In the Matter of the ADOPTION OF Z.N.F., a minor child.
No. 26656.
Supreme Court of South Dakota.
Decided Dec. 18, 2013.
2013 S.D. 97
Considered on Briefs Sept. 30, 2013.
Brian Utzman of Smoot & Utzman, PC, Rapid City, South Dakota, Attorneys for appellee mother H.S.S. and adoptive father T.E.S.
SEVERSON, Justice.
[¶ 1.] D.L.F. (Father) appeals the judgment and order waiving Father‘s consent to step-parent adoption entered on February 14, 2013, and the order for adoption entered on March 15, 2013. We affirm.
Background
[¶ 2.] Father and H.S.S. (Mother) are the biological parents of minor child Z.N.F., who was born in 2002. Father and Mother were married in 2001 in Rapid City, South Dakota. After marrying, the couple moved to Oregon. In November 2006, while residing in Oregon, Mother and Father separated.
[¶ 3.] On the evening of February 21, 2007, Mother awoke to a fire consuming her house and attached garage. She and Z.N.F., who was four years old at the time, escaped. Mother believes Father intentionally caused the fire; however, Father was never criminally charged.1 After the fire, Father voluntarily moved to Colorado, where he resided at the beginning of these proceedings.
[¶ 4.] Shortly after the fire, on February 22, 2007, Mother sought and received a restraining order against Father.2 She extended the restraining order on March 8, 2008, and again on February 25, 2009. The last restraining order expired in 2010. Mother withheld her contact information from the restraining orders, but maintained the cellphone number she acquired in Oregon until 2011.
[¶ 5.] Mother and Father divorced in Oregon on January 24, 2008. By all accounts, the divorce was very contentious. The Oregon court granted Mother sole legal and physical custody of Z.N.F. Father was granted supervised visitation with Z.N.F. at least once a month for two to six hours. The Oregon court required Father to arrange and pay for all professionally supervised visits. Father visited Z.N.F. on two occasions. The first visit occurred on March 22, 2008. The visit lasted two hours. His next visit was on March 17, 2009. It lasted three hours. According to reports, Father‘s visits with Z.N.F. were appropriate and positive. The 2009 visit was the last time Father had contact with Z.N.F. Father did not attempt to modify his visitation rights in Oregon and did not attempt to register the Oregon court‘s decree of dissolution in South Dakota until August 9, 2012.3
[¶ 7.] In April 2009, Mother and Z.N.F. relocated to Colorado. Mother did not inform Father she was moving. In July 2009, Mother and Z.N.F. moved to Rapid City, South Dakota. Once again, Mother did not inform Father she was moving. The South Dakota trial court found that Mother did not want Father to know where she was living and intended to conceal her whereabouts from him and his family. Mother stated that she did this for her safety and the safety of Z.N.F. Father testified that during this time he did not know where Mother and Z.N.F. resided. Father did, however, receive notification of Mother‘s whereabouts when he received a copy of Mother‘s Chapter 7 bankruptcy case in 2010.
[¶ 8.] In 2010, Father purchased a life insurance policy identifying Z.N.F. as the beneficiary. Father was required to purchase the policy immediately after the divorce in 2008. Mother claims that she and Z.N.F. were unaware of its existence. Father also acquired health insurance benefits for Z.N.F. through his employer. According to Mother, she and Z.N.F. never benefitted from the insurance policy.
[¶ 9.] Since the divorce, Father‘s parents (Grandparents) have made efforts to contact Z.N.F. They have utilized email, Facebook, and letters to reach Mother so that they could contact Z.N.F. Although Grandparents made efforts to stay in contact with Z.N.F., their success was limited. The trial court found that Father failed to make similar efforts. The court found that Father‘s efforts to contact Mother and Z.N.F. since 2009 were “de minimus.” Father testified that he feared he may violate the restraining order by contacting Mother.
[¶ 10.] Mother eventually married T.E.S. (Stepfather). Mother and Stepfather initiated proceedings for adoption of Z.N.F. on October 18, 2011. Mother and Stepfather sought an order waiving Father‘s consent to the adoption, terminating his parental rights, and allowing a stepparent adoption. Mother and Stepfather alleged abandonment, continuous neglect, and failure to pay child support as grounds for the waiver of consent pursuant to
[¶ 11.] The trial court bifurcated the consent and adoption issues. The court first tried the consent issue on August 7, 2012. On February 14, 2013, the trial court entered an order waiving Father‘s consent to the adoption under
[¶ 12.] Father appeals to this Court, arguing that the trial court erred in waiving his consent to the adoption, terminating his parental rights, and entering the order for adoption.4
Standard of Review
[¶ 13.] “Natural parents have a fundamental right to the care, custody, and control of their children.” In re Guardianship of S.M.N., 2010 S.D. 31, ¶ 17, 781 N.W.2d 213, 221 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)). Typically, a child may not be adopted without the consent of the child‘s biological parents.
