NO. 95-299

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN THE MATTER OF THE

ADOPTION OF JANE DOE,

JOHN DOE, and MARY DOE,

APPEAL FROM: District Court of the Nineteenth Judicial District,

1n and for the County of Lincoln,

The Honorable Michael C. Prezeau, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Ann C. German, Libby, Montana

Filed:

For Respondent:

H. James Oleson, Kalispell, Montana

For Amici:

Ann Gilkey, Special Assistant Attorney General,

Department of Public Health and Human Services,

Helena, Mont-ana

Heard: May 8, 1996

Submitted: May 8, 1996

Decided: July 22, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Debra 0. (Debra), the natural mother of Jane Doe, John Doe,

and Mary Doe (the children), appeals the decision of the Nineteenth

Judicial District Court, Lincoln County, terminating her parental

rights and granting the petition to adopt of Debra's mother,

Barbara G. (Barbara). We reverse.

ISSUES

The following restated issues are dispositive of this appeal:

1 . Did the District Court err by terminating Debra's parental

rights to her children?

2 . Did the District Court err by finding that Debra had

abandoned the children?

3 . Did the District Court err by finding that Debra was able

to contribute to the support of the children during the year prior

to the filing of Barbara's petition to adopt the children?

FACTS

Debra is the natural mother of the three children at issue in

this case, who are currently eight, six, and four years old,

respectively. Debra has a history of drug addiction and is

currently incarcerated at the Nevada Women's Prison at Rena,

serving time for narcotics charges and escape. She was

incarcerated in late 1992 to serve a two-year sentence for drug

charges. During her prison term, Debra undertook counseling for

her addiction and began participating in a twelve-step program.

In May of 1993, Debra' began a community-based work-release

program which required her to work at a restaurant during the day

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and return to a half-way house at night. Shortly thereafter, Debra

walked away from her job, which constituted an escape. Debra

testified that she continued to attend twelve-step meetings and

maintained her sobriety during her escape. She was apprehended

three months later. After her capture in September of 1993, Debra

was charged with escape and also served with an outstanding warrant

for an unresolved narcotics charge from September, 1992. She pled

guilty to both charges and was returned to prison.

Since early 1992, the children have resided with their

grandmother, Barbara, in Montana. It is undisputed that Barbara

has been very involved in the children's upbringing all their

lives. At times she lived with Debra and looked after the

children; at other times, Debra would send the children to live

with Barbara, claiming that she was unable to care for them

herself. In February of 1993, Debra executed documents making

Barbara the guardian of the children and giving her temporary

physical custody of them.

In September of 1994, Barbara petitioned the District Court to

allow her to adopt the children, alleging that Debra had abandoned

them and that, although able, Debra had failed to provide any

support for the children in the year prior to the filing date of

the petition.

The District Court held a hearing in the matter in December of

1994, and issued its findings of fact, conclusions of law, and

order in April of 1995. It found that Debra had both abandoned the

children and failed to contribute to their support even though she

3
was able to do so. For these reasons, the District court

terminated her parental rights and, for the same reasons,

terminated the parental rights of the children's fathers. None of

the children's fathers appeared at the termination hearing and none

of them have appealed the decision of the District Court. At the

same hearing, the District Court granted Barbara's petition to

adopt the children. Debra appeals both the termination of her

parental rights and the subsequent adoption of the children by her

mother.

STANDARD OF REVIEW

The District Court is in the best position to hear testimony

and evaluate evidence in adoption cases. This Court will not

reverse a district court's findings of fact in such cases unless

the findings are clearly erroneous. Rule 52(a), M.R.Civ.P.; In the

Matter of J.S. and P.S. (19941, 269 Mont. 170, 173, 887 P.2d 719,

720. This Court will not reverse a district court's conclusions of

law in such cases unless the conclusions reflect a mistake of law.

In re the Adoption of S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d

297, 298. However, because the termination of parental rights

involves a fundamental liberty interest, a decree which purports to

terminate such rights must be supported by clear and convincing

evidence. Adootion of S.P.M., 880 P.Zd at 298 (citing In re the

Adoption of R.M. (1990), 241 Mont. 111, 114, 785 P.2d 709, 711).

DISCUSSION

Montana law dictates that a district court generally may order

the adoption of a child only when both the child's parents, if

4
living, consent in writing to the adoption. Section 40-8

111(l) (a) , MCA; In re the Adoption of J.B.T. (1991), 250 Mont. 205,

207, 819 P.2d 178, 179. However, 5 40-8-111(l) (a), MCA, contains

six subsections delineating various exceptional circumstances in

which the parent's consent is not required in order to adopt the

child.

