DLH v. JLA (In re Adoption Of AMP), S–12–0093.

Decision Date12 October 2012
Docket NumberNo. S–12–0093.,S–12–0093.
Citation286 P.3d 746,2012 WY 132
PartiesIn the Matter of the ADOPTION OF AMP, a minor child. DLH, Appellant (Respondent), v. JLA and JJA, Appellees (Petitioners).
CourtWyoming Supreme Court

OPINION TEXT STARTS HERE

Representing Appellant: John R. Hursh, Central Wyoming Law Associates, P.C., Laramie, Wyoming.

Representing Appellees: James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming.

Before KITE, C.J., and GOLDEN,*HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, DLH, challenges the district court's order granting the adoption of his four-year-old son, AMP, without Appellant's consent. We affirm.

ISSUE

[¶ 2] The parties raise the following issue:

Whether the district court abused its discretion in granting JJA's adoption of AMP without Appellant's consent pursuant to Wyo. Stat. Ann. § 1–22–110(a)(iv), due to Appellant's willful failure to pay child support for a period of one year prior to the filing of the adoption petition, and his failure to bring his child support obligation current within 60 days after service of the petition.

FACTS

[¶ 3] Appellant and JLA are the biological parents of AMP, who was born on October 11, 2007. They lived together for a period of time but never married. Appellant moved to Mississippi to live with his father in June of 2009. In July, 2009, an order was entered establishing paternity and requiring Appellant to pay $259.00 per month towards the support of AMP.

[¶ 4] Shortly after his arrival in Mississippi, Appellant found part-time employment at a sporting goods store, and worked there until December, 2009, when he was terminated for “Job Abandonment.” He paid child support while employed, but stopped making support payments in January, 2010. In November, 2010, Appellant enlisted in the United States Air Force. He moved out of his father's home in January, 2011 to begin basic training, and he completed his training in March, 2011. As of January, 2012, Appellant had not made a child support payment since January, 2010.

[¶ 5] JLA and JJA began living together in August, 2010 and married in December of that year. They maintain a home in Torrington, Wyoming, and AMP resides with them. On March 4, 2011, JJA filed a petition in district court seeking to adopt AMP. JLA joined the petition. The petition alleged that Appellant's consent to the adoption was not required pursuant to Wyo. Stat. Ann. § 1–22–110(a)(iv) because he had willfully failed to contribute to the support of AMP for a period of one year immediately prior to the filing of the petition to adopt. Appellant was served with notice of the petition on April 6, 2011. He was also provided the statutorily required notice that he had 60 days to pay his past due child support obligation, which amounted to $5,064.68.

[¶ 6] Appellant responded to the petition by filing a note with the clerk of court, stating

I, [DLH], will not relinquish my rights as the father of [AMP]. I do not give permission to [JJA] to adopt [AMP].

For the past year I have not been able to pay my child support due to the fact that I was unemployed and could not find employment. I have recently joined the United States Air Force and graduated Basic Military Training on March 11. I am now receiving steady payment and plan to start making child support payments regularly.

Appellant did not otherwise appear in the action. A hearing was held and a final decree of adoption was entered on June 16, 2011. On September 19, 2011, Appellant filed a Motion to Set Aside Judgment and Final Decree of Adoption. The motion alleged that the decree should be set aside because Appellant was a member of the United States Air Force when served with the adoption petition and was entitled to appointment of counsel to represent him pursuant to 50 U.S.C. app. § 521. Appellees resisted the motion. After holding a hearing, the district court granted the motion and set aside the decree of adoption.

[¶ 7] Subsequently, Appellant obtained counsel and filed an answer contesting the allegations in the petition. A trial was held on February 17, 2012. Although he conceded that he had not paid any child support for more than one year prior to the filing of the petition, he contended that the failure to make the support payments was not willful. He also conceded that he had not paid the arrearages within 60 days of service of the petition to adopt, but contended that the failure to pay arrearages was also not willful.

[¶ 8] On February 22, 2012, the district court issued a decision letter finding in favor of Appellees. The district court concluded that clear and convincing evidence established that the adoption should be granted without consent due to Appellant's willful failure to pay child support from March, 2010 to March, 2011, and his failure to bring the support obligation current within 60 days after service of the petition in violation of Wyo. Stat. Ann. § 1–22–110(a)(iv). The Final Decree of Adoption was entered on February 28, 2012. Appellant timely filed this appeal.

STANDARD OF REVIEW

[¶ 9] If all statutory elements are met, the power to grant or deny a petition for adoption is within the sound discretion of the district court, and we will not disturb the court's decision absent a clear abuse of that discretion. In re Adoption of SDL, 2012 WY 78, ¶ 6, 278 P.3d 242, 244 (Wyo.2012). In determining whether there has been an abuse of discretion, the ultimate question is whether the court could reasonably have concluded as it did. Id. Our review also entails an evaluation of the sufficiency of the evidence to support the district court's decision. JO v. State, Dep't of Family Servs. (In the Interest of RE), 2011 WY 170, ¶ 11, 267 P.3d 1092, 1096 (Wyo.2011). We apply our traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting an adoption without consent. On appeal, the evidence is examined in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. EOS v. JLS (In re Adoption of RMS), 2011 WY 78, ¶ 8, 253 P.3d 149, 151 (Wyo.2011).

