,hearing concerning the original petition to adopt. Therefore we will not address whether substantial evidence supports the finding that adoptionby the stepfather is in the best interests of the children. The District Court judgment is affirmed.

We Concur: -/ 

# /kT%x Chief Justice