                                               NO.   93-477


                  IN THE SUPREME COURT OF THE STATE OF MONTANA




IN THE MATTER OF THE ADOPTION OF
J.M.H. and S.B.H.,
          Minors.



APPEAL FROM:                    District Court of the Eighteenth Judicial District,
                                In and for the County of Gallatin,
                                The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
                 For Appellant:
                                Bryan L. Asay; Kelley     &   Asay Law Firm, Helena,
                                Montana
                 For Respondent:
                                 Peter S. Lineberger; Lineberger, Walsh       &   McKenna,
                                 Bozeman, Montana




              f? $         (7                                 Decided:   March 2 4 , 1994
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Justice John Conway Harrison delivered the Opinion of the Court


     This is an appeal from the Eighteenth Judicial District Court,
Gallatin County. The District Court granted the adoptive father's
petition to allow the adoption of J.M.H. and S.B.H. (the children)
to proceed without the natural father's consent. The court further
concluded that the natural father was able to pay child support,
but failed to do so.     The natural father appeals the District
Court's ruling on the consent issue and the court's denial of a
continuance of the May 11, 1993, "best interestu hearing.       We
affirm.
     The issues are:
     1.   Did the District Court err by finding that the natural
father, though able, failed to pay child support?
     2.   Did the natural father waive his right to be present at
the May 11, 1993, "best interest" hearing?
     Natural father, John Heikkila (John), and natural mother,
Karen Beth Sorensen (Karen), were married in 1983 while attending
Montana State University in Bozeman, Montana.   After the birth of
their first daughter, the couple moved to Colorado so that John
could attend veterinary school.   The couple's second daughter was
born in 1986.   In July 1987, before John graduated from veterinary
school, the couple separated.      The marriage was dissolved in
Colorado on December 28, 1988.
     The final decree of dissolution addressed, among other things,
matters of child custody, visitation, child support and marital
debts. John and Karen were awarded joint custody of the children.
Karen was namedthe primary physical custodian. The parties agreed
that Karen and the children would return to Montana. John was
granted "liberal and generous visitation" in Montana.    He was also
granted up to ten days of visitation per summer in Colorado, so
long as John's sister escorted the children.
     The Colorado court also ordered John to pay child support of
$200 per month, less than the amount required by Colorado's Child
Support Guidelines, due to his student status. Visitation and the
monthly child support payments were to be renegotiated after John's
graduation from veterinary school or upon securing full-time
employment.
     Karen returned to Bozeman after the dissolution. While there,
she met Timothy Lee Barth (Tim). They were married on December 22,
1990. In May 1990, John graduated, became licensed, and secured a
position as a veterinarian in Colorado.        Despite the Colorado
court's   order, John and Karen never renegotiated visitation and
child support.
     While John paid $2,050 in child support over the years, he
still owes $10,600 in back payments. John's total debts, including
sizable student loans, are about $70,000.       John's   tax returns
indicated that in 1990, the year he graduated and worked for six
months, he earned approximately $15,000.        In 1991, he earned
$31,367, and in 1992, $32,400.
     Two years after Tim and Karen were married, Tim sought to
adopt the children.    John made numerous attempts to delay and
prevent Tim's    adoption of his children.         Tim's    petition to the
Eighteenth Judicial District Court stated in part:
     Since the marriage between KAREN BARTH and the
     Petitioner, TIMOTHY LEE BARTH, both minor children have
     resided with the above parents as their natural
     child[ren].


     The Petitioner desires to adopt [J.M.H.] and [S.B.H.] as
     his own children, to be treated in all respects as if
     they were the natural children of the Petitioner, to take
     the family name of BARTH,       . . .
                                       and be entitled to the
     support, affection and inheritance of the Petitioner in
     all respects establishing the relationship of parent and
     child between the Petitioner and [the children].
The court set an adoption hearing for May 11, 1993.            In an effort
to prevent this hearing, John filed a petition for writ of mandamus
with this Court.      John's petition was denied on May 11, 1993--the
same day that the District Court made its findings of fact,
conclusions of law and final decree of adoption, granting Tim's
request.   John appeals. We affirm.
                                     I

