In re Adoption of K.P.M.

• Decision Date: 10 February 2009
• Docket Number: No. DA 08-0168.,DA 08-0168.
• Citation: 201 P.3d 833,2009 MT 31
• Parties: In re The ADOPTION OF: K.P.M., Minor Child, S.J.D., Petitioner and Appellee, and B.J.M., (n/k/a B.J.S.), Respondent and Appellant.
• Court: Montana Supreme Court

201 P.3d 833

2009 MT 31

In re The ADOPTION OF: K.P.M., Minor Child S.J.D., Petitioner and Appellee, and B.J.M., (n/k/a B.J.S.), Respondent and Appellant.

No. DA 08-0168.

Supreme Court of Montana.

Submitted on Briefs December 30, 2008.

Decided February 10, 2009.

For Appellant: Nicholas P. Anderson, Anderson & Anderson, Missoula, Montana.

For Appellee: Terrance L. Wolfe, Sol & Wolfe Law Firm, Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 S.J.D., who is K.P.M.'s stepmother, petitioned the Fourth Judicial District Court, Missoula County, for termination of the parental rights of K.P.M.'s biological mother, B.J.M., and to adopt K.P.M. The District Court ordered B.J.M.'s parental rights terminated. B.J.M. appeals.

¶ 2 The sole issue B.J.M. raises on appeal is whether the District Court erred in terminating B.J.M.'s parental rights because B.J.M. was unfit as provided in § 42-2-608(b), MCA.

BACKGROUND

¶ 3 In December 2003, B.J.M. gave birth to K.P.M. Until a paternity test was conducted in summer 2004, it was unclear who K.P.M.'s father was. When it was confirmed that I.J.C. was K.P.M.'s father, he and B.J.M. maintained an informal parenting plan for about a year where they shared custody of K.P.M. During this time, B.J.M. was living a transient lifestyle and was unreliable in keeping her commitments to or maintaining contact with I.J.C. and K.P.M.

¶ 4 In March 2005, B.J.M. transferred primary parenting responsibility to I.J.C. A month later, I.J.C. filed a petition in the District Court to determine that he was K.P.M.'s father and to establish a parenting plan. The District Court granted the petition, determined that I.J.C. was K.P.M.'s father, and established a parenting plan, making I.J.C. K.P.M.'s primary parent and giving B.J.M. regularly scheduled weekly and holiday visitation. However, B.J.M. did not regularly visit with K.P.M. and had no contact with either K.P.M. or I.J.C. for substantial periods of time. Between July 2005 and November 2006, B.J.M. made no contact with I.J.C. or K.P.M.

¶ 5 The parenting plan ordered B.J.M. to pay $103 per month in child support to begin several months later, so she could attempt to achieve greater financial stability. By the time S.J.D. commenced this action, B.J.M. had paid only $12.94 in child support.

¶ 6 For about half of 2006, B.J.M. was incarcerated or in residential treatment for problems related to illegal drug use. In November 2006, after being released from treatment, B.J.M. contacted I.J.C. to arrange a visit with K.P.M. At the visit, K.P.M. did not know who B.J.M. was at first, but after playing for an hour in the park, he warmed up to her. However, because of the sporadic nature of B.J.M. and K.P.M.'s contacts, K.P.M. never bonded with B.J.M.

¶ 7 S.J.D., I.J.C.'s wife, filed a petition to adopt K.P.M. in March 2007. Two months later, she filed a petition to terminate B.J.M.'s parental rights in the same district court action as her petition for adoption.

¶ 8 At the hearing on the petition to terminate B.J.M.'s parental rights, the District Court found that B.J.M. provided an unsuitable environment for K.P.M. because her home was unkempt, she associated with known drug dealers and users, and she was involved with abusive partners and exposed K.P.M. to such abuse. The District Court further found S.J.D. was a constant in K.P.M.'s life and is the only mother that K.P.M. has known. The District Court found any attempt to establish a relationship between B.J.M. and K.P.M. would not be in K.P.M.'s best interest.

¶ 9 Based on its findings of fact, the District Court concluded that clear and convincing evidence established B.J.M. abandoned K.P.M. and also that she failed to support him, financially and otherwise, when she was able to do so for a period of over one year. The District Court concluded B.J.M. was unfit and ordered her parental rights terminated.

STANDARD OF REVIEW

¶ 10 A district court's findings are clearly erroneous if they are not supported by substantial evidence, if the district court misapprehended the evidence, or if we come away from our review with a definite and firm conviction that the district court made a mistake. Interstate Production Credit v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). Because parental rights are a fundamental liberty interest, an order terminating these rights must be supported by clear and convincing evidence. In re Adoption of C.R.N., 1999 MT 92, ¶ 7, 294 Mont. 202, 979 P.2d 210. Clear and convincing evidence is not a mere preponderance of evidence nor is it unanswerable or conclusive evidence or evidence beyond a reasonable doubt. Clear and convincing evidence is a preponderance of evidence that is definite, clear, and convincing. In re G.M., 2008 MT 200, ¶ 23, 344 Mont. 87, 186 P.3d 229. The three part DeSaye test is used to determine if a finding of fact is clearly erroneous in a case where clear and convincing evidence is the standard of proof. In re G.M., ¶ 23.

