Adoption of RHA, Matter of

• Decision Date: 09 July 1985
• Docket Number: Nos. C-84-3,C-84-4,s. C-84-3
• Citation: 702 P.2d 1259
• Parties: In the Matter of the ADOPTION OF RHA, a Minor. PAA, Appellant (Respondent), v. John DOE and Jane Doe, Appellees (Petitioners). In the Matter of the ADOPTION OF RHA, a Minor. John DOE and Jane Doe, Appellants (Petitioners), v. PAA, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 1259

702 P.2d 1259

In the Matter of the ADOPTION OF RHA, a Minor.

PAA, Appellant (Respondent), v. John DOE and Jane Doe, Appellees (Petitioners).

In the Matter of the ADOPTION OF RHA, a Minor.

John DOE and Jane Doe, Appellants (Petitioners), v. PAA, Appellee (Respondent).

Nos. C-84-3, C-84-4.

Supreme Court of Wyoming.

July 9, 1985.

Rehearing Denied Aug. 15, 1985.

Chris Dull Edwards of Edwards & Edwards, Cody, for respondent, PAA.

John W. Davis of Davis, Donnell, Worral & Bancroft, P.C., Worland, for petitioners John and Jane Doe.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

BROWN, Justice.

This appeal is from a "Final Order of Adoption" granted by the Washakie County District Court, permitting John and Jane Doe to adopt RHA. Appellant PAA, the father of RHA, raises the following issues:

"The district court's failure to make a finding of fact as to whether the appellant [PAA] willfully failed to contribute to the support of [RHA] for a period of one year immediately prior to the filing of the petition to adopt resulted in an erroneous conclusion of law as to whether appellant [PAA's] consent was required for the adoption of [RHA].

"The district court's failure to make a finding of fact as to whether the appellant [PAA] willfully permitted [RHA] to be maintained by Park County D-PASS for a period of one year immediately prior to the filing of the petition of adoption without substantially contributing to the support of [RHA] resulted in an erroneous conclusion of law as to whether appellant [PAA's] consent was required for the adoption of [RHA].

"There was not substantial evidence to support the findings of fact and conclusions of law stated by the district court.

"The district court abused its discretion when it bifurcated the adoption proceeding and refused to allow [PAA] any knowledge of the petitioner's identity or refused participation of the appellant in the 'best-interests' portion of the proceeding.

"Wyoming Statutes §§ 14-2-308 through 14-2-318 for termination of parental rights and Wyoming Statute § 1-22-110 for adoption without parental consent violate appellant [PAA's] substantive due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution because they arbitrarily and without reason, set different standards for termination of parental rights."

Petitioners in the district court, John and Jane Doe, cross-appeal and raise an additional issue:

"Did the district court abuse its discretion when it refused to grant a permanent injunction

"1) Restraining [PAA] from contacting certain named and unnamed persons or seeking them out after his release from Prison; and

"2) Enjoining [PAA] from entering Park or Washakie Counties after his release from prison."

We will affirm the district court in both appeals.

RHA is one of the children of the marriage of RA and PAA. The marriage ended in divorce, with PAA abandoning his family. In 1981, seven years later, after RHA had been molested by her stepfather, she went to live with her father, PAA, in Powell, Wyoming. Appellant PAA began sexual intercourse with his twelve-year old daughter in July, 1981, and had sexual intercourse with her about fifty times before she revealed to authorities what had been taking place. She was removed from her father's home in late October 1981, and criminal charges were brought against him. At a criminal trial in July, 1982, PAA was convicted of the crimes charged in the information, and was

"* * * sentenced to: six to eight years in the penitentiary for taking indecent liberties with a child in violation of § 14-3-105, W.S.1977; four to five years in the penitentiary for committing incest in violation of § 6-5-102, W.S.1977; and four to five years in the penitentiary for engaging in illicit sexual relations with a child in violation of § 14-3-104, W.S.1977; all sentences to be served concurrently." [PAA] v. State, Wyo., 660 P.2d 1156 (1983).

From October, 1981 until May of 1982, PAA was earning $1,400 per month as a truck driver. From October, 1981, the Park County Division of Public Assistance and Social Services was paying about $300 per month for RHA's maintenance, plus other medical and counseling costs. Between the time criminal charges were filed and trial was held, PAA sent a total of $45 to RHA for her support. He declared to Peter Dvorak, a social worker, that he was willing to give his daughter "walking-around" money, but "that under no conditions would he make payments to the State of Wyoming or any other state." From January 6, 1983 to January 6, 1984, the year immediately before the petition to adopt was filed, and while PAA was incarcerated in the Wyoming State Penitentiary, he earned $35 a month. From this PAA contributed a total of $16 toward the care of his daughter.

A petition to adopt RHA was filed in the district court on January 6, 1984, the petitioners being allowed to file under the names of John and Jane Doe. The petitioners alleged that the statutory reasons for nonconsent of the parent had been met, pursuant to § 1-22-110, W.S.1977. The district court ruled that the trial should be bifurcated, so that the question of whether the consent of PAA was required would be heard separately from the question of whether John and Jane Doe were fit and proper persons to adopt RHA, and also whether the adoption was in her best interests.

An order and judgment entered on May 21, 1984, held that the consent of PAA to the proposed adoption by John and Jane Doe was not required. PAA was denied further participation in the adoption proceedings, and John and Jane Doe were allowed to adopt RHA.

I

The first issue is whether the consent of appellant to adopt was necessary. Section 1-22-110, W.S.1977, provides in part:

"(a) In addition to the exceptions contained in W.S. 1-22-108, the adoption of a child may be ordered without the written consent of the parents or putative father * * * if the court finds that the nonconsenting parent or putative father has:

* * *

* * *

"(iii) Willfully abandoned or deserted the child; or

"(iv) Willfully failed to contribute to the support of the child for a period of one (1) year immediately prior to the filing of the petition to adopt; or

"(v) Willfully permitted the child to be maintained in or by a public or private institution or by the division of public assistance and social services within the department of health and social services for a period of one (1) year immediately prior to the filing of the petition without substantially contributing to the support of the child; or

* * *

* * *

"(vii) Been adjudged by a court to be guilty of cruelty, abuse, neglect or mistreatment of the child. * * * "

The court's Order and Judgment dated May 21, 1984, reflects that in the first part of the bifurcated hearing the court determined "That the consent of [PAA] to the proposed adoption * * * is not required." To support this conclusion the court found:

"6. That from October 26, 1981 until May of 1982 [PAA] received substantial income and was able to contribute to the support of his daughter and that he failed to do so without justifiable excuse and during that period contributed the sum of $55.00.

"7. That in May of 1982 [PAA] was convicted in Park County, Wyoming and was sentenced to the Wyoming State Penitentiary for a period of six to eight years.

"8. That since the incarceration [PAA] has contributed a total of $16.00 to his daughter for support in the form of insurance premium at her school and further sent her $15.00 for Christmas while earning a sum of $35.00 a month.

"9. That [PAA] has not substantially contributed to the support of [RHA] since October 26, 1981 and that the Park County D-PASS has since October 26, 1981 and until the filing of the Petition herein maintained and supported [RHA].

"10. That the above findings constitute evidence of clear and convincing nature that [PAA] has not substantially contributed to the support of [RHA] since October 26, 1981."

We do not express an opinion whether or not the trial court was correct in determining that the consent of appellant to adopt was unnecessary for the reasons stated above. It is clear, and more significant that appellant had been adjudged by a court to be guilty of cruelty, abuse, neglect or mistreatment of RHA. Because of this conviction the consent of appellant to adopt RHA was not required. § 1-22-110(a)(vii), W.S.1977.

We have held numerous times that if the determination of the trial court is correct on any theory it will not be disturbed, or if there exists any legally valid ground appearing in the record, we must affirm. Anderson v. Bauer, Wyo., 681 P.2d 1316 (1984); Valentine v. Ormsbee Exploration Corporation, Wyo., 665 P.2d 452 (1983); People v. Fremont Energy Corporation, Wyo., 651 P.2d 802 (1982); ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981).

Appellant makes an ingenious argument that § 1-22-110(a)(vii), W.S.1977, has no application to this case. He states in his brief:

"Subsection (vii) of Wyoming Statute Section 1-22-110 (1977) specifically lists the crimes for which a parent must be adjudged guilty. It is asserted by Respondent that the crime of 'abuse' in Section 1-22-110(a)(vii) is referring to Section 6-2-503 of the Wyoming Statutes (1977, as amended 1982), or section 6-4-504 (before recodification and as it existed at the time of Mr. [PAA's] trial). The crime of cruelty refers to Section 14-3-101(a)(ii) of the Wyoming Statutes (1977, repealed 1982)." ¹

Succinctly stated, appellant contends that he has not been convicted of the specific statutory crimes of cruelty, abuse, neglect, or mistreatment, of a child, and therefor § 1-22-110(a)(vii), W.S.1977, is inapplicable. We are unable to determine that the legislature intended that the words, cruelty, abuse, neglect, and mistreatment, set out in § 1-22-110(a)(vii), W.S.1977, refer to specific statutory crimes. Counsel, in walking us through the statutes, has not added to our...