                                                         SEP 0 '1 1994
                            NO.   93-469                 dl4 3 m d
                                                     CLERK OF SUPREME COURT
          IN THE SUPREME COURT OF THE STATE OF       MoW?LXWA OF MONTANA




IN RE THE MATTER OF
THE ADOPTION OF S.P.M.



APPEAL FROM:   District Court of the Third Judicial District,
               In and for the County of Powell,
               The Honorable Ted L. Mizner, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Mark P. Yeshe, Attorney at Law, Helena,
               Montana

          For Respondent:
               Deirdre Caughlan; Dunlap     &   Caughlan, Butte,
               Montana



                                  Submitted on Briefs: July 1 2 , 1 9 9 4
                                                 Decided: September 1 1 9 9 4
                                                                     ,
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

       Appellant J.M.     appeals    dismissal    by    the   Third    Judicial
D i s t r i c t Court, Powell County, of her petition for adoption of her
husband's natural child, S.P.M.         We affirm.
       The sole issue on appeal is whether the District Court erred

when it held that a parent's consent to adoption was required under
a specific set of circumstances.
       S.P.M. was born to R.M. and M.S. on July 21, 1986. R,M. and
M.S. divorced in April 1987, while living in Libby, Montana.                The
dissofution decree provided for joint custody, with each parent
having physical custody of S.P.M. for one month, on an alternating
monthly basis, and that R.M. would pay $125 per month in child
support during the months M.S. had physical custody of S.P.M.
       In the spring of 1988, R.M. moved to Aberdeen, Washington and
the physical custody agreement continued.              By mid-1988, R.M. was
living with J.M. (Appellant) in Aberdeen and M.S. was living with
J.S.     When   R.M. picked up S.P.M. i n November, he a l l e g e s he
observed bruises on S.P.M. ' s arms and back which led him t o believe
S.P.M. had been abused by J.S. R.M. filed a petition and affidavit
with the District Court, Powell County, Montana, claiming S.P.M.
was abused and requested custody of S.P.M.              On December 29, 1988
Judge Arnold Olsen issued an ex parte order causing S.P.M.'s
placement with R.M. until an investigation could be completed.
       On January 17, 1989, T e r r i Waldorf of Montana D e p a r t m e n t of
Family Services filed a report concluding that R.M.'s                 allegation
that S.P.M. was abused by J.S. was true. Waldorf recommended that
R.M. be granted sole custody of S.P.M. with M.S. given conditional
visitation rights.   No evidentiary hearing on the matter was held
nor has there been any modification of the original decree's joint
custody and month-by-month schedule.    M.S. had not seen S.P.M.
since December 29, 1988.
     When M.S. learned that R.M., Appellant, and S.P.M. moved from
Aberdeen to Deer Lodge, Montana, she filed a petition for custody
and visitation determination on July 2, 1992. Appellant petitioned
to adopt S.P.M. on August 11, 1992.        Both parties testified
extensively about the contacts between the parties, family members,
and friends between December 1988 and July 1992.    In addition to
Aberdeen, Washington, R.M. lived in Troy, Missoula, and Deer Lodge,
Montana.   R.M. left forwarding addresses whenever he moved.
     M.S. was generally poor and required public assistance in
various forms, and suffered from emotional or stress related
problems (the causes of which were not determined).   The District
Court concluded that between December 1988 and July 1992, M.S.'s
efforts to contact or visit S.P.M. were minimal and that R.M. made
little or no effort to facilitate contact between S.P.M. and M.S.
     The District Court dismissed, concluding that Appellant did
not meet her burden of proving that M.S. abandoned S.P.M. by any of
the three theories advanced:   Appellant's claims involved M.S.'s
failure to support S.P.M., that M.S. was judicially deprived of
S.P.M.'s   custody because of neglect (as a result of the December
29, 1988 order), and that M.S. abandoned S.P.M.

      The district court hearing testimony is in the best position
to determine the outcome of the controversy and this Court will not

                                 3
disturb its findings unless there is a mistake of law or a finding
of fact not supported by substantial, credible evidence.               In re
A.E. (1992), 255 Mont. 56, 59, 840 P.2d 572, 574-5. Petitioner has
the burden of proof for theories of abandonment advanced.                See
Matter of Adoption of S.L.R.    (1982), 196 Mont. 411, 640 P.2d 886.
This Court has consistently held that "[plarental rights involve a
fundamental liberty interest, and a judicial decree terminating
such rights must be supported by clear and convincing evidence."

-,
See   e q Matter of Adoption of R.M. (1990), 241 Mont. 111, 115,
       ..
785 P.2d 709, 711.
      Appellant argues that M.S.'s       consent was not required because
Montana's    adoption statute does not require consent under all
circumstances.      Appellant proposes three theories why M.S.'s
consent is not required to adopt S.P.M.
      First, Appellant argues consent is not required from a parent
"who has been judicially deprived of the custody of the child on
account of cruelty or neglect toward the child;            . . . ."   Section
4-8-lll(1) (a)( i ), MCA.      There has not been a prior judicial
proceeding concluding that M.S. was denied custody of her children
or had her parental rights terminated for reasons of cruelty or
neglect.     The determination of neglect necessitates a proceeding
separate from the consent for adoption hearing. We have held that
I1[t]he issues to be tried in a controversy over the termination of
parental rights, i.e., the degree of unfitness of a parent, are
quite different than the inquiry properly before the adoption
court.      The two should not be mixed.       .   ,   .   Brost v. Glasgow
(1982), 200 Mont. 194, 202, 651 P.2d 32, 36; citing Commissioners'

                                     4
Note for 5 40-8-111, MCA.          The Department of Family Services
hearing in this case was not sufficient to constitute a proceeding
determining cruelty, neglect, or termination of parental rights.
Additionally, M.S.'s      failure to pursue her legal remedies does not
excuse the inadequate procedure used to take S.P.M. from her and
does not      support the necessary finding by clear and convincing
evidence.
     Second, Appellant argues consent is not required from a parent
''who has   . . . willfully abandoned the child, as defined        in 41-3-
102 (8) (d) . f1                       (a)  ,
                   Section 40-8-111 (1) (iii) MCA.    Abandonment occurs
when a parent:
     abandons the child by leaving the child under
     circumstances that make reasonable the belief that the
     parent or other person does not intend to resume care of
     the child in the future or by willfully surrendering
     physical custody for a period of 6 months and during that
     period does not manifest to the child and the person
     having physical custody of the child a firm intention to
     resume physical custody or to make permanent legal
     arrangements for the care of the child . .        ..
Section 41-3-102 (8)(d), MCA. We have previously clarified that the
six-month requirement applies only to the willful surrender of
physical custody.         In re A.E.,                       M.S.   did not
willfully surrender physical custody of S.P.M.;       S.P.M. was removed
by court order in December 1988.        M.S.'s   failure to pursue legal
remedies t o gain custody of S.P.M.     after t h e 1988 court order does
not clearly and convincingly fail to meet the statutory standard.
M.S. manifested her intent to pursue S.P.M.'s        custody as soon as
she learned he was in Montana.          We conclude that the number of
contacts, or even attempted contacts, alone is not sufficient to
establish abandonment. Specific circumstances must be viewed as a
whole.        The facts of this case do not support a finding that M.S.
abandoned S.P.M.
         Third, Appellant argues consent is not required from a parent
if it is proven to the satisfaction of the court that the parent,
if able, has not contributed to the support of the child during a
period of one year before filing a petition for adoption. Section
4-8-lll(1) (a) (v), MCA.          We have held that a parent with no
physical or mental impairment and possessed of skills to earn an
income, was capable of making child support payments.              Ado~tionof
S.L.R.,       640 P.2d at 888.    In contrast, here the District Court's
findings        support that     M.S.   was   not   capable   of   financially
contributing to S.P.M.'s          support and care.      Unlike Adoption of
S.L . R . ,   the District Court concluded that M. S. ' case is not one
                                                       s
where M.S. had money but chose not to support her son. The record
as presented does not adequately establish M.S.'s                  ability to
provide support during the year prior to Appellant's                 adoption
petition.       See Matter of Adoption of T.G.K. (1981), 193 Mont. 139,
142, 630 P.2d 740, 742. That M.S. was not in contact with S.P.M.,
and did not exercise every mechanism of pursuing contact with him
is not material in this context.
         We hold that Appellant did not meet her burden of proof on the
three issues raised.        Accordingly, we affirm the District Court's
order to dismiss.                               \
c
We concur:



       hief Justice
