Lead Opinion
This is an appeal from an order declaring Lance Ronald Sichmeller adopted. We affirm.
Lance Ronald Sichmeller was born on October 8, 1974. His parents, Jill Gross Sichmeller and Ronald Sichmeller, were divorced on August 25, 1975. From August 1975 until August 1977, Ronald visited Lance six times and made sporadic child
On June 24, 1981, Ronald petitioned the court to terminate his parental rights so that Frank Mills could conduct adoption proceedings. In 1983, with the intention of allowing the adoption, he arranged for Lance to receive Social Security benefits and a military ID card allowing medical benefits and college grants. He also gave Jill $1,000 on December 28, 1983.
Frank petitioned for adoption on March 6, 1984. Ronald went to visit Frank and Jill to work out the details of the adoption. Jill was then twenty-nine yeаrs old, a diabetic, and blind in one eye and partially blind in the other. She had just been released from the hospital after suffering a heart attack. After observing Jill’s condition, Ronald decided to oppose the adoption.
Ronald admitted that he had not supported, written to, seen, or talked to Lance from 1977 to 1983, in part, because of his deteriorating health. He did testify that he wanted to see Lance during Christmas 1983, but that Jill and Frank would not allow it. He saw Lance at the adoption hearing but did not talk to him. Ronald was concerned and cared for Lanсe, but because of his lack of contact with Lance, Ronald “wouldn’t go so far as to say I love him.”
Ronald was impressed by the way Frank was raising Lance and recognized that Lancе was integrated into Frank’s extended family. If Jill were to die, he did not intend to seek custody of Lance except in the unlikely event that Frank became an alcoholic. Ronald simply wаnted to be informed of Lance’s progress and was concerned that the adoption would mean the loss to Lance of the military benefits.
The trial court granted Frank Mills’ petition fоr adoption. The court concluded that Ronald had consented to the adoption, “but even in the absence of that consent ... the natural father has abandoned said child ... which eliminates the need for consent on the part of the natural father.”
Ronald raises three issues on appeal. First, he argues that the trial court erred by finding that he consented tо the adoption. Ronald admits that he did consent to the adoption in 1981. By resisting the petition for adoption, he argues that he withdrew his consent. In light of the trial court’s conclusion that therе was abandonment “even in the absence of that consent,” we need not discuss this contention.
Ronald’s second contention is that he did not abandon his child.
Consent to adoption is nоt necessary if a parent has abandoned his child for one year. SDCL 25-6-4.
In Mastrovick v. Mavric,
To constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child. In other words, there must be shown an absolute relinquishment of the custody and control of the minor and thus the laying aside by the parents of all care for it.
There must be a showing of an intent on the part of the parent to abandon and to relinquish parental obligations; this intent
We conclude that the evidence in this case supports the trial court’s determination that there was clear and convincing evidence
Finally, Ronald argues that adoption is not in Lance’s best interest, see Matter of Adoption of Zimmer,
The order appealed from is affirmed.
Notes
. This case was tried on April 16, 1984. At that time SDCL 25-6-4 provided, in part:
A child cannot be adopted without the consent of the parents, if living, provided that in the following cases consent shall not be necessary:
(2) From any parent who has abandoned his or her child for the period of one yeаr; ... SDCL 25-6-4 was later amended by 1984 S.D. Sess.L. ch. 188.
. Clear and convincing evidence is that "measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegation sought to be established.” Brown v. Warner, 78 S.D. 647, 653,
Concurrence Opinion
(specially concurring).
A parent may validly withdraw his/her consent to adoption. Matter of Adoption of Everett,
This father gave his consent to adoption in 1981 via a petition to voluntarily terminate his rights. However, at that time, he was suffering severely from multiple sclerosis and did not believe that he should continue to have a fathеr-son relationship. The father was never notified of a hearing on adoption proceedings and the adoption proceedings just lingered. In 1984, the mother of the child, Mrs. Frank Mills, suffered a very serious heart attack. She was also a diabetic, extremely ill, blind in one eye, and partially blind in the other. Her heart attack was in February 1984 and the father was approached in March 1984, by Frank Mills’ attorney, concerning the proposed adoption. Father was not asked to consent to the proceedings but was then served with a petition alleging abandonment. Apparently, due to the health of the mother, father did not want to consent to the adoption. He simply had changed his
[W]e are not troubled by the fact that this mother signed a consent to the adoption of her child. In the circumstances at bar, wе deem it enough that she changed her mind. We are unfamiliar with any principle of jurisprudence which would render such a naked consent binding on a parent.
A proceeding for voluntary rеlinquishment, which is the way this case started out, is intended to provide only for the parental relinquishment of unwanted children, not for the relinquishment of children who are genuinely wanted by a parent.
This brings us to the question of the sustainability of the trial court’s decision on abandonment. Under all of the circumstances of this case, having deeply considered the great custody and fundamental rights of a natural parent, In re K.D.E.,