Adoption of Baade, Matter of, 16783

Decision Date31 October 1990
Docket NumberNo. 16783,16783
Citation462 N.W.2d 485
PartiesIn the Matter of the ADOPTION OF John Michael BAADE, a Minor Child.
CourtSouth Dakota Supreme Court

Daniel L. Jongeling of Dakota Plains Legal Services, Sisseton, for appellant and natural father, Justin Kongi.

Terry L. Pechota of Finch, Viken, Viken and Pechota, Rapid City, for appellees and adoptive parents, Nancy and Dan Ponton.

SABERS, Justice.

Justin Kongi appeals an order terminating his parental rights and declaring the child adopted.


Justin is the natural father of John Baade, who was born in Pierre, South Dakota on October 18, 1986. Connie Baade is the natural mother. Both were living in Pierre, South Dakota at the time of conception and birth. At the time of John's birth, Justin was fifteen and Connie was sixteen years old. Although Justin was aware of the pregnancy, he had no contact with Connie after the conception.

Connie decided during her pregnancy to have her sister and brother-in-law, Nancy and Daniel Ponton, adopt the child. As a result, the Pontons have had physical custody of John since his birth. Justin and his mother, Evelyn Black Smith, knew of the adoption plans because they were presented with adoption papers before John's birth. The adoption consent papers were never signed. Evelyn saw the Pontons in Pierre about a week after John was born, and she knew they were taking John with them to Rapid City. Shortly thereafter, she and Justin moved to Waubay, South Dakota. Justin has never seen John.

In April of 1988, the Pontons filed a petition in circuit court to adopt John, and Connie filed her consent to the adoption. The petition alleged that Justin abandoned John, making his consent unnecessary. The court ordered that an investigation report be prepared in accordance with SDCL 25-6-10. 1

Justin was served with notice of the adoption proceeding in May of 1988. Shortly thereafter, he petitioned the circuit court to transfer the adoption proceeding to the Sisseton-Wahpeton tribal court. In response, Connie filed an objection to the transfer of the proceeding. The petition to transfer was later denied and not appealed.

Justin started a paternity action in tribal court in November of 1988, and, after being adjudged the father of John, he enrolled John as a member of the Sisseton-Wahpeton Sioux Tribe. The tribe received notice of the adoption proceeding in January of 1989.

A hearing to determine whether Justin abandoned John was held on April 10, 1989. The tribe was represented at the hearing by Judge Lorraine Rousseau of the Sisseton-Wahpeton tribal court. At the hearing, the investigation report, prepared in accordance with SDCL 25-6-10, was admitted into evidence and the author of the report testified. The court found that Justin abandoned John and his consent to the adoption was not necessary. The court's specific findings include:

7. There has been no attempted contact with the child on the part of [Justin] whatsoever since the birth of the child.

8. [Justin] made no efforts to exercise responsibility or interest in [John] until the filing of the petition for adoption. Even after the filing, the only thing that [Justin] did was to file an action in Sisseton-Wahpeton Tribal Court claiming paternity of [John].

. . . . .

10. Both [Evelyn and Justin] have had the unrestricted opportunity since the birth of [John] to be involved in [John's] life, aware of [his] whereabouts, to request visitation and contact with [John], but neither have attempted to do so except as set forth above.

11. No one has ever concealed from [Justin and Evelyn] the location of [John] and his custodian, or the fact that [he] was born and was in existence.

. . . . .

14. Neither [Justin or Evelyn] have ever shown any love, care, or affection for said child.

15. Prior to and after the birth of [John], efforts were made by the natural mother's family to contact [Justin], but there was difficulty doing so; [Justin] never recognized paternity of [John] until after the filing of the petition for adoption.

16. [Justin] has no intention of himself providing for the care of [John] in the immediate future.

. . . . .

18. [John] has bonded with the ... Ponton ... family and has known the Pontons as his parents since birth.

19. That beyond a reasonable doubt the physical and emotional health of John and his best interest would be jeopardized and deleteriously affected if the bonding that exists with the Pontons is broken or interrupted, and any such disruption could be permanent.

20. [Justin] could not replace the bonding which has been established with the Pontons. At the very best, under the scenario given by [Justin], he would see [John] on a monthly basis for the next four or five years without any parental involvement with [him]. [John] could not become bonded with [Justin] until he had finished school which would deprive [John] of a major benefit in his health, well being, and development.

