No. 86-524 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN THE MATTER OF THE ADOPTION OF 

S.T.V. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larrivee Law Offices; Noel K. Larrivee, Missoula, 

Montana 

For Respondent : 

Terry Wallace, Missoula, Montana 

Submitted on Briefs: Feb. 5, 1987 

Decided: March 4, 1987 

Filed: 

' I38~ *,w @ 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

The District Court of the Fourth Judicial District 

denied T.R.P.'s petition to adopt the natural child of his 

wife. T.R.P. appeals. 

S.T.V. is the natural daughter of N.V. (father) and E.P. 

(mother) . They were divorced in 1975 when S.T.V. was 

approximately 18 months old. The mother was granted custody, 

with reasonable rights of visitation awarded to the father. 

The father was ordered to pay $50 a month child support. No 

monetary child support has ever been paid. The father owed 

over $6,000 in child support at the time of the hearing. 

The mother subsequently married appellant, T.R.P. 

Appellant wishes to adopt S.T.V. in order to ensure the 

child's future financial security. Specifically, appellant 

and the mother each testified that the petition to adopt was 

motivated by their desire to guarantee that if "something 

happened to [appellant]," the mother would receive social 

security benefits on behalf of S.T.V., and if the mother 

died, appellant would be able to raise S.T.V. 

In addition, both the mother and appellant testified 

that S.T.V.'s relationship with the natural father was very 

good, "cordial, warm, affectionate." The mother also related 

that she had no intention of altering the natural father's 

visitation rights should the petition to adopt be granted. 

S.T.V., who was fourteen at the time, testified pursuant 

to § 40-8-113, MCA, that she consented to the adoption. 

At the close of the hearing on September 8, 1986, the 

trial judge issued his ruling from the bench: 

. . . My view of this case is that there's a 

two-step approach that must be made. First step is 

to determine whether or not, in this case, the 

father was able but did not pay child support. I 

find that he was able and that he did not pay child 
support during the one year preceding the filing of 

the petition. 

The second step is for the Court to determine 

what's in the best interest of the child. Therein 

lies the most troubling aspect of this case. 

There's been no showing by the Petitioner . . . that the visitation with the father is harmful to 

[S.T.V.] . In fact, the mother wants this 

visitation to continue. Unfortunately, the law 

does not provide for continued visitation in the 

event that the petition for adoption is 

granted.. . . 

Tr. p. 101, In. 17-25; p. 102, In. 1-5. 

The trial judge thereafter discussed the reasons why the 

petition to adopt was filed. He concluded that potential 

social security benefits are not sufficient reason for 

depriving a parent of parental rights. Further, concerns 

regarding the care of S.T.V. in the event of her mother's 

death are remedied by 5 40-4-221, MCA, which provides that 

appellant could petition for custody at that time. The judge 

then concluded that the petition to adopt was not in S.T.V.'s 

best interests. 

T.R.P. filed a notice of appeal ten days later, 

September 18, 1986. That same day, the trial judge filed his 

written findings of fact, conclusions of law and order 

denying the petition to adopt. The trial judge expounded on 

his reasons for denying the petition: 

Because of the ongoing beneficial, loving, strong 

relationship between [S.T .V. 1 and her natural 

father, her best interests are served by continuing 

the parent-child relationship between them. 

Conclusion of law no. 5. 

The timing of the notice of appeal vis-A-vis the written 

order raises a question as to whether the trial judge had 

jurisdiction to enter his order. "Except for ancillary 

matters, once a notice of appeal is filed with this Court, 
the trial court loses jurisdiction." Churchhill v. Holly 

Sugar Corporation (Mont. 1981), 629 P.2d 758, 760, 38 St.Rep. 

860, 862, citing Northern Plains Resource Council v. Board of 

Health and Environmental Sciences (1979), 184 Mont. 466, 603 

P.2d 684. In Churchhill, supra, this Court held that the 

lower court lacked jurisdiction to file supplementary 

findings of fact and conclusions of law seven days after a 

notice of appeal was filed as "[ilt is unfair to the 

appealing party to permit the trial court to clean up the 

evidentiary and legal record after the notice of appeal has 

been filed." 629 P.2d at 760, 38 St.Rep. at 863. However, 

in this instance the documents were filed on the same day. 

There was no time for the trial judge to "clean up the 

evidentiary and legal record." In fact, the written order 

reflected the oral order almost exactly. 

No time of filing is indicated, but the judge's 

findings, conclusions and order are placed ahead of the 

notice of appeal in the District Court file. We engage the 

presumption that things which are to be done are done, 

(S 1-3-220, MCA, and proceed under the assumption that the 

trial judge's order was entered prior to the filing of the 

notice of appeal. 

