No. 12617 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

IN THE MATTER OF THE ADOPTION 

OF DWAYNE BIERY, A MINOR CHILD 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant : 

Kelly and Carr, Miles City, Montana 

Patrick J. Kelly argued, Miles City, Montana 

For Respondent : 

William F. Meisburger, County Attorney, argued, 

Forsyth, Montana 

Submitted: April 23, 1974 

Decided : 

Filed: Jna 8 ,974 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal by the natural mother of a minor child 

from an order of the district court of Rosebud county declaring 

that her minor child remain in the custody of and be adopted 

by the petitioners. 

The mother, Mayleen (Biery) Anderson, and Criss Harold 

Biery were married on December 4, 1966. Todd Dwayne Biery was 

born as lawful issue of said marriage. The father and mother 

were divorced bn September 4, 1968. Under the terms of the 

divorce decree, the father was awarded custody of the minor 

child with reasonable visitation rights in the mother. On 

February 25, 1969, the mother sought to have the decree of 

divorce modified to enable her to have the custody of said 

child. That petition was denied and custody remained with 

the father. 

The father maintained custody of the child in the home 

of his sister and brother-in-law, Katherine Berdahl and Benny 

0. Berdahl, the petitioners and respondents herein, until the 

accidental death of the father, Criss Harold Biery, on February 

20, 1973. 

A week later the respondents petitioned the district 

court of Rosebud County for temporary custody of the minor 

child and further petitioned the court for adoption. An order 

to show cause why custody should not be granted to the petitioners 

was issued to the mother, Mayleen (Biery) Anderson. Subsequently 

a hearing thereon was held on March 5, 1973, and on April 23, 

1973, a trial was had on the respondent's petition to adopt. 
The district court ordered both petitioners' and the 

natural mother's homes to be investigated by the welfare department. Both homes were found suitable by the welfare department 

and notice of this was made in the court's findings of fact and 

conclusions of law. The district court also made findings of 

fact: 

"VI. That Respondent, although denied custody of 

this child on two occasions by this Court, has 

subsequT tly married; lives in Grand Forks, North 

Dakota; desires to obtain custody of said child; 

has a suitable home for the raising of the child; 

and is joined in her request by her present husband. 

"VIII. That Respondent has testified that her life 

style has changed; that she now is mature enough to 

raise the child; that such testimony is supported 

by an expert witness and is in no way contradicted 

by evidence produced by Petitioners. 

said child has benefited from the stable 

which he has been living in 

one-half years. I' 

and conclusions of law: 

"VII. That it would be for the best interests of 

the child, Todd Dwayne Biery, to remain in the 

custody of, and be adopted by the petitioners. I 1 

The district court directed that a final decree of adoption be 

entered which was done on September 4, 1973. 

The mottper now appeals from the order of the district I 

court granting ipermanent custody and adoption to petitioners. 

Two issues are presented for review: 

(1) Did the district court abuse its discretion in 

awarding permanent custody to respondents? 

(2) Did the district court err in granting respondents' 

petition to adopt? 
Directing our attention to the first issue, we note that 

this Court has consistently looked to the best interests of 

the child in determining custody . McCullough v. McCullough, 

159 Mont. 419, 498 P.2d 1189; Simon v. Simon, 154 Mont. 193, 

461 P.2d 851; Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802. 

In awarding the custody of a minor, section 91-4515(1) specifically provides that the court is to be guided: 

"By what appears to be for the best interests 

of the child in respect to its temporal and 

its mental and moral welfare * * *." 

The parent's right to the custody of her minor child is 

not an absolute one, even though it be conceded that she is a 

fit and proper person. In all such cases the crucial factor 

is the child's welfare, both material and psychological, considering in particular the ties of affection the child has 

formed and the consequences of breaking those ties. It is 

apparent that the district court took into consideration the 

fact that the child had lived with the petitioners the past 

four and one-half years, and that he had adapted to those surroundings. To remove the child from familiar surroundings 

might cause emotional disorientation in addition to that 

already caused by the death of his father. It is clear from 

the record that the relationship between petitioners and the 

child is extremely close. For these reasons the district court 

concluded that it would be in the childt s best interests to 

remain with petitioners. 

