NO. 93-477 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ADOPTION OF 

J.M.H. and S.B.H., 

Minors. 

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 Law Firm, Helena, 

Montana 

For Respondent: 

Peter S. Lineberger; Lineberger, Walsh & McKenna, 

Bozeman, Montana 

f? $ (7 Filed... f&.d *-.j::?i.:rt 

Decided: March 24, 1994 

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Justice John Conway Harrison delivered the Opinion of the Court 

This is an appeal from the Eighteenth Judicial District Court, 

Gallatin County. The District Court granted the adoptive father's 

petition to allow the adoption of J.M.H. and S.B.H. (the children) 

to proceed without the natural father's consent. The court further 

concluded that the natural father was able to pay child support, 

but failed to do so. The natural father appeals the District 

Court's ruling on the consent issue and the court's denial of a 

continuance of the May 11, 1993, "best interestu hearing. We 

affirm. 

The issues are: 

1. Did the District Court err by finding that the natural 

father, though able, failed to pay child support? 

2. Did the natural father waive his right to be present at 

the May 11, 1993, "best interest" hearing? 

Natural father, John Heikkila (John), and natural mother, 

Karen Beth Sorensen (Karen), were married in 1983 while attending 

Montana State University in Bozeman, Montana. After the birth of 

their first daughter, the couple moved to Colorado so that John 

could attend veterinary school. The couple's second daughter was 

born in 1986. In July 1987, before John graduated from veterinary 

school, the couple separated. The marriage was dissolved in 

Colorado on December 28, 1988. 

The final decree of dissolution addressed, among other things, 

matters of child custody, visitation, child support and marital 
debts. John and Karen were awarded joint custody of the children. 

Karen was namedthe primary physical custodian. The parties agreed 

that Karen and the children would return to Montana. John was 

granted "liberal and generous visitation" in Montana. He was also 

granted up to ten days of visitation per summer in Colorado, so 

long as John's sister escorted the children. 

The Colorado court also ordered John to pay child support of 

$200 per month, less than the amount required by Colorado's Child 

Support Guidelines, due to his student status. Visitation and the 

monthly child support payments were to be renegotiated after John's 

graduation from veterinary school or upon securing full-time 

employment. 

Karen returned to Bozeman after the dissolution. While there, 

she met Timothy Lee Barth (Tim). They were married on December 22, 

1990. In May 1990, John graduated, became licensed, and secured a 

position as a veterinarian in Colorado. Despite the Colorado 

court's order, John and Karen never renegotiated visitation and 

child support. 

While John paid $2,050 in child support over the years, he 

still owes $10,600 in back payments. John's total debts, including 

sizable student loans, are about $70,000. John's tax returns 

indicated that in 1990, the year he graduated and worked for six 

months, he earned approximately $15,000. In 1991, he earned 

$31,367, and in 1992, $32,400. 

Two years after Tim and Karen were married, Tim sought to 

adopt the children. John made numerous attempts to delay and 
prevent Tim's adoption of his children. Tim's petition to the 

Eighteenth Judicial District Court stated in part: 

Since the marriage between KAREN BARTH and the 

Petitioner, TIMOTHY LEE BARTH, both minor children have 

resided with the above parents as their natural 

child[ren]. 

The Petitioner desires to adopt [J.M.H.] and [S.B.H.] as 

his own children, to be treated in all respects as if 

they were the natural children of the Petitioner, to take 

the family name of BARTH, . . . and be entitled to the 

support, affection and inheritance of the Petitioner in 

all respects establishing the relationship of parent and 

child between the Petitioner and [the children]. 

The court set an adoption hearing for May 11, 1993. In an effort 

to prevent this hearing, John filed a petition for writ of mandamus 

with this Court. John's petition was denied on May 11, 1993--the 

same day that the District Court made its findings of fact, 

conclusions of law and final decree of adoption, granting Tim's 

request. John appeals. We affirm. 

I 

Did the District Court err by finding that the natural father, 

though able, failed to pay child support? 

During the period in which he accrued child support 

arrearages, John chose to repay his general creditors rather than 

fulfill his child support obligation. Karen, on the other hand, 

returned to Montana, where she attended and graduated from Montana 

State University. At the time she graduated, Karen owed her 

parents more than $10,000. Her financial situation was compounded 

because, during most of that period, she was not receiving her $200 

monthly child support payments. 

