Adoption of J.W.M., Matter of

• Decision Date: 31 May 1995
• Docket Number: No. 940289,940289
• Citation: 532 N.W.2d 372
• Parties: In the Matter of the ADOPTION OF J.W.M., a Minor. W.J.M., Petitioner and Appellee, v. J.B., JR., Respondent and Appellant, and Henry C. "Bud" Wessman, Executive Director, North Dakota Department of Human Services, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 372

532 N.W.2d 372

In the Matter of the ADOPTION OF J.W.M., a Minor.

W.J.M., Petitioner and Appellee, v. J.B., JR., Respondent and Appellant, and Henry C. "Bud" Wessman, Executive Director, North Dakota

Department of Human Services, Respondent.

Civ. No. 940289.

Supreme Court of North Dakota.

May 31, 1995.

John C. Skowronek (argued), Lamont & Skowronek, P.O. Box 729, Minot, for petitioner and appellee.

Robert S. Thomas (argued), Minot, for respondent and appellant.

NEUMANN, Justice.

J.B. (John) ¹ appeals from a judgment terminating his parental rights to J.W.M. (James) and granting a petition for adoption by James's stepfather, W.J.M. (Walter). We hold John's due process rights were not violated by the procedures employed in the adoption proceeding and, under our de novo review, the evidence presented at the adoption hearing clearly and convincingly establishes John abandoned James. We affirm.

James was born on July 29, 1988, to John and J.M. (Joan). John and Joan have never been married, but they lived together with James in the Minneapolis, Minnesota area until December 1989. During the first three months of 1990, Joan worked on the road as an "exotic dancer," and James lived with John in the Minneapolis area. From March until December 1990, James lived with Joan in the Minneapolis area, and according to Joan, John saw James less than ten times. In December 1990, Joan and John reconciled, and they lived together with James until May 1991, when Joan and James moved to another residence in the Minneapolis area. According to Joan, John saw James four times between May and November 1991, when Joan and James moved to Minot to live with Walter. Joan and Walter were married on June 12, 1992. John has not seen James since Joan and James moved to Minot in November 1991. In September 1992 John began serving an 86-month prison sentence in Minnesota for attempting to purchase cocaine. According to Joan, between November 1991 and the filing of the adoption petition in September 1993, John called James three or four times and sent him a Christmas card and present in December 1992.

Walter's amended petition to adopt James alleged John's consent to the adoption was not required under N.D.C.C. Sec. 14-15-06(1)(a), (b), and (j), ² because John had abandoned James. In the adoption proceeding, John was represented by court-appointed counsel, who submitted written interrogatories to Walter, asking him to specify John's contacts with James since James's birth. In answers dated February 14, 1994, Walter summarized John's contacts with James:

"Between August 1988 and March 1990, [James] resided off and on with his mother and [John]. From March 1990 through December 1990, [John] saw [James] a few times, probably less than 10. From January 1991 through April 1991, [James] resided with his mother and [John]. Between May 1991 and September 1991, [John] saw [James] three times. In September 1991, [John] saw [James] one time. In November 1991, [John] called [James] one time. In July 1992, [John] called [James] one time. In December 1992, [John] sent a card and present to [James]. In January 1993, [John] called [James] one time. From September 1993, after receiving the adoption petition, and through the present, [John] has called [James] on three occasions, and has sent him two letters and a Christmas gift."

John was incarcerated in Minnesota, and he was not permitted to personally attend the March 10, 1994 adoption hearing in Minot. However, he testified at the hearing by videotaped deposition taken on January 12, 1994. According to John, he talked to James "off and on on the phone" until he went to prison and this was "really when [he] lost contact" with James. John testified that between May 1991 and September 1993, he sent "a few hundred dollars.... Three, four, five, something like that" for support of James. At the adoption hearing, Joan used Walter's answers to the written interrogatories to refresh her memory about John's contacts with James. Joan also testified that, in March 1992, John sent her $300, but he has not provided any support for James since then.

John's counsel requested a transcript of the adoption hearing so that, before the trial court rendered its decision, John could respond to any misstatements or inaccuracies in the testimony of the witnesses. The court ultimately denied John's request, citing Thompson v. King, 393 N.W.2d 733 (N.D.1986), cert. denied, 479 U.S. 1098, 107 S.Ct. 1320, 94 L.Ed.2d 173 (1987). The court thereafter granted Walter's petition, concluding John's consent to the adoption was not required because he had abandoned James. John appealed.

