No. 91-061 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ADOPTION OF 

J.B.T. and W.D.T., Minors. 

AUG 2 7 1991 

CLERK OF SUPREME COURI 

STATE OF MONTANA 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Daniels, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Loren 3. OtToole, 11; OIToole & OgToole, Plentywood, 

Montana 

For Respondent: 

Francis J. McCarvel, Glasgow, Montana 

Filed: 

Submitted on Briefs: May 16, 1991 

pecided: ~ugust 27, 1991 L 

"Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

The natural mother and stepfather appeal from an order of the 

District Court, Fifteenth Judicial District, Daniels County, 

denying their petition to terminate the natural father's parental 

rights. We affirm. 

The parties raise the following issue: 

Whether the District Court erred in finding that the evidence 

was not clear and convincing that the natural father was able to 

contribute to the child support but did not do so for a period of 

one year prior to the filing of the petition for adoption pursuant 

to 5 40-8-111 (1) (a) (v) , MCA. 

Appellant, Teresa Ann (Tryan) Jagiello, and respondent, Bruce 

Lee Tryan, were married on February 27, 1982, in Daniels County. 

Two children, J.B.T. and W.D.T., were born as a result of the 

marriage. The marriage was dissolved on October 14, 1987. The 

wife became the custodial parent of the minor children, subject to 

the natural father's visitation rights. 

The natural father agreed to pay $100 per month per child in 

child support and he also agreed to pay all debts contracted under 

the marriage. The natural father fell behind in payments, and as 

a result, the District Court found the natural father in contempt 

for failure to pay child support and house payments. On 

October 19, 1988, the court issued an order which awarded the 

mother $1226 in back house payments and attorney's fees and 

increased the natural father's child support payments of $100 per 
month per child to $300 per month to make up the arrearage. The 

child support records of the Clerk of the District Court show no 

child support payments from July 1989 through August 1990. 

During the same period, the natural father was unemployed for 

four months. He attempted to find work during this period and 

actively contacted a number of construction companies for 

employment. From the end of September 1989 through mid-February 

1990, the natural father was only able to work as a part-time 

bartender earning $120 a week in Flaxville. From mid-February 1990 

to August 1990, the natural father worked numerous jobs in the 

Scobey area with a construction company. He was unemployed in 

April of that year and in May, June, and July he worked as a 

carpenter. 

From March to August 1990, the mother garnished the natural 

father's wages in the amount of $597. She applied the proceeds 

toward house payments and attorney fees. None of the money was 

used for child support. 

In early August 1990, the stepfather and mother petitioned the 

District Court for adoption of the children. The petition alleged 

that the natural father's consent was not required because he 

failed to contribute to the support the children for a period of 

one year, even though he was able to do so. The District Court 

denied the petition and found there was not clear and convincing 

evidence that the natural father was able to contribute to the 
child support but did not do so for over a year. It is from this 

decision that the mother and stepfather appeal. 

Generally, in order for the District Court to decree an 

adoption of a child there must be written consents filed by both 

parents, if living. Section 40-8-111 (1) (a) , MCA. The statute 

provides that consent is not required by either parent if: 

[I]t 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 the petition for adoption . . . . 

Section 40-8-111(l) (a) (v) , MCA. 

For the court to find that a parent's consent is not necessary 

to terminate its parental rights, the burden of proof requires that 

there must be clear and convincing evidence that the parent has not 

contributed to the support of the child for one year and was able 

to do so. In re Adoption of S.E. (1988), 232 Mont. 31, 35, 755 

P.2d 27, 29. Hence, the statute requires a two-tier analysis 

before parental rights can be terminated. Matter of Adoption of 

R.A.S. (1984), 208 Mont. 438, 442, 679 P.2d 220, 223. First, the 

court must decide if the nonconsenting parent failed to contribute 

to the support of the child during a period of one year prior to 

the filing of the petition. The court must then determine if the 

nonconsenting parent had the ability to pay child support. Matter 

of the Adoption of S.L.R. (1982), 196 Mont. 411, 413-414, 640 P.2d 

886, 887. The burden of proof falls upon the petitioner to show 

that the two-prong test is met. Adoption of R.A.S., 679 P.2d at 
223; ~doption of S.L.R., 640 P.2d at 886-87. Because the natural 

parent can forever lose parental rights, this Court requires strict 

compliance with the statute, In re Adoption of Biery (1974), 164 

Mont. 353, 359, 522 P.2d 1377, 1380. 

In a previous case, we interpreted glsupportlg to mean the 

"'financial support that a parent owes a child.Igl Matter of 

Adoption of K.L.J.K. (l986), 224 Mont. 418, 422-23, 730 P.2d 1135, 

1138. This definition is designed to prevent parents from giving 

token child support payments once or twice a year in order to avoid 

having their parental rights terminated. Adoption of K.L.J.K., 730 

P.2d at 1138. We are much more diligent in deciding whether a 

parent is "ablegt to contribute to child support. Ado~tion of 

K.L.J.K., 730 P.2d at 1138. Therefore, when determining whether 

a parent is "ablew to contribute we examine four factors. 

I) The parent's ability to earn an income; 

2) The parent's willingness to earn an income and 

support his child; 

3) The availability of jobs; 

4) The parent Is use of his funds to provide for himself 

only with the bare necessities of life prior to 

providing support for his child. 

Ado~tion of K.L.J.K., 730 P.2d at 1139. 

In this case, the natural father's ability to earn income was 

limited. From July 1989 through August 1990, he was unemployed for 

four months. He worked approximately four months as a part-time 

bartender earning less than $500 a month. While unemployed, the 
natural father demonstrated his willingness to seek employment by 

actively contacting numerous construction companies but was 

temporarily unsuccessful. He sought unemployment compensation but 

was refused benefits. The natural father testified he had 

difficulty making rental payments and paying bills while working 

because his wages were being garnished by his wife. The District 

Court concluded that the wife should have applied the payments to 

child support. 

We hold that the District Court did not err in finding that 

the evidence was not clear and convincing that the natural father 

was able to contribute to child support but did not to do so for 

a period of one year. 

We affirm. / 

We concur: ,' 

Chief Justice 
August 27, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Loren J. O'Toole I1 

O'TOOLE & O'TOOLE 

209 North Maint 

P.O. Box 529 

Plentywood, Mt 59254 

Francis J. McCarvel 

Attorney at Law 

P.O. Box 388 

Glasgow, MT 59230 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA