                                            No. 04-388

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2005 MT 145



IN RE THE ADOPTION OF C.W.D.
and C.D.D., Minors,


D.J.R.,

               Petitioner and Respondent.


          v.

P.K.D.,
               Respondent and Appellant,




APPEAL FROM:          District Court of the Fifth Judicial District,
                      In and For the County of Jefferson, Cause No. DA-03-0089
                      Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      P.K.D., pro se, Helena, Montana

               For Respondent:

                      Brad L. Belke, Attorney at Law, Butte, Montana




                                                    Submitted on Briefs: May 24, 2005

                                                              Decided: June 7, 2005


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1     P.K.D. appeals from the order of the Fifth Judicial District Court, Jefferson County,

granting D.J.R.’s petition to terminate P.K.D.’s parental rights to his children, C.W.D. and

C.D.D. We affirm.

¶2     The issue on appeal is whether the District Court erred in granting the petition to

terminate P.K.D.’s parental rights.

                                      BACKGROUND

¶3     P.K.D. and E.D.R. were married in August of 1996, and had two children together,

C.W.D. and C.D.D. The marriage was dissolved by order of the Second Judicial District

Court, Silver Bow County, on July 27, 2001. In its dissolution order, the Second Judicial

District Court reserved its determination regarding a final parenting plan and child support

matters pending receipt of a report from the guardian ad litem involved in the case and

ordered that the interim parenting plan would remain in effect in the meantime. It appears

that the interim parenting plan designated E.D.R. as the children’s primary residential

custodian, but did not provide for payment of any child support by either party. No further

action was taken in the dissolution proceeding and, as a result, the Second Judicial District

Court has never entered an order requiring either P.K.D. or E.D.R. to pay child support.

¶4     Shortly after entry of the dissolution order, E.D.R. entered into a common-law

marriage with D.J.R. The marriage subsequently was solemnized in June of 2003. On April

4, 2003, D.J.R. petitioned to adopt C.W.D. and C.D.D. The petition alleged that D.J.R. was

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the children’s stepfather and that their mother, E.D.R., had filed a written consent to the

adoption. The petition also alleged that P.K.D. did not consent to the adoption, but that his

parental rights should be terminated for failure to provide support for the children. In

conjunction with the adoption petition, D.J.R. also petitioned the District Court to terminate

P.K.D.’s parental rights to the children pursuant to § 42-2-608(1)(c), MCA, based on the

allegation that P.K.D. was unfit to parent in that, although able to do so, he had failed to

contribute to the children’s support for an aggregate period of one year prior to the filing of

the termination petition. P.K.D. responded to both petitions, denying the allegations that he

was able, and had failed, to provide support for the children and generally denying the

allegations of the adoption petition.

¶5     The District Court held a hearing on the petition to terminate on March 31, 2004,

following which it entered its findings of fact, conclusions of law and order terminating

P.K.D.’s parental rights to C.W.D. and C.D.D. P.K.D. appeals from the District Court’s

order terminating his parental rights.

                                STANDARD OF REVIEW

¶6     In reviewing a district court’s termination of parental rights pursuant to § 42-2-608,

MCA, we review the court’s findings of fact to determine whether they are clearly erroneous

and its conclusions of law to determine whether they are correct. In re Adoption of C.R.N.,

1999 MT 92, ¶ 7, 294 Mont. 202, ¶ 7, 979 P.2d 210, ¶ 7. The termination of parental rights

involves a fundamental liberty interest and, consequently, an order purporting to terminate

parental rights must be supported by clear and convincing evidence. Adoption of C.R.N., ¶ 7.

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                                           DISCUSSION

¶7        Did the District Court err in granting the petition to terminate P.K.D.’s parental

rights?

¶8        Generally, a child may not be adopted without the written consents of both birth

parents. See § 42-2-301, MCA. However, written consent to adoption is not required from

a parent whose parental rights have been judicially terminated. Section 42-2-302(1), MCA.

Parental rights to a child may be judicially terminated by a variety of means, including the

granting of a petition for termination based on a court’s determination that the parent is unfit.

Sections 42-2-607(2) and -608, MCA.

