SEP 0 '1 1994 

NO. 93-469 dl4 3md 

CLERK OF SUPREME COURT 

OF MONTANA 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 

District Court, 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 it held that a parent's consent to adoption was 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 one month, 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 to Aberdeen, Washington and 

the physical custody agreement continued. By mid-1988, R.M. was 

living with 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. 's arms and back which led him to believe 

S.P.M. had been abused by 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. with M.S. given conditional 

visitation rights. No evidentiary hearing on the matter was held 

nor has there been any modification of the original decree'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 

and visitation determination on July 2, 1992. Appellant petitioned 

to adopt S.P.M. on August 11, 1992. Both parties testified 

extensively about the contacts between the parties, family members, 

and friends between December 1988 and July 1992. In addition to 

Aberdeen, Washington, R.M. lived in Troy, Missoula, and Deer Lodge, 

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 that R.M. made 

little or no effort to facilitate contact between S.P.M. and M.S. 

The District Court dismissed, concluding that Appellant did 

not meet her burden of proving that M.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 determine the outcome of the controversy and this Court will not 

3 
disturb 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), 255 Mont. 56, 59, 840 P.2d 572, 574-5. Petitioner has 

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 Court has 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 that M.S.'s consent was 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 that M.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, 651 P.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 remedies does 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 argues consent is not required from a parent 

''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 does not intend to resume care of 

the child in the future or by willfully surrendering 

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 (8) (d) , MCA. We have 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 to gain custody of S.P.M. after the 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 circumstances must be viewed as a 
whole. The facts of this case do not support a finding that M.S. 

abandoned S.P.M. 

Third, Appellant argues consent is not 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 year before 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 capable of making child support payments. 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 support her 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. That M.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 that Appellant did not meet her burden of proof on the 

three issues raised. Accordingly, we affirm the District Court's 

order to dismiss. \ 
We concur: 

c hief Justice