In re L.E.B., 856 P.2d 1382

In re L.E.B.

856 P.2d 1382

Mont.

1993

Check Treatment

JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The mother of L.E.B., a minor child, appeals from an order of the District Court for the Eighth Judicial District, Cascade County, which terminated the mother’s parental rights and granted the child’s grandparents’ petition for adoption.

We affirm.

The issue on appeal is restated as follows:

Did the District Court err when it terminated the mother’s parental rights and concluded that her consent to the adoption was not necessary?

L.E.B. was born on July 10, 1981, when his mother, Donna, was seventeen years old. Although the natural father’s identity is known, he has never been involved in the care or support of L.E.B., is not a party to this lawsuit, and does not challenge the court’s tеrmination of his parental rights.

With the exception of a few brief periods when he resided with his mother, L.E.B. has lived with his maternal grandparents in Great Falls since birth. In 1984, when L.E.B. was three years old, Donna enlisted in the Montana Air National Guard. At Donna’s request, and pursuant to National Guard regulations which require single parents to name a guardian for their minor children during the term of enlistment, the child’s grandpаrents petitioned the trial court to appoint them as co-guardians of L.E.B. This request was granted on August 10, 1984.

After spending approximately one year in the National Guard, Donna transferred to the Army and was subsequently discharged on October 11,1985, for medical reasons. Without informing her ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍parents of her discharge, Donna moved to California where she has resided ever since. At that time, shе did not terminate the guardianship nor seek to have L.E.B. returned to her care.

In June 1987, Donna’s parents took L.E.B. to California to visit her for the summer. L.E.B. remained in California with Donna and attended first grade during the 1987-88 school year.

After discovering that L.E.B. was having serious difficulties in school due to dyslexia, his mother testified that she and her parents agreed that L.E.B. would spend the next three years with his grandparents in order to take advantage of a special education program available in the public school system in Great Falls. The grandpar*494ents, however, deny that there was a discussion regarding a time limit on L.E.B.’s return to Montana. In fact, they testified that, in addition to L.E.B.’s problems with dyslexia, they brought him back to Montana due to concerns about Donna’s drinking and the care L.E.B. wаs receiving.

Donna visited L.E.B. during the summer and Christmas of 1989, but had virtually no other contact with L.E.B. up until July, 1991. Furthermore, although gainfully employed throughout much of the time that her parents were caring for L.E.B., Donna never provided financial support for L.E.B. other than occasional gifts and clothing.

During the summer of 1991, when Donna arrived in Great Falls with the intention of returning L.E.B. to California, her parents refused to release L.E.B. to her custody, citing their rights as guardians. As a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍result, Donna petitioned the District Court on August 6, 1991, for custody and termination of the guardianship. Her parents countered with a petition to terminatе Donna’s parental rights and to adopt L.E.B.

A non-jury trial was held on April 9, 1992 and July 2, 1992. At the conclusion of the trial, the court granted the grandparents’petition and allowed them to adopt L.E.B., thereby terminating Donna’s parental rights. In its Findings of Fact and Conclusions of Law, issued on October 5,1992, the comb found that Donna had no contact with L.E.B. since the summer of 1989, had not provided financial support fоr him since 1984, and would not be able to provide L.E.B. with a stable and loving home environment. The comb also found that Donna’s testimony was not credible due to numerous inconsistencies and her “history оf lies and deceit.” The court concluded that it would be in L.E.B.’s best interests to be adopted by his grandparents. That conclusion is not contested on appeal. The comb further determinеd that his mother’s consent to the adoption was not required due to her failure to provide support for him dining the year preceding the filing of the petition, and her willful abandonment of L.E.B.

From the court’s Findings of Fact, Conclusions of Law, and Decree, Donna appeals.

Did the District Court err when it terminated Donna’s parental rights and concluded that her consent to the adoрtion was not necessary?

Citing In the Matter of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156, Donna contends that, since the guardianship was still in effect, the court was required to find abuse and neglect before terminating her parental rights in favor of a non-parent. She argues *495that the court improperly considered only the adoption statute without considering the statutes governing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍guardianship, jurisdiction of child custody, and termination of the рarent-child relationship.

