No. 86-580

IN THE SUPREME COURT OF THE STATEOF MONTANA
1987

IN THEMATTER OF THEADOPTION OF R. G. C., aminor child.

APPEAL FROM: District Court of the Eleventh Judicial District, Inand for the County of Flathead, The HonorableLeif Erickson, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:
Robert Stafford,pro se,Navato, California Carol Ann Henderson Owen, pro se,Missoula,Montana

For Respondent: Murphy, Robinson,Heckathorn & Phillips; Donald Murray, Kalispell,Montana Hash,O'Brien & Rartlett; JamesC. Bartlett, Kalispell, Montana

Submittedon Briefs: Aug. 6, 1987 Decided: September 15, 1987

Filed:

### SEP

## 15

## 1987

ClerkMr. Justice JohnConway Harrison delivered the Opinion of the Court.

R.L.S., theputative fatherofR.G.C., appeals an order of the District Court of the Eleventh Judicial District. That court ruled his consent would not be required to an adoption of the seven-year-old boy because he had never supported the child, 5 40-8-111(1) (a)(v)

## ,MCA, and that the adoption would be in the best interests of the child, as defined by 

### 5 40-6-130, MCA. R.L.S., acting pro se, argues that the court failed to consider his fitness as a parent before determining what was best for the child. We find no error; the child's best interest is paramount to any concern by R.L.S. We affirm theDistrictCourt. R.L.S. and C.A.C. had a relationship in 1979 in which they had sexual intercourse twice. Several months later C.A.C. told R.L.S. that she was pregnant but did not seek support. Thebaby was born out ofwedlock on July 20, 1980. Although R.L.S. was in Montana until December 1980, he claims he never knew of the child's live birth until October 1984 when O.K. and L.K., husband andwife, asked him to consent to their adoption of the boy. O.K. and L.K. had obtained C.A.C.'s consent but R.L.S. refused to give his consent. Thus, they resorted to legal action to terminate R.L.S.'s parental rights and to establish that his consent was not needed because he had never provided support for the child. R.L.S. has failed to supply this Court with a complete transcript of the District Court proceedings as required by Rule 9(b), M.R.App.Civ.P. According to that rule: Wherever the sufficiency of the evidence to support 

# . . .a specific finding of fact by the trial court is to be raised on the appeal by the appellant,he shall he under a duty to include in thetranscript all evidence relevant to such



# ... finding. Where an appellant fails to produce the entire transcript, this Court will not address whether substantial evidence exists to support the appellant's factual claims. Matter of Adoption of J.M.G. (Mont. 1987), 736 P.2d 967, 970, 44 St.Rep. 869, 873. In this case we shall view the ~istrict Court's findings of fact as true and consider only that court's application of the lawto those facts. The District Court determined that C.A.C. delivered custody of the boy to O.K. and L.K. in August 1984, so that the boy could live with them and be adopted by them; C.A.C. subsequently signed the appropriate adoption forms and was later determined by a District Court to have done so knowingly and voluntarily. When O.K. and 

### L.K. took the

### boy, he was not well nourished, all his belongings were in one box, and he was introverted and untrusting of adults. Since he has been with O.K. and L.K., he has become well nourished and happy and refers to them as hisparents; therehas been a tight family bonding. The boy also has done well in school, receiving a certificate that honored him as the child with the best attitude in his kindergarten. The court interviewed the boy. He told of living in motels and cars with C.A.C. He stated that he preferred to stay with O.K. and L.K. even though he realized C.A.C. was his natural mother. The boy now addresses O.K. and L.K. as his father and mother; they have provided the boy with a clean,comfortable,and suitablehome. The court found that R.L.S. was aware of C.A.C1s pregnancy, but never bothered to inquire as to the birth of the child or to provide any support for the child. R.L.S. had never seen theboy before this trial. R.L.S.'s objective in this act.i.onis not to obtain custody of the boy, but toreturn the boy to C.A.C. He would take custody of the boy, however, if the courtdenied custody to C.A.C. Considering all this evidence, which this Court assumes

as true in this appeal, the District Court found that it would be in theboy's best interests to remain with O.K. and L.K. It terminated R.L.S.'s parental rights under 5 40-6-130, MCA, and determined that his consent to theboy's adoption under 

### 5 40-8-111(1)(a)(v), MCA, was not required. The District Court then issued an interlocutory decree of adoption. On appeal, R.L.S. contends the District Court erred by considering the best interests of the child while not considering R.L.S.'s fitness as a father. He also argues that the District Court erred in its application of 

### 5 40-8-111(1)(a) (v)

## , MCA, since that section requires a petition for adoption to have been filed before a court can determine that the parent's consent isnot required. The DistrictCourt's initialquestion in a case such as this iswhether the consent of the putative father is needed to effect the adoption. If it determines that the putative father's consent is 

### - not required, then the court's foremost duty is to determinewhat the subject child'sbest interests

are. Matter of Adoption of S.T.V. (Mont. 1987), 733 P.2d 841, 842, 44 St.Rep. 425, 427; Matter of Adoption of Smigaj (1977), 171 Mont. 537, 539, 560 P.2d 141, 143. Our review indicates that the District Court ruled that the putative father's consent was not needed because he had failed to supportthe child. Itthendetermined that adoptionwould be in the boy'sbest interests. We see no error. R.L.S. argues that 

### 5 40-6-130 (1)

## ,MCA, sets a standard for review that the District Court ignored. That section reads:If the putative father appears at the hearing and requests custody of the child, the court shall inquire into his fitness and his ability to properly care for the child and shalldetermine whether the father's parental rights should be given recognition in view of his effort or lack of effort to make provision for themotherwhile shewaspregnant and for the child upon birth. 

