                                     No. 01-440

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   2002 MT 217N



IN THE MATTER OF THE ADOPTION OF
A.J.R. and M.A.B.,

          Minor Children.



APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Kenneth R. Neill, Judge presiding.


COUNSEL OF RECORD:

          For Appellant:

                 Kenneth R. Olson, Attorney at Law, Great Falls, Montana

          For Respondent:

                 (No Respondent’s brief filed)


                                                 Submitted on Briefs: April 18, 2002

                                                            Decided:   September 24, 2002

Filed:



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



¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme    Court    cause     number    and    result    to   the   State   Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2    Darran B. (Darran) appeals from the judgment entered by the

Eighth Judicial District Court, Cascade County, on its findings of

fact, conclusions of law and order terminating his parental rights

to his children, A.J.R. and M.A.B., and granting the petition for

adoption filed by Justin D. (Justin).                We reverse and remand with

instructions.

¶3    We restate the issue on appeal as whether the District Court

erred in terminating Darran’s parental rights pursuant to § 42-2-

608(1)(c), MCA.
                                     BACKGROUND

¶4    Darran and Tammy D. (Tammy) were married in 1990 and have two

sons, A.J.R. and M.A.B.          Darran and Tammy’s marriage was dissolved

in August of 1998.           Pursuant to the Stipulated Parenting Plan,

incorporated by reference into the dissolution decree, Tammy was

designated sole primary residential custodian of the two children

and Darran was given supervised visitation rights.                      The decree




                                           2
required Darran to pay $189 per month per child in child support,

for a total of $378 per month.

¶5   In July of 1999, Tammy married Justin.              Later that month,

Justin petitioned the District Court to terminate Darran’s parental

rights   to   A.J.R.   and   M.A.B.,   and    allow   Justin   to   adopt   the

children.     The petition alleged that Darran’s parental rights

should be terminated pursuant to § 42-2-608(1)(c), MCA, on the

basis that he was unfit because he had not paid child support for

an aggregate period of one year prior to the filing of the petition

although he was able to do so.         In December of 1999, Justin filed

an amended petition, again alleging that Darran’s parental rights

should be terminated because he had failed to pay child support for

an aggregate one-year period although able to do so and more

specifically alleging the child support amounts Darran had paid and

the amount he still owed.         Justin subsequently filed a second

amended petition reiterating the allegations of the first two

petitions and adding allegations that Darran’s parental rights

should be terminated on the additional bases set forth in §§ 42-2-

608(1)(d),    -608(1)(g),    -608(1)(h)      and   42-2-610,   MCA.    Darran

opposed all of Justin’s petitions.
¶6   In April of 2001, the District Court held a hearing on the

petition for termination of parental rights and adoption.                   The

court subsequently entered its findings of fact, conclusions of law

and order in which it found that Darran was unfit, Justin was a fit

and proper parent, and it would be in the children’s best interests

to allow him to adopt them.      Based on its findings and conclusions,



                                       3
the court terminated Darran’s parental rights and granted Justin’s

petition for adoption.      Darran appeals.




                           STANDARD OF REVIEW

¶7     In an adoption case, we review a district 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.
                                DISCUSSION

¶8   Did the District Court err in terminating Darran’s parental
rights pursuant to § 42-2-608(1)(c), MCA?

¶9     Generally, a child may not be adopted without the written

consents of both birth parents.            See § 42-2-301, MCA.          However,

consent to adoption is not required from a parent whose parental

relationship to the child has been judicially terminated.                 Section

42-2-302(1), MCA.      A parent’s parental relationship 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.          See §§ 42-2-607(2) and -

608,    MCA.     The   termination    of    parental    rights      involves   a

fundamental liberty interest and, consequently, a court’s decision

to terminate must be supported by clear and convincing evidence.

Matter of Adoption of Doe (1996), 277 Mont. 251, 255, 921 P.2d 875,

878 (citations omitted).




