NO. 91-167 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE ADOPTION OF 

V.R.O. AND V.N.O. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bryan L. Asay; Kelley & Asay, Helena, Montana 

For Respondent: 

Linda McNiel; Bozeman, Montana 

Submitted on Briefs: June 28, 1991 

Decided: October 30, 1991 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Respondent is the stepfather of V.R.O. and V.N.O., two minor 

children. Respondent filed a petition in the District Court for 

the adoption of the two children. Appellant, the natural father of 

the children, opposed the petition. The District Court grantedthe 

stepfather's motion for partial summary judgment terminating the 

natural father's parental rights. The natural father appeals from 

this decision. We reverse and remand. 

The natural father raises two issues on appeal: 

1. Did the District Court properly determine that the 

natural father was able to contribute to the support of the 

children during the year prior to the filing of the petition for 

adoption? 

2. Did the District Court err when it concluded that it need 

not consider the best interests of the children before terminating 

the natural father's parental rights? 

V.R.O. and V.N.O. are the natural children of Lydia Crossman 

(mother) and appellant Kenneth Osborn (natural father). V.R.O. was 

born in 1982, and V.N.O. was born in 1985. In June 1987, Lydia and 

Kenneth were divorced. Pursuant to the divorce decree, the 

children's primary residence was with their mother. Kenneth was 

granted the right to visitation with his children. He was ordered 

to pay child support of $120 per month per child. 

In January 1988, Lydia married respondent Douglas Crossman 

(stepfather). Kenneth has also remarried and lives with his wife 

2 
and his wife's daughter. In March 1990, Douglas filed a petition 

to adopt V.R.O. and V.N.O. Lydia consented to the adoption 

pursuant to 5 40-8-111, MCA. In support of his petition for 

adoption, Douglas alleged that the natural father had not paid any 

child support for more than one year, and that the adoption could 

be decreed without the natural father's consent pursuant to 

5 40-8-111(1) (a) (v) , MCA. 

Kenneth opposed the adoption petition. He stated that 

although he was willing and desired to support his children, he had 

not been able to contribute to their support on a regular basis 

during the previous year. He also contended that it was in the 

best interests of V.R.O. and V.N.O. to maintain a parent-child 

relationship with him and to have regular visitation with their 

natural father. 

In his answers to interrogatories, Kenneth admitted that he 

owed arrearages for child support from 1987 ($960), 1988 ($2880), 

1989 ($2880), and 1990 ($1920), and that he had only paid $350 in 

child support since the divorce. All of that amount was paid in 

the first few months of 1990. Kenneth stated that he had not been 

able to pay more because he was trying to start his own business 

and the business was not yet financially successful. 

The stepfather moved the District Court for partial summary 

judgment terminating the natural father's parental rights. Douglas 

contended that Kenneth's parental rights could be terminated upon 

a showing that Kenneth was able to pay, but did not pay child 

3 
support for a period of one year before the filing of the petition 

for adoption. 

The District Court granted Douglas's motion for partial 

summary judgment terminating the natural father's parental rights. 

The District Court noted that the $350 in child support payments 

Kenneth made in 1990 should be applied first to the arrearages from 

prior years. See, eg., Matter ofAdoption of l2.A.S. (1984), 208 Mont. 438, 

679 P.2d 220. The District Court determined that Kenneth was able 

to pay child support during the year before the filing of the 

adoption petition. The District Court concluded that because 

Kenneth was able to pay child support, but did not pay, his consent 

to the adoption of V.R.O. and V.N.O. was not required pursuant to 

5 40-8-111(1) (a) (v), MCA. Further, on the basis of Kenneth's 

failure to pay child support, the District Court granted the motion 

for partial summary judgment and terminated Kenneth's parental 

rights. 

Kenneth appeals from this decision. 

I 

Did the District Court properly determine that the natural 

father was able to contribute to the support of the children during 

the year prior to the filing of the petition for adoption? 

Kenneth admits that he has only paid a total of $350 in child 

support since the June 1987 divorce. He does not claim that he 

supported his children during the year preceding the filing of the 

adoption petition. He contends, however, that the District Court 

4 
erred when it concluded he was able to pay child support during 

this period. 

Because parental rights involve a fundamental liberty 

interest, a judicial decree terminating such rights must be 

supported by clear and convincing evidence. Matter of Adoption of R.M. 

(1990)' 241 Mont. 111, 115, 785 P.2d 709, 711. In order to 

determine whether a parent is "able" to contribute to child 

support, the trial court must examine several factors. These 

factors include: 

1) The parent's ability to earn an income: 

2) The parent's willingness to earn an income and 

support his child: 

3) The availability of jobs; 

4) The parent's use of his funds to provide himself 

only with the bare necessities of life prior to providing 

support for his child. 

MatterofAdoption 0fKL.J.K (1986), 224 Mont. 418, 423, 730 P.2d 1135, 

1139. 

