In re Adoption of Jrh, C-05-9.

• Decision Date: 21 July 2006
• Docket Number: No. C-05-9.,C-05-9.
• Parties: In the Matter of the ADOPTION OF JRH, Minor Child: MJH, Appellant (Respondent), v. AV and DV, Appellees (Petitioners).
• Court: Wyoming Supreme Court

138 P.3d 683

2006 WY 89

In the Matter of the ADOPTION OF JRH, Minor Child:

MJH, Appellant (Respondent), v. AV and DV, Appellees (Petitioners).

No. C-05-9.

Supreme Court of Wyoming.

July 21, 2006.

Representing Appellant: Bert T. Ahlstrom, Jr., of Ahlstrom Law Offices, Cheyenne, Wyoming.

Representing Appellees: Christopher M. Wages, of Goodard, Wages & Vogel, Buffalo, Wyoming.

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

BURKE, Justice.

[¶ 1] Appellant, biological father, appeals from the district court's order granting the adoption of his daughter without his consent. We affirm.

ISSUES

[¶ 2] Father presents the following issue for review:

Whether the district court abused its discretion in holding that the nonconsenting biological father in a contested adoption proceeding had willfully failed to pay child support, thus allowing the adoption to proceed without his consent pursuant to Wyo. Stat. Ann. § 1-22-110(a)(ix) (LexisNexis 2003)?

Appellees, Mother and adoptive Father, present an additional issue for review:

Whether this appeal must be dismissed because it was not timely filed?

FACTS

[¶ 3] Appellant and Mother were not married at the time their daughter was born on August 21, 1999.¹ On February 2, 2000, an order was entered establishing paternity and requiring Appellant to pay $168.00 per month in child support. Soon thereafter, Appellant was convicted of a criminal offense. As a consequence, he completed the Youthful Offender's Program and was placed on intensive supervised probation. In November 2001, Appellant was arrested for a felony drug offense. He was subsequently convicted. As a result of this offense, Appellant served time in the Laramie County jail, the Wyoming State Penitentiary, the Wyoming Honor Farm and the Adult Community Corrections (ACC) facility in Cheyenne. He was still in the ACC program when the petition for adoption was filed.

[¶ 4] In 2004, Appellant petitioned the district court for a reduction in his child support obligation. The district court determined that Appellant's net monthly income was $1,200.00 per month and entered an order increasing Appellant's support obligation to $254.00 per month effective September 1, 2004. From November 2001 through August 2004, Appellant's total support obligation was $5,712.00. He paid only $895.10. From September 1, 2004, through the date of the hearing on the necessity of consent, Appellant paid a total of $800.00 in child support. Appellant made no payments on his arrearages after the petition to adopt was filed. Prior to trial in March 2005, Appellant had not seen his daughter since June 2002.

[¶ 5] Mother and adoptive Father began living together in 2001. They married prior to the initiation of the adoption proceedings. The adoption petition and Mother's consent to the adoption were filed on October 7, 2004. Appellant filed his response objecting to the adoption on November 10, 2004. An unreported bench trial was held on March 21, 2005, to determine whether Appellant's consent to the adoption was necessary. On April 12, 2005, the district court issued its "Findings and Conclusions Regarding Adoption Without Consent" (Findings and Conclusions). The court determined that Appellant's consent to the adoption was not required pursuant to Wyo. Stat. Ann. § 1-22-110(a)(ix) (LexisNexis 2003) because he had willfully failed to pay seventy percent of court ordered child support for a period exceeding two years prior to the filing of the petition and had failed to bring his support obligation current within sixty days after service of the petition to adopt.

[¶ 6] Following issuance of the district court's Findings and Conclusions, a subsequent hearing was held in May 2005, regarding the suitability of petitioner as an adoptive father. The district court determined that the petition for adoption should be granted and entered the Decree of Adoption on May 31, 2005. This appeal followed.

DISCUSSION

[¶ 7] Appellant contends the district court erred by granting the adoption without his consent. He claims that sufficient evidence does not exist to support the finding that his failure to meet his child support obligation was willful. He contends that his failure to pay the required support resulted solely from his incarceration.

[¶ 8] Mother and adoptive father claim that the evidence supports the district court's decision. They also request dismissal of this appeal on the basis that Appellant failed to file a notice of appeal within thirty days from entry of the Findings and Conclusions. They claim that the consent determination made in the Findings and Conclusions effectively ended Appellant's participation in the adoption proceeding and constituted a final appealable order.

