Adoption of Gotvaslee, Matter of

• Decision Date: 12 November 1981
• Docket Number: No. 9936,9936
• Parties: In the Matter of the ADOPTION OF Donavon Ray GOTVASLEE and Dayton John Gotvaslee, Minors. Darrel Rae GOTVASLEE and Glenda Ann Gotvaslee, Petitioners and Appellees, v. Douglas Ray HOFFERT, Respondent and Appellant, and T. N. Tangedahl, Executive Director of the Social Service Board of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 308

312 N.W.2d 308

In the Matter of the ADOPTION OF Donavon Ray GOTVASLEE and

Dayton John

Gotvaslee, Minors. Darrel Rae GOTVASLEE and Glenda Ann

Gotvaslee, Petitioners and Appellees, v. Douglas Ray HOFFERT, Respondent and Appellant, and T. N. Tangedahl, Executive Director of the Social Service

Board of North Dakota, Respondent.

Civ. No. 9936.

Supreme Court of North Dakota.

Nov. 12, 1981.

Farhart, Rasmuson, Lian & Maxson, P. C., Minot, for respondent and appellant; argued by Judith E. Howard, Minot.

McGee, Hankla, Backes & Wheeler, Minot, for petitioners and appellees; argued by Orlin W. Backes, Minot.

PAULSON, Justice.

This is an appeal from a judgment of the District Court of McHenry County terminating the parental rights of Douglas Ray Hoffert, respondent-appellant, in and to the minor children, Donavon Ray (Hoffert) Gotvaslee and Dayton John (Hoffert) Gotvaslee. The judgment was issued in connection with an adoption proceeding initiated by the children's mother, Glenda Ann Gotvaslee and her husband, Darrel Rae Gotvaslee, petitioners-appellees. The basis for the judgment was that Douglas Ray Hoffert had abandoned his children. The appeal contends that the evidence was insufficient to establish abandonment. We affirm.

The evidence shows that Douglas Ray Hoffert and Glenda Gotvaslee were formerly husband and wife. Two children were born of their marriage, namely, Donavon Ray, born January 9, 1973, and Dayton John, born August 12, 1974. The parties were married on June 23, 1972. They separated in June, 1975, and were divorced on July 22, 1976. The decree of divorce gave custody of the two minor children to Glenda. Douglas was given reasonable visitation rights and was ordered to pay $100 per month child support for the two children.

From the time of the parties' separation in 1975 to 1980 Douglas had two visitations with the children, one of which took place on December 24, 1976, which was arranged by a telephone call made that same day; and another, a 2-day visitation, which took place in the spring of 1977.

Following Douglas's visit in the spring of 1977, there were three attempted contacts with the children. In August of 1977, Douglas initiated an attempted visitation with the children by asking his friend, a Mr. Osborne, to pick up the children from Glenda and take them to Fargo, where Douglas was living, with no prior arrangement or agreement with or notice to Glenda. When Mr. Osborne called her on the telephone, Glenda refused to let the children go with him and informed Mr. Osborne that Douglas should contact her to arrange visits. The second attempted visitation was in December, 1978, when Douglas's second wife, Delores Hoffert, telephoned Glenda to ask what the children wanted for Christmas and to state she and Douglas wanted to see the children. Glenda refused to arrange a visitation through Delores and requested that Douglas himself should contact her to arrange visits with the children. The testimony surrounding the incident after that phone call is unclear. Delores testified that Glenda had told her that Douglas should contact Glenda that night to arrange a visit, and that Douglas called that night but no one answered. Glenda testified that she told Delores to have Douglas call her and if he would contact her, he could see the children. She did not remember telling Delores to have Douglas call that night. She further testified that Douglas made no attempt to call her. Douglas testified that his reason for making no attempts afterwards were that Glenda's refusals were emotionally upsetting to him.

There were no more attempted visitations until August, 1980, two weeks prior to the adoption hearing. Glenda refused visitation to Douglas upon advice of her counsel, pending the outcome of the adoption proceedings which had already begun.

No Christmas or birthday cards or gifts were sent to the children from 1976 to August, 1980. On August 12, 1980, a birthday card was sent to Dayton John after the adoption proceedings had commenced.