[¶ 14.] “Whether a parent has abandoned a child within the meaning of
[¶ 15.] If the court waives a parent‘s consent under
Analysis
[¶ 16.] (1) Whether the trial court erred in waiving Father‘s consent to the adoption.
[¶ 17.] During the first stage of the bifurcated proceeding, the trial court decided whether Father‘s consent to the adoption could be waived under
Abandonment
[¶ 18.] Father first argues that the trial court erred in finding that he had abandoned Z.N.F. under
There must be a showing of an intent on the part of the parent to abandon and to relinquish parental obligations; this intent may be inferred from conduct. In establishing abandonment, factors to be considered include a parent‘s presence, love, care and affection, and monetary support. The trial court may consider the subjective statements of the parents in addition to objective factors.
Id. (quoting In re Adoption of Sichmeller, 378 N.W.2d 872, 873-74 (S.D. 1985)).
To conclude that evidence is clear and convincing, “the witnesses must be found to be credible, ... the facts to which they have testified must be distinctly remembered and the details thereof narrated exactly and in due order, and ... their testimony must be so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Id. (quoting C.D.B., 2005 S.D. 115, ¶ 15, 706 N.W.2d at 815).
[¶ 19.] The trial court found by clear and convincing evidence that Father had abandoned Z.N.F. In reaching its conclusion, the trial court stated:
Father has done nothing of significance to maintain or reestablish contact with Z.N.F. Father‘s conduct over the past four years, his near complete failure to pay any child support, his utter laying aside of his parental responsibilities, his failure to act to reconnect with Z.N.F. when the means and knowledge to do so were known to him demonstrate an absolute relinquishment of care and control of Z.N.F.
In response to the court‘s finding, Father asserts that Mother made it difficult for him to maintain contact with his son. For instance, Father highlights Mother‘s deliberate attempts to conceal her whereabouts from him. Mother contends that while she did not advertise her whereabouts, she could have easily been found had Father tried to locate her. The trial court stated, “Mother‘s actions to conceal her whereabouts do not explain Father‘s lack of effort.” The court then found that Father‘s lack of effort to contact Z.N.F. demonstrated a total desertion of his son.
[¶ 20.] There is little question that Mother took steps to restrict Father‘s access to Z.N.F. Mother moved to Colorado and South Dakota in 2009 without telling Father. Mother also made it difficult for Grandparents to contact Z.N.F. We do not condone Mother‘s actions to hinder visitation; however, Mother‘s obstacles do not excuse Father‘s limited efforts to contact his son. The trial court found that Grandparents were able to contact Z.N.F. Grandparents sent Mother emails and sent Z.N.F. birthday cards. Father did nothing. Father‘s claim that he did not know where Mother lived is unconvincing. The trial court found that Father could have located Mother through an internet search, Facebook, or by asking his parents
[¶ 21.] Father further argues that Mother‘s restraining orders made it difficult for him to visit Z.N.F. because he could not contact Mother. As the trial court noted, the restraining orders did not restrict Father‘s contact with Z.N.F. Father was still allowed visitation with his son. Notably, despite the restraining orders, Father had twice sought and received visitation with Z.N.F. in 2008 and 2009. Father knew he could contact Z.N.F. without fear of the restraining orders. The restraining orders do not explain Father‘s failure to contact Z.N.F. after 2009.
[¶ 22.] Additionally, the trial court‘s finding that Father abandoned Z.N.F. is further supported by Father‘s failure to pay child support. The Oregon court required Father to pay $505 per month for child support retroactive to September 1, 2007. However, Father did not pay child support until May 2009. From May 2009 through July 2009, Father paid $2,860 in child support. Notably, Mother had already moved from Oregon to Colorado during that time. Father then did not pay child support after July 2009.
[¶ 23.] Father contends that he did not pay child support because of limited financial resources, Mother‘s constant moving, and a lack of knowledge about where to send the payments. Father argues that our decision in T.E.L.S. supports his failure to pay. 2007 S.D. 50, 732 N.W.2d 740. In that case, we upheld the trial court‘s decision to deny termination of parental rights in connection with an adoption. Id. ¶ 32, 732 N.W.2d at 748-49. We held that it was not clearly erroneous for the trial court to find that the father had not abandoned his child when he was of limited means and had paid over $16,000 in child support. Id. ¶ 33, 732 N.W.2d at 749. We noted that the father also attempted to send gifts to T.E.L.S. and father arranged trips to visit the child even though the father lived in California. Id. ¶ 34, 732 N.W.2d at 749. In contrast to our holding in T.E.L.S., Father had more means to pay some semblance of child support, yet paid less than the father in T.E.L.S. The trial court found that Father had sufficient income to support Z.N.F., yet he willfully refused to do so. The court also found Father‘s other reasons for failing to pay child support unpersuasive. In both 2010 and 2011, Father made over $30,000 in gross income. Furthermore, Father paid child support after Mother had already moved. Father‘s failure to provide monetary support for Z.N.F. is another factor leading to the conclusion that Father abandoned Z.N.F.