The District Court cited three of these subsections as reasons

why Debra's consent to the adoption was not necessary--abandonment,

lack of support, and judicial termination of parental rights.

Section 40-8-111(l) (a) (iii), MCA, provides that "consent is not

required from a father or mother . . who has, in the state of

Montana or in any other state of the United States, willfully

abandoned the child . .'I Section 40-8-111(l) (a) (iv), MCA,

provides that

consent is not required from a father or mother . . . who

has caused the child to be maintained by any public or

private children's institution, any charitable agency, or

any licensed adoption agency or the department of public

health and human services of the state of Montana for a

period of one year without contributing to the support of

the child during that period, if able . .

Section 40-8-111(1)(a) (vi), MCA, provides that "consent is not

required from a father or mother whose parental rights have

been judicially terminated."

ISSUE 1

Did the District Court err by terminating Debra's parental

rights to her children?

In this case, the District Court declared Debra's parental

rights to be judicially terminated and, accordingly, deemed that

her consent was not required before the adoption of the children.

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However, judicial termination of parental rights cannot be

considered an independent reason for authorizing this adoption

because the determination of whether Debra's parental rights should

be terminated was not independently made.

We have held that, absent parental consent, termination of

parental rights "is a necessary procedural stop before an adoption

proceeding can be initiated." In the Matter of the Parental Rights

of Baby Girl W. (1991), 249 Mont. 206, 210, 814 P.2d 976, 978

(emphasis added). Moreover, § 40-8-111(l) (a) (vi), MCA, provides

that consent need not be obtained from a parent whose parental

rights have m terminated. This subsection of the statute,

therefore, contemplates a situation where the parent's rights were

terminated by a separate hearing or action at some point in the

past. Section 40-8-iil(lj(a) (vi), MCA, does not contemplate a

concomitant termination of the parent's rights & adoption of the

child by another party, especially where, as here, it is unclear

which procedure occurred first.

In any event, the reasons cited for the District Court's order

terminating Debra's parental rights were the same as the remaining

two reasons cited as the rationale for authorizing the adoption--

namely, that Debra abandoned the children or, in the alternative,

failed to support them for one year before the hearing even though

she was able to do so. Accordingly, we review the District Court's

findings and conclusions regarding abandonment and non-support to

discover whether they justify either the termination of Debra's

parental rights or the adoption of the children without her

6
consent. For the reasons set forth in issues two and three we hold

that the court erred in terminating Debra's parental rights.

ISSUE 2

Did the District Court err by finding that Debra had abandoned

the children?

One of the reasons given by the District Court for judicially

terminating Debra's parental rights and allowing the adoption was

that Debra had abandoned the children. As the petitioner, Barbara

had the burden of proving that the children were in fact abandoned.

Adoption of S.P.M., 880 P.Zd at 298 (citing In re Adoption of

S.L.R. (19821, 196 Mont. 411, 640 P.2d 886).

As used in the child welfare statutes, abandonment is defined

leaving the child under circumstances that make

reasonable the belief that the parent or other person

does not intend to resume care of the child in the future

or willfully surrenders physical custody for a period of

6 months and during that period does not manifest to the

child and the person having physical custody of the child

a firm intention to resume physical custody or to make

permanent legal arrangements for the care of the

child . . . .

Section 41-3-102(7) (e), MCA. Under this definition, the period for

establishing abandonment is six months. In the Matter of M.J.D.

(19871, 225 Mont. 200, 205, 731 P.2d 937, 940.

In this case, Debra was incarcerated for almost two years

prior to the filing of Barbara's petition. It is unquestionable

that Debra willingly left the children with Barbara before she went

to prison. We therefore must ask whether Debra failed to manifest

a firm intention to resume physical custody, or whether the
circumstances of this case supported a reasonable belief that Debra

did not intend to resume caring for the children in the future.

The District Court did not make specific findings regarding

abandonment even though it listed abandonment as a reason for

terminating Debra's parental rights and allowing Barbara's adoption

of the children. However, the trial testimony of both Barbara and

Debra indicate that both parties understood that Debra wanted

Barbara to care for the children only temporarily:

Q: Has Debbie ever mentioned to you that you could adopt

the kids?

Barbara: No, she has always been against that.

Q: Has she ever mentioned to you that you should have

guardianship of the kids?

Barbara: The only thing that she has ever been agreeable

to is temporary custody.

Q: And why was that, please.

