No. 13466 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

IN THE MATTER OF THE ADOPTION OF JAMIE LYNN SMIGAJ, a minor.

Appeal from: 

### District Court of the First Judicial District, Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellant: Leaphart Law Firm, Helena, Montana W. William Leaphart argued, Helena, Montana Victor H. Fall, Helena, Montana James M. Driscoll appeared, Helena, Montana For Respondent: Russell LaVigne argued, Helena, Montana

Submitted: January 

### 20, 1977 DecidedEB

# 7 1977

Filed:

# FEB7

WQ AMr. Justice Frank I. Haswell delivered the Opinion of the Court. A stepfather of a seven year old female child appeals from an order dismissing his petition for adoption entered by the districtcourt of Lewis and Clark County, Honorable Gordon R. Bennett, districtjudge, sittingwithout a jury. The case comes tous on the basis of an agreed statement of fact in lieu of a record on appeal pursuant toRule 9(d), M.R.App.Civ.P. The agreed facts indicate that the child, 

### Jamie Lynn Smigaj, was adopted when she was one year old by James E. Smigaj and Alberta Smigaj, husband and wife. Subsequently James Smigaj became totally disabled and asa consequence thereof, 

### Jamie Lynn receivesmonthly Social Securitybenefits of $154. On February 16, 1973, James E. Smigaj and Alberta Smigaj 

### were divorced. Custody of 

### Jamie Lynn was awarded toAlberta with reasonable rights of visitation granted toJames Smigaj. The judge, upon considering James1disability, did not order him to pay child support. On September 3, 1974, Alberta married Douglas J. Rushford and ever since they have been husband and wife, residing together with 

### Jamie Lynn. On April 20, 1976, Rushford petitioned the district court for permission toadopt Jamie Lynn without the consent of the child's prior adoptive father, James Smigaj. On June 24, 1976, a hearing was held inthe districtcourt atwhich 

### timeJames Smigaj appeared with counsel but did not testify. Alberta testified, among other things, that formore than one year prior to thepetition for adoption by Rushford, James Smigaj had not visited with or seen Jamie Lynn nor had Jamie Lynn received any 

### letters, post cards, presents, clothing ormoney from James Smigaj. Atthe conclusion of the testimony in support of the

### petition for adoption, Judge Bennett dismissed the case for the reason that Rushford had failed toprove that James Smigaj

was able to financially contribute tothe support of Jamie Lynn

asrequired by section 61-205, R.C.M. 

### 1947, and thus the adoption could not proceed without the consent of James Smigaj. Two issues arepresented forreview: (1)

### Did the district court 

### err innot considering the child's welfare the paramount consideration? (2) Is section 61-205(1)(f)limited to "financial support"? The firstissue has previously been decided by this Court adversely toappellant's position. In

### re Adoption of Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377. Statutory consent requirements inadoption casesmust firstbe 

### metafterwhich the welfare of thechild becomes paramount. As 

### stated inBiery: "While the best interests of the child areof utmost concern inboth custody and adoption 

### cases 

### we have required 

### strict compliance with section 61-205, R.C.M. 

### 1947, because of the harshness of permanently terminating parental rights." Thus inadoption cases the initialthreshhold requirement 

### is statutory compliance. The districtcourt 

### was correct indismissing the petition for adoption on finding that statutory consent requirements had not been 

### met. Directing our attention tothe second issue, appellant argues that the 

### term "support" contained in section 61-205(1) (f), R.C.M. 

### 1947, does not refer exclusively to financial support but includesmoral support, psychological support, spiritual support and so forth. Rushford urges that "support" includes the parental obligations toexpress love and concern for the child and togive the child social and religious guidance as set forth inApplication of Conley v. Walden (1975), 166Mont. 369, 533 P.2d 955. In thisregard Rushford 

### relies on Alberta's testimony that James Smigaj did not visitJamie and did not send her any 

### letters,post cards, presents, clothing ormoney. Section 61-205(1)(f) states inpertinent part that the father's consent tothe adoption 

### is not required: "if 

### it 

### is proven tothe satisfaction of the c o u r t t h a t - s a i d father or mother, if able, has not contributed to the support of said child during a period of one (1)year before the filing of a petition for adoption

## * * 

## *." (Emphasis added.) Although 

### we have not been referred to any case specificallyconstruing themeaning of the term "support" in section 61-205(1)(f),we have no difficulty inconstruing the plain meaning of the words inthe context of the consent statute as referring to the "financial support" that a parent owes a child. Rushford's petition for adoption alleged that James Smigaj, 

### " 

## * * * although financially capable, has not contributed tothe support of said child

## * * 

## *". The parties briefed the question of financial support. The parties themselves interpreted the statute tomean "financial support". The legislative intent 

### is clear from the language used inthe context of the statuteand 

### we are not permitted to apply extrinsic rules of construction toexpand Mont

# . the definition. Keller v. Smith, (1976), 

## , 553 P.2d 1002, 33 St-Rep. 828; Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660, and cases cited therein. It appears that Rushford 

### is actually attempting toargue that James Smigaj has abandoned Jamie Lynn and therefore his consent 

### is not required under section 61-205(1)(d), R.C.M. 1947. If such 

### is the case, the petition for adoption should be drafted

on this basis and a hearing held thereon todetermine whether the facts bring the petition within this statute. The decision herein iswithout prejudice torefiling the petition on thisbasis. The order of the districtcourt dismissing the petition 

### is affirmed.

Justice

### We 

### concur:

~,- 

# -.

Justices

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