In re Adoption of SMR

• Decision Date: 25 June 1999
• Parties: In the Matter of the ADOPTION OF SMR, a minor child: MVC and SC, Appellants (Petitioners), v. MB, Appellee (Respondent).
• Court: Wyoming Supreme Court

982 P.2d 1246

In the Matter of the ADOPTION OF SMR, a minor child:

MVC and SC, Appellants (Petitioners), v. MB, Appellee (Respondent).

No. C-98-7.

Supreme Court of Wyoming.

June 25, 1999.

Michael K. Shoumaker, Sheridan, WY., Representing Appellants

Jan Flaharty, Family Law Office, Sheridan, WY., Representing Appellee

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

At the request of the natural parents, appellants MVC and SC (the Guardians) became the legal guardians for SR, a minor child, and served in this crucial capacity for approximately three and one-half years. The Guardians then petitioned to adopt SR with the consent of SR's natural father. However, SR's natural mother objected. After a hearing, the district court denied the Guardians' petition, finding that SR's natural mother had not willfully abandoned SR. The Guardians claim the evidence is insufficient to support the district court's decision, and that the district court erred in failing to consider Mother's lack of contribution to the financial support of the child as a separate basis on which to grant their petition. Finding no abuse of discretion in the district court's determination, we affirm.

ISSUES

Appellants present a single issue for review:

Did the District Court Err By Failing to Terminate the Parental Rights of [MB][?]

Appellee MB (Mother) responds with the following issues:

A. Did the District Court abuse its discretion in finding that there was not clear and convincing evidence to justify terminating Appellee's parental rights on the grounds of willful abandonment, pursuant to Wyo. Stat. § 1-22-110(a)(iii)?

B. Did the District Court abuse its discretion by failing to consider whether Appellee's parental rights should be terminated pursuant to Wyo. Stat. § 1-22-110(a)(iv) for willful failure to contribute to the support of the child?

FACTS

SR was born in November of 1991. MB (Mother) was 18 years old, unmarried, and living with Father. The three lived in the same household until February of 1993, when Father joined the military. In April of 1993, Mother accepted a job which required her to travel out of the state. Due to Father's assignment overseas and the travel requirements of Mother's job, Mother and Father determined that SR should live with the Guardians, Father's aunt and uncle. To facilitate the arrangement, the parents stipulated to the transfer of SR's legal guardianship, which was so ordered in July of 1993. When Mother returned to Sheridan to sign the guardianship documents, she was terminated from her job. Although Mother remained in Sheridan as a consequence, she did not attempt to alter the guardianship arrangement.

According to Mother, the parties agreed that she would forward any of the courtordered child support payments made by Father to the Guardians. Mother received three child support payments from Father in 1993 but retained the funds for her personal use. Mother also testified that the Guardians agreed to call her if the child needed anything.

In January of 1994, Mother filed a petition to terminate the guardianship, but the proceeding was stayed because Father had not been notified. Frustrated with the delay, Mother withdrew her petition and subsequently moved to North Carolina in July of 1994. She returned to Sheridan in February of 1995 and later contacted an attorney to seek advice on re-establishing custody of the child. However, no action was taken as a result of this consultation.

In February of 1997, Mother relocated to Nevada, where she now lives with her current husband and their child. Since stipulating to the guardianship in 1993, Mother has had intermittent personal and telephone contact with the child, primarily during SR's visits with her parents. She has not contributed to SR's financial support, and the Guardians have made no request that she do so.

In June of 1997, the Guardians filed a petition for adoption. Father provided written consent, but Mother refused and filed an answer in opposition to the adoption. One month later, Mother countered with a petition to revoke the guardianship. On June 12, 1998, the district court held a bifurcated hearing which separated the evidence relating to the petition for adoption and the evidence regarding Mother's petition to terminate the guardianship. At the conclusion of the hearing, the district court denied both petitions. The district court concluded that the Guardians had failed to present clear and convincing evidence that Mother willfully abandoned SR, but determined that the guardianship should remain in place while providing for an increase in Mother's visitation with SR. The Guardians timely appealed the district court's denial of their petition for adoption.

STANDARD OF REVIEW

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)). In the context of alleged abuse of discretion, the assessment of the circumstances in the case

is tantamount to an evaluation of whether the evidence is sufficient to support the decision of the district court. In review 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.

Basolo v. Basolo, 907 P.2d 348, 353 (Wyo. 1995).

DISCUSSION

The issue on appeal is whether the district court abused its discretion in applying the provisions of Wyo. Stat. Ann. § 1-22-110(a)(iii) and (iv). These sections provide in relevant part:

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

....

(iii) Willfully abandoned or deserted the child; or

(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[.]

Wyo. Stat. Ann. § 1-22-110(a)(iii) and (iv) (Michie 1997). When an adoption proceeding is contested by a nonconsenting parent, the statute must be strictly construed. "Every reasonable intendment is made in favor of the nonconsenting parent's claims." Matter of Adoption of GSD, 716 P.2d 984, 988 (quoting Matter of Adoption of CCT, 640 P.2d 73, 74-75 (Wyo.1982) and Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976)). Strict construction is necessary because an adoption will result in the termination of the fundamental parental rights of a nonconsenting parent. Matter of Adoption of BGH, 930 P.2d at 375, 377.¹

As used in the context of the statute, the term "willfully" means "intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly." Matter of Adoption of CJH, 778 P.2d 124 (Wyo.1989); ALT v. DWD, 640 P.2d 73 (Wyo.1982). In order for a willful abandonment of a child to occur, there must be clear and convincing evidence of "an actual intent to terminate the parental ties and a purpose to relinquish parental ties." In re Adoption of Female Child X, 537 P.2d 719, 721-22 (Wyo.1975).

Here, Mother remained in infrequent, but continuing, contact with the child throughout the time of the guardianship. Furthermore, Mother had initiated proceedings to terminate the guardianship on one occasion prior to the filing of the petition for adoption and later sought advice regarding the restoration of her custody of the child. Based on this evidence, the trial court concluded:

I'm not condoning the way she acted, the things that she did or the things that she did not do. I'm just merely making a finding that there's not clear and convincing evidence of abandonment; therefore, the petition for adoption is denied at this time.

We must agree. Given the record before the district court, there is no abuse of discretion in finding that the Guardians failed to clearly and convincingly show an actual intent to terminate parental ties.

In the alternative, the Guardians contend that their petition must be granted on the basis that Mother willfully failed to financially contribute to the support of the child pursuant to Wyo. Stat. Ann. § 1-22-110(a)(iv). They argue that, despite the pleadings and the evidence presented at the hearing, the trial court "ignored the issue" and denied the petition solely on the issue of abandonment. A willful failure to contribute to a child's support can constitute a termination of rights under this statute. Matter of Adoption of G.A.R., 810 P.2d 113 at 118 (Wyo.1991). However, when a petitioner invokes this basis for adoption without consent, Wyo. Stat. Ann. § 1-22-110(b) (Michie 1997) requires the pleadings to contain "a clear and concise statement of the consequences of the respondent's failure to bring the support obligation current[.]" This requirement is a logical precedent for the second consideration found in Wyo. Stat. Ann. § 1-22-110(a)(iv), which requires the nonconsenting parent to bring...