## SEP 

# 0'1 

## 1994

NO. 93-469 

# dl43md CLERKOFSUPREMECOURT OFMONTANA 

### IN THE SUPREME COURT OF THE 

### STATE OF

# MoW?LXWA

IN RE THE MATTER OF THE ADOPTION OF S.P.M.

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Powell, The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD: For Appellant: Mark P. Yeshe, Attorney at Law, Helena, Montana

For Respondent: Deirdre Caughlan; Dunlap & Caughlan, Butte, Montana

Submitted on Briefs: July 12, 1994 Decided: September 1, 1994 Filed:Justice

### John Conway 

### Harrison delivered 

### the Opinion 

### of the Court. Appellant J.M. appeals dismissal by the Third Judicial DistrictCourt, Powell County, of her petition for adoption of her husband's natural child, S.P.M. We affirm. The sole issue on appeal 

### is whether the District Court erred when 

### itheld thataparent's consent toadoptionwas required under



### a specific set 

### of circumstances. S.P.M. was born to 

### R.M. and M.S. on July 21, 1986. R,M. and M.S. divorced in April 1987,while living 

### in Libby, Montana. The dissofution decree provided for joint custody, with each parent having physical custody of 

### S.P.M. for onemonth, on an alternating monthly basis, and that R.M. would pay $125 per month in child support during the months M.S. had physical custody of S.P.M. In the spring of 1988,

### R.M. moved toAberdeen, Washington and the physical custody agreement continued. By mid-1988, R.M. was livingwith J.M. (Appellant) in Aberdeen and M.S. was living with J.S. When R.M. picked up S.P.M. in November, he alleges he observed

### bruises 

### on S.P.M.'sarms 

### and back which led him tobelieve S.P.M. had been abusedby J.S. 

### R.M. filed a petition and affidavit with the District Court, Powell County, Montana, claiming S.P.M.



### was abused and requested custody of 

### S.P.M. On 

### December 29, 1988 Judge Arnold Olsen issued an ex parte order causing S.P.M.'s placement with R.M. until an investigation could be completed. On January 17, 1989, Terri Waldorf 

### of Montana Department of Family Services filed a report concluding that R.M.'s allegation that S.P.M. was abused by J.S. was true. Waldorf recommended that

### R.M. be granted sole custody of S.P.M. withM.S. given conditional visitation rights. No evidentiary hearing on the matter was held

nor has there been any modification of the originaldecree's joint custody and month-by-month schedule. M.S. had not seen S.P.M. since December 29, 1988. 

### When M.S. learned that R.M., Appellant, and S.P.M. moved from Aberdeen to Deer Lodge, Montana, she filed a petition for custody andvisitation determinationonJuly 2, 1992. 

### Appellant petitioned to adopt S.P.M. on August 11, 1992. 

### Both parties testified extensivelyaboutthecontactsbetween theparties, family members, and friends between December 1988 

### and July 1992. 

### In addition to Aberdeen, Washington,R.M. lived inTroy,Missoula,and DeerLodge, Montana. R.M. left forwarding addresses whenever he moved. M.S. was generally poor and required public assistance in various forms, and suffered from emotional or stress related problems (the causes of which were not determined). The District Court concluded that between December 1988 

### and July 1992, 

### M.S.'s efforts to contact or visit S.P.M. were minimal and thatR.M. made little or no effort to facilitate contact between S.P.M. and M.S. The District Court dismissed, concluding that Appellant did notmeet herburden ofproving thatM.S. abandoned S.P.M. by any of the three theories advanced: Appellant's claims involved M.S.'s failure to support S.P.M., that M.S. was judicially deprived of S.P.M.'s custody because of neglect (as a result of the December 29, 1988 

### order), and that M.S. abandoned S.P.M. The district court hearing testimony is in the best position to determinethe outcome of the controversy and thisCourtwill not 3disturb its findings unless there is a mistake of law or a finding of fact not supported by substantial, credible evidence. In re A.E. (1992),255Mont. 56, 59,840P.2d 572, 574-5. Petitionerhas the burden of proof for theories of abandonment advanced. 

