In the Matter of the Adoption of AMS, MAS, and AWS

In the Matter of the Adoption of AMS, MAS, and AWS, 2016 MT 22 (Jan. 26, 2016) (Baker, J.) (7-0, rev’d)

Issue: (1) Whether Father was properly served by publication, and (2) whether the district court erred by granting the petition for adoption and termination.

Short Answer: (1) No, and (2) yes.

Reversed and remanded

Facts: Father and Mother are the biological parents of three minor children. Grandfather is the children’s maternal grandfather. Father and Mother married in 2005 and divorced in 2013. Mother and Grandfather live in Billings, and Father lives in Los Angeles.

In July 2014, Mother and Grandfather jointly petitioned to terminate Father’s parental rights and allow Grandfather to adopt the children. The district court issued a summons. After trying to serve Father, Mother’s and Grandfather’s counsel submitted an affidavit in October 2014 stating that Father could not be found and asking for publication of summons. The next day, the clerk of court entered an order directed service of summons by publication in the Billing Times newspaper.

Father did not respond, and in December 2014, Mother and Grandfather moved for entry of default. The clerk of court entered default against Father on December 15, 2014.

Procedural Posture & Holding: The district court held a seven-minute hearing in March 2015. At the close of the hearing, the district court terminated Father’s parental rights and granted decrees of adoption for Grandfather to adopt each of the children. Father appeals, and the Supreme Court reverses.

Reasoning: (1) Parental rights termination is not one of the four situations in which the Montana Rules of Civil Procedure authorize service by publication. M.R. Civ. P. 4(o)(1)(A)-(D). Section 42-2-605, MCA provides for service of a notice of a hearing on a petition for termination brought in conjunction with an adoption proceedings, but specifies that the court must direct the alternate method of service, not the clerk of court. Because the clerk of court entered the order directing service by publication, service was improper. Additionally, the publication did not put Father on notice that his parental rights would be terminated.

(2) Title 42 allowed Mother to petition for termination only because the children were the subject of an adoption proceeding. As the guardian of the children, Mother had standing to petition for termination. Mother and Grandfather petitioned for adoption under § 42-4-302, the stepparent adoption statute. The statute specifically states that “[f]or good cause shown, a court may allow an individual who is not the stepparent but who has the consent of the custodial parent of a child to file a petition for adoption.” § 42-4-302(2), MCA.

The district court made no findings as to Grandfather’s statutory standing to adopt the children. On remand, if service on Father is properly effected, the district court must first determine if there is good cause to treat Grandfather as a stepparent under § 42-4-302(2), and that he meets the qualifications set forth in § 42-1-106, MCA.