     Did the District Court err by finding that the natural father,
though able, failed to pay child support?
     During     the   period   in   which    he   accrued    child   support
arrearages, John chose to repay his general creditors rather than
fulfill his child support obligation.         Karen, on the other hand,
returned to Montana, where she attended and graduated from Montana
State University.       At the time she graduated, Karen owed her
parents more than $10,000. Her financial situation was compounded
because, during most of that period, she was not receiving her $200
monthly child support payments.
                                     4
     John testified that prior to the dissolution, Karen received
money from a trust fund established for Karen's use by her parents.
John believes the fund is valued at $60,000 to $70,000, and it
largely supported the couple in Colorado. After Tim and Karen were
married, with the exception of a two-month period in which John
sent $250 in child support, Tim financially supported Karen and the
children.
     John contends that before and since his graduation in May
1990, he was too poor to make any payments other than those he
made.    He asserts that he only earned $23,444 after taxes, and had
expenses of $24,220, in 1990.      John argues that he has:    juggled
student loans and debts of $72,000; enjoyed no luxuries; no health
insurance; no savings; no television; no boat; no snowmobile; one
credit card through a gas company; and at one point, he even lost
electrical service to his home due to a delinquent bill.
        John claims to have a fundamental right--specifically, a
liberty interest--in his children, which prevents anyone from
"taking" his children without his consent. See    §   48-8-111(1), MCA.
John asserts that Tim, who wishes to adopt his children, must
establish by clear and convincing evidence that John was able to
contribute to the support of the children the year before Tim filed
the adoption petition.
        He argues that Montana law requires strict compliance with the
statute that the burden of proof rests with Tim.         John contends
that he presented overwhelming evidence of his inability to pay
during the period in question; that Tim presented no evidence of
John's   failure to pay; and that Tim failed to meet his burden of
proof. Because no clear and convincing evidence exists that he was
able to pay support, John argues that the District Court's decision
must be reversed.
     In support of his contention, John refers this Court to g 40-
8-111(1), MCA, which provides in pertinent part:
     Consent required f o r adoption.  (1) An adoption of a
     child may be decreed when there have been filed written
     consents to adoption executed by:
          (a) both parents, if living, or the surviving parent
     of a child, provided that consent is not required from a
     father or mother:


          (v) if it 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 a petition for adoption;   . . . .
     The issue in dispute at the November 20, 1992, hearing was
John's ability to pay.   John argues that the burden of proving his
ability to pay during the year prior to the filing of the petition
lies with Tim. Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d
886, 889.    Tim met this burden by showing that John earned about
$24,000 after taxes, paid $8,376 in student loans, and made
payments to other general creditors, including his divorce lawyer.
The District Court concluded that, although he was able to pay, he
did not contribute to the support of his children in the year
before Tim filed the adoption petition.   In so finding, the court
determined that John's consent to the adoption was not required.
     We will not overturn a district court's findings unless they
are clearly erroneous. Rule 52(a), M.R.Civ.P.; Adoption of B.L.P.
                                 6
(1986), 224 Mont. 182, 728 P.2d 803. This Court has "long adhered
to the standard of review which provides that we will consider only
whether substantial credible evidence supports the findings and
conclusions of the trial court."       B.L.P., 728 P.2d at 805 (citation
omitted).
       In B.L.P., this Court enunciated this standard of review in
discussing whether the appellant was able to make support payments
during the year immediately prior to the date the adoption petition
was filed.      John refers to the "clear and convincing" standard,
which is applicable to the evidence presented at the district court
level. However, it is unnecessary that this Court retry the facts
under the "clear and con~incinq~~
                               standard.             Rather, we review the
district     court's    findings   under     the   clearly   erroneous   and
substantial credible evidence standards.
       At the November 22nd hearing, when asked if he chose to repay
creditors rather than pay child support, John stated:
       It hasn't been in preference.       They are not more
       important than my daughters, but it has been paid more
       out of necessity. I am aware that Karen and Tim are not
       in need of the money. My girls do not suffer because of
       a lack of that money and these other bills, they're--at
       the present time they had the capacity to hurt me more
       than what I figured Karen would at that time.
This is not a case of equitable estoppel.           Tim and Karen did not
refuse any child support offers by John "in order to later assert
at     the   adoption   proceeding    that    [John's]   consent   was   not
necessary." See Adoption of D.J.V. (1990), 224 Mont. 209, 214, 796
P.2d    1076, 1079.      Rather, John "has not performed his legal
responsibility as a parent."         See D.J.V., 796 P.2d at 1079.
     In a memorandum supporting its December 21, 1992, findings of
fact and conclusions of law, the District Court stated:
          There is no question that Dr. Heikkilalsborrowings
     for school have left him in financial trouble. This
     court cannot accept, however, that the payment of the
     minimal amount of child support would have led to the
     father's downfall. Dr. Heikkila has shown that he can
     juggle his creditors, especially the student loans, and
     the court concludes that he could have done so while
     supporting his children. Indeed, he had a better payment
     record when he had little earnings as a student.
We agree with the District Court. Parents are obligated to support
their children. Sections 40-6-211 and 40-6-214, MCA. The District
Court's    determination that John was able to support his children,
yet failed to do so, is supported by substantial credible evidence.
We hold that the District Court's        findings were not clearly
erroneous.