# . . . If the court finds that it would not be in the best interests of the child to grant custody to the putative father, the court shall terminate his rights to the child.

R.L.S. argues that this section requires a finding by the District Court as to the putative father's fitness as a parent before the court determineswhat result would be best for the child. To add credence to this argument, R.L.S. citesMatter of Doney (1977),174 Mont. 282, 570 P.2d 575,as authority for his argument that petitionersmust show him to be an unfit parent. It is apparent that R.L.S. misconstrues Montana law since Doney was a question of guardianship, not

one of adoption. Doney, 570 P.2d at 577. Additionally, this Court in Matter of M.G.M. (1982), 201 Mont. 400, 654 P.2d 994, said that proof of abuse or neglect was required to terminate a natural parent

### 's rights in a youth-in-need-of-care proceeding. In M.G.M., the Court specificallydistinguished adoption proceedings and said that in adoption proceedings it is proper for the District Court to look at the child's best interests. Section 40-6-130, MCA, which speaks directly to the best interests of the child, was held to apply strictly to adoption proceedings. M.G.M., 654P.2d at 997. The proper test under S 40-6-130

### (1)

## ,MCA, and the one employed by the District Court in this case, is the best interests of the child. The child's welfare is of utmost importance; termination of a putative father's rights to the

### child doesnot depend on the factorsofabuse or neglect that

are so crucial in guardianship cases. Where the District Court concludes, as it did here, that the child's best interests are not in the putative father, then a plain reading of 5 40-6-130(1) makes it abundantly clear that the putative father loses his rights to the child. We can discern no error in the District Court's handling of this issue.R.L.S. 

### then argues that theDistrictCourt erred 

### in its application of 540-8-111, MCA, which sets out the requirement of the natural parents' consent in adoption

cases.Section 40-8-111(1)(a)(v)

## ,MCA, states: (1) An adoption of a child may be decreed when there have been filed written consentstoadoptionexecutedby:

(a) both parents, if living, or the surviving parent of a child, provided that consent is not required from a fatherormother:

(v) if it isproven to the satisfaction of the court that the father or mother, if able, has not contributed to the supportof the childduring aperiod of 1 year before the filing of apetition for adoption.

R.L.S. argues that this section was used to determine that his consent to the adoption was not necessary. He argues that the section does not apply to him, though, because it requires that apetition for adoption has been filed,and no petition had been filed in October 1984, when he was asked for his consent. R.L.S. has never paid any support to orfor R.G.C., the minor boy. His contention is that a formal petition would haveput him onnotice of the proceeding, thus allowinghim to make supportpayments. "A statute should not be interpreted in favor of a fatherwho seeks the benefit of parental rights but shuns the burden of parental obligations." In reBurton's Adoption (Cal. 1956)

## , 305 P. 2d 185, 191;Matter of Adoption of S.L.R. (1982), 196 Mont. 411, 415, 640 P.2d 886, 888;Matter of Adoption of B.L.P. (Mont. 1986), 728 P.2d 803, 805, 43 St.Rep. 2116, 2119. This statute will notbe read toR.L.S.'s advantage. The putative father's argument is a circuitous one, which, if adopted, would obliterate the statute. Consider the circumstances attendant in this case: O.K. and L.K. sought the consent of R.L.S. in October 1984 to adopt R.G.C. but he refused; O.K. and L.K. filed a petition for adoption

on August 29, 1985; the District Court dismissed that petition as premature on October 8, 1985 since R.L.S.'s rightshad not been terminated; the District Courtdecided on September 23, 1986, that R.L.S.'s consent was not required under S 40-8-111(1) (a)

### (v)

## , MCA. To accept the putative father's argumentwould allow any naturalparent to thwart a legitimate adoptionproceeding merely by refusing his or her consent so that no valid petition for adoption could be filed. Thiswould serveonly tovitiate the statute. The putative father cites Brost v. Glasgow (1982), 200 Mont. 194, 651 P.2d 32, as support for his argument. That case merely requires separate findings on the issues of the need for the parent's consent aside from findings on the merits of the adoption. Brost, 651P.2d at 37. TheDistrict Court met that requirement. O.K. and L.K. began an adoption proceeding under 

### 5 40-8-109, MCA, one aspect of whichwas thepaternity issue. In such proceedings, the one-year period of supportprovisionsmade for the child should be measured against the commencement of the adoption proceedings under $ 40-8-109, MCA, rather than against the date of the petition for adoption. This rule violates no sense of reasonablenessand promotes the intent of the legislature as derived from the statutory scheme it enacted. Statutes should not be construed absurdly when a reasonable construction is possible. Darby Spar, Ltd. v. Department of Revenue (Mont.

Our review shows that the District Court proceeded properly when it determined that consent of the putative father was not required. It then determined the best interests of the child and issued the appropriate orders. Such actions complywith the law inMontana. 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 

# ...Once the statutory requirements for consent to an adoption are met (S40-8-111, MCA), the best interest of the child becomes the paramount consideration.
S.T.V., 733 P.2d at 842. The District Court considered the question of the putative father's consent. It determined it was not needed because the putative father had never paid any financial support for the child. Thereafter, the District Court need only determine the child's best interest. It did this and issued an interlocutory decree of adoption for O.K. and L.K. We will not disturb this judgment. The District Court is affirmed.We concur: