Adoption of Zimmer, Matter of, 13059

• Citation: 299 N.W.2d 574
• Decision Date: 10 December 1980
• Docket Number: No. 13059,13059
• Parties: In the Matter of the ADOPTION OF Gregory James ZIMMER and Jeffrey Lee Zimmer.
• Court: Supreme Court of South Dakota

Page 574

299 N.W.2d 574

In the Matter of the ADOPTION OF Gregory James ZIMMER and

Jeffrey Lee Zimmer.

No. 13059.

Supreme Court of South Dakota.

Argued Oct. 22, 1980.

Decided Dec. 10, 1980.

James Paul Zimmer: Appellant

LaVonne Carol Schmeichel: Appellee-LaVonne

Gerald Henry Schmeichel: Appellee-Gerald

LaVonne and Gerald Schmeichel: Appellees

Gregory James Zimmer and Jeffrey Lee Zimmer: Zimmer children

ACTION

Appellant appeals from the trial court's order of January 10, 1980, granting appellee-Gerald's petition for adoption of the Zimmer children. On appeal, appellant contends, among other things, that the trial court erred in considering the court-ordered report submitted by the South Dakota Department of Social Services prior to determining whether appellant had abandoned the Zimmer children. We agree, reverse and remand.

FACTS

On July 8, 1974, appellant and appellee-LaVonne were divorced whereby appellant was ordered to pay $25 per month per child in child support to appellee-Lavonne, who retained custody of the Zimmer children. Subsequent to the divorce, appellant lived in Montrose, South Dakota, and appellee-LaVonne lived in Salem, South Dakota, with the Zimmer children. The towns of Salem and Montrose are approximately ten miles apart. At trial, appellee-LaVonne testified that appellant had made no child support payments to her since 1974. However, in response to being asked at trial how many child support payments he had made since 1976, appellant stated: "I gave them about five, six, hundred dollars." Appellant testified that he had given the Zimmer children cash gifts for Christmas and birthdays throughout 1975 and 1976. Appellant also testified that he had paid appellee-LaVonne and/or the Zimmer children approximately $440 during 1974 and 1975. Appellant testified that he thought he had given the Zimmer children around $100 in checks in 1977. On October 21, 1978, appellant mailed a check for $50, along with a birthday card, to one of the Zimmer children (Gregory). Appellant subsequently stopped payment on this check when he learned that the Zimmer child had never received it. In November of 1978, appellant gave Lois Kinsted $10 to give to the Zimmer children. This was done. Lois Kinsted was a school teacher of the Zimmer children. As of November 1978, appellant was behind in his child support payments.

Appellant spoke to the Zimmer children on Thanksgiving of 1978 when he happened to meet them on the streets of Montrose. In June of 1978, the Zimmer children visited with appellant for approximately 20 minutes at his home in Montrose. The Zimmer children were in Montrose visiting their paternal grandmother at the time. When asked how many other times he had seen the Zimmer children in the last year, appellant replied: "About four, five times." These visitations occurred in either Salem or Montrose when appellant and the Zimmer children happened to run into each other. The testimony at trial indicates that appellant and appellee-LaVonne do not get along well together, making it difficult for appellant to visit the Zimmer children at their home.

Appellant's income during the years 1975 through 1978 was below $3,000 per annum, except in 1977 when it was approximately $3,650. Appellant works as a self-employed auto-mechanic. His assets are extremely limited. Since his marriage to appellee-LaVonne in August of 1977, appellee-Gerald has provided for the necessary support and care of the Zimmer children.

PROCEDURAL FACTS

On March 6, 1979, appellees filed a petition praying that appellee-Gerald be allowed to adopt the Zimmer children. This petition also asserted that appellant had abandoned the Zimmer children for more than one year. On April 4, 1979, appellant filed a notice of intent to contest appellees' petition for adoption. In conjunction with this notice of intent, appellant filed an affidavit stating that he had no intention of abandoning the Zimmer children, as evidenced by his contacts with them during the previous years.

On March 30, 1979, the trial court ordered an investigation by the South Dakota Department of Social Services regarding the requested adoption of the Zimmer children. This report was ordered under the mandate of SDCL 25-6-10. On May 4, 1979, a report was filed with the trial court. The report recommended that appellee-Gerald's petition for adoption be granted. Appellant's counsel was not provided with a copy of the report nor was he formally notified of its existence. The report was never introduced into evidence. On June 4, 1979, a hearing was held on appellees' petition. Appellant and appellees were present at the hearing and were represented by counsel. It was stipulated to by all counsel that the Zimmer children, who were also represented by separate counsel, need not be present. As a result of this hearing, the trial court issued a judgment and order dated January

10, 1980, granting appellees' petition for adoption.

ISSUE

Did the trial court err in considering the report submitted by the South Dakota Department of Social Services prior to deciding whether appellant had abandoned the Zimmer children? We hold that it did.

DECISION

Appellant contends that the report in question should not have been considered by the trial court until it was initially determined whether or not appellant had abandoned the Zimmer children. The question of abandonment stems from SDCL 25-6-4, which states in pertinent part:

A child cannot be adopted without the consent of the parents, if living, provided that in the following cases consent shall not be necessary:

(2) From any parent who has abandoned his or her child for the period of one year.

Appellant did not consent to appellees' petition for adoption and refuted appellees' assertions that he had abandoned the Zimmer children.

The report was ordered by the trial court under authority of SDCL 25-6-10, which states:

Whenever a person who is not married, or a husband and wife jointly, or a stepfather or stepmother, petition the circuit court for leave to adopt a minor child, the judge of the circuit court shall fix a time for hearing not less than ten days from the filing of such petition and shall direct a probation officer or other officer of the court or an agent of the office of community services or some other discreet and competent person to make a careful and...