No. 80-422 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INTHE MATTER OF THE ADOPTION OF T.G.K. and J.P.K.

Appeal from: District Court of the Second JudicialDistrict, In and for the County of SilverBow. 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. Dalydelivered 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 ofhis wife, the children's naturalmother, attesting to her marriage to the appellant in October 1974 and consenting to the adoption. Written consent to the adoptionwas not obtained from the natural father, respondentherein,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 oneyear last past before the filing of this petition, and that he has abandoned said children." Respondent filed an objection to the petition seeking itsdismissal. 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

waspresented showing that the children's naturalmother 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 1977but 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 respondentwas unemployed and receiving unemployment insurance. Respondent supplemented this income by making and selling wooden furniture. During 1978 respondent worked inWyoming

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 freewith hisgirlfriend. On June 27, 1979, respondent began serving a ten-year sentence in theMontana Sta-tePrison 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 trialjudge concluded that appellanthad failed toobtain a written consent to the adoption by the natural mother and father asrequiredby section40-8-111, MCA. Appellant appeals the order of the District Court first contending that the affidavit of his wife filedwith his petition 

### is sufficient to satisfy the requirement that consent tothe adoption be obtained from the natural mother. Respondent, as well as this Court, agrees with this argument, and, thus, 

### weneed not discuss it further. Appellant next contends that the court erred in requiring that consent be obtained from the natural father. In support of thiscontention, appellant citessection40-8- lll(l)(a)(v), MCA, which provides: "Consent 

### -- required for adoption. (1) An adoption of a childmay 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 ormother:

"(v)if it 

### is proven to the satisfaction of the court thatthe father or mother, if able, has not contributed to the support of the child during a period of 

### 1 year before the filingof apetition 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 togive support before the filingof the during a period of one year - petition. In Re Adoption of Biery (1974), 164 Mont. 353, 522 P.2d 1377. This, we find, appellanthas failed todo. As indicated by the statute, theperiod of 

### timetobe examined 

### is theyear prior tothe filingof thepetition 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 fatherwas 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 aday. 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 toconsent. As 

### an additional basis for excusing the requirement that consent to the adoption be obtained from the natural father, appellant, in hispetition, 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'spetition. 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 crueltyand neglect. In rejecting this contention we point out that the cited statutory exception to consent is 

### only applied to a parent "who hasbeenjudicially deprived of custody

# . . . on account of cruelty and neglect." Here, therehasbeen no showing thatthenatural father was denied custody of his children, or hisparental rightsterminated, 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 tosection40-8-lll(l)(a)(iv),MCA. 

### This sectionprovides thatconsenttoadoption is

### notrequired of

aparent, "(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 servicesof the stateof Montana for a periodof 1year without contributing tothe support of the childduring saidperiod, 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 attrialconcerning the matter, theDistrictCourtproperly did not consider theargument in resolving this dispute at the trial court level. If the appellantwishes touse thisstatutoryexception toconsent, the petition should be drafted on thatbasis and a specific hearing held thereon to determine 

### its applicability. For this reason we find no error by the District Court in dismissing thepetition as filedbut must reserve ruling on the merits of the above contention and conclude that the decision herein 

### is to issue without prejudice to refiling thepetitionon thisassertedbasis. Appellant atthe 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 firsttime on appeal. Furthermore, the factthatan interviewwas not conducted 

### is of no consequence to this actionwhich was dismissed due to appellant's failure to obtain the natural father's consent, thereby precluding decision on whether the adoption willbe in the best interestof thechildren. The order of the District Court dismissing the petition 

### is affirmed.We 

### concur: 

# %&dWU@

Chid

### Justice