     Did the natural father waive his right to be present at the
May 11, 1993, "best interestn hearing?
     The District Court notified all parties by its Order of March
11, 1993, that a "best interestgg
                                hearing would be held on May 11,
1993. On May 4, 1993, John requested a continuance of the May llth
hearing.     The reason for John's   request was that he had secured
counsel, who would need a "reasonable amount of time to familiarize
himself with the case.gg The District Court denied John's request
on May 8th. Neither John nor his attorney appeared at the May llth
adoption hearing.    John argues that the District Court abused its
discretion by refusing to grant the continuance he requested.
     Ruling on a motion       for a continuance is in the sound
discretion of the trial court.    See Fields v. Wells (1989), 239
Mont. 392, 780 P.2d 1141; In re Marriage of Robbins (1985), 219
Mont. 130, 711 P.2d 1247.   In the case before us, John had notice
of the hearing, and ample time to secure counsel and arrange
transportation from Colorado.   Instead, he chose not to attend the
hearing or to have counsel represent him.    John was afforded the
opportunity to attend the hearing, which satisfied all due process
requirements as set out in Montana law.     See, e.g., Adoption of
R.M.   (1990), 241 Mont. 111, 785 P.2d 709.      Though adequately
notified, John effectively waived his right to claim due process
violations by failing to attend or dispatch an attorney to the
hearing.    We hold that the District Court acted well within its
discretion when denying John's motion for a continuance.
       Af finned.
Justice James C. Nelson specially concurs:
     I concur with the Court's opinion.     Something more, however,
needs to be said about Dr. Heikkila's "abilityu to pay.
     While the dissent has correctly set forth the law with regard
to the issue of a parent's ability to pay, I disagree that, on the
facts of this case, the natural father was unable to support his
children.      True, despite his employment as a doctor of veterinary
medicine, his expenses exceed his income. True, also, he is deeply
in debt   --    largely because of student loans which he used to
finance his higher education.         Agreed, some of his debt is
delinquent. Conceded, he lives a spartan life without luxuries and
amenities -- no television, savings, investments, credit cards,
health insurance, boat or snowmobile.
     No doubt about it, Dr. Heikkilals financial situation is
bleak.    Notwithstanding, he is no worse off than millions of
Americans, who, despite the inconvenience of bills which exceed
income, dunning creditors, unemployment, sickness, debt, divorce
and the fact that whatever can go wrong usually does, somehow find
the money each month to support their children. Those families and
single parents take on second and third jobs: they put off paying
bills; they borrow and scrimp and sacrifice and go on welfare, but,
nevertheless, from their inadequate incomes their kids get fed,
clothed and sheltered first.      It is, frankly, of small concern to
a hungry child that his parent's student loan is delinquent.
     I agree with the dissent.      The parent-child relationship is
likely the most important human relationship that exists. But with
the riqht to be a parent go some responsibilities, not the least of
which is the obligation to financially support one's children,
whether they live in one's own home or with the ex-spouse.
      Unfortunately, Dr. Heikkilats perception of his parental
obligation of support mirrors that of "deadbeat" parents nationwide
who, on the one hand, sanctimoniously demand their constitutional
riqht to parent, but who, on the other hand, are more than willing
to let the custodial ex-spouse, some other family member or third
party and/or the taxpayer shoulder the entire burden of feeding,
clothing and sheltering the children
      Dr. Heikkila is not unable to support his children; he just
chooses to spend what income he has on obligations other than child
support. His voluntary spending priorities, sadly, include himself
and his general creditors first, and his children not at all. That
his spending priorities are misplaced does not equate to an
inability to support his children.
      The District Court's                              so is this
Court ' s .
Justice Terry N. Trieweiler dissenting.
     I dissent from the majority opinion.
     A natural parent has a "fundamental liberty interestu in his
continuing parental relationship with his children. Santosky v Kramer
                                                             .

