BJB, Matter of

• Decision Date: 11 January 1995
• Docket Number: C-94-2,Nos. C-94-1,s. C-94-1
• Citation: 888 P.2d 216
• Parties: In the Matter of BJB, a/k/a BBC, a Minor. (Two Cases). BDR, Appellant (Respondent), v. BEB and PJB, Appellees (Petitioners). BEB and PJB, Appellants (Petitioners), v. BDR, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 216

888 P.2d 216

In the Matter of BJB, a/k/a BBC, a Minor. (Two Cases).

BDR, Appellant (Respondent), v. BEB and PJB, Appellees (Petitioners).

BEB and PJB, Appellants (Petitioners), v. BDR, Appellee (Respondent).

Nos. C-94-1, C-94-2.

Supreme Court of Wyoming.

Jan. 11, 1995.

Joe R. Wilmetti, Casper, for BDR.

J. Patrick Hand of Hand & Campbell, P.C., Douglas, and Peter J. Feeney, Casper, for BEB and PJB.

Lawrence E. Middaugh, Casper, Guardian ad Litem.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* and MACY, JJ., and McEWAN, D.J., Retired.

THOMAS, Justice.

In these appeals, we are tasked with reiterating, for the trial court and the parties, direction that we already have articulated in connection with the efforts of BEB and PJB (the Bs) to adopt a young child without the consent of BDR, the natural father. The case first came before this court in Matter of Adoption of BBC, 831 P.2d 197 (Wyo.1992) (BBC I ), in which this court reversed an order terminating BDR's parental rights and decreeing adoption in favor of the Bs. We held the Bs had failed to demonstrate BDR had not evidenced an interest in, and responsibility for, the child within thirty days after receiving notice of the pending birth or birth of the child, although the trial court found this feature of WYO.STAT. § 1-22-108(c) (1988) had been established. The case was remanded for a timely hearing before the trial court "to determine what is now in the best interest and welfare of BBC pertaining to his temporary care, custody, and control, as well as what are the father's rights and support obligations in connection therewith." About a year later, the case was again before this court in Matter of Adoption of BBC, 849 P.2d 769 (Wyo.1993) (BBC II ), in which this court reversed those parts of the district court's order granting guardianship to the Bs, denying visitation rights to BDR, and removing BDR's support obligations. We held the district court had failed to comply with the court's opinion and mandate in the prior case. We now have before us an appeal from an order which provided the Bs were granted full guardianship of BBC; BDR was denied rights of visitation; BDR was freed from any obligation to furnish support; the little boy was to be known by a name selected by the Bs; and a letter of guardianship was to issue. Because of the delay in resolution, we regret we must, again, reverse and remand with specific direction to the district court.

In the appeal of BDR, he articulates these issues in his Brief of Appellant BDR:

1. Did the Trial Court err in denying Appellant's challenge for cause?

2. Did the Trial Court err in denying Appellant's peremptory challenge?

3. Does the jurisdiction of a District Judge who has been assigned to preside on a matter in a judicial district other than the one to which he is appointed by reason of the recusal of the Judge of that district, cease upon completion of that particular matter or does it carry over after appeal and reversal?

4. Did the District Court substantially comply with the previous mandate of the Supreme Court?

5. Was there any substantial evidence to support the ruling of the District Court?

6. Did the District Court err in ordering a change of name for BBC?

7. Did the Appellant receive a fair and impartial trial?

In the Brief of Appellees (Petitioners) BEB and PJB, the issues are stated in this way:

1. Whether or not the hearing held by the District Court substantially complies with the previous mandates of the Wyoming Supreme Court, and is supported by substantial evidence, and allowed Appellant a fair and impartial hearing?

2. Whether or not the District Court Order constitutes a name change for "Baby Boy Clark", or simply provided for a designation for him to be known as or referred to as "Braden Jess Boner", rather than "Baby Boy Clark"?

3. Whether or not Appellant had a right to a jury trial in the issues of this matter, and even if so, if that issue has been waived or abandoned by Appellant on appeal?