### See Matter of Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886. This Courthas consistently held that "[plarental rights involve a fundamental liberty interest, and a judicial decree terminating such rights must be supported by clear and convincing evidence." See e.q.Matter of Adoption of R.M. (1990), 241 Mont. 111, 115, 

## -, 785 P.2d 709, 711. Appellant argues thatM.S.'s consentwas not required because Montana's adoption statute does not require consent under all circumstances. Appellant proposes three theories why M.S.'s consent is not required to adopt S.P.M. First,Appellant argues consent is not required from a parent "who has been judicially deprived of the custody of the child on account of cruelty or neglect toward the child;

# . . . ." Section 4-8-lll(1) (a)(i) 

## , MCA. There has not been a prior judicial proceeding concluding thatM.S. was denied custody of her children

or had her parental rights terminated for reasons of cruelty or neglect. The determination of neglect necessitates a proceeding separate from the consent for adoption hearing. We have held that I1[t]he issues to be tried in a controversy over the termination of parental rights, i.e., the degree of unfitness of 

### a parent, are quite different than the inquiry properly before the adoption court. The two should not be mixed. 

# . , 

# . Brost v. Glasgow

(1982), 200 Mont. 194, 202, 651P.2d 32, 36;citing Commissioners' 4

### Note 

### for 5 40-8-111, MCA. 

### The 

### Department of Family Services hearing in this case was not sufficient to constitute

### a proceeding determining cruelty, neglect, or termination of parental rights. Additionally,M.S.'s failure to pursue her legal remediesdoes not

excuse the inadequate procedure used to take S.P.M. from her and does 

### not 

### support the necessary 

### finding by clear 

### and convincing evidence. Second,Appellant arguesconsent is

### not required fromaparent ''who has

# . . . willfully abandoned the child, as defined in 41-3- 102(8)(d)

# . f1 Section 40-8-111(1)(a)(iii) 

## ,MCA. Abandonment occurs when a parent: abandons the child by leaving the child under circumstances that 

### make reasonable the belief that the parent or other person doesnot intend to resume care of the child in the future or by willfully surrendering physical custody foraperiod of 6months 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 (8)(d)

### ,MCA. Wehave previously clarified that the six-month requirement applies only to the willful surrender of 

### physical custody. 

### In re A.E., M.S. did 

### not willfully surrender physical custody of S.P.M.; S.P.M. was removed 

### by court order in December 1988. M.S.'s failure to pursue legal remedies togain custody of S.P.M. afterthe 1988 court order does not clearly and convincingly fail to meet the statutory standard. M.S. manifested 

### her intent to pursue S.P.M.'s custody as soon as she learned he 

### was in Montana. We conclude that the number of contacts, or even attempted contacts, alone is not sufficient to establish abandonment. Specific circumstancesmust be viewed as awhole. The facts of this case do not support a finding that M.S. abandoned S.P.M. Third,Appellant argues consent isnot required from a parent if it is proven to the satisfaction of the court that the parent, if able, has not contributed to the support of the child during a period of one yearbefore filing a petition for adoption. Section 4-8-lll(1) (a)(v), MCA. We have held that a parent with no physical or mental impairment and possessed of skills to earn an income,was capableof making child supportpayments. Ado~tion of S.L.R., 640 P.2d at 888. In contrast, here the District Court's findings support that M.S. was not capable of financially contributing to S.P.M.'s support and care. Unlike Adoption of S.L.R., the District Court concluded that M.S.'s case is not one where M.S. had money but chose not to supporther son. The record

as presented does not adequately establish M.S.'s ability to provide support during the year prior to Appellant's adoption petition. See Matter of Adoption of T.G.K. (1981), 193 Mont. 139, 142, 630 P.2d 740, 742. ThatM.S. was not in contact with S.P.M., and did not exercise every mechanism of pursuing contact with him is not material in this context. We hold thatAppellantdid notmeet her burden of proof on the three issues raised. Accordingly, we affirm the District Court's order to dismiss. 

## \We concur:

hief Justice 

# c