No. 92-554 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN THE MATTER OF L.E.B., 

a minor child. 

APPEAL FROM: District Court Of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

it i' 

For Appellant: ud& 2 @I .r: 

William K. Hammer and Gary S. Deschenes, 

Deschenes Law Office, Great Falls, Montana 

Filed: 

Submitted on Briefs: March 4, 1993 

~ecided: July 29, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The mother of L.E.B., a minor child, appeals from an order of 

the District Court for the Eighth Judicial District, Cascade 

County, which terminated the mother's parental rights and granted 

the child's grandparents* petition for adoption. 

We affirm. 

The issue on appeal is restated as follows: 

Did the District Court err when it terminated the mother's 

parental rights and concluded that her consent to the adoption was 

not necessary? 

L.E.B. was born on July 10, 1981, when his mother, Donna, was 

seventeen years old. Although the natural father's identity is 

known, he has never been involved in the care or support of L.E.B., 

is not a party to this lawsuit, and does not challenge the court's 

termination of his parental rights. 

With the exception of a few brief periods when he resided with 

his mother, L.E.B. has lived with his maternal grandparents in 

Great Falls since birth. In 1984, when L.E.B. was three years old, 

Donna enlisted in the Montana Air National Guard. At Donna's 

request, and pursuant to National Guard regulations which require 

single parents to name a guardian for their minor children during 

the term of enlistment, the child's grandparents petitioned the 

trial court to appoint them as co-guardians of L.E.B. This request 

was granted on August 10, 1984. 

After spending approximately one year in the National Guard, 

Donna transferred to the Army and was subsequently discharged on 
October 11, 1985, for medical reasons. Without informing her 

parents of her discharge, Donna moved to California where she has 

resided ever since. At that time, she did not terminate the 

guardianship nor seek to have L.E.B. returned to her care. 

In June 1987, Donna's parents took L.E.B. to California to 

visit her for the summer. L.E.B. remained in California with Donna 

and attended first grade during the 1987-88 school year. 

After discovering that L.E.B. was having serious difficulties 

in school due to dyslexia, his mother testified that she and her 

parents agreed that L.E.B. would spend the next three years with 

his grandparents in order to take advantage of a special education 

program available in the public school system in Great Falls. The 

grandparents, however, deny that there was a discussion regarding 

a time limit on L.E.B. Is return to Montana. In fact, they 

testified that, in addition to L.E.B.'s problems with dyslexia, 

they brought him back to Montana due to concerns about Donna's 

drinking and the care L.E.B. was receiving. 

Donna visited L.E.B. during the summer and Christmas of 1989, 

but had virtually no other contact with L.E.B. up until July, 1991. 

Furthermore, although gainfully employed throughout much of the 

time that her parents were caring for L.E.B., Donna never provided 

financial support for L.E.B. other than occasional gifts and 

clothing. 

During the summer of 1991, when Donna arrived in Great Falls 

with the intention of returning L.E.B. to California, her parents 

refused to release L.E.B. to her custody, citing their rights as 
guardians. As a result, Donna petitioned the District Court on 

August 6, 1991, for custody and termination of the guardianship. 

Her parents countered with a petition to terminate Donna's parental 

rights and to adopt L.E.B. 

A non-jury trial was held on April 9, 1992 and July 2, 1992. 

At the conclusion of the trial, the court granted the grandparentse 

petition and allowed them to adopt L.E.B., thereby terminating 

Donnats parental rights. In its Findings of Fact and conclusions 

of Law, issued on October 5, 1992, the court found that Donna had 

no contact with L.E.B. since the summer of 1989, had not provided 

financial support for him since 1984, and would not be able to 

provide L.E.B. with a stable and loving home environment. The 

court also found that Donna's testimony was not credible due to 

numerous inconsistencies and her "history of lies and deceit.*' The 

court concluded that it would be in L.E.B.'s best interests to be 

adopted by his grandparents. That conclusion is not contested on 

appeal. The court further determined that his motheres consent to 

the adoption was not required due to her failure to provide support 

for him during the year preceding the filing of the petition, and 

her willful abandonment of L.E.B. 

From the court's Findings of Fact, Conclusions of Law, and 

Decree, Donna appeals. 

Did the District Court err when it terminated Donna's parental 

rights and concluded that her consent to the adoption was not 

necessary? 
Citing In theMatterofAschenbrenner (1979), 182 Mont. 540, 597 P.2d 

1156, Donna contends that, since the guardianship was still in 

effect, the court was required to find abuse and neglect before 

terminating her parental rights in favor of a non-parent. She 

argues that the court improperly considered only the adoption 

statute without considering the statutes governing guardianship, 

jurisdiction of child custody, and termination of the parent-child 

relationship. 

