CML v. ADBL (In re CJML)

Decision Date20 February 2020
Docket NumberS-19-0139
Citation458 P.3d 53
Parties In the MATTER OF the ADOPTION OF: CJML and KDL, minor children, CML and SRL, Appellants (Petitioners) v. ADBL, Appellee (Respondent).
CourtWyoming Supreme Court

Representing Appellants: Sky Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Alexandria Zafonte, Joel M. Vincent Law Office, Riverton, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX, Justice.

[¶1] CML (Father) and SRL (Stepmother) petitioned the district court for adoption of CML and ADBL’s (Mother) two minor children pursuant to Wyo. Stat. Ann. § 1-22-110(a)(ix). Mother contested the adoption. After a two-day bench trial, the district court denied the petition, and this appeal followed. We affirm.

ISSUE

[¶2] Did the district court abuse its discretion in determining Mother’s failure to pay 70% or more of the court-ordered child support for a two-year period was not willful?

FACTS

[¶3] Father filed for divorce in August 2013. Mother tested positive for methamphetamine on the day of the temporary custody hearing, and the district court awarded Father temporary custody. The divorce was finalized on May 5, 2014. The stipulated divorce decree required Mother to pass biweekly drug tests for eight consecutive weeks. It also stated that Mother would have visitation every other weekend and that the first two visits would be supervised. Mother moved to Pinedale shortly after the district court entered the divorce decree. Mother exercised unsupervised visitation while in Pinedale, though this was complicated by Father intermittently suspending visitation rights. In September 2014, Mother was charged with possession of a controlled substance. Mother was arrested in November 2014 for a bond violation. When Father called to arrange the Christmas visitation schedule, he learned she was in jail and suspended visitation. Mother has not had visitation with her children since December 2014. Mother moved from Pinedale to Riverton and then from Riverton to Casper to find better paying employment to meet her support obligation. Mother also paid for and received multiple substance abuse evaluations in an effort to reinstate visitation.

[¶4] Despite being employed and switching jobs to obtain higher paying employment, Mother is behind on child support and the district court twice held her in contempt for failure to meet her child support obligation. On August 17, 2017, Father and Stepmother petitioned the district court to allow Stepmother to adopt Father and Mother’s two minor children, based on Wyo. Stat. Ann. § 1-22-110(a)(ix) (willful failure to pay at least 70% of court-ordered support for a two-year period).1 The parties agreed that Mother failed to pay at least 70% of the court-ordered support for a period of two years or more, and that she failed to bring the support obligation current within sixty days after service of the petition for adoption. However, the parties disagreed over whether the failure to pay the support was willful. The district court determined that Mother’s failure to pay was not willful and denied the petition.

STANDARD OF REVIEW

[¶5] We first address Appellants’ argument that the district court erred as a matter of law in interpreting and applying Wyo. Stat. Ann. § 1-22-110(a)(ix). Appellants mischaracterize the district court’s decision as a finding that Mother’s failure to meet her support obligation was justified by her attempts to regain visitation, and then argue that finding was contrary to law because denial of visitation is not grounds for the nonpayment of child support. They contend this is an incorrect interpretation of the statute, thus requiring de novo review. It is undisputed that denial of visitation does not excuse a parent from payment of child support. Broyles v. Broyles , 711 P.2d 1119, 1128 (Wyo. 1985). However, the issue in this case is not whether Mother’s failure to fully pay child support was justified because Father denied her visitation. See In re Adoption of MMM , 2018 WY 60, ¶ 26, 419 P.3d 490, 498 (Wyo. 2018). Rather, the issue is whether she willfully withheld support. The question of whether a parent willfully withheld support is not subject to de novo review.2 E.g. , MMM , 2018 WY 60, ¶ 10, 419 P.3d at 493 ; In re Adoption of AMP , 2012 WY 132, ¶ 9, 286 P.3d 746, 748 (Wyo. 2012) ; In re Adoption of RMS , 2011 WY 78, ¶ 7, 253 P.3d 149, 151 (Wyo. 2011) ; In re CW , 2008 WY 50, ¶ 8, 182 P.3d 501, 503-04 (Wyo. 2008) ; In re Adoption of JRH , 2006 WY 89, ¶ 13, 138 P.3d 683, 686-87 (Wyo. 2006).