However, the grandparents’ petition for adoption was commenced pursuant to the provisions of the Uniform Adoption Act found at §§ 40-8-101 through -136, MCA. On appeal, this Court must consider whether the trial court properly found that the statutory criteria for adoption of a minor, without the consent of a parent or parents, were satisfied. The authоrity Donna relies on involved an attempt to terminate parental rights through a guardianship proceeding, and this Court held that such a proceeding was not a proper means to tеrminate a parent’s constitutional right to custody of his or her children. Aschenbrenner, 597 P.2d at 1164. In this instance, the guardianship was not the basis for terminating Donna’s rights.

We have recognized on several occasions that there is some overlap in the statutes pertaining to parent-child relationships and have cautioned the district courts to identify and adhere to the proper procedures and standards to be used in the proceedings before them. Guardianship of Nelson (1983), 204 Mont. 90, 663 P.2d 316; Aschenbrenner, 597 P.2d at 1156. Here, the proceeding initiated by Donna’s parents was an adoption proceeding, and the record shows that the сourt properly considered the applicable criteria and procedures for the adoption of minors in the absence of parental consent.

Generally, before the District Court can allow the adoption of a child there must be parental consent. Section 40-8-lll(l)(a), MCA. However, the statute provides, in pertinent part, that an adoption of a minor can be judicially decreed without the consent of the parent(s) “if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the suрport of the child ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍during a period of 1 year before the filing of a petition for adoption,” or if it is shown that the parent(s) “willfully abandoned the child, as defined in 41-3-102(3)(d).” Sections 40-8-lll(l)(a)(iii) and (v), MCA. Once a final decree of adoption is entered, the natural parent(s) are thereafter relieved of all parental responsibilities and have no rights to the adopted child. Sectiоn 40-8-125, MCA.

Turning first to the question of support, we have held that in order for the court to find that a parent’s consent is not necessary to terminate parental rights and allow an adoption, therе 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. Adoption of J.B.T. (1991), 250 Mont. 205, 207, 819 P.2d 178, 179.

*496In this instance, the District Court found that Donna had not contributed to L.E.B.’s support during a period of one year prior to the filing of the petition for adoption. A review of the record demonstrates that the testimony was undisputed that she had not contributed to L.E.B.’s support at any time during the guardianship, and specifically, had not provided support from August 1990 through August 1991, the year preceding the adoption petition. By her оwn admissions, she has been employed as an accountant since 1989, and her ability to provide support for L.E.B. is not an issue. She contends, however, that the guardianship order did not contаin support provisions, and that her parents never requested support from her. Furthermore, she argues that she provided full support for L.E.B. during the times that he was in her custody, paid for his transpоrtation to and from California for visits, covered him on her health insurance plan, and gave him gifts, school clothes, and spending money.

We note first that this Court recently held that “a parent’s оbligation to support his child is not dependent on an order of the Court.... There is no requirement under § 40-8-lll(l)(a)(v), MCA, that child support be court ordered.” Adoption of D.J.V. (1990), 244 Mont. 209, 213, 796 P.2d 1076, 1078. Moreover, we have repeatedly held that providing occasional articles of clothing or other gifts does not satisfy a parent’s obligation to provide financial support. Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730 P.2d 1135, 1137; Adoption of S.L.R. (1982), 196 Mont. 411, 414-15, 640 P.2d 886, 888. Donna’s health insurance only coverеd L.E.B. when he resided in California. It is uncontroverted that L.E.B. has resided with his grandparents in Great Falls since May 1988, and the evidence clearly demonstrates that L.E.B.’s medical bills have always been paid for by his grandparents’ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍health insurance, rather than his mother’s. Finally, it is undisputed that Donna did not see L.E.B. during the relevant year in question. Even if payment of travel expenses could be construed as a form of support, there were no such expenses incurred during this time.

We conclude that there was clear and convincing evidence to support the District Court’s findings that Donna failed tо support L.E.B. although financially able to do so. Therefore, we do not need to evaluate the evidence of abandonment, which is a separate and independent basis for allowing adoption without parental consent. The trial court need only find one of the statutorily enumerated substitutes for consent in order to proceed with an adoption. Adoption of C.R.D. (1989), 240 Mont. 106, 782 P.2d 1280.

*497We hоld that the court did not err when it terminated Donna’s parental rights and allowed her parents to adopt L.E.B. on the grounds that Donna’s consent to the adoption was not necessary due to her failure to provide support. The order of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and WEBER concur.