                                      4
¶10    Justin’s petition requested that the District Court terminate

Darran’s parental rights based on parental unfitness and asserted

that, if Darran’s parental rights were terminated, his consent to

the adoption was not required pursuant to § 42-2-302(1), MCA.            The

District Court agreed.     The court concluded that Darran’s parental

rights should be terminated and, as a result, his consent to his

children’s adoption by Justin was not required.           Darran contends

that   the   District   Court’s   finding   relating    to    his   parental

unfitness under § 42-2-608(1)(c), MCA, based on his ability to

contribute to the support of his children and failure to do so for

an aggregate period of one year before Justin’s second amended

petition was filed, is clearly erroneous and, consequently, its

conclusion that his parental rights should be terminated on that

basis is incorrect.     Justin did not respond.
¶11    Section 42-2-608(1), MCA, provides that

       [t]he court may terminate parental rights for purposes of
       making a child available for adoption on the grounds of
       unfitness if:

       . . . .

       (c) 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 . . . .

This statute was enacted in 1997 as part of a general revision and

recodification of Montana’s adoption statutes.         See 1997 Mont. Laws

Ch. 480, Sec. 71.   Darran has not cited to--and we have not found--

any case law interpreting § 42-2-608(1)(c), MCA.             Prior to 1997,

however, § 40-8-111(1)(a)(v), MCA (1995), provided that parental

consent to an adoption was not required where “it is proved to the


                                    5
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 . . . .”             The language in that

statute is substantially similar to the language now contained in §

42-2-608(1)(c), MCA, and we conclude our case law interpreting §

40-8-111(1)(a)(v), MCA (1995), properly may be applied to § 42-2-

608(1)(c), MCA.

¶12   In that regard, we have held that a petitioner in an adoption

case seeking to prove that a natural parent’s consent is not

required on the basis of failure to support the child bears a two-

fold burden.    The petitioner must establish to the trial court’s

satisfaction both the natural parent’s failure to provide financial

support for the child during the one-year period prior to the

filing of the petition and the parent’s financial ability to

provide such support.        Adoption of C.R.N., ¶ 9 (citing Adoption of

Doe, 277 Mont. at 259, 921 P.2d at 880).            Here, Darran contends the

evidence at the hearing was insufficient to support the District

Court’s    findings   that     both   of      the   §   42-2-608(1)(c),   MCA,

requirements were met.        Because we conclude the District Court’s

finding that Darran was able to provide support to his children was

clearly erroneous, we need not address the additional one-year time

period requirement contained in § 42-2-608(1)(c), MCA.

¶13   In   determining   a    natural       parent’s    financial   ability   to

contribute to a child’s support, a district court must address

several factors including 1) the parent’s ability to earn an

income; 2) the parent’s willingness to earn an income and support



                                        6
the child; 3) the availability of jobs; and 4) the parent’s use of

his or her funds to obtain only the bare necessities of life before

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

(citing Adoption of Doe, 277 Mont. at 259, 921 P.2d at 880); In re

Adoption of V.R.O. (1991), 250 Mont. 517, 520-21, 822 P.2d 83, 85.

 The District Court’s findings of fact relating to Darran’s ability

to support his children state, in their entirety, as follows:

      Darran owns and operates a painting business which
      includes doing custom painting and construction painting.
       At no time since the divorce did he suffer any physical
      or health problem which precluded him from pursuing that
      business. Darran testified that his work was somewhat
      seasonal, that he “pays when can” [sic] and “supported
      kids whether could or not” [sic]. The Court finds that
      Darran “was able” to make the required child support
      payments as required for the period July 1, 1998 to June
      21, 2000 and to the present.
These   findings   of   fact   clearly    address    the   first   and   second

criteria set forth in the cases cited above:            Darran’s ability to

earn an income and his willingness to work to support his children.

