No. 89-187 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN THE MATTER OF THE 

ADOPTION OF: C. R. D., 

A Minor. 

APPEAL FROM: The District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge Presidjnq. 

COUNSEL OF RECORD: 

For Appellant: 

Joan E. Cook; Miller & Cook, Great Falls, Montana 

For Respondent: 

Virginia Bryan, Billings, Montana 

Submitted on Briefs: October 13, 1989 

Decided: November 30, 1989 

---- Y - Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

J.M.S. (father) appeals the decree of the Thirteenth 

Judicial District Court, Yellowstone County, granting the 

adoption of his natural daughter, C.R.D. (daughter) by 

respondents J.E. D. and A.C .D. (qrandparents) . The 

respondents are the maternal grandparents of the child and 

have been her legal guardians since 1985. In granting the 

petition, the District Court held that the father's consent 

to the adoption was not required because he failed to pay 

child support and had abandoned his daughter. We affirm the 

District Court's decree on the grounds that the appellant 

abandoned the child according to Montana law. 

Appellant raises the following issues on appeal: 

(1) Did the District Court err in concluding that the 

father's consent to the adoption was not required because he 

had abandoned his daughter according to Montana law? 

(2) Did the District Court err in allowing evidence of 

the child's best interests? 

(3) Did the District Court err when it concluded that 

the father's consent to the adoption was not required because 

he failed to pay for the support of his daughter? 

(4) Did the District Court err in concluding that the 

grandparents, as appointed guardians, had the authority to 

consent to their own adoption of the child? 

Father and V.D. (mother) were married on January 2, 1981 

in Billings, Montana. The mother was eight weeks pregnant 

with the child at the time of the marriage. The couple lived 

together as husband and wife for approximately two weeks 

following the marriage, and separated on or about January 15, 

1981. After the separation, the mother returned and resided 

at the home of her parents, the petitioners, where she lived 

when the daughter was born. 
Mother filed for divorce on April 3rd, 1981. A decree 

dissolving the marriage was entered on June 22, 1981. Mother 

and father signed a Separation, Custody, Support, and 

Property Settlement Agreement on December 14, 1982. The 

agreement was incorporated into the decree of dissolution the 

following August. It established mother as the custodial 

parent of the child and obligated the father to pay $100.00 

per month in child support. During the mother's pregnancy 

and at no time since the birth of the child has the father 

provided financial assistance to either the mother or the 

child. 

The father was jailed on November 15, 1983 in the 

Yellowstone County Jail. He was later transferred to the 

Montana State Prison at Deer Lodge where he currently 

resides. Prior to this incarceration, he had two thirty 

minute visits with his daughter in 1982, when she was 

approximately nine months old. Both visits were conducted at 

the business establishment of the petitioner's. There have 

been no further personal visits between father and daughter 

since 1982. 

In May of 1984, the mother moved from her parent's home 

to seek employment in another state. Not wanting to disrupt 

her daughter's development, she consented to her parents 

becoming the legal guardians of her daughter. The father was 

served with the guardianship petition on February 15, 1985. 

He failed to contest the action, and the petition was granted 

by default on March 19, 1985. 

On February 11, 1985, and October 27, 1986, the 

grandparents received letters from the father. Neither 

letter included support for the child. The grandparents have 

never received any money from the father for his daughter's 

support. 
The petitioners have been the sole providers of their 

grandaughter's daily and medical needs since her birth. The 

girl has become integrated into the petitioners' home. She 

refers to the petitioners' as her parents and the 

petitioner's other children as her brothers and sisters. She 

is also named as a beneficiary in the petitioners' will. 

The father's mother, has visited with her qrandaughter 

on five or six occasions totaling approximately 15 hours 

during 1985. During these visits, the father had one or two 

telephone visits with his daughter. There have been no 

telephone visits since 1985 or visits with father's mother 

since 1985. Father sent his daughter a Christmas card in 

1987 and a birthday card in July 1988. No other 

correspondence has taken place between father and his 

daughter. 

On two occasions, prior to father's incarceration, 

visitation had been arranged and the father failed to show up 

at the designated time and place. No requests for visitation 

with the child by either the father or the father's mother 

have ever been denied. 

Prior to his incarceration, appellant was employed as a 

school bus driver from August 1980, to the fall of 1981; as 

an air freight attendant from June to December, 1982 and as a 

restaurant worker. He earned $16.00 per day as a bus driver, 

$900.00 per month with the freight company, and minimum wage 

at the restaurant. At the adoption hearing, he acknowledged 

he has earned in excess of $2,000.00 while an inmate at 

Montana State Prison. He testified that while incarcerated 

he gave $20.00 to one of the petitioners' sons for his 

daughter and opened up a savinqs account for her with hie 

prison earnings. He has offered no documentary proof of 

these or any other payment for his daughter's support. 
At the hearing, the father testified that in 1985 he 

began efforts to have the child's last name changed to his 

because he was not recorded as the father on the birth 

certificate. He testified that this change required the 

consent of the mother which she refused to give. Father 

filed a petition to change his daughter's surname to his own 

on February 9, 1988. The grandparents filed this action for 

adoption of the child on October 5, 1988. The mother has 

consented to the adoption. The father has not consented and 

has indicated his intentions to seek custody of his daughter 

upon his release from prison. Father's petition to chanqe 

his daughter's surname was denied and the petition for 

adoption was granted on February 13, 1989. The natural 

father now has appealed the adoption decree, raisin9 the 

aforementioned issues. 

I. 

