No. 89-253 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

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IN RE THE MATTER OF THE ADOPTION OF !-n 

R.M., S.P.M., and R.M., minor children. - 2 w , ' ' -2 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorahle William Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kristine Davenport, Missoula, Montana 

For Respondent: 

Brad Arndorfer, Billings, Montana 

Filed: 

Submitted on Briefs: Dec. 1, 1989 

Decided: January 18, 1990 

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; Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

This appeal involves an adoption proceeding held in the 

Thirteenth Judicial District Court, Yellowstone County. 

Appellant, R.E.M, the natural father and respondent below, 

appeals the January 13, 1989 order and January 31, 1989 

decree terminating his parental rights and granting the 

adoption of his children by their stepfather. The District 

Court ruled that the natural father's consent was not 

required for the adoption because he had failed to provide 

support to his children pursuant to a court ordered decree of 

dissolution. We affirm. 

The natural father raises the following issues on 

appeal : 

1) Did the District Court err and abuse its discretion 

in finding that the natural father's consent to the adoption 

of S.P.M. was not required because the natural father did not 

contribute to the support of all three children during a 

period of one year before the filing of the petition for 

adoption? 

2) Did the District Court err and abuse its discretion 

in finding that it was in the children's best interests to 

allow the stepfather to adopt them? 

The natural father and the mother, C. R. S. , were married 

in August of 1980. Their oldest child, R.R.M., is the 
mother's child adopted by R.E.M. and is now ten years old. 

The other two children of the marriage are S.P.M., age eight, 

and R.C.M., age five. During their marriage, the natural 

father ran a business in Billings called Minute Man Pizza. 

Testimony indicated that profits from the business provided 

the family with approximately $1,000 per month. 

The natural father testified that approximately August 

9, 1985, his wife sent all the children from Billings to her 

parents house in Missoula. The natural father went to 

Missoula, took his son S.P.M. back from his wife's parents, 

and returned to Billings with him. On August 19, 1985, the 

natural father filed a Petition for Dissolution of Marriaqe 

in the District Court of the Thirteenth Judicial District, 

Billings, Montana. The petition requested that the natural 

father receive custody of all the children. While the 

determination of custody in the dissolution was still 

pending, S.P.M. resided with him in Billings, Montana and 

the other two children resided with their mother, also in 

Billings. During this time, Court Services Domestic 

relations department conducted a study and recommended on 

January 22, 1986 that the parties have joint custody of all 

the children with the wife as the primary residential 

custodian. The parties' testimony conflicts as to whether 

the natural father knew the contents of this report in 

January of 1986. 
That same month, with the dissolution proceeding still 

pending, the natural father left Billings with S.P.M. and 

moved to Kennewick, Washington. The natural father did not 

have any further contact with his attorney concerning the 

dissolution case, he testified that he did not think the 

dissolution would proceed in his absence and that he told his 

attorney to "let the matter slide." The natural father also 

told his attorney that he was considering moving to Mazatlan, 

Mexico. He did not tell his attorney of his true 

whereabouts, nor did he tell or inform the mother as to his 

leaving or his whereabouts. 

On March 13, 1986, the natural father filed a petition 

for dissolution in Lincoln County, Washington, in which he 

requested custody of the three children. The mother was 

served by publication and did not appear. A decree of 

dissolution was entered by default in Washington on July 16, 

1986, awarding custody of the children to the natural father. 

On November 13, 1986, the Montana dissolution proceeding 

was heard in the natural father's absence. The motion for 

continuance made by the natural father's attorney at that 

time on the grounds that he was unable to contact his client 

was denied. 

The trial court granted the mother's request for custody 

of the three minor children and ordered the natural father to 

pay $100.00 per month, per child as child support. A copy of 
the decree of dissolution was served upon the natural 

father's attorney. The natural father alleges that he did 

not receive a copy of the decree and notice of his support 

obligation because his attorney was unable to locate him. 

Meanwhile, in Washington, the natural father opened up a 

business similar to the one he had operated in Billings. The 

evidence indicates that he and S.P.M. occasionally visited 

the natural father's parents in the Missoula area, but no 

contact was made with the mother or other children. In 

November of 1987, the natural father was arrested in 

Washington and charged with custodial interference pursuant 

to S 45-5-304, MCA. The natural father was forced to close 

down his business in Washington in order to answer the 

charges in Montana. After the natural father' s arrest, 

S.P.M. was placed in the custody of the mother. The charges 

of custodial interference were dismissed because insufficient 

facts were alleged in the initial affidavit to support the 

filing of the information. The natural father testified that 

after his extradition to Montana was the first time he was 

aware of a decree of dissolution ordering him to pay child 

support. 

