Baby Boy K., Matter of

• Decision Date: 27 March 1996
• Docket Number: No. 19158,19158
• Citation: Baby Boy K., Matter of, 546 N.W.2d 86, 1996 SD 33 (S.D. 1996)
• Parties: In the Matter of the Termination of Parental Rights Over BABY BOY K., a Minor Child.
• Court: South Dakota Supreme Court

Page 86

546 N.W.2d 86

1996 SD 33

In the Matter of the Termination of Parental Rights Over BABY BOY K., a Minor Child.

No. 19158.

Supreme Court of South Dakota.

Argued Nov. 30, 1995.

Decided March 27, 1996.

Douglas R. Cummings, Jr., East River Legal Services, Sioux Falls, for appellant W.B.L., Jr.

Duane C. Anderson, Christopherson, Bailin & Anderson, Sioux Falls, for appellee Lutheran Social Services.

Ron J. Volesky, Huron, for appellee adoptive parents.

MILLER, Chief Justice.

¶1 W.B.L., Jr., (W.B.L.) the alleged biological father of a child born out of wedlock, appeals the denial of his motion to vacate an order terminating the parental rights of the child's biological parents. We affirm.

FACTS

¶2 Mother, an unmarried woman, gave birth to Baby Boy K. [hereinafter Child] on February 12, 1994. Four days later, Mother filed a petition for voluntary termination of parental rights. According to this petition, the natural father of Child was unknown. In an accompanying affidavit, Mother stated:

[T]hat the alleged natural father of the above named minor child is unknown to her and only known as Daryl; that she cannot further identify him; that no person has come forth to acknowledge paternity; and that if she could identify him by personal observation, she would not know his complete name or address. That [Mother] was in the company of several different people on an evening in May, 1993, that during the course of the evening [Mother] was impregnated by a male unknown to her; that [Mother] did not share this information with anyone until after the birth of the child and has no knowledge of who or how to locate persons who might know this person.

¶3 The trial court ordered that notice of a hearing to terminate parental rights be served by publication in the Sioux Falls Argus Leader newspaper, not less than five days prior to the hearing. Accordingly, a notice appeared in that newspaper on February 19, 1994, addressed "TO: All Whom It May Concern/Daryl." The notice identified Child by Mother's last name (Baby Boy K___.).

¶4 On February 28, 1994, the trial court held a hearing on the petition to terminate parental rights. Mother and a social worker for Lutheran Social Services of South Dakota (LSS) were in attendance. No one appeared in response to the notice published in the newspaper. During the hearing, the following exchange occurred between the trial court and Mother The Court: What else--what about the father?

Social Worker: There is a publication in there. She was only able to remember his first name. It was published under his first name. And I think it's after the orders there.

The Court: Okay. What were the circumstances here? The father, you don't know him or--

Mother: It was just a one-night drunken incident.

The Court: And you didn't know his full name?

Mother: No.

The Court: The only reason is, we worry about this because sometimes they come back later and we want to make sure that we have done everything we can to make sure that he's been notified. So you are assured it isn't anybody that you know that may later show up and claim the child?

Mother: Yep.

The Court: You are comfortable with that as well?

Social Worker: Yeah, we talked a lot about it.

The Court: And then you've received nothing in response from the publication?

Social Worker: No, we haven't.

¶5 At the conclusion of the hearing, the trial court signed an order terminating the parental rights of Mother and "the unknown alleged natural father." This order transferred parental rights over Child to LSS for the purpose of adoption. Notice of entry of the judgment was entered on April 8, 1994.

¶6 On July 26, 1994, W.B.L., asserting that he was the natural father of Child, filed a motion to vacate the final order terminating and transferring parental rights over Child. He further requested that the court order blood tests to establish his paternity.

¶7 In an affidavit included with his motion, W.B.L. stated he was unaware of Mother's pregnancy or Child's birth until he was told by a friend of Mother in the second week of March 1994 when Child was about one month old. He stated he immediately confronted Mother and, after initial denials, she admitted he was the father of Child and that Child had been adopted. W.B.L. denied having any actual notice of the previously held hearing to terminate his parental rights until this discussion with Mother. W.B.L.'s affidavit further stated that, after he learned of his fatherhood, he filed a paternity action and requested a writ of habeas corpus before another judge. The paternity action and application for writ of habeas corpus were filed on May 23, 1994.

¶8 In addition to his affidavit, W.B.L. attached a stipulation and agreement signed by himself and Mother, which stated in relevant part:

That during the last two weeks of May, 1993, [W.B.L.] and [Mother] had sexual relations on several occasions.