Montana law generally requires the filing of written 

consents in an adoption proceeding. Section 40-8-111 (11, 

MCA. However, where a child has been willfully abandoned by 

a parent, that parent's consent is not required for the 

adoption. Section 40-8-11 1 a (i , MCA. Abandoning a 

child is defined as: 

. . . leaving him under circumstances that make 

reasonable the belief that the parent or other 

person does not intend to resume care of the child 

in the fut.ure or by willf.ully surrendering physical 

custody for aperiod of 6 months and during that 

period does not manifest to the child and the 

person having physical custody of the child a firm 

intention to resume physical custody or to make 

permanent legal arrangements for the care of the 

child. . . . (Emphasis added.) 
Section 41-3-102 (3) (d) , MCA. Thus, a parent's rights may be 

terminated, and an adoption subsequently executed without 

that parent's consent upon a showing of abandonment under §§ 

40-8-111 and 41-3-102(3)(d), MCA. - See In Re Adoption of S.E. 

(Mont. 1988), 755 P.2d 27, 45 St.Rep. 843; Matter of R.R 

(1985), 217 Mont. 99, 103-104, 703 P.2d 846, 848. Because 

parental rights involve a fundamental liberty interest, a 

judicial decree terminating such rights must be supported by 

clear and convincing evidence. R.B., 703 P.2d at 848, citing 

Santosky v. Kramer (1982), 455 U.S. 745, 753-754, 102 S.Ct. 

1388, 1394-1395, 71 L.Ed.2d 599, 606; S.E., 755 P.2d at 29; 

Matter of Adoption of E.S.R. (1985), 218 Mont. 118, 120, 706 

P.2d 132, 133. 

In the case at bar, the record contains clear and 

convincing evidence that the natural father willfully 

abandoned his daughter. Father has never provided any 

financial support for the child. He has only visited with 

her personally on two occasions in 1982 and visited with her 

over the phone on two occasions during the year 1985. There 

is no evidence that the father even attempted to contact his 

daughter in 1983, and he failed to show up at scheduled 

visits in 1984. This amounts to only four personal contacts 

between the child and her natural parent over some eight 

years. Father did not contest the proceeding to name the 

grandparents as the child's guardians. The evidence of 

abandonment as found by the District Court is clear and 

convincing. - See, Matter of M.W. (Mont. 1988), 764 P.2d 1279, 

1282, 45 St.Rep. 2107, 2110. 

The record does suggest that the natural father may have 

had some renewed interest in his daughter after his 

incarceration. He sent her a Christmas card in 1987 and a 

birthday card in July, 1988. The father testified that he 

began attempts to have his daughter's last name changed to 
his own in 1985, and filed a petition to have her name 

changed in 1988. However, this evidence is insufficient to 

demonstrate that the father has terminated or repented from 

his abandonment of his daughter. "Abandonment is not an 

ambulatory thing the legal effects of which a parent may 

dissipate at will by token efforts at reclaiming a discarded 

child." Matter of Adoption of David C. (1978), 479 Pa. 1, 

387 A.2d 804, 811; In Re Ad.option of Simonton (1982), 211 

Neb. 777, 320 N.W.2d 449, 454. The record clearly 

demonstrates that the child has been fully integrated into 

the home of her grandparents. It is the only home she has 

ever had. Considerinq the length of the abandonment, the 

father's efforts at reclaiming his daughter while 

incarcerated can only be characterized as token. The 

District Court did not abuse its discretion in concluding 

that the father had abandoned his dauqhter and had not 

terminated that abandonment. 

11. 

The father also contends that the District Court erred 

in allowing evidence of the best interests of the child 

before there was a judicial determination terminating his 

parental rights. He contends that the District Court 

prematurely admitted best interest evidence illustrating his 

daughter's well adjusted and happy life with her 

grandparents. The father argues that such evidence is 

irrelevant toward the issues of abandonment and nonsupport 

and their effect on termination of his parental rights. 

Thus, father contends that the admission of this evidence 

before it became relevant to the adoption was prejudicial. 

We disagree. Generally, "the 'best interest' test is 

applied .under S 40-8-123 or 124, MCA, after the parental 

rights have been terminated, in determining whether the 
adoption should be allowed." - S.E, 755 P.2d at 29. However, 

once an abandonment is shown to have existed by clear and 

convincing evidence to the extent shown here, the evidence is 

sufficient to support the conclusion of the court, and if 

admission of evidence relating to best interest of the child 

is in error, such error would not rise in gravity so as to 

overturn the findings and conclusions of the court as a 

result of a bench trial. 

111. and IV. 

The natural father also argues that the District Court 

erred in concluding that his consent was not required for the 

adoption because 1) he failed to pay support for his 

daughter; and 2) the grandparents, as appointed guardians, 

had the authority to consent to their own adoption of the 

child. Nonsupport is a ground for excusing the consent 

requirement for an adoption under S 40-8-111(l) (a) (v), MCA. 

However, the District Court need only find one of the 

substitutes for consent enumerated by the statute in order to 

proceed with the adoption. Section 40-8-111, MCA. In light 

of the overwhelming evidence of abandonment in this case, we 

need not address the sufficiency of the evidence as it 

relates to nonsupport. Furthermore, because the natural 

father's consent was excused when his parental rights were 

terminated, we need not discuss the guardians' authority to 

consent because consent was no longer required to complete 

the adoption. 

We find that there is clear and convincing evidence in 

the record to support the District Court's finding that the 

father abandoned his daughter. The District Court did not 

abuse its discretion in terminating the father's parental 

riqhts and granting the qrandparents' petition for adoption. 
AFFIRMED. 

@(si&kd Justice 

Justices u