NO. 83--175 IN THE SUPREME COURTOF THE STATEOF MONTANA 1984

INTHEMATTER OF THE ADOPTION OF R.A.S.

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Deer Lodge, TheHonorable Robert J. Boyd,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Michael J. McReon argued, Anaconda,Montana

For Respondent: Knight, Dahood,McLean & Everett;David M. McLean argued, Anaconda,Montana

Submitted: 1/19/84 ~ecided:3/26/84 

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ClerkMr. Justice L.C. Gulbrandson delivered the Opinion of the Court.
The natural father, W.A.S., appeals from an order of the District Court, Third Judicial District, Deer Lodge County, allowing the adoption of his minor son, R.A.S., without the consent of the natural father. We affirm. The natural father and the naturalmother weremarried on August 9,1975. A minor son, R.A.S., was born as issue of themarriage onNovember 23, 1977. The marriage between the natural father and mother was dissolved on March 16, 1979 in the Thirteenth Judicial District, Yellowstone County. Custody of the child was awarded to his mother, with his natural fatherbeing ordered to pay $150 per month child support through the office of the Clerk of Court, Yellowstone County. The parties voluntarily vacated the requirement to pay child support through the Clerk of Court and, instead, support payments were made directly to the natural mother. The adoptive father,W.K.D., and the natural mother were married onApril 25, 1981. The child support payments were due on the first day of every month. The appellant, natural father, paid the child support each month from the time of the divorce through the month 

### of June, 1981. No support payment was made in July, 1981. InAugust, 1981, the appellant made an additional $150 child supportpayment which was credited to his obligation for July, 1981 thathad not been timelypaid. Thereafter, on or about December 20, 1981,apayment of $450

wasmade which was credited to back supportpayments due for August, September and October of 1981. No further supportpayments were received by the natural mother prior to the adoptive father's filing of a petition for the adoption of the child on December 2, 1982. In addition, no child support payments have been made since the filing of the petition for adoption. At trial, the District Court determined that during the period from November, 1981 through November, 1982, the appellant, natural father, was gainfully employed and financially capable of making the required child support payments but voluntarily chose not to do so. As a result, theDistrictCourt held that the consent of the appellantto the petition for adoption was not required pursuant to the provisions of Section 4-8-lll(l)(a)(v), MCA, and the best interests of the child would be served by granting the petition. In pertinent part, Section 4-8-lll(l)(a)(v), MCA, provides: "(1)An adoption of a child may be decreed when there have been filed written consents toadoption 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 supportof the childduring aperiod of 1 year before the filing of a petition for adoption

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At trial, the appellant argued that the $450 payment made on December 20, 1981, was made during theperiod of one year before the filingof thepetition on December 2, 1982, and therefore his consent to the adoption was necessary.However, the District Court held that the word "support" indicates a continued monetary contribution on a specified basis. Thus, appellant's support obligation was not made on
a continuing basis and by giving credit to the appellant for the $450 payment made on December 20, 1981, the District Court determined that no support was made "during" the period of one year before the filing of the petition for adoption. From that determination, the natural father appeals. Appellant raises one issue on appeal: Did the District Court err in holding that the consent of the appellant was not necessary in granting the petition for adoption? Appellant argues thathe contributed to the support of the child "during" the one year period before the filing of the petition for adoption was filed December 3, 1982. Appellant points out that child support in the sum of $450

was paid on or about December 20, 1981. Appellant asserts that Section 4-8-lll(l)(a)(v), MCA, must be strictly construed in favor of the appellant and a literal construction of the statute compels the Court to reverse the District Court because appellant made a payment within one year prior to the filing of thepetition of adoption. Respondent maintains that if the argument of the appellant is accepted, a noncustodial parent could defeat the adoption of his natural child bymerely making aportion of one payment on the same date each year. Thus, respondent asserts, to allow the statute to be interpreted and construed in this manner would be ludicrous and contrary to legislative intent.The central issue in this case is whether the appellant has not contributed to the support of the minor child during aperiod of one year prior to the filing of the petition for adoption. In adoption cases the initial threshold requirement is statutory compliance. In the Matter of the Adoption of Smigaj (1977), 171 Mont. 537, 560 P.2d 141. Thus, Section 4-8-lll(1)(a)

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## , MCA, sets forth a two-pronged test to determine whether the natural parent's consent is required for adoption. First, it must be determined whether the nonconsenting parent has not contributed to the support of the child during aperiod of one year prior to the filing of thepetition for adoption and,second, itmust be determined whether the nonconsenting parent had the ability to contribute to the child's support. In the Matter of the Adoption of S.L.R. (Mont. 1982), 640 P.2d 886, 39 St.Rep. 156. The burden rests on the petitioner to show that the requirements of Section 4-8-lll(l)(a)(v), MCA, have been met and,because of the harshness ofpermanently terminating parental rights, strict compliance with the statute is required. In the Matter of Challeen (1977), 172 Mont. 362, 563 P.2d 1120; in re Adoption of Biery (1974), 164 Mont. 353, 522P.2d 1377. In the present case, appellant admitted that he had the ability to make the required child support payments. The second phrase of the statute,