¶9        Here, D.J.R. asserted in the District Court that P.K.D.’s parental rights to the children

should be terminated for unfitness and, if P.K.D.’s parental rights were terminated, his

consent to the adoption was not required. D.J.R. based his allegation that P.K.D. was unfit

on § 42-2-608(1)(c), MCA, which authorizes a district court to terminate a person’s parental

rights for purposes of making a child available for adoption if “it is proven to the satisfaction

of the court that the parent, if able, has not contributed to the support of the child for an

aggregate period of 1 year before the filing of a petition for adoption.” D.J.R. asserted that,

although P.K.D. was able to do so, he had not contributed to the support of his children at

all between the time of the dissolution of his marriage to E.D.R. in July of 2001, and the

filing of the petition for adoption approximately 21 months later.

¶10       In its order terminating P.K.D.’s parental rights, the District Court found that, from

April 1, 2000, through April 4, 2003, P.K.D. provided no support for his children except

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during a brief period in which he provided in-kind support contributions by providing food

and shelter when the children visited him on several occasions. These visits ceased more

than one year before the adoption petition was filed. The court further found that the only

payments P.K.D. made for support, medical bills and medical insurance for the children

occurred after the adoption petition was filed on April 4, 2003. Additionally, the court found

that P.K.D. has been employed full-time by the United States government since July 1, 2002,

and had been employed on a part-time basis prior to that date while he was attending school.

Based on these findings, the District Court concluded that P.K.D. was able to support his

children for an aggregate period in excess of one year immediately preceding the date on

which the adoption petition was filed, but failed to do so. Consequently, the court further

concluded that, pursuant to § 42-2-608(1)(c), MCA, P.K.D. was unfit to be a parent.

Therefore, the court ordered the termination of P.K.D.’s parental rights to his children.

P.K.D. asserts that the District Court’s conclusion that he was able to provide support for his

children is erroneous.

¶11    P.K.D. does not dispute that he failed to provide support for his children for an

aggregate period of one year prior to the filing of the adoption petition on April 4, 2003. Nor

does he dispute that, during the nine-month period between July 1, 2002, and April 4, 2003,

he was employed full-time and had the ability to provide support for his children. He asserts,

however, that D.J.R. failed to establish by clear and convincing evidence that he was able

to provide support during any period prior to July 1, 2002, and, therefore, failed to establish

his inability to provide support for an aggregate one-year period as required by § 42-2-

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608(1)(c), MCA. P.K.D. contends that, prior to July 1, 2002, he was a full-time college

student and did not have sufficient funds to be “able” to provide support for his children.

¶12    We focus, therefore, on whether the record contains evidence that P.K.D. failed to

provide support for the children although able to do so during any three months prior to July

of 2002, to establish the aggregate one-year period required by § 42-2-608(1)(c), MCA. In

that regard, P.K.D. testified that, in the year prior to July of 2002, he had been a full-time

college student and, while attending school, he received loans and grant money which paid

for his housing, food and school costs. P.K.D. also testified, however, that between March

of 2001 and April of 2002, while attending college, he worked part-time for the Montana

Bureau of Mines and Geology. This earned money was over and above the grants and loans

which paid for his housing, food and school costs. P.K.D. testified that he did not use any

of the money earned from his part-time employment to pay support for his children.

¶13    We have held that, in determining whether a parent was able to contribute to the

support of a child, a district court must consider various factors including the parent’s ability

to earn income, the parent’s willingness to earn an income and support the child, the

availability of employment and the parent’s use of funds to provide himself only with the

bare necessities before contributing to the support of the child. Adoption of C.R.N., ¶ 15.

P.K.D.’s testimony regarding his part-time employment while attending college establishes

that he had the ability and willingness to earn income and that employment was available.

His testimony also establishes, however, that he was unwilling to use that income to support

his children. His grants and loans provided him with the bare necessities of housing and

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food, in addition to paying the costs of his education. He did not use the additional monies

from his part-time employment to contribute toward the support of his children.

¶14    We conclude that the District Court’s determination that P.K.D. was able to provide

support for his children during an aggregate one-year period prior to the filing of the petition

for adoption is correct. As a result, we further conclude that the District Court correctly

determined that P.K.D. was unfit to parent pursuant to § 42-2-608(1)(c), MCA, because he

failed to contribute to the support of his children for an aggregate period of one year before

the filing of the petition for adoption although he had the ability to do so. We hold,

therefore, that the District Court did not err in granting the petition to terminate P.K.D.’s

parental rights.

¶15    Affirmed.

                                                              /S/ KARLA M. GRAY


We concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




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