In re Adoption of C.D.B., 23573.

• Decision Date: 22 November 2005
• Docket Number: No. 23573.,No. 23590.,23573.,23590.
• Parties: In the Matter of the ADOPTION OF C.D.B., A Minor. B.M. (H.) T., Mother and Appellant, J.D.B., Father and Appellee. B.M. (H.) T., Plaintiff and Appellant, v. J.D.B., Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 809

706 N.W.2d 809

2005 SD 115

In the Matter of the ADOPTION OF C.D.B., A Minor B.M. (H.) T., Mother and Appellant J.D.B., Father and Appellee.

B.M. (H.) T., Plaintiff and Appellant, v. J.D.B., Defendant and Appellee.

No. 23573.

No. 23590.

Supreme Court of South Dakota.

Argued October 4, 2005.

Decided November 22, 2005.

Donald M. McCarty of McCann, Ribstein, Hogan & McCarty, Brookings, South

Dakota, Attorneys for appellant Mother B.M. (H.) T.

Sean M. O'Brien, Brookings, South Dakota, Attorney for appellee Father J.D.B.

KONENKAMP, Justice.

[¶ 1.] In this consolidated appeal, the mother seeks reversal of (1) the decision to terminate her parental rights so that the father's wife, the stepmother, can adopt C.D.B., and (2) the decision to hold the mother in contempt for not paying her child support obligation. We affirm both decisions.

Background

[¶ 2.] The mother and father never married each other, but lived together and shared responsibility for their son, C.D.B., who was born in 1998. The parents eventually separated in 2000, and the mother kept physical custody of the child. The father retained the right to regular visitation under a stipulated schedule. Then in November 2002, the father petitioned the circuit court for, and was granted, physical custody because the mother was going through a difficult time in her life and had frequently left C.D.B. with the father for extended periods of time. The court ordered supervised visitation for the mother at the father's home. The visitation had to be supervised because there was a concern that the mother would leave with C.D.B. and because she had married a registered sex offender.¹ In addition to supervised visitation, the circuit court ordered the mother to pay the father child support of $130 per month to begin on January 1, 2003.

[¶ 3.] Despite having a visitation schedule established at the November 2002 hearing, the mother only visited C.D.B. four times. She never paid any child support. Her last contact with C.D.B. was in January 2003. In her explanation for her lack of contact with C.D.B., the mother claimed that the stepmother made her visitations difficult and that supervised visitation in the father's home did not allow her to have one-on-one time with C.D.B.

[¶ 4.] The mother acknowledged that "she has made some poor decisions relating to visitation." However, she insisted that she had matured and called the father in early October 2004 to ask him what she needed to do to start seeing her son again. Within days of the mother's telephone call, the father married the stepmother and filed a petition for adoption. While it was true that they married on October 13, 2004, and filed the petition for adoption on that same day, the father explained that the purpose was not to prevent the mother from reestablishing her relationship with C.D.B. Instead, the father and stepmother said that they wanted to provide the child with a stable and loving home.

[¶ 5.] After learning that the stepmother had petitioned for adoption, which, if granted, would terminate the mother's parental rights, the mother wrote a letter to the circuit court.² An evidentiary hearing was held to determine whether the mother had in fact abandoned C.D.B. and whether the best interest of the child would be served if the mother's parental rights were terminated and the stepmother's adoption proceeded.

[¶ 6.] At the hearing, before Judge David R. Gienapp, the court took judicial notice of the parents' custody file and heard testimony from the father, the mother, the stepmother, and several other witnesses. The mother insisted that she did not have the requisite intent to abandon C.D.B. and that terminating her parental rights would not be in her child's best interests. Moreover, the mother said that because she called the father in early October 2004, this fact supported a finding she had not abandoned C.D.B. for the six months "immediately prior to the filing of the Petition" as required by SDCL 25-6-4(2).³ She admitted, however, that for the six months prior to the filing of the petition she had not communicated with her son, who was age six at the time. In fact, she said that she had seen him "in some stores, but I have never gotten in front of him to say something to him." Nonetheless, the mother claimed that the adoption should be denied because the father and the stepmother have had an unstable relationship, a belief the father's own family supported.⁴

[¶ 7.] After the circuit court considered all the evidence, it found that the mother lived a nomadic lifestyle, only sporadically visited C.D.B., never paid child support, did not ask to speak with C.D.B. when she called in early October 2004, and made no "recognition of Christmas or birthdays of the minor child dating back to at least 2002 and possibly further." The court emphasized that the mother's "testimony at trial as to the reasons for her non-contact [were] not deemed credible or realistic." On the other hand, the court regarded the testimony of the stepmother as "credible and believable." Consequently, the court held that the father had "established by clear and convincing evidence that [the] mother has abandoned the minor child." Specifically, the court ruled that "the evidence shows that [the] father took custody of the minor child and [the stepmother] has been involved in the parental duties relating to the minor child, and has basically taken the place of his missing mother ... and that the reasons given by the natural mother as to why she failed to follow through with visitation are not credible."