That [Child] was conceived during the last two weeks of May and that [Mother] did not have sexual relations with any other person during this period.

That [Mother] acknowledges that [W.B.L.] is in fact the biological father of the minor child.

That [Mother] agrees that [W.B.L.] is the fit and proper person to have custody of the parties' minor child.

¶9 LSS opposed W.B.L.'s motion to vacate. According to an affidavit filed by LSS, Mother contacted the LSS social worker on March 30, 1994, and informed her that she had lied about the identity of Child's father. The social worker stated Mother refused to name the father of Child.

¶10 The trial court permitted C.S. and M.S., the custodial and adoptive parents of Child, to intervene and oppose the motion to vacate filed by W.B.L. At the hearing on W.B.L.'s motion, his counsel sought to rely on the affidavits filed by W.B.L. and Mother as proof of the need to vacate the earlier judgment and order blood tests. Neither Mother nor W.B.L. were present at this hearing. The trial court refused to consider the affidavits, indicating they were hearsay. The court reiterated and emphasized its questioning of Mother at the termination hearing and the necessity of an in-court evaluation of Mother's credibility regarding her current claims of W.B.L.'s paternity. W.B.L.'s counsel then requested an opportunity to subpoena Mother to appear in court. The trial court, however, proceeded to hear arguments from LSS and the adoptive parents in opposition to the motion to vacate. At the conclusion of the hearing, the trial court ruled that it would not reopen the case. The court's conclusions of law read in part:

II.

That [Child] was born out of wedlock.

III.

That due and proper notice of the hearing to terminate parental rights was given.

IV.

That at the termination hearing, the Court determined that the father of the child was Daryl, and his parental rights and those of [Mother] were properly terminated.

V.

That pursuant to SDCL 25-6-1.1, a father of an illegitimate child shall have no right to the service of process in adoption, dependency, delinquency, or termination of parental rights proceedings unless he is known and identified by the mother or unless he, prior to the entry of a final order in any of the three proceedings, shall have acknowledged the child as his own by affirmatively asserting paternity, within sixty (60) days after the birth of the child.

VI.

That [W.B.L.] was not known to be the father or alleged as the father of [Child] prior to the entry of the final order that terminated the parental rights of [Child's] parents.

VII.

That [W.B.L.] has no standing to re-open or contest the Order Terminating Parental Rights.

VIII.

That it is in the best interest of the child that the Order Terminating Parental Rights not be vacated.

W.B.L. objected to the trial court's findings and conclusions and proposed alternative findings and conclusions, which the trial court rejected.

¶11 W.B.L. appeals the court's final judgment, contending the trial court erred as a matter of law in concluding (1) he has no standing to reopen or contest the order terminating parental rights; (2) due and proper notice of the hearing to terminate parental rights was given to him; and (3) it was in the best interests of Child that the order terminating parental rights not be vacated. ¹ We affirm.

DECISION

¶12 I. Did the trial court err as a matter of law in concluding that Father has no standing to reopen or contest the order terminating parental rights?

¶13 As we explained in Agar Sch. Dist. No. 58-1 Bd. of Education v. McGee, 527 N.W.2d 282, 284 (S.D.1995):

"Standing is established through being a 'real party in interest' and it is statutorily controlled." Wang v. Wang, 393 N.W.2d 771, 775 (S.D.1986). Under SDCL 15-6-17(a), "[e]very action shall be prosecuted in the name of the real party in interest." The real party in interest requirement for standing is satisfied if the litigant can show " 'that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant.' " Parsons v. South Dakota Lottery Commission, 504 N.W.2d 593, 595 (S.D.1993) (quoting Gladstone, Realtors v. Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66, 76 (1979)).

¶14 In determining standing the focus is on the party seeking relief, not on the issues he presents. In re Adoption of Baby Boy D., 742 P.2d 1059, 1062 (Okla.1985), cert. denied, 484 U.S. 1072, 108 S.Ct. 1042, 98 L.Ed.2d 1005 (1988). We do not consider whether the party filing the challenge "will ultimately be entitled to any relief but whether he has the legal right to seek judicial redress for his grievance." Id.

¶15 In his motion to vacate, W.B.L. alleged that he is the natural father of Child. He contends the termination of his parental rights occurred without notice to him and he was, therefore, denied his liberty interest as a parent without due process of law. This Court and the United States Supreme Court have recognized an unwed father's potential liberty interest...