¶14   The District Court, however, failed to address the remaining

criteria:   whether there are sufficient jobs available in Darran’s

seasonal employment as a painter to provide an income adequate to

provide support to his children and whether Darran uses his income

to obtain only the bare necessities of life before providing for

the support of his children.        Absent findings relating to these

criteria, the District Court’s findings of fact, as a whole, are

insufficient as a matter of law to support its ultimate finding

that Darran “was able” to provide support to his children as

contemplated by § 42-2-608(1)(c), MCA.        See Adoption of V.R.O., 250

Mont. at 522, 822 P.2d at 86.            Moreover, no evidence of record


                                     7
before us establishes the availability of painting jobs or the

amount of Darran’s income and the manner in which he spent it and,

consequently,    no   substantial        credible–much   less    clear   and

convincing–evidence exists of record which could have supported

such findings had they been made.

¶15   We conclude that, while the findings of fact made by the

District Court relating to Darran’s employment status are not

clearly erroneous, its findings were insufficient under Adoption of

C.R.N. and Adoption of V.R.O. to support its ultimate finding that

Darran “was able” to provide support to his children.           As a result,

we further conclude the court’s finding of fact that Darran is an

unfit   parent   pursuant   to   §   42-2-608(1)(c),     MCA,   is   clearly

erroneous and its conclusion that his parental rights should be

terminated on that basis is incorrect.          We hold, therefore, that

the District Court erred in terminating Darran’s parental rights

pursuant to § 42-2-608(1)(c), MCA.
¶16   Reversed and remanded for entry of an order vacating the

termination of Darran’s parental rights and the grant of Justin’s

adoption petition.



                                                /S/ KARLA M. GRAY


We concur:

/S/   JAMES C. NELSON
/S/   JIM REGNIER
/S/   TERRY N. TRIEWEILER
/S/   PATRICIA COTTER




                                     8
Justice W. William Leaphart dissenting.

¶17    I dissent. Darran challenges the District Court’s conclusion that he was an unfit

parent under § 42-2-608(1)(c), MCA, based on his ability to contribute to the support of his

children and his failure to do so for an aggregate period of one year before Justin’s second

amended petition was filed. This Court reverses the District Court for its failure to fully

address the statutory requirement that he be found “able” to support; in particular, failing to

address the question of whether there were sufficient jobs available in Darran’s seasonal

employment as a painter to provide an income adequate to provide support to his children

and whether Darran uses his income to obtain only the bare necessities of life before

providing for the support of his children.

¶18    In reversing the District Court for its failure to fully

address the requirements of § 42-2-608(1)(c), MCA, the Court ignores the fact that

the District Court gave two independent rationales for its conclusion of “unfitness.” Although

the District Court concluded that Darran was an unfit parent for not contributing to the

support of his children, it also concluded that he was unfit under § 42-2-608(1)(d), MCA,

which allows for a finding of unfitness if, “it is proven to the satisfaction of the court that the

parent is in violation of a court order to support either the child that is the subject of the

adoption proceedings or other children with the same birth mother.”

¶19    Darran has not challenged the District Court’s conclusion that

he was in violation of a court order.                             The District Court’s

conclusion that Darran was in violation of an order of support is

an independent and sufficient basis for affirming the District


                                                9
Court’s decision to terminate parental rights, and I would do so on

that basis.

¶20      I would also point out that the Court is incorrect in equating

the “one-year” requirement of the 1997 statute, § 42-2-608(1), MCA, with

its 1995 predecessor. The 1995 version required proof that the parent had not contributed to

the support of the child during “a period of 1 year before the filing of a petition . . . .” As of

1997, the statute now reads, “for an aggregate period of 1 year before the filing of a petition

for adoption . . . .” In adding the “aggregate” language, I suggest that the 1997 legislature

has opened the door to the tacking of time periods together to total a year’s arrearage. This is

in contrast to the prior requirement of a continuous chronological one-year period. Since the

Court does not reach the one-year issue, it should not unnecessarily confuse this issue with

dicta.



                                                            /S/ W. WILLIAM LEAPHART



Justice Jim Rice joins in the foregoing dissent of Justice Leaphart.


                                                            /S/ JIM RICE




                                               10
