No. 80-422 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN THE MATTER OF THE ADOPTION 

OF T.G.K. and J.P.K. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow. 

Honorable James Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant: 

Patrick F. Flaherty, Boulder, Montana 

For Respondent: 

Jardine, McCarthy & Grauman, Whitehall, Montana 

Submitted on briefs: May 15, 1981 

Decided : 

Filed: 

* 

.Z Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

On July 17, 1979, appellant filed a petition for the 

adoption of his stepchildren, TGK, age 10, and JPK, age 9. 

Upon filing the petition appellant also filed an affidavit 

of his wife, the children's natural mother, attesting to her 

marriage to the appellant in October 1974 and consenting to 

the adoption. 

Written consent to the adoption was not obtained from 

the natural father, respondent herein, but appellant alleged 

in his petition that it was not necessary by reason of the 

fact that the father had failed to "provide for the support 

of the children for the period of one year last past before 

the filing of this petition, and that he has abandoned said 

children." Respondent filed an objection to the petition 

seeking its dismissal. 

A hearing on the petition was held in the Silver Bow 

County District Court, the Honorable James Freebourn 

presiding, on July 1, 1980. During the hearing, testimony 

was presented showing that the children's natural mother and 

respondent had dissolved their marriage in April 1974. In 

accordance with this dissolution the mother was awarded 

custody of the two children and respondent was ordered to 

pay $200 per month child support. Respondent has failed to 

pay the court-ordered support since 1977 but has on occasion 

bought clothes and toys for the children as well as giving 

them small cash gifts. As a result of respondent's failure 

to pay the child support, the natural mother has been 

receiving aid to dependent children (ADC) assistance since 

October 1977. 

The record further shows that during 1977 respondent 
was unemployed and receiving unemployment insurance. 

Respondent supplemented this income by making and selling 

wooden furniture. During 1978 respondent worked in Wyoming 

on an oil rig for approximately four months earning $800 a 

month. Respondent continued to make use of his 

furniture-making abilities in 1978 and 1979 as a source of 

income while living rent free with his girlfriend. On June 

27, 1979, respondent began serving a ten-year sentence in 

the Montana Sta-te Prison for armed robbery. While in prison 

respondent earns $1.00 a day. 

Following the hearing on the matter, the District 

Court entered an order on September 12, 1980, dismissing 

appellant's petition. As grounds for the dismissal, the 

trial judge concluded that appellant had failed to obtain a 

written consent to the adoption by the natural mother and 

father as required by section 40-8-111, MCA. 

Appellant appeals the order of the District Court 

first contending that the affidavit of his wife filed with 

his petition is sufficient to satisfy the requirement that 

consent to the adoption be obtained from the natural mother. 

Respondent, as well as this Court, agrees with this 

argument, and, thus, we need not discuss it further. 

Appellant next contends that the court erred in 

requiring that consent be obtained from the natural father. 

In support of this contention, appellant cites section 40-8- 

lll(l)(a)(v), MCA, which provides: 

"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 burden on the appellant under this statutory 

exception to consent is clear. It is essential he prove 

that the natural father was able and failed to give support 

during a period of one year before the filing of the - 

petition. In Re Adoption of Biery (1974), 164 Mont. 353, 

522 P.2d 1377. This, we find, appellant has failed to do. 

As indicated by the statute, the period of time to be 

examined is the year prior to the filing of the petition and 

not merely any one-year period, as submitted by appellant. 

During this period, from July 1978 to July 1979, the 

evidence indicates that the natural father's source of 

income was the selling of handmade wooden furniture. How 

much of an income was derived from this nature is absent 

from the record. The natural father was also employed on an 

oil rig for four months in 1978. The record, however, does 

not indicate what four months the father worked. Thus, it 

is possible that this employment was not during the period 

in question. For the remainder of the period, from June 27 

to July 17, 1979, the father was residing in the State 

Prison earning $1.00 a day. 

Upon reviewing the evidence as presented, we find it 

does not adequately establish respondent's ability to 

provide support during the year prior to the filing of the 

petition. We must, therefore, affirm the District Court's 

rejection of appellant's application of this statutory 
exception to consent. 

As an additional basis for excusing the requirement 

that consent to the adoption be obtained from the natural 

father, appellant, in his petition, asserted abandonment by 

the father. See section 0-8-lll(l)(a)(iii), MCA. An 

examination of the record, however, reveals numerous 

occasions when respondent exercised his visitation rights 

with his children. As a result, it cannot be said that 

abandonment should play a decisive role in resolving the 

adequacy of appellant's petition. 

Appellant further argues that consent is not 

necessary in this case pursuant to section 40-8- 

lll(l)(a)(ii), MCA, because the father has been guilty of 

cruelty and neglect. In rejecting this contention we point 

out that the cited statutory exception to consent is only 

applied to a parent "who has been judicially deprived of 

custody . . . on account of cruelty and neglect." Here, 

there has been no showing that the natural father was denied 

custody of his children, or his parental rights terminated, 

for reasons of cruelty or neglect in a prior judicial 

proceeding. 

Appellant's final argument concerning the propriety 

of the District Court's order of dismissal for failing to 

obtain the natural father's consent is that consent is not 

necessary pursuant to section 40-8-lll(l)(a)(iv), MCA. This 

section provides that consent to adoption is not required of 

a parent, 

"(iv) who has caused the child to be 

maintained by any public or private 

children's institution, charitable agency, or 

any licensed adoption agency or the 

department of social and rehabilitation 

services of the state of Montana for a period 
of 1 year without contributing to the support 

of the child during said period, if able". 

We acknowledge this contention but note that it was 

not set forth in appellant's petition as grounds for 

excusing the consent requirement. Consequently, although 

some evidence was presented at trial concerning the matter, 

the District Court properly did not consider the argument in 

resolving this dispute at the trial court level. If the 

appellant wishes to use this statutory exception to consent, 

the petition should be drafted on that basis and a specific 

hearing held thereon to determine its applicability. For 

this reason we find no error by the District Court in 

dismissing the petition as filed but must reserve ruling on 

the merits of the above contention and conclude that the 

decision herein is to issue without prejudice to refiling 

the petition on this asserted basis. 

Appellant at the conclusion of his brief argues that 

the District Court abused its discretion in failing to 

interview the children in chambers to determine their 

position as to the adoption. We summarily reject this 

contention, finding it raised for the first time on appeal. 

Furthermore, the fact that an interview was not conducted is 

of no consequence to this action which was dismissed due to 

appellant's failure to obtain the natural father's consent, 

thereby precluding decision on whether the adoption will be 

in the best interest of the children. 

The order of the District Court dismissing the 

petition is affirmed. 
We concur: 

%&dWU@ 

Chid Justice