4 
John testified that prior to the dissolution, Karen received 

money from a trust fund established for Karen's use by her parents. 

John believes the fund is valued at $60,000 to $70,000, and it 

largely supported the couple in Colorado. After Tim and Karen were 

married, with the exception of a two-month period in which John 

sent $250 in child support, Tim financially supported Karen and the 

children. 

John contends that before and since his graduation in May 

1990, he was too poor to make any payments other than those he 

made. He asserts that he only earned $23,444 after taxes, and had 

expenses of $24,220, in 1990. John argues that he has: juggled 

student loans and debts of $72,000; enjoyed no luxuries; no health 

insurance; no savings; no television; no boat; no snowmobile; one 

credit card through a gas company; and at one point, he even lost 

electrical service to his home due to a delinquent bill. 

John claims to have a fundamental right--specifically, a 

liberty interest--in his children, which prevents anyone from 

"taking" his children without his consent. See § 48-8-111(1), MCA. 

John asserts that Tim, who wishes to adopt his children, must 

establish by clear and convincing evidence that John was able to 

contribute to the support of the children the year before Tim filed 

the adoption petition. 

He argues that Montana law requires strict compliance with the 

statute that the burden of proof rests with Tim. John contends 

that he presented overwhelming evidence of his inability to pay 

during the period in question; that Tim presented no evidence of 
John's failure to pay; and that Tim failed to meet his burden of 

proof. Because no clear and convincing evidence exists that he was 

able to pay support, John argues that the District Court's decision 

must be reversed. 

In support of his contention, John refers this Court to g 40- 

8-111(1), MCA, which provides in pertinent part: 

Consent required for adoption. (1) An adoption of a 

child may be decreed when there have been filed written 

consents to adoption executed by: 

(a) both parents, if living, or the surviving parent 

of a child, provided that consent is not required from a 

father or mother: 

(v) 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; . . . . 

The issue in dispute at the November 20, 1992, hearing was 

John's ability to pay. John argues that the burden of proving his 

ability to pay during the year prior to the filing of the petition 

lies with Tim. Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 

886, 889. Tim met this burden by showing that John earned about 

$24,000 after taxes, paid $8,376 in student loans, and made 

payments to other general creditors, including his divorce lawyer. 

The District Court concluded that, although he was able to pay, he 

did not contribute to the support of his children in the year 

before Tim filed the adoption petition. In so finding, the court 

determined that John's consent to the adoption was not required. 

We will not overturn a district court's findings unless they 

are clearly erroneous. Rule 52(a), M.R.Civ.P.; Adoption of B.L.P. 

6 
(1986), 224 Mont. 182, 728 P.2d 803. This Court has "long adhered 

to the standard of review which provides that we will consider only 

whether substantial credible evidence supports the findings and 

conclusions of the trial court." B.L.P., 728 P.2d at 805 (citation 

omitted). 

In B.L.P., this Court enunciated this standard of review in 

discussing whether the appellant was able to make support payments 

during the year immediately prior to the date the adoption petition 

was filed. John refers to the "clear and convincing" standard, 

which is applicable to the evidence presented at the district court 

level. However, it is unnecessary that this Court retry the facts 

under the "clear and con~incinq~~ standard. Rather, we review the 

district court's findings under the clearly erroneous and 

substantial credible evidence standards. 

At the November 22nd hearing, when asked if he chose to repay 

creditors rather than pay child support, John stated: 

It hasn't been in preference. They are not more 

important than my daughters, but it has been paid more 

out of necessity. I am aware that Karen and Tim are not 

in need of the money. My girls do not suffer because of 

a lack of that money and these other bills, they're--at 

the present time they had the capacity to hurt me more 

than what I figured Karen would at that time. 

This is not a case of equitable estoppel. Tim and Karen did not 

refuse any child support offers by John "in order to later assert 

at the adoption proceeding that [John's] consent was not 

necessary." See Adoption of D.J.V. (1990), 224 Mont. 209, 214, 796 

P.2d 1076, 1079. Rather, John "has not performed his legal 

responsibility as a parent." See D.J.V., 796 P.2d at 1079. 
In a memorandum supporting its December 21, 1992, findings of 

fact and conclusions of law, the District Court stated: 

There is no question that Dr. Heikkilals borrowings 

for school have left him in financial trouble. This 

court cannot accept, however, that the payment of the 

minimal amount of child support would have led to the 

father's downfall. Dr. Heikkila has shown that he can 

juggle his creditors, especially the student loans, and 

the court concludes that he could have done so while 

supporting his children. Indeed, he had a better payment 

record when he had little earnings as a student. 

We agree with the District Court. Parents are obligated to support 

their children. Sections 40-6-211 and 40-6-214, MCA. The District 

Court's determination that John was able to support his children, 

yet failed to do so, is supported by substantial credible evidence. 

We hold that the District Court's findings were not clearly 

erroneous. 

Did the natural father waive his right to be present at the 

May 11, 1993, "best interestn hearing? 

The District Court notified all parties by its Order of March 

11, 1993, that a "best interestgg hearing would be held on May 11, 

1993. On May 4, 1993, John requested a continuance of the May llth 

hearing. The reason for John's request was that he had secured 

counsel, who would need a "reasonable amount of time to familiarize 

himself with the case.gg The District Court denied John's request 

on May 8th. Neither John nor his attorney appeared at the May llth 

adoption hearing. John argues that the District Court abused its 

discretion by refusing to grant the continuance he requested. 

Ruling on a motion for a continuance is in the sound 
discretion of the trial court. See Fields v. Wells (1989), 239 

Mont. 392, 780 P.2d 1141; In re Marriage of Robbins (1985), 219 

Mont. 130, 711 P.2d 1247. In the case before us, John had notice 

of the hearing, and ample time to secure counsel and arrange 

transportation from Colorado. Instead, he chose not to attend the 

hearing or to have counsel represent him. John was afforded the 

opportunity to attend the hearing, which satisfied all due process 

requirements as set out in Montana law. See, e.g., Adoption of 

R.M. (1990), 241 Mont. 111, 785 P.2d 709. Though adequately 

notified, John effectively waived his right to claim due process 

violations by failing to attend or dispatch an attorney to the 

hearing. We hold that the District Court acted well within its 

discretion when denying John's motion for a continuance. 

Af f inned. 
Justice James C. Nelson specially concurs: 

I concur with the Court's opinion. Something more, however, 

needs to be said about Dr. Heikkila's "abilityu to pay. 

While the dissent has correctly set forth the law with regard 

to the issue of a parent's ability to pay, I disagree that, on the 

facts of this case, the natural father was unable to support his 

children. True, despite his employment as a doctor of veterinary 

medicine, his expenses exceed his income. True, also, he is deeply 

in debt -- largely because of student loans which he used to 

finance his higher education. Agreed, some of his debt is 

delinquent. Conceded, he lives a spartan life without luxuries and 

amenities -- no television, savings, investments, credit cards, 

health insurance, boat or snowmobile. 

No doubt about it, Dr. Heikkilals financial situation is 

bleak. Notwithstanding, he is no worse off than millions of 

Americans, who, despite the inconvenience of bills which exceed 

income, dunning creditors, unemployment, sickness, debt, divorce 

and the fact that whatever can go wrong usually does, somehow find 

the money each month to support their children. Those families and 

single parents take on second and third jobs: they put off paying 

bills; they borrow and scrimp and sacrifice and go on welfare, but, 

nevertheless, from their inadequate incomes their kids get fed, 

clothed and sheltered first. It is, frankly, of small concern to 

a hungry child that his parent's student loan is delinquent. 

I agree with the dissent. The parent-child relationship is 

likely the most important human relationship that exists. But with 
the riqht to be a parent go some responsibilities, not the least of 

which is the obligation to financially support one's children, 

whether they live in one's own home or with the ex-spouse. 

Unfortunately, Dr. Heikkilats perception of his parental 

obligation of support mirrors that of "deadbeat" parents nationwide 

who, on the one hand, sanctimoniously demand their constitutional 

riqht to parent, but who, on the other hand, are more than willing 

to let the custodial ex-spouse, some other family member or third 

party and/or the taxpayer shoulder the entire burden of feeding, 

clothing and sheltering the children 

Dr. Heikkila is not unable to support his children; he just 

chooses to spend what income he has on obligations other than child 

support. His voluntary spending priorities, sadly, include himself 

and his general creditors first, and his children not at all. That 

his spending priorities are misplaced does not equate to an 

inability to support his children. 

The District Court's so is this 

Court ' s . 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

A natural parent has a "fundamental liberty interestu in his 

continuing parental relationship with his children. Santosky v. Kramer 

(1982), 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 

599, 606; see MatterofRB., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 

848. While allowing for the fact that there is great variation in 

the quality of parent-child relationships, it still may be the most 

important human relationship that exists. It is for that reason 

that our courts and legislatures have allowed termination of that 

relationship without a parent's consent under only the most extreme 

circumstances. Those circumstances require not just lack of 

support, but a degree of culpability that is strikingly absent in 

this case. 

Section 40-8-111, MCA, requires consent of both living natural 

parents prior to adoption except for limited circumstances. 

According to subsection (l)(a)(v) of that statute, failure to 

contribute to the child's support during the year preceding the 

petition for adoption is only a basis for waiving consent when it 

can be proven that the noncontributing parent was 'lablew to 

contribute to the child's support. 

We have been insistent in the past that someone petitioning to 

adopt over the objection of a natural parent must prove not only 

the absence of support, but that the nonsupporting parent had the 
ability to contribute to the child's support. In MatterofAdoption of 

(1991), 250 Mont. 205, 207-08, 819 P.2d 178, 179, we stated: 

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

necessary to terminate its parental rights, the burden of 

proof requires that 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. 

In reAdoption 0fS.E. (1988), 232 Mont. 31, 35, 755 P.2d 27, 

29. Hence, the statute requires a two-tier analysis 

before parental rights can be terminated. Matter ofAdoption 

0fR.A.S. (1984), 208 Mont. 438, 442, 679 P.2d 220, 223. 

First, the court must decide if the nonconsenting parent 

failed to contribute to the support of the child during 

a period of one year prior to the filing of the petition. 

The court must then determine if the nonconsenting parent 

had the ability to pay child support. MatterofAdoption of 

S.L.R. (1982). . . 196 Mont. 411, 413-14. 640 P.2d 886. 887. 

The burden of proof falls upon the petitioner to show 

that the two-prons test is met. Adoption ofRA.S., 679 P. 2d 

at 223; Adoption ofS.L.R., 640 P.2d at 886-87. Because the 

natural parent can forever lose parental rights, this 

Court requires strict compliance with the statute. Inre 

AdoptionofBiery (1974), 164 Mont. 353, 359, 522 P.2d 1377, 

1380. [Emphasis added]. 

Based upon the standard articulated in the preceding case, the 

natural father in this case was entitled to a directed verdict 

following petitioner's proof 

Petitioner called three witnesses, none of whom had anything 

relevant to say about the father's ability to support his two 

daughters during the previous year. The first witness was Robert 

Blair, a veterinarian from California, who had graduated from 

veterinary school with the natural father. Basically he testified 

to what he had earned in California since graduation. So what? 
The next witness was Timothy Barth, the petitioner. He 

testified that during the previous year the two children who were 

the subject of the petition had not received support from their 

natural father, and that to his knowledge the natural father was 

employed. He also testified that the natural father drove a 1990 

blue Chevy pickup. No testimony was given about the father's 

ability to pay. 

The final witness called by petitioner was Karen Barth, the 

natural mother of the children. She testified that she had 

received no child support payments during the previous year, and 

that pursuant to the decree of dissolution, her former husband was 

obligated to pay $200 a month. She offered no testimony about his 

ability to pay child support during the previous year. 

The aforementioned witnesses were the sum total of evidence 

presented by petitioner. As a matter of law, based on our previous 

decisions, petitioner did not satisfy his burden of proof, and his 

petition should have been dismissed by the District Court at the 

conclusion of his evidence. 

The only witness to testify about the natural father's ability 

to pay was the father himself. He acknowledged that at the time of 

the hearing he was a practicing veterinarian and that his gross 

income during the preceding year had been $30,000 to $32,000. 