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..has not contributed to the support of the child during a period of one year before the filing of the petition 

# . . .,"precipitates the present dispute. There is no dispute that the support of the child was paid to the month of August, 1981. It isfurther without dispute that a payment of $450, which brought the payments up to November 1, 1981,was made on or about December 21, 1981, some eleven months and eighteen days before the filing of the petition for adoption. The appellant contends the payment was made 

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. . during a period of one year before the filing of the petition for adoption

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# .." Our basic policy in adoption cases has been 

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# .a statute should not be interpreted in favor of a father who seeks the benefit of parental rights but shuns the burden of parental obligatons." In Re Burton's Adoption (1956), 146 Cal.App.2d 125, 305 P.2d 185, 191; cited with approval, 

### - In the Matter of the Adoption of S.L.R., supra. Accordingly, the District Court noted that appellant

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..was able to support his minor son, but voluntarily chose a course of action involving a new lifestyle and self-inflicted alcoholism to cause him to forego both support and visitation of his child." As we noted in In theMatter of theAdoption of S.L.R., supra, "[tlhe father voluntarily chose a lifestyle inconsistent with his parental obligations. That he had the right to choose such a lifestyle is conceded. That he had a legal right to prevent the adoption of his child, however, is not consistent with hisvoluntary failure to contribute to the child's support." There is no Montana case law specifically construing theword "during" for the purpose of child supportpayments. However, in State ex rel. Palagi v. Regan, County Clerk

(1942), 113 Mont. 343, 126 P.2d 818, the Court said the legislature is presumed to have understood the elementary rules of construction of the English language,and a statutemust be construed according to the context and approved useage of thelanguage. Black's Law Dictionary, 5thEd., p. 453 defines "during" as: "throughout the course of; throughout the continuance; in the timeof." We note that appellant stated attrial that he made the December, 1981, payment of $450 because he was behind on his payments. Thus, he did not intend the payment to be "throughout the course of" a one year period prior to the filing of the petition of adoption. In addition, we stated in In the Matter of theAdoption of Smigaj, supra, that the word "supportt1in the context of the consent statutes refers to the "financial support that a parent owes a child." In the

case at bar, the support paid on December 20, 1981, was actually due and owing for previous months. Thus, it was not actually "supportt1as contemplated within the adoption statutes "during" the year prior to the filing of the petition of adoption. Wehold that toconstrue the statute

as requiring the nonconsenting parent to remain current within one year on his or her support payments is in accord with the policy of the adoption statutesand the intent of the legislature. Accordingly, thepayment made by appellant

onDecember 20, 1981, was not "support" contributed during a period of one year prior to the filing of the petition for adoption and therefore thejudgment of theDistrictCourt is affirmed.We concur:

Justice

Chief Justice Frank I. Haswell deemshimself disqualified and does notparticipate in thisdecision.

Mr. Justice Daniel J. Sheadissents andwill file a written dissent later.Mr. JusticeFred J. Weber dissents: Irespectfullydissent from themajority opinion. While the result seems fair, I am unable to approve the statutory constructionin the opinion. The pertinent portion of section 4-8-(1) MCA states: 

### "(1) An adoption of a child may be decreed 

# ... (v) if it is proven to the satisfaction of the court that the father 

# . . . 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;

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# ." The petitionwas filed onDecember 2, 1982. Fourhundred and fifty dollars was paid by the father for the support of the child on December 20, 1981. Clearly such payment wa.smade "during a period of 1 year before the filing of [the] petition." While it is true that such payment was for a period of time prior to 1 year, nonetheless the payment was made during the period of 1year before filing and therefore meets the requirementsof the statute. Ibelieve theBlack's Law Dictionary definition as described in the majority opinion also is met. Such payment was made by the father "throughout the course of" 1 year before filing. Such payment also was made "throughout the continuance"of 1 year before the filing. Last, suchpayment alsowasmade "in the time of" 1year before the filing. Iwould reverse the DistrictCourt.DISSENTOFMR. JUSTICEDANIEL J. SHEA

No. 83-175 INTHE MATTER OF THE ADOPTION OF R.A.S.

CLERKOFSUBREPilECOURT; 

### ; STATEOFfblONTAHAMr. Justice Daniel J. Shea,dissenting:

I dissent. In terminating parental rights, all reasonable constructionsof the statutemust be made in favor of non-termination and strictly construed against the state. Section 40-8-111(1), MCA, is essentially apenal statute because it forever terminates the right of the naturalparent. As such, it should be construed in favor of non-termination. Also, the statute's language is ambiguous: "during a period of 1 year before the filing of the petition of adoption" is susceptibleofvarious interpretations,and begs abuse. Whatever the conduct of the parents, the resultwill be a forced termination of theparent-child relationship. It is a travesty that troublesbetween warring parents should be visited upon innocent children. There are better and more equitable remedies available to the parties for temporary nonsupport than permanent termination of parental rights. I explained the pitfalls with this statutenearly three years ago in my dissent in In the Matter of S.L.R. (1982), 196Mont. 411, 416, 640P.2d 886,888-889. Iwould reverse the Distr