(1982), 455 U . S . 745, 753, 102 S. Ct. 1388, 1394-95, 71 L Ed. 2d
                                                            .
599, 606; see MatterofRB., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846,

848. While allowing for the fact that there is great variation in
the quality of parent-child relationships, it still may be the most
important human relationship that exists.      It is for that reason
that our courts and legislatures have allowed termination of that
relationship without a parent's consent under only the most extreme
circumstances.    Those circumstances require not just lack of
support, but a degree of culpability that is strikingly absent in
this case.
     Section 40-8-111, MCA, requires consent of both living natural
parents prior to adoption except for limited circumstances.
According to subsection (l)(a)(v)     of that statute, failure to
contribute to the child's support during the year preceding the
petition for adoption is only a basis for waiving consent when it
can be proven that the noncontributing parent was 'lablew to
contribute to the child's support.
     We have been insistent in the past that someone petitioning to
adopt over the objection of a natural parent must prove not only
the absence of support, but that the nonsupporting parent had the
ability to contribute to the child's support.   In MatterofAdoption of

     (1991), 250 Mont. 205, 207-08, 819 P.2d 178, 179, we stated:

           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 reAdoption 0fS.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 ofAdoption
    0fR.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. MatterofAdoption of
    S.L.R. (1982). 196 Mont. 411, 413-14. 640 P.2d 886. 887.
                  ..
    The burden of proof falls upon the petitioner to show
    that the two-prons test is met. Adoption ofRA.S., 679 P. 2d
    at 223; Adoption ofS.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. Inre
    AdoptionofBiery (1974), 164 Mont. 353, 359, 522 P.2d 1377,
    1380. [Emphasis added].
     Based upon the standard articulated in the preceding case, the
natural father in this case was entitled to a directed verdict
following petitioner's proof
     Petitioner called three witnesses, none of whom had anything
relevant to say about the father's ability to support his two
daughters during the previous year.   The first witness was Robert
Blair, a veterinarian from California, who had graduated from
veterinary school with the natural father. Basically he testified
to what he had earned in California since graduation.     So what?
     The next witness was Timothy Barth, the petitioner.               He
testified that during the previous year the two children who were
the subject of the petition had not received support from their
natural father, and that to his knowledge the natural father was
employed.   He also testified that the natural father drove a 1990
blue Chevy pickup.        No testimony was given about the father's
ability to pay.
     The final witness called by petitioner was Karen Barth, the
natural mother of the children.           She testified that she had
received no child support payments during the previous year, and
that pursuant to the decree of dissolution, her former husband was
obligated to pay   $200   a month.   She offered no testimony about his
ability to pay child support during the previous year.
     The aforementioned witnesses were the sum total of evidence
presented by petitioner. As a matter of law, based on our previous
decisions, petitioner did not satisfy his burden of proof, and his
petition should have been dismissed by the District Court at the
conclusion of his evidence.
     The only witness to testify about the natural father's ability
to pay was the father himself. He acknowledged that at the time of
the hearing he was a practicing veterinarian and that his gross
income during the preceding year had been         $30,000   to   $32,000.