[¶ 8.] The father also filed a motion for contempt against the mother for her failure to pay child support. In that proceeding, before Judge Rodney J. Steele, the mother alleged that she had not "willfully and contumaciously" failed to pay because she did not know she was supposed to start making payments, since she never personally received the order. In addition, the mother claimed that because the father never attempted to enforce the child support order against her, she should not be held in contempt. The circuit court found that (1) an order existed, (2) the mother had actual notice of her obligation in November 2002 because she was present when the court issued the order, (3) she had the ability to pay, and (4) her failure to make any payment whatsoever was willful and contumacious.

[¶ 9.] The mother appeals raising the following issues: (1) did the trial court err when it found that the mother had abandoned C.D.B.; (2) did the trial court abuse its discretion when it determined that it was in the best interest of C.D.B. to proceed with the adoption; and (3) did the trial court err when it held the mother in contempt for not paying child support?

Analysis and Decision

[¶ 10.] "Whether a parent has abandoned a child within the meaning of SDCL 25-6-4 is a question of fact to be decided by the trial court, a decision that will not be overturned unless the finding is clearly erroneous." In the Matter of Adoption of Bellows, 366 N.W.2d 848, 850 (S.D.1985); In the Matter of Adoption of Everett, 286 N.W.2d 810, 814 (S.D.1979); In the Matter of Adoption of Christofferson, 89 S.D. 287, 290, 232 N.W.2d 832, 834 (1975). Findings of fact are clearly erroneous when, after a careful review of the record, "we are left with a firm conviction that a mistake has been made." In the Matter of Adoption of Baade, 462 N.W.2d 485, 488 (S.D.1990).

[¶ 11.] After a court finds abandonment under SDCL 25-6-4(2), it must exercise its discretion to determine whether the child's best interests will be served by terminating the rights of the parent so that an adoption can proceed without that parent's consent. "When reviewing whether a court has abused its discretion, we do not decide whether we would have made the same ruling, but only if a judicial mind could have made a similar decision in view of the law and the circumstances." Meldrum v. Novotny, 1999 SD 127, ¶ 11, 599 N.W.2d 651, 653 (citing Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D.1991)). An abuse of discretion occurs when a court has made "a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable." Arneson v. Arneson, 2003 SD 125, ¶ 14, 670 N.W.2d 904, 910.

1. Abandonment

[¶ 12.] The mother maintains that her call to the father in early October 2004 clearly supports her intent to reestablish, not abandon, her relationship with C.D.B. However, the father contends that even if the mother's call is construed as an attempt, it should not negate the finding of abandonment under SDCL 25-6-4(2). We have previously determined that "[t]o constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child." Mastrovich v. Mavric, 66 S.D. 577 287 N.W. 97, 97 (1939); see also, Adoption of Bellows, 366 N.W.2d at 850; In the Matter of Adoption of Ernst, 318 N.W.2d 353, 354 (S.D.1982); Adoption of Everett, 286 N.W.2d at 814; Adoption of Christofferson, 89 S.D. at 290, 232 N.W.2d at 834. In addition, "[t]here must be a showing of an intent on the part of the parent to abandon and to relinquish parental obligations; this intent may be inferred from conduct." In the Matter of Adoption of Sichmeller, 378 N.W.2d 872, 873 (S.D.1985) (citing Adoption of Christofferson, 89 S.D. at 290, 232 N.W.2d at 834). When examining intent, the court should consider "a parent's presence, love, care and affection, and monetary support." Id. (citation omitted).

[¶ 13.] It is undisputed that the mother has not contacted C.D.B. during the last six months before the filing of the petition for adoption and that the last actual contact was in January 2003. Even when she saw him in stores, she made no effort to talk to him. It is also undisputed that when the mother called in October 2004 she did not ask to speak to...