. . . . .

25. Any custody of [John] by [Justin] is likely to result in serious emotional or physical damage to [John] and this has been established beyond a reasonable doubt.

A hearing to determine whether the adoption was in the best interest of John was held on June 8, 1989. Neither the tribe nor Justin appeared. The court approved the adoption and entered its order declaring the child adopted. Justin appeals the order. We affirm.

1. Consideration of SDCL 25-6-10 investigation report during

abandonment hearing.

Justin claims the trial court improperly admitted the investigation report during the abandonment hearing, contrary to In re Adoption of Zimmer, 299 N.W.2d 574 (S.D.1980). However, Justin did not object at the time the report was admitted nor did he object to the testimony of its author. Objection to the report was not raised until Justin filed his Objections to Prospective Adoptive Parents' Proposed Findings of Fact and Conclusions of Law. Such objection is too late to preserve the issue for appeal because the trial court could easily have corrected the alleged error by refusing admission. As we stated in In re A.I., 289 N.W.2d 247, 249 (S.D.1980): "Generally, error must be brought to the attention of the trial court as soon as it is apparent and failure to object at a time when the court can take corrective action precludes appellate review." Cf. Franz v. Brennan, 146 Wis.2d 541, 431 N.W.2d 711, 715 (Wis.App.1988) ("[A]n objection to the court's failure to give an instruction cannot be made for the first time in a post-trial motion."), aff'd, 150 Wis.2d 1, 440 N.W.2d 562 (1989); Peterson v. First Nat'l Bank of Iowa, 392 N.W.2d 158, 163 (Iowa App.1986) ("Objections first raised in a motion for judgment notwithstanding a verdict or for a new trial are too late to be considered on appeal because such objections must be made before instructions are read to the jury.") Aff'd, 423 N.W.2d 889 (Iowa 1988).

Justin claims that he objected at his first opportunity because his counsel did not have a copy of the report until after it was offered and received. However, Justin's counsel knew that it was the report prepared in accordance with SDCL 25-6-10. Since the objection is not to the content of the report, but to the admission of the report, it was not necessary to review the content before deciding whether to object. Therefore, Justin is precluded from raising this issue on appeal.

2. Trial court's findings of fact were not clearly


Justin challenges ten of the trial court's findings as clearly erroneous. We will not set aside the trial court's findings of fact unless they are clearly erroneous and we are left with a firm conviction that a mistake has been made. In re J.J. & S.J., 454 N.W.2d 317, 321 (S.D.1990).

Justin claims that Findings 7, 8, 10, 11 and 14 overlook numerous relevant material factors. He dislikes the inferences that can be drawn from these findings and believes they do not present a complete picture of the facts. However, he fails to point to any evidence that would indicate any of these findings are incorrect. For example, he fails to point to any evidence that he made an attempt to contact his son or that he was ever prevented from doing so. While the facts do not paint the picture Justin desires, he offers no basis for deeming them clearly erroneous.

Justin claims that Finding No. 15 overlooks the underlying purpose of the attempts by Connie's family to contact him. Again, he does not point to any evidence that is contrary to this finding or shows that he did acknowledge paternity before the adoption proceedings began. Nor does he dispute that efforts to contact him were made. Therefore, we cannot set aside the finding.

Justin's challenge to Finding No. 16 likewise fails to show how the finding is erroneous. Justin claims the finding ignores the arrangements he has made with his mother for her to care for John while he is attending college. Yet those arrangements do not refute the fact that Justin himself will not be providing John's care.

Finally, Justin claims that Findings 19, 20 and 25 misstate the testimony of the author of the investigation report. The author of the report testified that John would be emotionally damaged if he were taken from the Pontons. Since custody by Justin would necessarily require removal of John from the Pontons, serious damage to John would result from such custody. Further, since Justin would be able to see John on a very limited basis while he was at school, he would not be able to replace any lost bonding with the Pontons. Therefore, we cannot say these findings are clearly erroneous.

3. Indian Child Welfare Act.

Justin claims the Indian Child Welfare Act (ICWA) prohibits termination of his parental rights without evidence beyond a reasonable doubt that continued custody of John by Justin is likely to result in serious emotional or physical damage to John. 25 U.S.C. Sec. 1912(f) (1988). The Pontons contend ICWA is not applicable to this case due...

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