Adoption of Quenette, Matter of, 10434

• Decision Date: 15 December 1983
• Docket Number: No. 10434,10434
• Citation: 341 N.W.2d 619
• Parties: In the Matter of the ADOPTION OF June Madeira QUENETTE. Terry and Sally QUENETTE, Petitioners and Appellees, v. Richard William SKJONSBY, natural father of June Madeira Quenette, Respondent and Appellant, Donald L. Schmid, Administrator, Child Welfare Services of the Department of Human Services of the State of North Dakota, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 619

341 N.W.2d 619

In the Matter of the ADOPTION OF June Madeira QUENETTE Terry and Sally QUENETTE, Petitioners and Appellees, v. Richard William SKJONSBY, natural father of June Madeira Quenette, Respondent and Appellant Donald L. Schmid, Administrator, Child Welfare Services of the Department of Human Services of the State of North Dakota, Respondent.

Civ. No. 10434.

Supreme Court of North Dakota.

Dec. 15, 1983.

Schneider, Schneider & Schneider, Fargo, for petitioners and appellees; argued by Steven C. Schneider, Fargo.

Richard W. Skjonsby, pro se.

PEDERSON, Justice.

Richard William Skjonsby appealed from a judgment terminating his parental rights as the natural father of June Madeira (Skjonsby) Quenette. Skjonsby, pursuing this appeal pro se, fails to precisely articulate the issues. Essentially, however, he argues that the trial court erred (1) in not allowing him to appear personally at the hearing, (2) in denying his motion to proceed in forma pauperis, and (3) in determining that he had abandoned June. We conclude that the court did not err and, accordingly, affirm the judgment.

Richard and Sally Hutchinson Wallwork Skjonsby Quenette were married in 1975 and divorced in 1976. Sally was awarded custody of their daughter June, who was born in 1976, and Richard was ordered to pay child support of $125 per month. Sally married Terry Quenette in 1980.

In 1982 Sally petitioned for a termination of Richard's parental rights, pursuant to the Revised Uniform Adoption Act (Ch. 14- 15, NDCC), alleging that he (1) had failed to pay child support as ordered, (2) had failed significantly to communicate with June for over one year, (3) had abandoned June, and (4) was unreasonably withholding his consent to June's adoption. Terry petitioned to adopt June during the same proceeding.

Skjonsby was then, and still is, serving a life sentence in the North Dakota State Penitentiary. He responded to the petition by denying that he had abandoned June, alleging that he could provide some support for June through his employment at the penitentiary, and opposing Terry's adoption of June. He further petitioned the court for a writ of habeas corpus to allow him to testify in person and requested permission to proceed in forma pauperis, alleging that he was indigent. The court denied the writ on the grounds that Skjonsby presented a security risk, that he did have counsel, and that he could appear by deposition. Skjonsby's motion to proceed in forma pauperis was also denied.

At the conclusion of the hearing testimony, Skjonsby's counsel declined the trial court's offer of additional time to depose Skjonsby. The court found that Skjonsby had not communicated with June by any means from June 1981 until December 1982, had made no support payments from July 13, 1977 through September 30, 1979, and from March 20, 1980 to the present, and that his incapacity and unavailability were likely to cause serious emotional harm to June. Pursuant to Sec. 14-15-19, NDCC, ¹ the court ordered Skjonsby's parental rights terminated. No ruling was made on Terry's petition to adopt June.

In Pritchett v. Executive Director of the Social Service Board, 325 N.W.2d 217 (N.D.1982), we held that the proper scope of appellate review of a termination of parental rights based on abandonment under Chapter 14-15, NDCC, is the same as that of one based on abandonment under Chapter 27-20, NDCC (Uniform Juvenile Court Act), i.e., a form of de novo proceeding. Although Pritchett concerned only abandonment as a reason for terminating parental rights, we find the rationale expressed there equally applicable to the other grounds for termination listed in Sec. 14-15-19(3), NDCC. The party seeking termination has the burden of proving the necessary grounds by clear and convincing evidence. We have also said that the question of abandonment (or other grounds for terminating parental rights) is one of fact, and a finding of abandonment will be upheld on appeal where there is substantial evidence in the record to support that finding. Matter of Adoption of Gotvaslee, 312 N.W.2d 308, 317 (N.D.1981).

Skjonsby argues that his incarceration is not sufficient in and of itself to terminate his parental rights. In the Interest of F.H., 283 N.W.2d 202 (N.D.1979). He also argues that had he been at the hearing he would have presented evidence showing that he had communicated, or attempted to communicate, with June. Furthermore, he claims that if his post-conviction proceedings ² are successful, his life sentence will be reduced and he will be able to develop a closer relationship with his daughter.

While we do not dispute Skjonsby's assertion that incarceration alone is not a proper ground for terminating parental rights, his reliance on In the Interest of F.H. is misplaced. He overlooks the fact that after reviewing many cases from other jurisdictions which had considered similar situations, we concluded in F.H. that imprisonment, combined with other factors such as parental neglect, withholding of affection, lack of financial or other support, and no contact could support a finding of abandonment.

In F.H. we also held that a convict has no constitutional right to appear personally in a civil proceeding. Ordinarily, due process is met if he has been allowed to appear through counsel and by deposition. We noted that "any right to appear personally would have to rest upon convincing reasons and would ultimately be left to the sound discretion of the trial court." Id. at 209. We conclude that the trial court did not abuse its discretion when it denied Skjonsby's petition.

In In the Interest of R.L.D., 253 N.W.2d 870, 877 (N.D.1977), we noted that the primary purpose of the Uniform Juvenile Court Act (Ch. 27-20, NDCC) is to protect the welfare of the child. The welfare of the child is also the primary consideration in adjudicating the issue of parental rights with respect to children. In the Interest of F.H., supra, 283 N.W.2d at 213.

The terms "welfare" and "best interests" of the child have different meanings in custody proceedings and in termination proceedings. Ordinarily, in custody proceedings the court considers competing acceptable alternatives for raising the child. In termination proceedings, the terms encompass "the total relationship between child and parent pertaining to and involving heterogeneous values, rights, duties, and concepts." Kottsick v. Carlson, 241 N.W.2d 842, 853 (N.D.1976). Competing alternatives have no place in termination proceedings where the only consideration is whether or not it is acceptable to let the parent retain his parental rights.

In F.H., 283 N.W.2d at...