Prior to the fall of 1978, Douglas was sporadically employed with one period of unemployment lasting six months. He generally made his child support payments during his periods of employment after his divorce from Glenda. He was, however, generally in arrears until September, 1977, at which time he made a $450 payment to clear up his arrearages. Prior to September, 1977, he was subject to two contempt citations and a bench warrant for non-payment of child support. On October 19, 1977, Douglas made a $50 support payment and made no further support payments for 16 months until January 29, 1979. ¹

Between July, 1977, and October, 1978, Douglas had moved four times within North Dakota and was employed steadily in Washburn in the fall of 1978. During the 6-month period of unemployment, he lived part of that time on his parents' farm near Granville, approximately twelve miles from where the children lived with their mother, and he made no attempt to visit the children during that time.

Between October, 1977, and January, 1979, Douglas made no support payments for his minor children, even though he was employed for part of that period of time. On January 29, 1979, Douglas was ordered by the District Court of McHenry County to pay monthly the sum of $100 for child support along with $50 per month toward $1,550 in arrearages. The court further ordered that should Douglas become in arrears, the clerk of court was to notify the sheriff who was to immediately take Douglas into custody and hold him for an appearance before the court, at which time Douglas would be required to serve a six-month sentence imposed by an earlier court order dated August 19, 1976, which court order was also for arrearages in support payments. After the January 29, 1979, order Douglas regularly made his payments of $150 per month, including the payment in August, 1980, when the adoption matter was heard and at which time his arrearages were $550.

The Gotvaslees' petition for adoption was brought without the consent of Douglas on the basis of § 14-15-06(1)(b) of the North Dakota Century Code (Revised Uniform Adoption Act), which provides, in part, that consent to adoption is not required of a parent who has abandoned a child or a parent of a child in the custody of another, if that parent for at least one year has failed significantly without justifiable cause to communicate with the child or provide for the child's care and support as required by law or by judicial decree. The adoption was commenced with service upon Douglas on February 14, 1979. The hearing was set for February 26, 1979; however, the 20-day notice requirement had not been met and counsel for the petitioners, the Gotvaslees, canceled the hearing. The adoption hearing was later set for August 25, 1980.

At the adoption hearing, Douglas argued that his parental rights had to be terminated before the adoption could take place without his consent. He cited Bond v. Carlson, 188 N.W.2d 728 (N.D.1971), in which the North Dakota Supreme Court stated that an adoption should not be granted in the absence of consent of a natural parent unless the evidence establishes ground for termination of parental rights or the parent was adjudicated unfit in divorce proceedings. The Gotvaslees, on the other hand, argued that the Revised Uniform Adoption Act, § 14-15-06(1)(b), N.D.C.C., was applicable and that Douglas's consent to the adoption was not required because he had failed significantly for at least one year to communicate with or support his children without justifiable cause. The trial judge agreed with Douglas's reading of the interplay of the Revised Uniform Adoption Act with the Uniform Juvenile Court Act and he stated, at the close of the termination hearing, that "abandonment or some other basis must be shown and that parental rights must be terminated before an adoption can be granted in this matter". Subsequently, the district judge determined that Douglas had abandoned his children, thereby constituting ground for terminating his parental rights. The petition for adoption was granted the next day, August 26, 1980.

This appeal is from the trial court's determination that Douglas had abandoned his children. The only issue raised by Douglas is whether or not the trial court erred in its findings of fact and in its conclusion that Douglas had abandoned his children. Douglas argues, essentially, that his support payments and his two visits and his attempted visits with his children indicate that he did not intend to abandon his children.

At the outset we first must explain the framework within which we are reviewing this appeal. This court has not yet specifically decided whether the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C., or the Revised Uniform Adoption Act, Chapter 14-15, N.D.C.C., controls our scope of review regarding termination of parental rights in connection with adoption proceedings. Both Chapter 27-20 and Chapter 14-15, N.D.C.C., provide for termination of parental rights on the basis of abandonment. § 27-20-44(1)(a) and § 14-15-19(3), N.D.C.C. Decisions under the Uniform Juvenile Court Act are subject to review similar to the former procedure of trial de novo. Kleingartner v. D.P.A.B., 310 N.W.2d 575 (N.D.1981). However, in the instant case, there has been raised no issue regarding our scope of review. At oral argument both parties agreed that our scope of review is governed by Rule 52(a) of the North Dakota Rules of Civil Procedure because the proceedings were pursuant to Chapter 14-15, N.D.C.C., and not under Chapter 27-20, N.D.C.C. Therefore, our scope of review for this appeal will be governed by Rule 52(a), N.D.R.Civ.P., but even if we were to review this appeal de novo, under the Uniform Juvenile Court Act, we would reach the same result.

In an adoption proceeding, the petitioners bear the burden of proving the underlying facts supporting the adoption. Boslund v. Rice, 179 Wis. 531, 192 N.W. 56...