The District Court must consider the non-supporting parent's 

ability or inability to pay as it relates to the year preceding the 

filing of the petition for adoption; in this case the period of 

March 1989 to March 1990. Section 40-8-111(1)(a)(v), MCA. Income 

received during this period is obviously relevant to ability to pay 

child support. However, income or property received more than a 

year before the filing of the petition may also be available to the 

parent for use in paying child support. Further, lack of income 

5 
duringthe statutory period is not necessarily determinative on the 

issue of ability to pay. See, eg., Matter ofAdoptioii of B.L.P. (1986), 224 

Mont. 182, 728 P.2d 803 (father voluntarily gave up a steady job 

for a potentially more lucrative position which failed to 

materialize, and father's financial priorities obviously did not 

include providing child support) : MatterofAdoption of S.L.R (1982), 196 

Mont. 411, 640 P.2d 886 (parent cannot voluntarily remain 

unemployed and then claim inability to pay as an excuse for not 

paying child support). 

The District Court's order granting partial summary judgment 

mentions the following facts in support of its determination that 

Kenneth was able to provide child support: 

1. Kenneth owned certain assets, including real property in 

Flathead County, two guitars, a PA system, two 1970 model vehicles, 

rifles, chain saws, and a truck topper: 

2. Kenneth received a lump sum workers' compensation 

settlement of $24,000 in December 1986; 

3. Kenneth did not come into court to attempt to modify the 

child support payments, but simply chose not to pay support. 

It is not clear, however, whether the listed assets were 

convertible to cash which could be used to pay child support, or 

whether any of the 1986 workers' compensation settlement remained 

available for this use. The real property mentioned is apparently 

the home of Kenneth and his new family. Normally, a home should 

qualify as a "necessity," and it is not clear that sale of the home 

6 
would result in additional money being available for child support. 

The District Court's findings do not include any discussion of 

Kenneth's income or ability to earn income during the relevant 

period, or the cost of providing himself with the necessities of 

life. 

We conclude that the District Court's findings are 

insufficient on the issue of Kenneth's ability to pay child 

support. Accordingly, we remand this matter to the District Court 

for further findings on this issue. 

I1 

Did the District Court err when it concluded that it need not 

consider the best interests of the children before terminating the 

natural father's parental rights? 

The natural father contends the District Court erred when it 

concluded that it need not consider the best interests of the 

children before terminating his parental rights. We agree. 

A finding under § 40-8-111(1) (a) (v), MCA, that the parent, 

although able, failed to contribute child support during the 

statutory period, goes to the issue of whether the parent's consent 

is required for adoption. Neither the adoption nor the termination 

of parental rights follows automatically from this finding. See 

5 40-8-lll(l), MCA ("[aln adoption of a child may be decreed 

.... [emphasis added]). Having determined that the nonsupporting parent's consent to adoption is not required, the 

district court must then exercise its discretion in determining 

7 
whether the adoption is in the child's best interest. Sections 

40-8-123(1) and 40-8-124(6), MCA. After the final decree of 

adoption is entered, the adopting parent assumes the legal 

relationship of parent to the child, and the natural parent is 

relieved of all parental rights and responsibilities. Section 

40-8-125(1) and (2), MCA. 

In MatterofAdoption of S.T.K (1987), 226 Mont. 18, 733 P.2d 841, 

the district court determined that although the natural father had 

failed to pay child support, there was an ongoing beneficial and 

loving relationship between the father and the child, and that the 

child's interests were best served by continuing that relationship. 

Affirming the district court's decision, this Court stated: 

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 (9 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. 

Adoption of S.T.K, 733 P.2d at 842. 

Respondent cites certain past decisions of this Court, e.g., 

In Re Adoption 0fS.E. (1988), 232 Mont. 31, 755 P.2d 27, for the 

proposition that parental rights may be terminated simply upon a 

showing that the parent, without legal excuse, failed to provide 

8 
child support during the statutory period. This view is in 

conflict with our reasoning in cases such as AdoptioitofS.T.V., quoted 

above. To the extent that language in our prior cases is in 

conflict with Adoption of S.TV., it is disapproved. 

The natural parent's rights cannot be terminated under 

5 40-8-111, MCA, independent of the determination that adoption is 

appropriate. Adoption is not appropriate unless it is found to be 

in the child's best interest. In evaluating the child's best 

interest for purposes of the chapter on adoption, the court should 

consider benefits of the child's relationship with the natural 

parent in addition to those benefits derived from financial 

support. 

For these reasons, we reverse the judgment of the District 

Court terminating Kenneth's parental rights and remand this case to 

the District Court for further proceedings consistent with this 

opinion. 

Reversed and remanded. 

I ' Jyktice 

We concur: 

9 
10 
October 30, 1991 

CERTIFICATE OF SERVICE 

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

named: 

Bryan L. Asay 

Kelley & Asay 

328 Fuller Ave. 

Helena, MT 59601 

Linda McNiel 

Attorney at Law 

502 S. 19th, Ste. 201 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

De#utyC 1