No. 12617 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

INTHE 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 PatrickJ. Kelly argued, Miles City, Montana For Respondent: William F. Meisburger, County Attorney, argued,

Forsyth, Montana

Submitted: April 23, 1974 Decided:
Filed:

# Jna8 

## ,974

### Mr. JusticeFrank I. Haswell delivered the Opinion of theCourt.

This 

### is an appeal by thenatural mother of a minor child from an order of the district court of Rosebud county declaring that her minor childremain 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 saidmarriage. The father and mother

were divorced bn September 4, 1968. Under the 

### terms of the divorce decree, the fatherwas awarded custody of the minor childwith reasonable visitation rights in themother. On February 25, 1969, themother sought to have the decree of divorce modified to enableher to have the custody of said child. That petition

### was denied and custody remained with the father. The fathermaintained custody of the child in the home of his 

### sister and brother-in-law, Katherine Berdahl and Benny 0. Berdahl, thepetitioners 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 shouldnot be granted to the petitioners



### was issued to themother, Mayleen (Biery) Anderson. Subsequently

a hearing thereon was held on March 

### 5, 1973, and on April 23, 1973, a 

### trial

### washad on the respondent's petition to adopt.The district court ordered both petitioners' and the natural mother's homes to be investigatedby the welfare department. Both homes were found suitableby the welfare department and notice of thiswas 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 childon two occasions by thisCourt, has 

# subsequT tlymarried; lives inGrand Forks, North Dakota; desires to obtain custody of said child; has a suitablehome for the raisingof the child; and isjoined inher request by her present husband.

"VIII. That Respondent has testified that her life stylehas changed; that shenow 

### ismature enough to raise the child; that such testimony 

### is supported by an expertwitness and isinno way contradicted by evidence produced by Petitioners. said childhas benefited from the stable which hehas been living in one-half years. I' and conclusions of law: 

### "VII. That itwould be for the best interestsof the child, Todd Dwayne Biery, to remain in the custody of, and be adopted by the petitioners. I1 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 grantingipermanent custody and adoption to petitioners. Two issues arepresented forreview: (1) Did the districtcourt 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 firstissue, we note that this Court has consistently looked to the best interests of the child in determining custody

# . McCullough v. McCullough, 159Mont. 419, 498 P.2d 1189; Simon 

### v. Simon, 154Mont. 193, 461 P.2d 851; Haynes 

### v. Fillner, 106Mont. 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 inrespect to itstemporal and 

### itsmental and moral welfare

# * *

# *." The parent's right to the custody of her minor child is not an absolute one, even though itbe conceded that she 

### is a fitand proper person. In all such cases the crucial factor 

### is the child's welfare, both material and psychological, considering inparticular the tiesof affection the childhas formed and the consequences of breaking those ties. It 

### is apparent that the districtcourt took into consideration the fact that the childhad lived with the petitioners the past four and one-half years, and thathe 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 

### isclear from the record that the relationshipbetween petitioners and the child isextremely close. For these reasons the district court concluded that itwould be in the childts best interests to remain with petitioners. What is, orwhat isnot inthe best interests of the child depends upon the facts and circumstances of each case.

### The responsibility of deciding custody is 

### a delicateone which is 

### lodged with the districtcourt. The judge hearing oraltestimony 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 

### 159Mont.-bq 498 P.2d 1189;

### Anderson v. Anderson, 145Mont. 244, 400 P.2d 632. We find substantial credible evidence supporting the decision here and accordinglyno abuse of discretion in awarding custody to petitioners. Thus we affirm that part of the district court's order. The second issuepresented forreview presents a more difficultproblem. 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 tobe adopted unless one of the exceptions set forthin this statuteismet. The exceptions excusing consent are set out with particularity: "An 

### adoption of a childmay be decreedwhen therehave been filedwritten consents to adoption executed by: 

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

### a legitimate child; provided,that consent shallnot be required from a father or mother

## , If

### (a) adjudged guiltyby 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 childon account of cruelty or neglect toward the child; or, "(d) who has, in the stateof Montana, or in any other stateof the United States, willfully abandoned such child; or "(e) who has caused the child to be maintained by any public orprivate children's institution, charitable agency, or any licensed adoption agency, or the statedepartment of public welfare of the stateof 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 

### isproven to the satisfaction of the court that said father ormother, 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 childmay 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 ifboth parents are dead or if the rights of the parents have been terminated by judicial proceedings and such guardian has authorityby order of the court appointing him to consent to the adoption; or 

### "(4) The executivehead 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 ifboth parents are dead, and custody of the childhas been legally vested in such agency with authority to consent to adoption of the child; or

## , "(5) Any person having legal custody of a childby 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 childmust consent to adoption, and a certified copy of itsorder shallbe attached to the petition. "The consents required by paragraphs (1) and (2) shall be acknowledged before 

### an officer authorized to take acknowledgments, orwitnessedby a representativeof the statedepartment of public welfare or of an agency orwitnessed by a representative of the court." (Emphasis added.)Petitioners concede that the district court made no finding thatMayleen 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 istestimony 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 severaljurisdictions have decided cases which indicate that the parents' consent to adoption isnot required where they have failed to contribute to the support of the child, during a period of one year before the filingof a petition for adoption, regardless of whether therewas 

### a court order compelling them to do so. Adoption of 

### aMinor, 357 Mass. 490, 258 N.E.2d 567; In reAdoption of Sargent, 57 Ohio Op.2d 135, 272 N.E.2d 206. While the best interests of the child areof utmost

concern inboth custody and adoption caseswe have required strictcompliance with section 61-205, 

### ROC .M. 1947, because of the harshness of permanently terminating parental rights. Although there 

### istestimony in the record that the child

### was supported during the preceeding four year period by the father and petitioners, there isno 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 itbe proven: 

# "** * to the satisfactionof the court that said father ormother, if able, has not contributed to the support of said child during 

### a period of one (1) year before the filingof 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 

### isrequired. For these reasons we affirm the custody award, but vacate the adoption order without prejudice.

T Justice