However, the grandparents' petition for adoption was commenced 

pursuant to the provisions of the Uniform Adoption Act found at 

gg 40-8-101 through -136, MCA. On appeal, this Court must consider 

whether the trial court properly found that the statutory criteria 

for adoption of a minor, without the consent of a parent or 

parents, were satisfied. The authority Donna relies on involved an 

attempt to terminate parental rights through a guardianship 

proceeding, and this Court held that such a proceeding was not a 

proper means to terminate a parent's constitutional right to 

custody of his or her children. Aschenbrenner, 597 P.2d at 1164, In 

this instance, the guardianship was not the basis for terminating 

Donna's rights. 

We have recognized on several occasions that there is some 

overlap in the statutes pertaining to parent-child relationships 

and have cautioned the district courts to identify and adhere to 

the proper procedures and standards to be used in the proceedings 

before them. GuardiamhipofNeIson (1983), 204 Mont. 90, 663 P.2d 316; 
Aschenbrenner, 597 P.2d at 1156. Here, the proceeding initiated by 

Donna's parents was an adoption proceeding, and the record shows 

that the court properly considered the applicable criteria and 

procedures for the adoption of minors in the absence of parental 

consent. 

Generally, before the District Court can allow the adoption of 

a child there must be parental consent. Section 40-8-lll(1) (a), 

MCA. However, the statute provides, in pertinent part, that an 

adoption of a minor can be judicially decreed without the consent 

of the parent(s) "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," or if it is shown that the parent(s) 

mwillfully abandoned the child, as defined in 41-3-102(3)(d).t' 

Sections 40-8-lll(1) (a) (iii) and (v), MCA. Once a final decree of 

adoption is entered, the natural parent(s) are thereafter relieved 

of all parental responsibilities and have no rights to the adopted 

child. Section 40-8-125, MCA. 

Turning first to the question of support, we have held that in 

order for the court to find that a parent's consent is not 

necessaryto terminate parental rights and allow an adoption, there 

must be clear and convincing evidence that the parent has not 

contributed to the support of the child for one year and was able 

to do so. Adoption ofJ.B.T. (1991), 250 Mont. 205, 207, 819 P.2d 178, 

179. 
In this instance, the District Court found that Donna had not 

contributed to L.E.B.'s support during a period of one year prior 

to the filing of the petition for adoption. A review of the record 

demonstrates that the testimony was undisputed that she had not 

contributed to L.E.B.'s support at any time during the 

guardianship, and specifically, had not provided support from 

Augiist 1990 through August 1991, the year preceding the adoption 

petition. By her own admissions, she has been employed as an 

accountant since 1989, and her ability to provide support for 

L.E.B. is not an issue. She contends, however, that the 

guardianship order did not contain support provisions, and that her 

parents never requested support from her. Furthermore, she argues 

that she provided full support for L.E.B. during the times that he 

was in her custody, paid for his transportation to and from 

California for visits, covered him on her health insurance plan, 

and gave him gifts, school clothes, and spending money. 

We note first that this Court recently held that "a parent's 

obligation to support his child is not dependent on an order of the 

Court . . . . There is no requirement under !j 40-8-lll(l)(a)(v), 

MCA, that child support be court ordered. Adoption of D.J.I/: (1990) , 

244 Mont. 209, 213, 796 P.2d 1076, 1078. Moreover, we have 

repeatedly held that providing occasional articles of clothing or 

other gifts does not satisfy a parent's obligation to provide 

financial support. Adoption ofKL.J.K (1986), 224 Mont. 418, 421, 730 

P.2d 1135, 1137; AdoptionofS.L.R (1982), 196 Mont. 411, 414-15, 640 
P.2d 886, 888. Donna's health insurance only covered L.E.B. when 

he resided in California. It is uncontroverted that L.E.B. has 

resided with his grandparents in Great Falls since May 1988, and 

the evidence clearly denionstrates that L.E.B.'s medical bills have 

always been paid for by his grandparents' health insurance, rather 

than his mother's. Finally, it is undisputed that Donna did not 

see L.E.B. &iring the rslevant year in question. Even if payment 

of travel expenses c~uld be construed as a fom of support, there 

were no such expenses incurred during this time. 

We conclude that there was clear and convincing evidence to 

support the District Court's findings that Donna failed to support 

L.E.B. although financially able to do so. Therefore, we do not 

need to evaluate the evidence of abandonment, which is a separate 

and independent basis for allowing adoption without parental 

consent. The trial court need only find one of the statutorily 

enumerated substitutes for consent in order to proceed with an 

adoption. Adoption of C.RD. (1989), 240 Mont. 106, 782 P.2d 1280. 

We hold that the court did not err when it terminated Donna's 

parental rights and allowed her parents to adopt L.E.B. on the 

grounds that Donna's consent to the adoption was not necessary due 

to her failure to provide support. The order of the District Court 

is affirmed. 
We concur: 
July 29, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Barbara E. Bell 

Bell & Marra 

9 3rd Street N., 201 Liberty Center 

Great Falls, MT 59401 

Gary S. Deschenes 

Attorney at Law 

P. 0. Box 3502 

Great Falls, MT 59403-3502 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE-OF MONTANA