No. 84-557 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

IN THE MATTER OF L. R., Youth InNeed of Care.

APPEAL FROM: DistrictCourt of theEighthJudicialDistrict, In and fortheCounty of Cascade, The HonorableJoel G. Roth, Judgepresiding.
COUNSEL OF RECORD:
For Appellant: Hartelius & Ferguson; Cameron Ferguson, GreatFalls, Montana
For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Kathy Seeley, Asst. Atty. General, Helena, Montana Patrick L. Paul, County Attorney, Great FaI.ls, Montana Barbara Bell, Deputy County Atty., Great Falls JeffreyT. McAllister, Atty. forL.R., Great Falls, Montana

Submitted on briefs: July 25, 1985 Decided: October 15, 1985

Filed:Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court.

A. 

### R. and 

### W. R. appeal an Order of the Cascade County District Court requiring them to pay $28.80 per day for the
care of their adopted daughter, L.R., in a foster care institution known as the Rxhievement Home. The court determined the parentswere financially able to contribute to L.R. 'splacement costs based upon A.R. 'smonthly income,and hiswife,W.R.'s ability towork. The sole issue raised by appellants is whether the District Court abused its discretion in setting the parent's support obligationat an excessivel-yhigh level. We reverse with instructions. In 1976, A.R. and W.R. adopted a seven-year-old daughter,L.R. TheDistrictCourt determined shewas a youth in need of care, and she was removed from her home when she
was 15 years old. Her adoptive parents then attempted to relinquish custody of her and to terminate their parental rights and obligations. At the time of the financial support hearing, IJ.R. was residing at an institution known as theAchievement Home, in Great Falls. Her cost at the Achievement Homewas $28.80 per day (approximately $875.00 per month). The cost of regular foster care in a private home would be between $300 and $350 per month. L.R. was placed in themore expensive Achievement Home because of difficulty finding a foster home for a child of her age,and because of L.R.'s difficulty in adapting to a private foster home. In an order entered subsequent to its original order, the District Court refused to modify L.R.'s placement in theAchievement Home.In arriving at its finding that the parents were financially able to supportL.R. in the AchievementHome, the District Court relied on § 41-3-1124(3), MCA,which provides inpart: If the court determines that the parents are able to contribute to the support of the youth

# . . ., the court sha.11 issue an order directing the parents or guardian to make specified payments to the department to the extent considered appropriate under the circumstances. Further,we note inA.R.M. § 46.5.692: PARENTAL CONTRIBUTION COMPUTATION (1)Forpurposes of determining whether aparent is financially able



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# . to support the child in a youth care facility and for purposes of determining a recommended amount of contribution, the department hereby adopts and incorporates by reference ARM 42.6.101 through ARM 42.6.108, which sets forth the formula for determining the suggested minimum monthly child support contribution for purposes of child support enforcementpurposes. A.R.M. 42.6.101 (4) defines 

### "[mlonthly gross available resources" as "the sum of monthly income and %% of assets." From this amount is deducted an allowance for each person living in the home and financially dependent upon the parents. The resulting figure is used to determine the suggested.support contribution. On this appeal, the parents assert that the District Court erred by including as income, the wife's "ability to work" as this is a speculative condition. In its finding of fact no. 5, the District Court provid-ed: "[W.R.] is not working at the present time, but has worked in the past." Finding of fact no. 8 provided: "[A.R. and W.R.1 are financially able to support the cost of TL.R.'sl placement in at the Achievement Home based on [A.R.Is] monthly income and

[W.R.Is] ability to work." The parents cite our opinion in Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498, which provides:

### [tlhe conditions and circumstar~cesof the parties must be examined and determined at the time of the modification hearing, and may not be based upon mere speculative future conditions or possible conditions. We reiterated thepoint in Duffeyv. Duffey (Mont. 1981), 631 

### P.2d 697, 

### 38 St.Rep 1105, when we vacated an ord.erwhich premised increased child support on the speculation that certain social security benefits "were sure to increase in the future.l1 

### While both Gall and Duffey address the child support obligation between divorced parents, and the present case involves a child support obligation of parents who are still married,we see no substantive distinctionwhich would preclude an analogy to the present case determination that the amount of support should not be based upon speculative conditions. In order to affirm an order of the District Court, substantial credible evidence must exist in the record supporting its conclusions. The court concluded.the support order was based in part on its finding no. 8 of "

### [W.R. 'sl ability to work." However, nothing in the record supports that finding. The only relevant reference is on theparents1 financial statement, which provided: "[A.R.'s] income is our only income since [W.R.] isnotworking." The obligation of support cannot be based upon speculativeconditions. But aparent's ability to contribute is a legitimate consideration indetermining the amount of an obligation of support. In the present case, the allegations that W.R. is able to work are not supported by record evidence, andwithoutmore, amount tomere speculation. We reverse with instructions to conduct a hearing on W.R.'s ability to contribute toL.R.'s support.We Concur: 

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Chief Justice

Justices