[¶6] We have long held that the "decision to grant or deny an adoption without parental consent is within the discretion of the district court." MMM , 2018 WY 60, ¶ 10, 419 P.3d at 493 (citing In Interest of SO , 2016 WY 99, ¶ 10, 382 P.3d 51, 54 (Wyo. 2016) ). In determining whether the district court abused its discretion, the ultimate question is whether it could reasonably decide as it did. MMM , 2018 WY 60, ¶ 10, 419 P.3d at 493. We must also determine whether the evidence is sufficient to support the district court’s decision. Id . In reviewing the sufficiency of the evidence, "we accept the successful party’s submissions, granting them every favorable inference fairly to be drawn and leaving out of consideration conflicting evidence presented by the unsuccessful party." Id. (quoting SO , 2016 WY 99, ¶ 11, 382 P.3d at 54 ).

[¶7] A district court’s decision to grant an adoption without a parent’s consent "effectively terminates that parent’s parental rights." AMP , 2012 WY 132, ¶ 11, 286 P.3d at 749. Because both the Wyoming and United States Constitutions protect the right to associate with one’s child, adoption statutes are "strictly construed when the proceeding is against a nonconsenting parent, and every reasonable [inference] is made in favor of that parent’s claims." Id . The party requesting the adoption must prove the existence of at least one of the statutory factors by clear and convincing evidence. Id. We have defined clear and convincing evidence as the "kind of proof which would persuade a trier of fact that the truth of the contention is highly probable." Id . (quoting JRH , 2006 WY 89, ¶ 13, 138 P.3d at 686-87 ).

DISCUSSION

[¶8] Father and Stepmother petitioned for adoption under Wyo. Stat. Ann. § 1-22-110(a)(ix). That provision allows the district court to order

(a) [T]he adoption of a child ... without the written consent of a parent ... if the court finds that the nonconsenting parent ... [has]:
...
(ix) Willfully failed to pay a total dollar amount of at least seventy percent (70%) of the court ordered support for a period of two (2) years or more and has failed to bring the support obligation one hundred percent (100%) current within sixty (60) days after service of the petition to adopt.

Wyo. Stat. Ann. § 1-22-110(a)(ix) (LexisNexis 2019).

[¶9] The parties agree that Mother failed to pay at least 70% of her child support obligation for the applicable time period (August 17, 2015 to August 17, 2017), and failed to bring the obligation current.3 The only question is whether the failure to pay was willful. The district court concluded that Mother’s failure to pay was not willful. Analyzing Mother’s intent and ability to pay, the district court found that

18. [Mother] has been far from a model parent. She has made many poor choices. But she has never shown any indication or intent to abandon her children. To the contrary, she has gone to considerable effort, and importantly she has gone to considerable expense to maintain contact, gain and maintain stable employment, and meet the somewhat unilateral demands of Petitioner so that she could exercise even regular visitation.
19. Similarly her efforts at paying her full child support obligation, "... cannot be characterized as model and may have, at times, been willful," Matter of Adoption of MMM , 2018 WY 60, ¶ 24, 419 P.3d 490, 497 (Wyo. 2018). She had the ability and means during the applicable period to pay more and could have met the 70% threshold that would have arguably avoided this contention.
20. However, her efforts to pay child support were complicated and made more difficult by her efforts to meet Petitioner’s demands for a substance abuse evaluation that met his standards and her decision to spend money pursuing better, higher paying employment and adequate housing to meet [P]etitioner’s standards in an effort to convince him to allow visitation.
21. As a fundamental right, the parental child relationship is strongly protected and is subject to strict scrutiny. ...
22. In summary, Petitioner did not prove by clear and convincing evidence that [Mother]’s failure to pay 70% over the entire two-year applicable period was willful, that is, "intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly ..." Matter of Adoption of MMM , 2018 WY 60, ¶ 21, 419 P.3d 490, 496 (Wyo. 2018).

[¶10] Regarding willfulness, we have held that

[I]t should be obvious without extensive elaboration that the penalty of the forfeiture of one’s parental rights cannot be imposed on the basis of strict liability through the application of a crude monetary equation. ... Clearly, by inclusion of the modifying term "willfully" the statute draws a distinction, as it must, between the parent who though financially able to pay his court-ordered child support is unwilling to do so, and the parent who though willing to pay his court-ordered child support is financially unable to do so.

TLC , 2002 WY 76, ¶ 27, 46 P.3d at 873. Here, "willfully" means "intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly." AMP , 2012 WY 132, ¶ 13, 286 P.3d at 749. We recognize that "[w]illfulness is rarely shown directly and there...

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