N O. 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 EighteenthJudicialDistrict, In and for the County of Gallatin, The Honorable ThomasA. 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 adoptionof the two children. Appellant, the natural father of the children, opposed thepetition. TheDistrict 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 DistrictCourt errwhen it concluded that itneed not consider the best interests of the childrenbefore terminating the natural father's parental rights? V.R.O. and V.N.O. are the natural children 

### of Lydia Crossman (mother)and appellantKenneth Osborn (naturalfather). V.R.O. was born in 1982, andV.N.O. was born in 1985. InJune 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

2and 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 fatherhad 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 althoughhewas willing and desired to supporthis 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 fewmonths 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 judgmentterminating thenatural 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

3support 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 Kennethmade in 1990 shouldbe applied first to the arrearages from prior years. See, eg.,MatterofAdoptionofl2.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 Kennethwas able topay 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 topay child support,the District Court granted themotion 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 fatherwas able to contribute to the support of the childrenduring 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 supportedhis childrenduring the year preceding the filing of the adoption petition. He contends,however, that the District Court

4erred 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. MatterofAdoptionofR.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 onlywith thebare necessities of lifeprior toproviding support for his child. MatterofAdoption0fKL.J.K (1986), 224 Mont. 418, 423, 730 P.2d 1135, 1139.The District Court must consider the non-supporting parent's ability or inabilitytopay as it relates to the yearpreceding 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 thisperiod is obviouslyrelevant to ability topay child support. However, income or property received more than a year before the filing of thepetitionmay also be available to the parent for use in paying child support. Further, lack 

### of income

5duringthe statutoryperiod is not necessarily determinative on the issue of ability to pay. See,eg.,MatterofAdoptioii

### ofB.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 includeproviding child support):MatterofAdoptionofS.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 1970model 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 6would result in additionalmoney 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 thismatter 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 childrenbefore 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 statutoryperiod,goes to the issue of whether theparent's consent is required for adoption. Neither the adoptionnor 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

7whether 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 MatterofAdoptionofS.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 relationshipbetween the father and the child, and that the child's interestswere best servedby continuing that relationship. Affirming the district court's decision, this Court stated: Appellant's assertion that an adoptionpetition shouldbe granted immediately upon determination that the natural father's consent isnot requiredhas no basis in law. It focuses solely upon the father's failure to provide financial support and disregards completely theneeds of the child. The child's best interest is one of themost important factorstobe considered indeterminingwhether a petition to adopt should be granted. Section 40-8- 124(6),MCA. Once the statutoryrequirements for consent to an adoption are met (9 40-8-111, MCA), the best interests of the child becomes the paramount consideration. IntheMatteroftheAdoptionof

### Smigaj (1977)

## , 171 Mont. 537, 560 P.2d 141. AdoptionofS.T.K, 733 P.2d at 842. Respondent cites certain past decisions of this Court, e.g., 

### InReAdoption 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

8child support during the statutory period. This view 

### is in conflictwith our reasoning in cases such asAdoptioitofS.T.V., quoted above. To the extent that language in our prior cases 

### is in conflict withAdoption

### ofS.TV., it is disapproved. The natural parent's rights cannot be terminated under 5 40

-8

-111,MCA, independent of thedetermination 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 forpurposes 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 terminatingKenneth's parental rightsand remand this caseto the District Court for further proceedings consistent with this opinion. Reversed and remanded. 

# I 'Jyktice We concur:

910October30, 1991 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentby United States mail,prepaid,tothefollowing named: Bryan L.Asay Kelley&Asay 328Fuller Ave. Helena,MT 59601 LindaMcNiel Attorney at Law 502S.

### 19th,Ste.201 Bozeman,MT 59715 ED SMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA BY: De#utyC 

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