[¶ 24.] Lastly, Father‘s other explanations to show he did not intend to abandon Z.N.F. do not render the trial court‘s decision clearly erroneous. Father argues that his purchase of a life insurance policy for Z.N.F. proves that he did not intend to abandon his son. The Oregon court required Father to purchase the policy in 2008; however, Father did not purchase the policy until 2010. Father, nonetheless, argues that the untimely purchase of the life insurance policy illustrates a recent intent not to abandon Z.N.F. The trial court found that this “demonstrates little, if any, intent to maintain contact or provide support for Z.N.F.” We agree with the trial court and conclude that its decision was not clearly erroneous. This one act of support, which was mandated by the
[¶ 25.] Father also highlights that he recently made Z.N.F. a beneficiary to his health insurance policy. He contends that this shows that he did not intend to abandon Z.N.F. The trial court found that neither Mother nor Z.N.F. benefitted from the policy. Father does not articulate how this policy benefitted Z.N.F. Additionally, Mother and Z.N.F. were completely unaware of its existence. There is also no evidence that Father purchased the policy. Given these facts, it was not clearly erroneous for the trial court to reject Father‘s argument that the acquisition of an insurance policy showed an intent not to abandon.
[¶ 26.] When viewed in totality, the decision to waive Father‘s consent to the adoption under
Continuous Neglect
[¶ 27.] The trial court also found by clear and convincing evidence that Father continuously neglected Z.N.F. under
[¶ 28.] Under
Failure to Pay Child Support
[¶ 29.] The trial court also waived Father‘s consent to the adoption of Z.N.F. under
[¶ 30.] Mother argues that the failure to pay child support under
[¶ 31.]
[¶ 32.] In seeking to waive an adoption under
[¶ 33.] Additionally, Father argues that Mother‘s attempts to conceal her whereabouts obstructed his ability to pay child support. Father‘s argument does not explain why he failed to pay child support from 2007 to 2009 when Mother resided in Oregon. In addition, his argument is undermined by the fact that he made his first child support payment after Mother moved to Colorado from Oregon. The trial court found that Father‘s excuses for failing to pay child support lacked credibility. Father provides no evidence to explain why that finding was clearly erroneous other than that Mother moved around. We conclude that this obstacle does not excuse the failure to pay child support. The trial court‘s decision to waive Father‘s consent to the adoption under
[¶ 35.] After waiving Father‘s consent to the adoption, the trial court next found that it was in the best interest of the child to allow Stepfather to adopt Z.N.F., terminating Father‘s parental rights. Father argues that the trial court failed to address whether it was in the best interest of the child to waive his consent. Father contends that
[¶ 36.] There is no question that the trial court must determine whether it is in the best interest of the child to terminate a natural parent‘s parental rights and proceed with an adoption. C.D.B., 2005 S.D. 115, ¶ 11, 706 N.W.2d at 814. In the second part of the bifurcated proceeding, the trial court found that it was in the best interest of Z.N.F. to allow Stepfather to adopt the child. The court found that Stepfather, Mother, and Z.N.F. engage in numerous recreational activities together including skiing, hiking, and baseball. The court also found that both Mother and Stepfather are able to provide a “loving, nurturing, and wholesome environment to [Z.N.F.]” Additionally, the court found that Stepfather desires to and is willing to assume full parental responsibility of Z.N.F. Thus, we do not find that it was an abuse of discretion for the trial court to determine that it was in the best interest of the child to allow Stepfather to adopt Z.N.F. Father argues, however, that the trial court was also required to consider the best interest of the child when it chose to waive Father‘s consent to the adoption.
[¶ 37.]
[¶ 38.] In C.D.B., we stated that the trial court must first evaluate whether the natural parent had abandoned the child. 2005 S.D. 115, ¶¶ 10-11, 706 N.W.2d at 814. Then, the trial court should evaluate “whether the child‘s best interests will be served by terminating the rights of the parent so that an adoption can proceed without that parent‘s consent.” Id. ¶ 11. Here, the trial court bifurcated the proceedings according to In re Adoption of Zimmer, 299 N.W.2d 574 (S.D. 1980). The trial court first waived Father‘s consent to the adoption. It then determined it was in the best interest of the child to proceed with the adoption. We hold that this was sufficient under
Conclusion
[¶ 39.] Under a different set of facts, Mother‘s deliberate attempts to conceal Z.N.F. from Father would likely excuse his failure to maintain contact with his son. We must reiterate that we do not condone Mother‘s attempts to deny Father‘s visitation with his son. However, Mother‘s obstacles do not excuse Father‘s failure to attempt to make contact with Z.N.F., nor do the obstacles excuse Father‘s willful failure to pay child support. The trial court did not err in waiving Father‘s con-
[¶ 40.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and WILBUR, Justices, concur.