On May 9, 1988, R.H.S., the mother's new husband, filed 

a petition for adoption of the three minor children. The 

petition alleged that the natural father's consent to the 

adoption was not required because he had not contributed to 
the support of the minor children for a period of one year 

before the filing of the petition and that he was able to do 

so. - See S 40-8-111 (1) (a) (v) , MCA. 

On January 13, 1989 the District Court entered its 

findings of fact and conclusions of law. The court 

terminated the natural father's parental rights for failure 

to support based on § 40-8-111(1) (a) (v), MCA, and also found 

that the adoption was in the best interests of the children 

and entered a decree granting the adoption on January 31., 

1989. The natural father now appeals. 

The primary issue in this case involves the District 

Court's application of the adoption statute, § 40-8-111, MCA. 

The statute generally requires the filing of written consents 

in an adoption proceeding. Section 40-8-111 1 , MCA. 

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. Thus, a parent's rights may 

be terminated, and an adoption decreed without that parent's 

consent upon a showing of non-support under 

§ 40-8-111 (1) (a) (v) , MCA. 
Parental rights involve a fundamental liberty interest, 

and a judicial decree terminating such rights must be 

supported by clear and convincing evidence. Matter of the 

Adoption of C.R.D. (Mont. 1989) , -- P. 2d -I - , 46 St. 

rep. 1979, 1982; Matter of R.B. (1985), 217 Mont. 99, 

103-104, 703 P.2d 846, 848, citing Santosky v. Kramer (1982), 

455 U.S. 745, 753-754, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 

599, 606. Persons faced with loss of their parental rights 

have a critical need for procedural protections, therefore 

when parental rights are judicially terminated the parents 

must be provided with fundamentally fair procedures. 

Santosky, 455 U.S. at 753-754. 

The natural father maintains, and the District Court 

found, that the natural father supported S.P.M. during the 

time they spent in Washington. This support continued up 

until the natural father's arrest four months prior to filing 

of the petition. Because he did not fail to support S.P.M. 

for a year prior to filing of the petition, the natural 

father contends that his consent is necessary for the 

adoption of S.P.M. 

This contention is without merit. Parents are obligated 

to support their children. Sections 40-6-211, 40-6-214, MCA. 

-- See also 5s 41-3-101, 41-3-102(3), MCA. Absent a court order 

releasing him of this responsibility or altering this 

obligation the natural father was obligated to support -- all 
three children. He failed to meet this obligation. Also, 

there is no authority in Montana that supports crediting the 

natural father for the in-kind support provided for S.P.M. 

against the entire support obligation for all three children 

in this case. In our decision in In re Adoption of E.S.R. 

(1985), 218 Mont. 118, 706 P.2d 132, we did hold that in 

spite of a court order requiring. husband to pay monthly child 

support, a subsequent oral agreement between the parties for 

each to support one child was valid and no support payments 

were necessary. Here, there is no evidence of such an oral 

agreement. Furthermore, 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 filing of 

the petition for adoption. In re Adoption of R.A.S. (1984) , 

208 Mont. 438, 443-444, 679 P.2d 220, 223. Thus, under this 

rationale, even if the District Court had considered the 

support provided S.P.M. in Washington as a substitute for an 

actual credit of child support payments, applying the 

monetary equivalent of this in-kind support over the 

obligation to support all three children would still create 

an arrearage for all the support payments owed. And finally, 

we endorse the District Court's finding that: 

. . . where one parent is legally required to pay 

for the support of two or more minor children the 

residential custody of whom has been judicially 

awarded to the other parent, the payor parent 

should not be able to prevent the spouse of the 
custodial parent from adopting all the minor 

children by providing support specifically to one 

of the children even if the payor parent remains 

current in child support to that minor child 

within one year immediately preceding a petition 

for adoption. 

(Order of January 13, 1989, Finding No. 8.) Allowing 

parents to choose to support some of their minor children 

while neglecting others is contrary to the spirit of the law. 

Applying the equivalent of the support provided S.P.M. over 

the obligation to support all three children, the evidence of 

non-support over the required time is clear and convincing. 