What is, or what is not in the best interests of the 

child depends upon the facts and circumstances of each case. 
The responsibility of deciding custody is a delicate one which is 

lodged with the district court. The judge hearing oral testimony 

in such a controversy has a superior advantage in determining 

the same, and his decision ought not to be disturbed except upon 

a clear showing of abuse of discretion. McCullough v. McCullough, 

:-t 

159 Mont. -bq 498 P. 2d 1189 ; Anderson v. Anderson, 145 Mont. 244, 

400 P.2d 632. 

We find substantial credible evidence supporting the 

decision here and accordingly no abuse of discretion in awarding 

custody to petitioners. Thus we affirm that part of the district 

court's order. 

The second issue presented for review presents a more 

difficult problem. The laws of Montana relating to the adoption 

of a minor child are found in section 61-201, et seq., R.C.M. 

1947. Of particular importance to this issue is section 61-205, 

R.C.M. 1947, requiring consent of a natural parent of a child 

sought to be adopted unless one of the exceptions set forth in 

this statute is met. The exceptions excusing consent are set 

out with particularity: 

"An adoption of a child may be decreed when 

there have been filed written consents to 

adoption executed by : 

"(1) Both parents, if living, or the surviving 

parent, of a legitimate child; provided, that 

consent shall not be required from a father or 

mother , 

If (a) adjudged guilty by a court of competent 

jurisdiction of physical cruelty toward said 

child; or, 

"(b) adjudged to be a habitual drunkard; or, 
" (c) who has been judicially deprived of the 

custody of the child on account of cruelty or 

neglect toward the child; or, 

"(d) who has, in the state of Montana, or in 

any other state of the United States, willfully 

abandoned such child; or 

"(e) 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 state department of public welfare of the 

state of Montana for a period of one (1) year 

without contributing to the support of said child 

during said period, if able; or, 

"(f) if it is proven to the satisfaction of the 

court that said father or mother, if able, has 

not contributed to the support of said child 

during a period of one (1) year before the filing - - - - 

of a petition for adoption; or (an adoption of a 

child may be decreed when there have been filed 

written consents to adoption executed by). 

"(2) The mother, alone, if the child is illegitimate; 

or 

"(3) The legal guardian of the person of the child 

if both parents are dead or if the rights of the 

parents have been terminated by judicial proceedings 

and such guardian has authority by order of the court 

appointing him to consent to the adoption; or 

"(4) The executive head of an agency if the child 

has been relinquished for adoption to such agency 

or if the rights of the parents have been judicially 

terminated, or if both parents are dead, and custody 

of the child has been legally vested in such agency 

with authority to consent to adoption of the child; 

or , 

"(5) Any person having legal custody of a child by 

court order if the parental rights of the parents 

have been judicially terminated, but in such case 

the court having jurisdiction of the custody of the 

child must consent to adoption, and a certified copy 

of its order shall be attached to the petition. 

"The consents required by paragraphs (1) and (2) shall 

be acknowledged before an officer authorized to take 

acknowledgments, or witnessed by a representative of 

the state department of public welfare or of an agency 

or witnessed by a representative of the court." (Emphasis 

added. ) 
Petitioners concede that the district court made no 

finding that Mayleen Anderson, the surviving parent came within 

any of the exceptions cited in the statute. Nor did she consent 

to the adoption. They contend, however, that there is testimony 

that the only support received for the child came from his 

father and from the respondents, thus coming under the exception 

of subsection (l)(f) of section 61-205, R.C.M. 1947. They 

argue that several jurisdictions have decided cases which 

indicate that the parents' consent to adoption is not required 

where they have failed to contribute to the support of the 

child, during a period of one year before the filing of a 

petition for adoption, regardless of whether there was a court 

order compelling them to do so. Adoption of a Minor, 357 Mass. 

490, 258 N.E.2d 567; In re Adoption of Sargent, 57 Ohio Op.2d 

135, 272 N.E.2d 206. 

While the best interests of the child are of utmost 

concern in both custody and adoption cases we have required 

strict compliance with section 61-205, ROC .M. 1947, because 

of the harshness of permanently terminating parental rights. 

Although there is testimony in the record that the 

child was supported during the preceeding four year period by 

the father and petitioners, there is no evidence that the mother 

was - able and failed to give support during this same period. 

Subsection (1) (f) of section 61-205, R.C.M. 1947, requires 

that it be proven: 

"* * * to the satisfaction of the court that said 

father or mother, if able, has not contributed to 

the support of said child during a period of one (1) 

year before the filing of a petition for adoption * * *.I1 

(Emphasis added.) 
This the petitioners failed to do. Nor did the district court 

make any findings to support petitioners argument. Absent a 

finding bringing the mother within one of the exceptions, 

consent is required. 

For these reasons we affirm the custody award, but 

vacate the adoption order without prejudice. 

T 

Justice