A. Timeliness of the Appeal

[¶ 9] The threshold issue in this case is whether the appeal was timely. "The timely filing of a notice of appeal . . . is jurisdictional." W.R.A.P. 1.03. Where we lack jurisdiction, an appeal must be dismissed. Yeager v. Forbes, 2003 WY 134, ¶ 14, 78 P.3d 241, 247 (Wyo.2003); Harding v. Glatter, 2002 WY 124, ¶ 6, 53 P.3d 538, 539 (Wyo.2002). An appeal is timely if it is filed with the clerk of the district court within thirty days of the entry of the "appealable order." W.R.A.P. 2.01. An "appealable order" is defined as:

(a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment; or

(b) An order affecting a substantial right made in a special proceeding; or

(c) An order made upon a summary application in an action after judgment; or

(d) An order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a)(4) and (5), Wyo. R. Civ. P.; if an appeal is taken from such an order, the judgment shall remain final and in effect for the purposes of appeal by another party; or

(e) Interlocutory orders and decrees of the district courts which:

(1) Grant, continue, or modify injunctions, or dissolve injunctions, or refuse to dissolve or modify injunctions; or

(2) Appoint receivers, or issue orders to wind up receiverships, or to take steps to accomplish the purposes thereof, such as directing sales or other disposition of property.

W.R.A.P. 1.05.

[¶ 10] Mother and adoptive Father contend that the Findings and Conclusions entered by the district court constitute an appealable order. Appellant asserts that the Findings and Conclusions were not in the form of an order and cannot constitute an order "in any respect." See Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo.1987) ("findings of fact and conclusions of law `not in the form of an order' cannot be considered as a final order for purposes of appeal") (emphasis in original). Appellant claims that the Findings and Conclusions did not make a final determination from which an appeal could be taken because the district court had not yet granted the adoption and the specific terms of the Findings and Conclusions reflected that further action was contemplated.² He contends his appeal was timely because it was filed within thirty days of entry of the Decree of Adoption.

[¶ 11] Regardless of whether the Findings and Conclusions are deemed an "order," our jurisprudence permits an appeal from the final decree of adoption. Geerts v. Jacobsen, 2004 WY 148, ¶ 13, 100 P.3d 1265, 1269 (Wyo.2004) ("The general rule is that all provisional or interlocutory proceedings in a matter are merged in, and disposed of, by the final decree."); In re Adoption of CJH, 778 P.2d 124, 126 (Wyo.1989) (the order regarding willfulness of failure to pay child support was an interlocutory order and became final upon the entry of the final decree of adoption); In re Adoption of RHA, 702 P.2d 1259, 1260, 1262 (Wyo.1985) (appeal was from the final order of adoption even though alleged error related to the consent determination). See also In re Adoption of TLC, 2002 WY 76, ¶ 1, 46 P.3d 863, 866 (Wyo.2002) (appeal taken from the district court's order granting the adoption); In re Adoption of KJD, 2002 WY 26, ¶ 20, 41 P.3d 522, 527 (Wyo.2002) (appeal taken from the final decree of adoption); In re Adoption of CF, 2005 WY 118, ¶¶ 8-9, 120 P.3d 992, 998 (Wyo. 2005) (appeal from the final decree of adoption).

[¶ 12] We conclude the appeal was timely filed. Appellant filed his notice of appeal within thirty days of entry of the Decree of Adoption. Appellant's failure to file a notice of appeal within thirty days after the district court issued its Findings and Conclusions does not bar our review.

B. Willful Failure to Pay Child Support

[¶ 13] District courts have the power and discretion to grant adoptions without parental consent "provided all the statutory elements are satisfied." See In re Adoption of CF, ¶ 10, 120 P.3d at 998. We review adoption decrees under the abuse of discretion standard:

The power to grant or deny a petition for adoption is within the discretion of the trial court. Matter of Adoption of BGH, 930 P.2d 371, 377 (Wyo.1996); Matter of Adoption of GSD, 716 P.2d 984, 988 (Wyo.1986). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria." Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo. 1986)). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did." Matter of Adoption of BGH, 930 P.2d at 377-78 (quoting Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.1982)).

Id., ¶ 10, 120 P.3d at 998-999. Furthermore, 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. Id., ¶ 11, 120 P.3d at 999. "[T]he party requesting adoption bears the burden of proving the existence of...