We must next consider whether the trial judge abused his 

discretion in considering the best interests of S.T.V. after 

determining that her natural father's consent for the 

adoption was not required. We find no abuse of discretion. 

Appellant's assertion that an adoption petition should 

be granted immediately upon determination that the natural 

father's consent is not required has no basis in law. It 

focuses solely upon the father's failure to provide financial 

support and disregards completely the needs of the child. 

The child's best interest is one of the most important 

factors to be considered in determining whether a petition to 
adopt should be granted. Section 40-8-124(6), MCA. Once the 

statutory requirements for consent to an adoption are met 

(S 40-8-111, MCA), the best interests of the child becomes 

the paramount consideration. In the Matter of the Adoption 

of Smigaj (1977), 171 Mont. 537, 560 P.2d 141. 

The trial judge acted properly in considering the best 

interests of S .T.V. His determination that S.T.V.'s 

interests would be best served by continuing regular contact 

with her natural father is completely supported by the 

evidence. 

Affirmed. 

We concur: 

w ief Justice 

Justices 
Mr. Justice John C. Harrison, dissenting. 

There is an old saying in the law that bad facts make 

bad law. In my opinion, in this case, good facts have made 

bad law. We have here a young lady over the age of ten, who 

has given her personal consent to be adopted by her 

step-father, and would benefit from his estate. He has given 

her love and affection far in excess of that she has received 

from her natural father, yet is denied the final step of 

having her step-father be declared her father. To me, this 

is a clear abuse of discretion on the part of the District 

Court, in view of the good facts of the case. 

Following a divorce from the natural father, S.T.V.'s 

mother remarried when S.T.V. was approximately eighteen 

months old. The mother was awarded custody, with reasonable 

visitation rights granted to the natural father. S.T.V.'s 

natural father was ordered to pay $50 per month child support 

commencing in 1975. No monetary support has ever been paid. 

At the time of the petition to adopt, the father owed over 

$6,000 in child support. The mother, in spite of never 

receiving any support monies from the father, has allowed the 

relationship with the child and the natural father to develop 

into one which is "cordial, warm, [and] affectionate." The 

mother testified she had no intention of altering that 

relationship, or the natural father's visitation rights, if 

the petition to adopt was granted. Because she is far more 

tolerant than most ex-wifes, both she and S.T.V., in my 

opinion, are being penalized by the decision of the District 

Court in not allowing the adoption. 

The District Court Judge in discussing the reasons why 

the petition should be denied, concluded that the potential 

social security benefits of the adoptive father are not 

sufficient reason for depriving the natural father of his 
parental rights. In addition, the mother testified she 

wanted her present husband to care for S.T.V. in the event of 

her death. In the District Court's opinion, should this 

occur, the remedy is found in 5 40-4-221, MCA, which allows 

the appellant to petition for custody at that time. The 

District Court Judge concluded, that the petition was not in 

S.T.V.'s best interest. 

In my opinion, if ever a case cried out for a reversal, 

this case does. First, the child has consented, 5 40-8-113, 

MCA. Second, the very fact that the natural father has not, 

for over ten years, although able to do so, paid one dime of 

support money to the child, deprives him of any legal right 

to protest the adoption. Section 40-8-111(a) (v), MCA. 

Third, S.T.V. should have a right to inherit from her 

adoptive father, the evidence clearly showing that she would 

inherit nothing from her natural father. Finally, it would 

be in her best interest, should there be an emergency in 

which the mother could not make a decision and the natural 

father not available, that her step-father should have the 

legal authority of her father to step in and make a decision 

as her father. These facts are not sufficient to support a 

finding it would be in the child's best interest not to be 

adopted by appellant. 

In my opinion, S.T.V.'s best interests are served by 

the "natural mother's desire to obtain the petitioner's 

social security benefits in the event of his decline in 

health. " This is a sufficient cause to terminate the 

respondent's parental rights with the daughter, particularly 

in view of the fact there is absolutely no indication that 

the natural father has any desire to give the child anything 

but his "affection." The natural father appears to be that 

kind of parent who "seeks the benefits of parental rights but 

shuns the burden of parental obligations." We have held that 
the statute cannot be interpreted in favor of a parent who 

has done what the father has done in this case. Matter of 

S.L.R. (1982), 196 Mont. 411, 640 P.2d 886. 

I would remand this case to the District Court to grant 

the petition for adoption. 

A 

Mr. Justice John C. joins in the foregoing 

dissent of Mr. Justice John C.