DISCUSSION

[¶ 10] JJA and JLA petitioned for adoption without Appellant's consent pursuant to Wyo. Stat. Ann. § 1–22–110(a)(iv) (LexisNexis2009), which provides, in relevant part, as follows:

§ 1–22–110. When adoption permitted without consent.

(a) ... [T]he adoption of a child may be ordered without the written consent of a parent or the putative father if the court finds that ... the nonconsenting parent or parents have:

...

(iv) Willfully failed to contribute to the support of the child for a period of one (1) year immediately prior to the filing of the petition to adopt and has failed to bring the support obligation current within sixty (60) days after service of the petition to adopt[.]

[¶ 11] A district court's determination that a parent's consent for an adoption is not required effectively terminates that parent's parental rights. In re RMS, ¶ 10, 253 P.3d at 151. Because the right to associate with one's child is a fundamental right protected by the Wyoming and United States Constitutions, adoption statutes are strictly construed when the proceeding is against a nonconsenting parent, and every reasonable intendment is made in favor of that parent's claims. MJH v. AV (In re JRH), 2006 WY 89, ¶ 13, 138 P.3d 683, 686 (Wyo.2006). The party requesting adoption bears the burden of proving the existence of at least one of the statutory factors by clear and convincing evidence. Id. Clear and convincing evidence is “that kind of proof which would persuade a trier of fact that the truth of the contention is highly probable.” Id., ¶ 13, 138 P.3d at 686–87.

[¶ 12] Appellant concedes that he made no child support payments during the one-year period from March, 2010 to March, 2011. Indeed, Appellant acknowledged that his last support payment was a $56.00 payment made in January, 2010. He contends, however, that his non-payment of child support was not “willful,” as required under Wyo. Stat. Ann. § 1–22–110(a)(iv). He claims that he was “willing to make his court-ordered child support payments but was financially unable to do so” because he was unable to find work. Appellant asserts that his enlistment in the military constituted an effort to better himself and provide for his son, and that from November, 2010 through March, 2011, he was “concentrating on succeeding in Basic Training and getting his career off to a favorable start.” Appellant contends that he accrued pay while in Air Force basic training in January, February, and March of 2011, but asserts that he could not make his child support payments because he did not receive his pay until basic training was completed in March. Appellant further contends that his failure to bring his support obligation current within 60 days of the adoption petition does not satisfy Wyo. Stat. Ann. § 1–22–110(a)(iv) because [p]erformance was impossible due to his economic status[.]

[¶ 13] As used in the adoption statute, “willfully” means “intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly.” ADA v. SA, 2006 WY 49, ¶ 9, 132 P.3d 196, 201 (Wyo.2006). We recently examined the relationship between a parent's alleged “financial inability” to pay child support and the statutory standard of willful nonpayment in In re Adoption of RMS. In that case, mother claimed that her failure to pay child support was not willful because she was unemployed and did not have the ability to pay. Id., ¶ 13, 253 P.3d at 152. In support of her assertion that “simple proof of her failure to pay is insufficient as a matter of law to justify terminating parental rights,” mother cited to this Court's opinion in TOC v. TND (In re TLC), 2002 WY 76, ¶ 27, 46 P.3d 863, 873 (Wyo.2002), where we stated:

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  • In re Atws
    • United States
    • Wyoming Supreme Court
    • May 5, 2021
    ...made in favor of that parent's claims.’ " Matter of Adoption of ZEM , 2020 WY 17, ¶ 11, 458 P.3d 21, 24 (Wyo. 2020) (quoting In re Adoption of AMP , 2012 WY 132, ¶ 11, 286 P.3d 746, 749 (Wyo. 2012) ); see also Matter of Adoption of CJML , 2020 WY 23, ¶ 7, 458 P.3d 53, 55 (Wyo. 2020) (same).......
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    ...obligation.[¶ 18] Father and Stepmother rely on In re Adoption of RMS , 2011 WY 78, 253 P.3d 149 (Wyo. 2011) and In re Adoption of AMP , 2012 WY 132, 286 P.3d 746 (Wyo. 2012), to support their contention that Mother's failure to pay child support was willful. In RMS , the district court gra......
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    ...made in favor of that parent's claims.’ " Matter of Adoption of ZEM , 2020 WY 17, ¶ 11, 458 P.3d 21, 24 (Wyo. 2020) (quoting In re Adoption of AMP , 2012 WY 132, ¶ 11, 286 P.3d 746, 749 (Wyo. 2012) ); see also Matter of Adoption of CJML , 2020 WY 23, ¶ 7, 458 P.3d 53, 55 (Wyo. 2020) (same).......
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