The natural father also maintains that the District 

Court did not consider the principles of Santosky when it 

terminated his parental rights. He contends that he was 

denied due process because he did not receive reasonable 

notice of his duty to pay child support. 

We disagree. Due process requires that a party have 

notice of an action or judgment and a reasonable opportunity 

to be heard. In re Marriage of Robbins (1985), 219 Mont. 

130, 711 P.2d 1347, 1352. Here, service of the decree of 

dissolution constituted sufficient notice of the natural 

father's obligation to pay child support and did not deprive 

him of his due process rights, particularly where there was 

nothing in the record to indicate that the natural father's 

original attorney was relieved before or after the child 

support order was entered, and where he failed to keep in 
contact with his attorney after he instituted the divorce 

proceedings. -- See e.g. Bennet v. Bennet (N.C.App. 1984), 322 

S.E.2d 439, 440. Furthermore, at all times that the natural 

father resided with S.P.M. in Washington he knew of the 

whereabouts of his former wife and other two children. He 

made no effort to provide for the support of the other two 

children during his absence. If he had he would have been 

apprised of the divorce decree and his obligation to pay 

support. Service of the decree upon his attorney is all the 

notice that due process requires in this case, and if 

appellant failed to receive actual notice of the support 

obligation it was the result of his own lack of diligence or 

possibly his own intentional acts. 

The natural father also contends that his arrest and 

extradition to Montana for custodial interference forced the 

closure of his new business in Washington. He testified that 

upon returning to Montana to face the charges he was 

basically indiqent and unemployed, except for some part time 

work, during the four months immediately preceding the 

filing of the adoption petition. The natural father 

maintains that the District Court erred in finding that his 

consent was not required for the adoption due to his failure 

to support because he did not have the ability to pay as 

ordered by the divorce decree. -- See S 40-8-111 (1) (a) (v) , MCA. 
We disagree. Although the evidence does indicate that 

it would have been difficult for the natural father to pay 

the full amount of child support during this time, no 

evidence exists that the natural father was totally unable to 

pay any support at all during the one year period prior to 

the adoption. Indeed, when a parent is unable to pay his or 

her entire support obligation because of financial hardship, 

that parent is still obligated to make a diligent effort to 

comply with the decree and make whatever payments are 

possible under the circumstances. See -- e.g., In re Marriage 

of Smith (1984), 214 Mont. 66, 692 P.2d 1221. Otherwise, the 

payor parent should move the court for a modification of the 

support order in the divorce decree based upon a change of 

circumstances. -- See 5 40-4-208 (2) (b) (i) , MCA. Here, there is 

no evidence that the appellant made any effort at all to 

comply nor did he move for a modification of the support 

order. The evidence is clear and convincing that he was able 

to make at least some payment at some time during the one 

year preceding the filing of the petition and that no 

payments were made during or prior to this time. We see no 

abuse of discretion by the District Court in finding that the 

appellant was able to pay at least a minimal amount of child 

support and failed to do so. 
Appellant also contends that the District Court abused 

its discretion in finding that it was in the children's best 

interests to allow the stepfather to adopt them. He contends 

that the stepfather did not present clear and convincing 

evidence that it was in the children's hest interests for the 

adoption to be granted. 

The natural father misstates the appropriate standard of 

review of the "best interest" question. The "clear and 

convincing evidence" standard of review applies only to the 

termination of parental rights. Once this Court has reviewed 

whether termination of parental rights is supported by clear 

and convincing evidence, we need only examine whether the 

conclusion that the adoption is in the children's best 

interests is supported by substantial evidence. -- 

See e.g. In 

re Adoption of J.M.G (1987), 226 Mont. 525, 736 P.2d 967. 

Here, the record contains substantial evidence 

supporting the conclusion that the adoption was in the 

children's best interest. Specifically, this evidence 

includes the June 8, 1988 report from the Department of 

Family Services, wherein Larry G. Burns, a Family resource 

Specialist for the Department, reports that S.P.M. related to 

him that he would like his stepfather to be his father. 

(report of the Department of Family Services, June 8, 1988, 

p.6) The stepfather testified that he thought he could give 
the children a good life and love them, and he testified that 

he concurred in the recommendations and statements about the 

home life of the family in the report, which were overwhelmingly favorable toward the adoption. Because there is 

substantial evidence supporting the conclusion of the Court 

that the adoption was in the children's best interests, the 

District Court did not abuse its discretion. 

AFFIRMED. 

Justices 

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Justice k