                                                                                       November 10 2015


                                            DA 15-0273
                                                                                        Case Number: DA 15-0273

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2015 MT 316



In Re the Adoption of:

P.T.H.,

         A Minor Child.



APPEAL FROM:              District Court of the Second Judicial District,
                          In and For the County of Silver Bow, Cause No. DA-14-12
                          Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                          Daniel R. Sweeney, Sweeny Law Firm, Butte, Montana

                For Appellee:

                          Kristine M. Akland, Matrium Law Group, Missoula, Montana



                                                     Submitted on Briefs: October 14, 2015
                                                                Decided: November 10, 2015


Filed:

                          __________________________________________
                                            Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1        Petitioner B.C. appeals from the District Court’s Findings of Fact, Conclusions of

Law and Order filed April 16, 2015, denying his petition for adoption of P.T.H. We

affirm.

¶2        We restate the issues for review as follows:

          Issue 1: Whether the District Court erred by giving full faith and credit to the
          parenting plan and child support order entered by the Superior Court of California.

          Issue 2: Whether the District Court erred by refusing to terminate the parental
          rights of the father.

                                       BACKGROUND

¶3        P.T.H was born in 2008 and is the natural son of T.C. (mother) and R.H. (father).

The parents were divorced in California in 2009 but then remarried each other. They

subsequently separated and divorced a second time. The parties agreed to a parenting

plan that was approved by the Kern County (California) Superior Court. That agreement

specified that R.H. did not have to pay any child support, and that provision was adopted

by the Kern County Court as part of its final order. Since that time neither T.C. nor R.H.

has sought to modify the parenting plan or child support provision in the California

court’s order.

¶4        In 2010 T.C. moved to Montana and is now married to B.C., who is the petitioner

for adoption in this case. B.C.’s petition, filed in 2014, seeks to terminate R.H’s parental

rights so that B.C. can adopt P.T.H. The sole basis for the petition to terminate R.H.’s

parental rights is the allegation that R.H. is an unfit parent because he failed to pay child

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support during the year prior to the filing date of the petition. R.H. responded to the

petition, consented to the jurisdiction of the Montana court, but also requested that the

District Court modify the California parenting plan. The District Court bifurcated the

parenting plan issues pending resolution of the adoption case. After a hearing at which

T.C., R.H. and R. H.’s mother testified, the District Court found that there was no basis

for terminating R.H.’s parental rights and dismissed the petition.

¶5     The District Court reviewed the 2010 California court order and found that it

provided that “child support is set at zero,” based upon the stipulation of the parties. The

District Court found that neither party had sought to modify that order. The District

Court found that during the four years prior to the present petition, R.H. made three

payments to T.C. that he noted as “child support” and that he sent periodic packages of

clothes and presents for P.T.H. The District Court also found that R.H. has generally

been employed during the four years prior to the petition, working in construction for

wages between $11.00 and $15.00 per hour.

¶6     The District Court concluded that the United States Constitution (Article IV,

Section 1) and Montana law (§§ 40-5-149 and 40-4-210(2), MCA) require that “full faith

and credit” be given to child support orders entered by courts in other states, including

the order of the California court in this case. The District Court concluded that the child

support order from the California court must be recognized and enforced in Montana

unless modified.

¶7     In Montana a child cannot be adopted without the consent of the natural parent.

Section 42-2-301, MCA. Parental consent to an adoption is not required if there is a

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judicial determination that the parent is unfit. Section 42-2-607(2), MCA. The District

Court concluded that in this case the only ground for R.H.’s alleged unfitness is based

upon § 42-2-608(1)(c), MCA, which provides that the court

       may terminate parental rights for purposes of making a child available for
       adoption on the grounds of unfitness if it is proved to the satisfaction of the
       court that the parent, if able, has not contributed to the support of the child
       for an aggregate of 1 year before the filing of a petition for adoption.

The District Court noted the factors for determining whether a parent is “able” to support

the child, as set out in In re the Adoption of C.R.N., 1999 MT 92, ¶ 15, 294 Mont. 202,

979 P.2d 210.

¶8     The District Court noted that under Montana law, when there is no child support

order in place, a parent still must support his or her child or, again, risk being found unfit

for purposes of an adoption. In re the Adoption of R.M., 241 Mont. 111, 115, 785 P.2d

709, 711 (1990). The District Court concluded that because R.H. had been “able” to

make child support payments for the year prior to the petition, he risked being declared

unfit except for the unique facts of this case: that there was an existing court order

providing for “zero” child support. The District Court concluded that “[i]f another state’s

court order releases a parent of the responsibility to pay child support, this Court cannot

later disregard that order and mandate that child support should have been paid. . . . .

Such an act would disregard the Full Faith and Credit clause of the U.S. Constitution and

other Montana laws.”