¶ 11 Finally, we review the district court's conclusions of law to determine whether those conclusions are correct. In re C.R.N., ¶ 7.

DISCUSSION

¶ 12 Relating to adoption, § 42-2-602, MCA, provides:

A child is not legally free for adoption until the parental rights of the birth parent or parents have been terminated by a court:

(1) as provided in this title;

(2) pursuant to Title 41, chapter 3; or

(3) of competent jurisdiction in another state or country.

¶ 13 Therefore, parental rights may be terminated as provided in Title 42, MCA. The general provisions of the Montana Adoption Act (Title 42) set forth who may be adopted:

(1) A child is legally free for adoption if:

(a) the child does not have a living parent;

(b) the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or (c) the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.

(2) An adult may be adopted as provided in 42-4-401 through 42-4-405.

(3) A stepchild may be adopted as provided in 42-4-301 through 42-4-304 and 42-4-309 through 42-4-312.

Section 42-1-105, MCA. At the time she filed her petition to adopt K.P.M., S.J.D. mistakenly alleged that B.J.M. would consent. When consent was not forthcoming, she filed the petition to terminate B.J.M.'s parental rights pursuant to Title 42, MCA. Section 42-4-302, MCA, provides:

(1) A stepparent has standing to file a petition for adoption of a minor child of the stepparent's spouse if:

(a) the spouse has legal and physical custody of the child and the child has been in the physical custody of the spouse and the stepparent during the 60 days preceding the filing of a petition for adoption;

. . .

(3) A petition for adoption by a stepparent may be joined with a petition for termination of parental rights.

¶ 14 Under § 42-4-302(1)(a), MCA, S.J.D. qualifies as a stepparent who has standing to file a petition for adoption of K.P.M. Statutes are not to be read in isolation, but as a whole. In construing statutes, this Court must give effect to all of their provisions if possible. Darby Spar, Ltd. v. Dept. of Revenue, 217 Mont. 376, 379, 705 P.2d 111, 113 (1985). Considering § 42-4-302, MCA, as a whole, it is only logical to conclude that S.J.D., as a custodial stepparent, has standing to adopt under subdivision (1), and may combine her petition to adopt with a petition for termination of parental rights under subdivision (3). Consequently, she has standing to petition for termination of parental rights.

¶ 15 Section 42-4-310, MCA, provides:

A stepparent who desires to adopt a stepchild shall obtain an order of termination of parental rights of the child's noncustodial parent prior to or contemporaneously with the petition to adopt. Any necessary consents must be filed with the petition for adoption. Notice of the hearing on the petition must be given, and the stepparent shall attend the hearing conducted by the court.

¶ 16 The most reasonable interpretation of § 42-4-310, MCA, is that a stepparent who must obtain a termination of the parental rights of the child's noncustodial parent, and who may do so prior to or contemporaneously with her petition to adopt her stepchild, has standing to petition for the required termination. Otherwise, the stepparent would easily be stymied by an inability to petition for termination, thus frustrating legislative intent. Reading relevant statutory schemes in their entireties is what allows the Court to give true effect to the will of the Legislature. Dukes v. City of Missoula, 2005 MT 196, ¶ 14, 328 Mont. 155, 119 P.3d 61. Considering Title 42 as a whole, it is clear the Legislature intended a custodial stepparent to have standing to file a petition to terminate a noncustodial parent's parental rights.

¶ 17 In compliance with § 42-4-310, MCA, S.J.D. sought and obtained the termination of B.J.M.'s parental rights. Thus, B.J.M.'s consent to K.P.M.'s adoption is no longer necessary. K.P.M.'s father has consented to the adoption. K.P.M. is thus available for S.J.D. to adopt, which is the next step in the process and will be scheduled for consideration by the District Court, pending the outcome of this appeal.

¶ 18 Sua sponte, the dissent posits that S.J.D. has no standing to petition to terminate B.J.M.'s parental rights, asserting that only those included in the categories listed in § 42-2-603(2), MCA, have standing to file a petition to terminate parental rights. However, § 42-2-603(2), MCA, does not state that the only persons or entities that may file a petition to terminate parental rights are those that fall into one of the listed categories. Nor does it state that a stepparent lacks standing to file a petition to terminate a noncustodial parent's rights.

¶ 19 If § 42-2-603, MCA, was interpreted as the dissent suggests, no one would have standing to petition to terminate B.J.M.'s...