John contends the trial court's denial of his request for a transcript violated his due process rights and his statutory rights under N.D.C.C. Sec. 27-20-27(1). John concedes he did not have an absolute right to be physically present at the adoption hearing. Thompson, supra; In Interest of F.H., 283 N.W.2d 202 (N.D.1979). He argues, however, that the court's denial of his request for a transcript of the hearing to allow him to respond to inaccuracies in the testimony of witnesses deprived him of a reasonable and fair opportunity to rebut adverse testimony and to participate in the proceeding.

A parent's relationship with a biological child is entitled to constitutional protection, but that relationship is neither absolute nor unconditional. See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Matter of Adoption of A.M.B., 514 N.W.2d 670 (N.D.1994); Matter of Adoption of K.A.S., 499 N.W.2d 558 (N.D.1993). The due process clause affords parents certain procedural protections before their relationship with a biological child can be irrevocably severed. Santosky, supra; Lassiter, supra; A.M.B., supra; K.A.S., supra.

In F.H., we considered the due process rights of an out-of-state prisoner in the context of a proceeding to terminate his parental rights. We held a prisoner who appeared at a termination hearing through counsel and by deposition did not have a due process right to be physically present at the hearing. We concluded the trial court did not abuse its discretion in denying the prisoner's request for a continuance until he was released from prison. See Matter of Adoption of Quenette, 341 N.W.2d 619 (N.D.1983) (trial court did not abuse its discretion in denying a request by father, an in-state prisoner, to appear personally at adoption hearing where the prisoner was represented by counsel who, at the conclusion of the hearing, declined the court's offer for additional time to depose the prisoner).

In Thompson, we considered the due process rights of a prisoner in conjunction with a stepparent's petition for adoption. We again concluded the trial court did not abuse its discretion in denying the prisoner's request for a continuance until he was released from prison. We also rejected the prisoner's argument that he was denied due process because the court refused to give him an opportunity to rebut the stepparent's evidence after reviewing a completed transcript of the hearing:

"Due process is satisfied when a convict in a proceeding for termination of parental rights and adoption is allowed to appear through counsel and by deposition.... King was represented by court-appointed counsel, had the opportunity to prepare for the adoption hearing for over a year, and was deposed in anticipation of the hearing.

"We do not intend to enlarge a prisoner's due process rights in adoption proceedings by guaranteeing him the opportunity to rebut evidence presented at the hearing. To do so would lengthen the proceedings to an even greater extent. We conclude that King, in light of the protections evident in this case, is not denied procedural due process simply because he is not permitted to rebut the evidence presented at the adoption hearing."

Thompson, 393 N.W.2d at 736-37 (citation omitted).

John argues this case is factually distinguishable from F.H. and Thompson. He asserts that in F.H. the prisoner did not engage in any prehearing discovery and did not ask for an opportunity to rebut adverse testimony. He contends that in Thompson the prisoner "was a psychotic man serving 10 years for numerous sexually-related offenses," who "had not seen his child for over 5 years or tried to telephone for 4 years" and had been granted five continuances in an adoption proceeding that had been pending for nearly three years. Because of the constitutional implications involved in a parent-child relationship and the proliferation of the use of adoption proceedings to terminate the rights of parents, particularly incarcerated parents, on the ground of abandonment, we pause to examine the framework for analyzing procedural due process claims in these types of proceedings. ³

Initially, we note many courts have followed our decision in F.H. and held prisoners do not have a due process right to personally attend a hearing to terminate their parental rights. See Pignolet v. State Dep't of Pensions & Sec., 489 So.2d 588 (Ala.Civ.App.1986); People in Interest of C.G., 885 P.2d 355 (Colo.App.1994); In re Juvenile Appeal, 187 Conn. 431, 446 A.2d 808 (1982); In Interest of J.L.D., 14 Kan.App.2d 487, 794 P.2d 319 (1990); In re Randy Scott B., 511 A.2d 450 (Me.1986); Matter of Welfare of H.G.B., 306 N.W.2d 821 (Minn.1981); State ex rel. Juvenile Dep't v. Stevens, 100 Or.App. 481, 786 P.2d 1296 (1990), rev. denied, 310 Or. 71, 792 P.2d 104 (1990), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991); In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992); Najar v. Oman, 624 S.W.2d 385 (Tex.Ct.App.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2909, 73 L.Ed.2d 1317 (1982); In Interest of Darrow, 32 Wash.App. 803, 649 P.2d 858 (1982). A prisoner's due process rights are generally satisfied if the prisoner is represented at the...