4. Whether or not the Trial Court acted properly and within its authority and jurisdiction in denying Appellants challenge for cause, peremptory challenge, and in continuing to preside over this matter?

In the Brief of Appellants (Petitioners) BEB and PJB, the following issues are asserted:

1. Did the Trial Court err in ruling that the Wyoming Supreme Court has foreclosed the issue of adoption in this case?

2. Is the evidence contained in the records sufficient to have allowed Petitioners' motion to amend the pleadings to conform to the evidence, and grant adoption in this case?

In the Brief of Appellee BDR, no separate statement of the issues is set forth.

The underlying facts are articulated adequately in the prior opinions of this court. For the reader to whom the case may be novel, it suffices to state the Bs, acting upon the consent of the mother of the baby boy, sought his adoption. BDR, the father, appeared and objected to the petition for the adoption. The parties did not dispute BDR's paternity and, in the first hearing, the district court terminated BDR's parental rights and ordered adoption based upon a finding under WYO.STAT. § 1-22-108(c) that BDR had not evidenced an interest in, and a responsibility for, the child within thirty days after receiving notice of the birth or pending birth of the child. As previously indicated, this court ruled the record did not support that determination, and the case was remanded for further proceedings to address the best interest and welfare of BBC, with respect to his temporary care, custody, and control and the father's rights and support obligations. The thrust of that first decision was to refer the parties to WYO.STAT. § 1-22-110 (1988).

The district court tried again and, in the second appeal, we were constrained to conclude it had not accommodated to the mandate in the prior case. We reversed an order granting guardianship to the Bs, denying visitation rights to BDR, and removing any support obligations from BDR. We there said:

We remand to the district court and order the district court to: (1) maintain the status quo, concerning BBC's temporary care[,] custody and control, as it existed before the district court's June 29, 1992 order; (2) grant all parties leave to amend the pleadings and proper amount of time to answer opposing pleadings; and (3) after all the pleadings are filed, hold an evidentiary hearing to determine, based on the circumstances as they exist today, the best interest of BBC and BDR's rights and duties.

BBC II, 849 P.2d at 774 (emphasis added).

We now are confronted with an appeal from an order by the district court which was substantially similar to the prior order and essentially added only the provision BBC would now be known by a name bestowed upon him by the Bs. It is clear this order was entered after a truncated hearing held by the district court in which a local rule in vogue in the Seventh Judicial District was invoked in the Eighth Judicial District. Testimony by witnesses was limited to the testimony of the parties and one expert on each side. Apparently, for purposes of applying the rule, the mother of BBC was treated as a party. In the course of dialogue between the court and the parties, the trial court expressed the opinion that the Supreme Court had ruled an adoption could not be achieved in this case.

In BBC I, this court ruled the adoption could not be granted pursuant to the provisions of WYO.STAT. § 1-22-108 because the requisite finding upon which the court relied was not supported in the record. This court did not foreclose proceedings conducted in light of WYO.STAT. § 1-22-108, but the manner in which this ruling was addressed by the parties and the trial court demonstrates an abandonment of any effort to proceed under that provision in the statutes, and we conclude the law of this case now is that an adoption cannot be ordered relying only upon the provisions of WYO.STAT. § 1-22-108. See Matter of Adoption of GSD, 716 P.2d 984 (Wyo.1986).

We are puzzled, however, by the conclusion that this court has foreclosed the adoption of BBC. While the parties and the trial court apparently have taken cognizance of WYO.STAT. § 1-22-110, the truncated hearing held by the district court was completely inadequate to permit the parties to debate the issue of whether adoption could be ordered under that statute. The Bs did not bring any current evidence addressing any of the grounds justifying adoption without consent under that statute, but relied upon the prior record. BDR was not allowed to present evidence that would be relevant to any of those issues.

We acknowledge resolution of an adoption under WYO.STAT. § 1-22-110 is difficult in light of the proceedings in this case. In re Adoption of Female Child X, 537 P.2d 719 (Wyo.1975). BDR initially was not advised of the birth of the child and had difficulty finding out what had become of the child. Subsequently, he was foreclosed from contact with the child and, by judicial fiat, was excused from support. Nevertheless, the adoption code...