However, it was also uncontroverted that his net income for the
12 months preceding the date on which the petition was filed in
this case was $23,444, and that his basic living expenses, for bare
                                     14
necessities, during the same period of time were $24,220. In fact,
in its Finding of Fact No. 12 the District Court listed those
expenses from which the $24,000 figure was arrived at as follows:
     12.   In the year preceding the filing of the adoption
           petition, John Heikkila's living expenses were as
           follows:
           Cateqory                              Monthly
           Rent                                  $ 265
           Utilities
           Food
           Clothing
           Entertainment
           Personal care
           Pickup
           Insurance
           Fuel
           Maintenance
           License and Dues
           Attorney Fees
           Life Insurance
           Student Loans
           Gifts
           Totals
     The above figures only take into account those bills that the
father actually paid.    He had many other bills which he was
juggling and periodically was unable to pay.   He was in default on
three different college loans, and he was also in default on loans
which he owed to his mother, his uncle, the Hamilton Cattle
Company, and his    former wife's parents.      At   one time his
electricity was shut off for late payment.
     He had no television, no savings account, no investments, no
major credit cards, and no health insurance.
       His total debt at the time of trial was $72,000,        including
$52,000   for student loans, over $10,000 in back due child support,
and the various other debts that have been mentioned.        He has not
filed for bankruptcy because he testified that the student loans
and the child support could not be discharged and all that would be
accomplished would be the loss of his pickup, which is necessary
for his employment.
       At no time since his graduation from veterinary school has the
natural father's income equalled his basic living expenses, and
there have been times during that period when he went without a
telephone and shared expenses with another in order to survive.
       Under these circumstances, what did the District Court, and
what does the majority, expect?      The question in this case is not
whether the natural father's obligation for child support should be
discharged.    His debt to his children continues to accrue and will
never be discharged, and can be collected when his financial
situation improves to the point where he is able to pay it.          The
question in this case is whether his right to parenthood should be
terminated because he willfully refused to pay child support when
he was able to do so. We have in the past articulated standards by
which "abilityv1 pay child support is to be determined.
                to                                                 Those
standards have been ignored in the majority opinion.
       In our recent decision in fit re Adoption of KRO.and KN.0. (1991),

250   Mont. 517, 8 2 2 P.2d 8 3 , we reiterated the following criteria to
be considered when determining whether a nonpaying natural parent
had the ability to make child support payments:
          Because parental rights involve a fundamental
    liberty interest, a judicial decree terminating such
    rights must be supported by clear and convincing
    evidence. Matter of Adoption of RM. (1990), 241 Mont. 111,
    115, 785 P.2d 709, 711. In order to determine whether a
    parent is llablell contribute to child support, the
                         to
    trial court must examine several factors. These factors
    include :
          1)   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's use of his funds to provide
          himself only with the bare necessities of life
          prior to providing support for his child.
    MatterofAdoption 0fKL.J.L. (1986), 224 Mont. 418, 423, 730
    P.2d 1135, 1139.



     The first three factors are not in dispute. The fourth factor
is the factor which was never mentioned by the District Court, nor
the majority in this case.   After reviewing the transcript of the
hearing in this case, and the District Court's findings of fact, I
conclude that the natural father in this case had no money left
after providing himself with the bare necessities of life, and
therefore, was, as a matter of law, unable to contribute to the
support of his children during the period of time preceding the
petition for adoption.
     Notwithstanding   the   high-minded   tone    of   the   concurring
opinion, the result in this case ignores existing law regarding
what constitutes the "abilityw to pay        and    ignores the best
interests of the children. Notwithstanding the heroic examples of
self-sacrifice immortalized in the concurring opinion, termination
of a parent-child relationship is a draconian remedy for parents
who do not measure up to the concurring author's ideals for
parenthood.    The sermonizing in the concurring opinion, which
captures the real essence of the majority's thinking, may have some
place in a church service, but is highly irrelevant to the legal
issues in this case.
       Apparently it is the majority's conclusion that debts which
result in collection letters and threatened suits, along with
whatever subsequent execution would result, are not "necessities of
life."    I disagree, and so would the natural father's creditors.
If the debts can be reduced to judgment, and a subsequent order
entered enforcing the judgment, then it is certainly "necessaryt'
that they be paid.
       While the enforcement of child support obligations, to the
extent possible, is certainly a commendable concern, punishing a
natural parent by terminating his parental rights when support is
not possible does not serve the best interests of his children, or
anyone else.    His children are no better off financially as a
result of this decision, and may certainly be harmed by their
father's future inability to maintain or establish any relationship
with   them.    While   the majority may   now   feel   "tougherN on
nonsupporting parents, the interests of the children seem to have
been forgotten.
                                 18
     In this case, petitioner failed to satisfy his burden of proof
by establishing that the natural father was "able" to make child
support payments during the year preceding the date on which the
petition for adoption was filed, therefore, the natural father's
consent to adoption was required.    For these reasons, I dissent
from the majority opinion and would reverse the judgment of the
District Court.
to the
