Bond v. Carlson
| Decision Date | 23 June 1971 |
| Docket Number | No. 8696,8696 |
| Parties | Jack Joye BOND and Elaine Kay Bond, Plaintiffs and Appellants, v. Reuben E. CARLSON, as Director of the Division of Child Welfare of the Public Welfare Board of the State of North Dakota, and Harley Frederick Hettick, Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Where a divorce decree did not permanently deprive the natural father of custody of his children or terminate his parental rights or set forth an adjudication of his unfitness as a parent, the father has not 'lost custody' of the children, within the interpretation of that phrase as used in N.D.C.C. Sec. 14--11--04.
2. An adoption may not be granted in the absence of the consent of a parent unless the evidence in the adoption proceeding establishes grounds for the termination of parental rights under the provisions of N.D.C.C. Sec. 27--20--44, or the parent was adjudicated an unfit parent in divorce proceedings, or the evidence establishes the parent has abandoned the child.
3. A divorce decree giving the father the right to visit his children and providing for support payments to be made by him, gives the father a substantial right of custody, so that it is determined that he has not 'lost custody of the child through divorce proceedings,' within the provisions of N.D.C.C. Sec. 14--11--04.
Wolf & Glaser, Bismarck, for appellants.
William R. Mills, Bismarck, for respondent Harley Frederick Hettick.
This is an appeal from an order of the District Court of Morton County, Sixth Judicial District, the Honorable C. F. Kelsch presiding, dismissing the petition of the appellants, Jack Joye Bond and Elaine Kay Bond, to adopt the minor children Gregory Frederick Hettick and Michelle Elaine Hettick.
Harley Hettick and the petitioner Elaine Kay Bond were formerly husband and wife and are the natural parents of the children sought to be adopted.
A divorce decree was entered in the District Court of Burleigh County January 23, 1969, dissolving their marriage and awarding the natural mother the care, custody, and control of the minor children.
Thereafter the mother of the children married Jack Joye Bond, and the Bonds petitioned the District Court in and for Morton County for the adoption of the children.
No testimony of the parties was taken at the adoption hearing.
The order appealed from recites the dismissal was on the following grounds:
(1) That the natural father of the children had not consented to the adoption and would not waive any parental rights;
(2) That in the divorce decree the natural father had been awarded certain valuable rights of visitation of the children; and
(3) That the parental rights of the natural father had not been terminated by action or by law.
The appellants' Specifications of Error are as follows:
(1) That the Court erred in ruling as a matter of law that the consent of the natural father was required before the Court could grant an adoption;
(2) That the Court erred as a matter of law in not proceeding with hearing the petition for adoption on its merits; and
(3) That the Court erred as a matter of law in failing to determine that the consent of the father was not essential in this proceeding, the said father having lost custody of the children in a divorce proceeding.
The divorce decree entered in the action involving the natural parents, Elaine and Harley Hettick, dated January 23, 1969, provided, in part:
(T)he Plaintiff shall be awarded the care, custody and control of the minor children of the parties, Gregory Frederick age 5 years; Michelle Elaine, age 19 months; subject to visitation as hereinafter set forth. That the Defendant may visit the 5 year old child after breakfast, returning him prior to the evening meal, when he is in the vicinity of the residence of the Plaintiff, and when he has made prior arrangements with the Plaintiff. That the same visitation will apply to the youngest child of the parties when she reaches the age of 5 years. And that the Defendant's parents may visit the eldest child every second Saturday from 2:00 o'clock to 5:00 o'clock, p.m., and take him from the Plaintiff's residence, subject to prior arrangements made with the Plaintiff; if that is inconvenient, they may visit him Sunday afternoon during the same time period on every second weekend; visitation being limited either Saturday or Sunday on any second given weekend; and they may visit the youngest child under the same conditions and circumstances when she reaches the age of 5 years.
The divorce decree further provided that the defendant was to pay fifty dollars per month for each child as child support until the children reached their maturity and in addition pay the sum of twenty-five dollars per month for an educational fund for the children of the parties. Such educational fund payments were to continue until the younger child reached her majority. The payments were current as of the date of the adoption hearing.
N.D.C.C. Sec. 14--11--04 provides, in part:
A legitimate child cannot be adopted without the consent of its parent or parents, nor an illegitimate child without the consent of its mother, but the consent of a parent who has abandoned the child, or who cannot be found, or whose parental rights have been terminated as provided by law shall be dispensed with and consent may be given by the director of the division of child welfare of the public welfare board, or waived by order of the court. If the parental rights of one parent have been judicially terminated the consent of the other parent is sufficient. The consent of a parent who is insane or otherwise incapable of giving consent, may be dispensed with, and consent may be given by the guardian, if the child has a guardian, or if there is no guardian, by the director of the division of child welfare of the public welfare board. The consent of a parent who has lost custody of the child through divorce proceedings, or of the father of an illegitimate child Shall not be required. * * * (emphasis added)
N.D.C.C. Sec. 14--11--10 provides that notice of the adoption hearing must be given to any parent not consenting, whose parental rights have not been terminated, including a parent who has lost custody of a child through divorce proceedings.
The appellants contend that since the divorce decree gave custody of the children to the mother, consent by the natural father to the adoption of the children is not essential and not required under the provisions of N.D.C.C. Sec. 14--11--04.
The transcript of the proceedings before the judge presiding in the adoption proceedings merely sets forth the discussion between the counsel for the parties and the presiding judge concerning their respective views as to applicable law and the nature of any testimony counsel intended to produce.
The District Judge, in the initial stages of the adoption hearing, stated:
* * * Mr. Mills, the court inquires of you whether the father of these children, at this time, still refuses to give his consent to the adoption of his two minor children by Mr. Bond, as petitioned for by him?
However, the presiding judge, at a later point in the hearing, in addressing counsel for the petitioners, stated:
But unless you can show now that there are sound, serious reasons why this adoption should be granted, I am going to hold the consent is required under our statute.
Thus, it would appear the trial court was of the opinion that consent of the noncustodial parent to the adoption was not essential in each and every adoption case, but that unless the evidence established sufficient grounds which would, considering the best interests of the children, authorize and justify the granting of the adoption, the adoption could not be granted without the natural father's consent.
A review of the cases dealing with this issue reveals a diversity of opinion on the issue of the necessity of consent of a noncustodial parent in various jurisdictions having statutory provisions similar to ours, and, indeed, even between various decisions within the same state, depending upon the facts and circumstances existing in each case. See: Annot., 47 A.L.R.2d 824 (1956) (Adoption--Consent of Divorced Parent).
The Minnesota Supreme Court has considered issues similar to those now before us in a series of cases beginning with In re Jordet's Petition, 248 Minn. 433, 80 N.W.2d 642 (1957).
In Jordet's a divorce decree was entered wherein the parents stipulated the custody of a child, Robert Lloyd Wilkinson, Jr., was to be awarded to the mother, with the natural father being given certain visitation rights. Thereafter the natural mother married Mr. Jordet, and they petitioned the court to grant Mr. Jordet's petition for the adoption of the child.
The natural father would not consent to the adoption. However, the district court granted the petition for the adoption. The Minnesota Supreme Court affirmed the district court judgment and held the natural father's consent was not a prerequisite to the granting of the adoption decree.
The Minnesota statute pertaining to consent of a natural father is similar to ours and...
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