However, it was also uncontroverted that his net income for the 

12 months preceding the date on which the petition was filed in 

this case was $23,444, and that his basic living expenses, for bare 

14 
necessities, during the same period of time were $24,220. In fact, 

in its Finding of Fact No. 12 the District Court listed those 

expenses from which the $24,000 figure was arrived at as follows: 

12. In the year preceding the filing of the adoption 

petition, John Heikkila's living expenses were as 

follows: 

Cateqory 

Rent 

Utilities 

Food 

Clothing 

Entertainment 

Personal care 

Pickup 

Insurance 

Fuel 

Maintenance 

License and Dues 

Attorney Fees 

Life Insurance 

Student Loans 

Gifts 

Totals 

Monthly 

$ 265 

The above figures only take into account those bills that the 

father actually paid. He had many other bills which he was 

juggling and periodically was unable to pay. He was in default on 

three different college loans, and he was also in default on loans 

which he owed to his mother, his uncle, the Hamilton Cattle 

Company, and his former wife's parents. At one time his 

electricity was shut off for late payment. 

He had no television, no savings account, no investments, no 

major credit cards, and no health insurance. 
His total debt at the time of trial was $72,000, including 

$52,000 for student loans, over $10,000 in back due child support, 

and the various other debts that have been mentioned. He has not 

filed for bankruptcy because he testified that the student loans 

and the child support could not be discharged and all that would be 

accomplished would be the loss of his pickup, which is necessary 

for his employment. 

At no time since his graduation from veterinary school has the 

natural father's income equalled his basic living expenses, and 

there have been times during that period when he went without a 

telephone and shared expenses with another in order to survive. 

Under these circumstances, what did the District Court, and 

what does the majority, expect? The question in this case is not 

whether the natural father's obligation for child support should be 

discharged. His debt to his children continues to accrue and will 

never be discharged, and can be collected when his financial 

situation improves to the point where he is able to pay it. The 

question in this case is whether his right to parenthood should be 

terminated because he willfully refused to pay child support when 

he was able to do so. We have in the past articulated standards by 

which "abilityv1 to pay child support is to be determined. Those 

standards have been ignored in the majority opinion. 

In our recent decision in fit re Adoption of KRO. and KN.0. (1991), 

250 Mont. 517, 822 P.2d 83, we reiterated the following criteria to 
be considered when determining whether a nonpaying natural parent 

had the ability to make child support payments: 

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 RM. (1990) , 241 Mont. 111, 

115, 785 P.2d 709, 711. In order to determine whether a 

parent is llablell 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.L. (1986), 224 Mont. 418, 423, 730 

P.2d 1135, 1139. 

The first three factors are not in dispute. The fourth factor 

is the factor which was never mentioned by the District Court, nor 

the majority in this case. After reviewing the transcript of the 

hearing in this case, and the District Court's findings of fact, I 

conclude that the natural father in this case had no money left 

after providing himself with the bare necessities of life, and 

therefore, was, as a matter of law, unable to contribute to the 

support of his children during the period of time preceding the 

petition for adoption. 

Notwithstanding the high-minded tone of the concurring 

opinion, the result in this case ignores existing law regarding 

what constitutes the "abilityw to pay and ignores the best 
interests of the children. Notwithstanding the heroic examples of 

self-sacrifice immortalized in the concurring opinion, termination 

of a parent-child relationship is a draconian remedy for parents 

who do not measure up to the concurring author's ideals for 

parenthood. The sermonizing in the concurring opinion, which 

captures the real essence of the majority's thinking, may have some 

place in a church service, but is highly irrelevant to the legal 

issues in this case. 

Apparently it is the majority's conclusion that debts which 

result in collection letters and threatened suits, along with 

whatever subsequent execution would result, are not "necessities of 

life." I disagree, and so would the natural father's creditors. 

If the debts can be reduced to judgment, and a subsequent order 

entered enforcing the judgment, then it is certainly "necessaryt' 

that they be paid. 

While the enforcement of child support obligations, to the 

extent possible, is certainly a commendable concern, punishing a 

natural parent by terminating his parental rights when support is 

not possible does not serve the best interests of his children, or 

anyone else. His children are no better off financially as a 

result of this decision, and may certainly be harmed by their 

father's future inability to maintain or establish any relationship 

with them. While the majority may now feel "tougherN on 

nonsupporting parents, the interests of the children seem to have 

been forgotten. 

18 
In this case, petitioner failed to satisfy his burden of proof 

by establishing that the natural father was "able" to make child 

support payments during the year preceding the date on which the 

petition for adoption was filed, therefore, the natural father's 

consent to adoption was required. For these reasons, I dissent 

from the majority opinion and would reverse the judgment of the 

District Court. 
to the