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No. 90-606

IN THE SUPREME COURT OF THE STATE OF

1991

IN THE MATTER OF THE
ADOPTION OF B.R.O.,
a Minor Child.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Ann C. German, Attorney at Law, Libby, Montana For Respondent: Antonia P. Marra, Bell & Marra; Great Falls, Montana
Submitted on Briefs: May 30, 1991

Filed:

I
Clerk

Justice William E. Hunt, Sr., delivered the opinion of the Court.

The natural father of B.R.O. appeals from an order of the
Eighth ~udicial ~istrict Court, Cascade County, allowing the
adoption of B.R.O. by her stepfather. We reverse.

We phrase the issue as follows:

Was the natural father properly served pursuant to

3 40-8-124 (2), MCA?
B.R.O. was born on September 26, 1977. Four years later, in
1981, her natural father was sentenced to 25 years in the Montana
State Prison on a charge of sexual intercourse without consent.

In 1987, the marriage of the natural parents was dissolved.
The mother married B.R.O.'s stepfather in November 1987. On August
10, 1990, the stepfather filed a petition for the adoption of

B.R.O. In the petition, he alleged that the father, who had not
seen the child since 1985, had abandoned the child. He also
alleged that the father had not supported the child since 1981.
The mother executed a consent to the adoption, which was filed with
the petition. Later, B.R.O. herself filed a consent to the
adoption. The Department of Family Services filed a waiver of
investigation into the adoption.

A citation was issued on August 14, 1990, setting a hearing
date of September 28, 1990. The sheriff's return shows that the
citation was sewed on the father on August 18, 1990. All parties
agree that the sheriff did not serve the father with a copy of the
petition.

-

*
In an adoption proceeding, natural parents who can be found
within the state must be personally served with a copy of the
petition. Section 40-8-124(2), MCA. Natural parents who cannot be
found within the state may be served by publication. Section
40-8-124(2), MCA. The subsection of the statute setting forth these
rules provides in its entirety:

(2)
When a petition has been filed seeking the adoption
of a child, the court must cause service of process to
be made on the parent or parents of the child, except in
those cases hereinafter provided, in the following
manner:


(a)
The court shall order a citation to issue to the
parent or parents in the name of the state of Montana and
under the seal of the court directing such parent or
parents to appear in court at a time to be fixed by the
court and show cause why the petition should not be
granted.


(b)
Such citation, toqether with a CODY of the petition
for ado~tion, shall be personally served upon such parent
or parents. If, however, any such parent or parents
cannot be found within this state, service may be had by
publication of a copy of the citation in the manner
provided for the publication of summons by Rule 4,
M.R.Civ.P.



Section 40-8-124 (2) , MCA (emphasis added) .
Section 40-8-124 (2), MCA, mandates that a natural parent be
personally served with both the citation and the petition if he can
be found within the state. Here, however, the father was served with
the citation only. We must require strict compliance with the
statute delineating the procedures for service of process.

We therefore reverse and remand for further proceedings
consistent with this opinion.

..

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result to
Montana Law Week, State Reporter and West Publishing Company.

We concur:

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