¶9     The District Court then concluded that there were no grounds for finding R.H. to

be an unfit parent, and refused to terminate his parental rights. Further, the District Court

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ordered that the parties’ child support obligations be re-determined under the Montana

Child Support Guidelines, and that the 2010 California order would be followed until that

re-determination was completed. B.C. appeals.

                                    STANDARD OF REVIEW

¶10    This Court reviews a district court’s findings of fact to determine whether they are

clearly erroneous, and conclusions of law to determine whether they are correct. Because

the termination of parental rights involves a fundamental liberty interest, a decree

terminating those rights must be supported by clear and convincing evidence.                See

generally In re the Adoption of C.R.N, ¶ 7.

                                         DISCUSSION

¶11    Issue 1: Whether the District Court erred by giving full faith and credit to the
       parenting plan and child support order entered by the Superior Court of
       California.

¶12    The United States Constitution requires that “[f]ull faith and credit shall be given

in each state to the . . . judicial proceedings of every other state.” U.S. Const. art. IV, § 1.

The requirement to give full faith and credit is “exacting” and a state court judgment

qualifies for recognition “throughout the land” for claim and issue preclusion purposes.

Baker v. GM, 522 U.S. 222, 233, 118 S. Ct. 657, 663-64 (1998). Federal law requires

that each state “shall enforce according to its terms a child support order” from the court

of another state. 28 USC § 1738B. In this case it is not contested that the Superior Court

of California had full jurisdiction to enter the 2010 order setting the amount of child

support owed by R.H. at “zero,” and it is not contested that neither party has since

obtained a modification of that order.

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¶13    Montana law requires:

       A court of this state shall accord full faith and credit to an order issued by
       another state and consistent with this chapter that enforces a child custody
       determination by a court of another state unless the order has been vacated,
       stayed, or modified by a court having jurisdiction to do so under 40-7-105,
       40-7-107 through 40-7-110, 40-7-112, and part 2 of this chapter.

Section 40-7-313, MCA. See also § 40-5-186, MCA, providing for registration and

enforcement of support orders. Section 40-4-210(2), MCA, provides that a Montana

court “shall recognize and, if petitioned to do so, enforce according to its terms a child

support order issued by a court or administrative agency of another state if the order was

made consistent with the full faith and credit provisions of 28 USC 1738B.” Both federal

and Montana law allow Montana courts to modify child support orders issued by other

state courts upon meeting the proper standards. Section 40-4-210(6), MCA. Therefore,

the California order setting the support obligation at “zero” has the same legal effect as if

that order had been issued by a district court in Montana, but its provisions may be

modified pursuant to new proceedings in this State.

¶14    Petitioner’s argument is based upon the premise that this is a case in which there

was “no court-ordered support order” and therefore R.H. nonetheless had an obligation to

provide support. Adoption of R.M., 241 Mont. at 115, 785 P.2d at 711. However, there

clearly was a court order in this case setting the amount of support at zero. As this Court

recognized in Adoption of R.M., 241 Mont. at 115-16, 785 P.2d 709, the parental support

obligation exists “absent a court order releasing . . . this responsibility or altering this

obligation . . . .” Therefore, we hold that the District Court properly concluded that it was



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required to recognize the 2010 order of the California court which set R.H.’s support

obligation at “zero.”

¶15    Issue 2: Whether the District Court erred by refusing to terminate the parental
       rights of the father.

¶16    As previously noted, a child may be adopted only with consent of the natural

parents, § 42-2-301, MCA, but consent is not required if the parental rights have been

terminated, § 42-2-607, MCA. R.H. has not consented to the proposed adoption, and the

only ground for declaring him to be unfit is based upon § 42-7-608(1)(c), MCA. That

section allows, but does not require, a district court to terminate a parent’s rights to his

child for purposes of 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.” In re the Adoption of D.J.V., 244 Mont.

209, 213, 796 P.2d 1076, 1078 (1990).

¶17    As the District Court here recognized, this is a different situation because there is a

support order in place that currently governs the obligations of the parents. T.C., the

mother, consented to that order. Recognizing it as a controlling order in this case is

entirely consistent with the requirements of Full Faith and Credit, and with the obligation

of a parent to comply with a support order if one is entered. Parents often agree and

courts often order that there be no child support, such as when the parents share equally

in custodial time with the child.     Allowing termination of parental rights in such a

situation after a year has gone by is clearly a trap for the unwary parent and would

undermine the authority of the district courts to set the amount of support in each case.


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¶18   Termination of parental rights impacts the parent’s fundamental liberty interest,

and a decree terminating those rights must be supported by clear and convincing

evidence. A parent cannot be declared unfit and have his or her child adopted by another

person after complying with a court order setting the amount of support due.

¶19   The order of the District Court is affirmed and this matter is remanded for further

proceedings regarding proposed modification to the parenting plan.



                                                /S/ MIKE McGRATH


We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




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