Barbara: I just don't think that she wants to give them

up.

.

Q: Now, I wanted to ask you just a little bit about this

adoption proceeding. You understand your mother wants to

adopt your three children, your three oldest children?

Debra: Yes, I do.

;;,,nd what is your feeling about that?

I don't want her to adopt my children. I love my

mother very much. And I entrust her with my children to

take care of but I am their mother. And I want a chance

to get out and prove to the courts and my mom that I'm

capable of taking care of my children.

As Barbara admitted, Debra never assented to anything more than

temporary custody because she fully intended to resume the

responsibility for her children once she was released from prison.

In addition, Debra corresponded regularly with her mother and the

children, sending them let'ters and drawings once or twice each

month.
In short, there is no evidence in the record reflecting any

action on Debra's part that establishes abandonment. On the

contrary, she has attempted to stay in contact with the children

from prison and has repeatedly and firmly refused to grant

permanent custody of them to her mother. While she unquestionably

has been separated from them for an extended period due to her

incarceration and also has left them in her mother's care for

extended periods of time before that, such separations, voluntary

or involuntary, do not rise to the level of abandonment.

We hold that the District Court erred by finding that Debra

had abandoned the children.

ISSUE 3

Did the District Court err by finding that Debra was able to

contribute to the support of the children during the year prior to

the filing of Barbara's petition to adopt the children?

The District Court also terminated Debra's parental rights and

authorized Barbara's adoption of the children because it found

that, although able, Debra had failed to contribute to the support

of the children for a period of one year before the filing of the

petition, during which period the children were dependent upon

state aid. As noted above, this is an acceptable reason for

authorizing adoption proceedings without first obtaining parental

consent. Section 40-8-111(l) (a) (iv), MCA.

Application of this statutory provision requires a two-tiered

analysis. First, the court must determine if the nonconsenting

parent failed to contribute to the support of the children during

a period of one year prior to the filing of the petition. Second,

9
the court must determine if the nonconsenting parent had the

ability to contribute to the support of the children during that

year. In re the Adoption of J.B.T. (1991), 250 Mont. 205, 209, 819

P.2d 178, 179 (citations omitted). In determining whether a parent

was able to contribute support, a district court must examine

several factors, including:

(1) the parent's ability to earn an income;

(2) the parent's willingness to earn an income and

support his or her child or children;

(3) the availability of jobs; and

(4) the parent's use of his or her funds to obtain only

the bare necessities of life prior to contributing

support to the child or children.

In re the Adoption of K.L.J.K. (1986), 224 Mont. 418, 423, 730 P.2d

1135, 1139; In re the Adoption of V.R.O. (lYYl), 250 Mont. 517,

520-21, 822 P.Zd 83, 85.

In this case, Debra admits that she has not contributed to the

support of the children during the year preceding the filing of

Barbara's petition. She claims, however, that she was unable to

contribute to the children's support during that year because she

was in prison the entire time. The District Court found otherwise,

noting that Debra sustained a $50 to $100 per day drug habit, as

evinced by her plea of guilty to an additional drug charge after

being recaptured in September of 1993

Debra's admitted drug addiction alone cannot serve as clear

and convincing evidence that she had the means to contribute to her

children's support. The relevant inquiry is whether she obtained

funds which could have been used for the support of the children

which, instead, she chose to spend on drugs. Debra, however,

1 0
receive any pay for her prison job; the job allowed her only to

accumulate additional good -time.

No evidence was presented to rebut Debra's uncontroverted

testimony that she has been incarcerated for the entire year

preceding institution of the adoption proceedings and that she has

not had the ability to contribute money to her children's support

during that time. The District Court's inference that her past

drug activity indicates a present ability to pay child support was

not supported by clear or convincing evidence. The District Court

therefore erred by concluding that Debra had the ability to

contribute to the support of the children during the year preceding

Barbara's petition and further erred by terminating her parental

rights and allowing the adoption on that basis.

Reversed.

We Concur: A?===-
rFDT’=TrA- OF SERVICE

I hereby certify that the mail, prepaid, to the

following named:

Ann C. German

Attorney at Law

P.O. Box 1530

Libby, MT 59923

Mr. H. James Oleson

Ann Gilkev. Soecial Asst. Attv~, General

Departmeit’of-Public Health and Human Services

P.O. Box 8005

Helena, MT 59604

Attorney at Law

P.O. Box 2036

Kalispell, MT 59903-2036

ED SMITH

CLERK OF THE SUPREME

STATE OF MONTANA