No. 86-433 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE ADOPTION OF 

J.M.G., J.J.G., and C.C.G. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Measure, Ogle & Ellingson; Darrell S. Worm, Kalispell, 

Montana 

For Respondent : 

William A. Douglas, Libby, Montana 

Submitted on Briefs: March 26, 1987 

Decided: May 13, 1987 

Filed: MAY 1 3 1987 
Mr. 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 

father moved to Oregon while the natural mother and children 

remained in Libby, Montana. 

On April 7, 1983, the natural father was charged with 

custodial interference, a felony, and subsequently was 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 two year deferred imposition of sentence. 

The natural mother was remarried to S.A. May 5, 1984. 

On September 11, 1984, S.A. filed a petition to adopt J.M.G., 

J.J.G., and C.C.G. In the petition, S.A. alleged that pursuant 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 the matter be set for trial following discovery. 

The matter came on for hearing March 26, 1986. Testimony was heard from the natural father and his mother, the 
natural mother, and a former attorney for the natural father. 

The parties did not dispute the fact that the natural father 

did not provide any support to his children during the period 

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 $2400 was applied 

to child support. 

The natural father and his mother testified that his 

major problems during that period were psychological. He was 

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 

felt he was incapable of performing simple tasks. 

David Harmon, the natural father's attorney during 1983 

and early 1984, testified that conversing with the natural 

father during his incarceration was useless due to his anxiety and paranoia. However, the natural father's mental 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 to be obsessed with the possibility that his children might be taken away from him. 

The natural mother testified that the natural father 

visited with the children in November, 1983, and exhibited no 
signs 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 5 gallon buckets, plus 

he jogged on a daily basis. 

The District Court entered its findings of fact, conclusions of law and judgment June 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 issue with 

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 to maintain 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 father was released from jail pending trial 

on the custodial interference charge. The release was 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 natural 
father'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 anxiety but was not impaired in any manner. 

The natural father asserts that his testimony as well as 

his mother's compel a finding that he was not mentally 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 the year in question consisted solely 

of non-medical testimony. In a 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 father was 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 supports his conclusion. 

Section 40-8-111 (1) (a) (v) , MCA, provides that the consent of the natural father is not required for adoption, "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 1 year before the filing of a petition for adoption." This Court has previously held that the 

question of ability to pay 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 applied his lump sum settlement to 

child support. The record reflects he paid $2400 out of the 

$9500 settlement to clear up child support arrearage, but the 

remainder was 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 support him. 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 after his release from jail in September, 1983, yet he 

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 

father was capable of maintaining regular employment but did 

not. 

The second issue is whether the District Court 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 admission of evidence. 

The primary question before the District Court was the 

natural father's ability to work during the year in question. 

Evidence concerning events outside of that one year period 

were relevant as to the natural father's mental and physical 
condition during the subject year. The natural father's knee 

injury in 1981 and his activities thereafter including jogging, raising chickens, and performing photography, all 

related to the question of his physical 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 support him. 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 support him. 

The natural father contends that there should have been 

a two-step hearing 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 allow 
the natural father to appear in the proceedings to determine 

whether the natural father had 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 pertinent part: 

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 answer by a jury to an interrogatory, or 

to support a specific finding of fact by the trial 

court, is to be raised on the appeal by 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 adoption by the stepfather is in the best interests of the children. 

The District Court judgment is affirmed. 

We Concur: -/ 

/kT%x Chief Justice