Kottsick v. Carlson

• Decision Date: 22 April 1976
• Docket Number: No. 9184,9184
• Citation: 241 N.W.2d 842
• Parties: Mary Charlotte KOTTSICK and Virgil Kottsick, Appellants, v. Reuben E. CARLSON, as Administrator of the Division of Child Welfare of the Public Welfare Board of the State of North Dakota, and John Joseph Carney, Appellees.
• Court: North Dakota Supreme Court

Page 842

241 N.W.2d 842

Mary Charlotte KOTTSICK and Virgil Kottsick, Appellants, v. Reuben E. CARLSON, as Administrator of the Division of Child Welfare of the Public Welfare Board of the State of North Dakota, and John Joseph Carney Appellees.

No. 9184.

Supreme Court of North Dakota.

April 22, 1976.

Rehearing Denied May 12, 1976.

Syllabus by the Court

1. The term 'custody' as used in § 14--15--19(3)(c), NDCC, does not have the same meaning as it has in divorce proceedings and divorce decrees. It embraces more than what is meant by such term in divorce proceedings and divorce decrees.

2. The parent of a child has a constitutional right to be heard on his fitness before the parent can be deprived of his parental rights of his child.

Daniel J. Chapman, Bismarck, for appellants.

Pearce, Anderson, Pearce, Thames & Pearce, Harold L. Anderson, Bismarck, for appellees.

SAND, Justice.

This is an appeal from an order of the District Court of Burleigh County dismissing the petition of the appellants Mary Charlotte Kottsick and Virgil Kottsick to adopt the minor children, Sean Carney and James Carney.

John Carney and Mary Kottsick were formerly husband and wife and are the natural parents of Sean and James. Sean was born in July 1968, and James in April 1971. A divorce decree was entered in Florida in October of 1972 dissolving the marriage and awarding custody of the children to Mary with visiting rights to John, and requiring John to pay $175 a month for child support, which payments have been made.

In May 1973 Mary and Virgil Kottsick were married. Mary and the two boys moved into the home of Virgil and his three daughters in Bismarck, North Dakota.

Subsequently, this action was brought in which Virgil Kottsick seeks adoption of Sean and James and to thereby terminate the parental rights of John Carney, the natural (biological) father.

Upon trial, the court issued a judgment denying the petition for adoption. The appellants now claim that the trial court erred in its interpretation and application of the law, specifically § 14--15--19(3)(c), North Dakota Century Code, and ask that the judgment be reversed, or that the matter be returned to the trial court with directions to apply the correct interpretation and concepts of law.

The right of adoption in this country is purely statutory in nature and exists only by virtue of statute. There was no right of adoption under common law of England even though the practice existed in ancient countries and was recognized in civil law before the time of Justinian. 2 Am.Jur.2d Adoption § 2, p. 861; 2 C.J.S. Adoption of Persons § 3, p. 420. Adoption statutes were passed 'for the beneficent purpose of creating an artificial relationship of parent and child.' Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 220 (1950).

Adoption is provided for in North Dakota by Chapter 14--15, NDCC, also known as the Revised Uniform Adoption Act. Only two other States, Oklahoma ¹ and Montana, ² have adopted the Uniform Act in a form similar to the original.

Before Virgil Kottsick can legally adopt Sean and James, the legal relationship (parental rights) of the natural father, John Carney, with the two boys must first be terminated. However, Carney has refused to consent to the termination of his parental rights and the adoption. Section 14--15--05(1)(b), NDCC, requires that the natural father of the child consent to any adoption, unless this consent is not required under § 14--15--06. Section 14--15--06 states that consent to adoption is not required if the parent's rights have been terminated under § 14--15--19. Section 14--15--19, NDCC, is entitled 'Relinquishment and termination of parent and child relationship.' Paragraph 3 of this section defines those situations in which the parent-child relationship may be terminated by the court without the consent of the natural parent. These are:

'. . . (a) that the minor has been abandoned by the parent, (b) that by reason of the misconduct, faults, or habits of the parent or the repeated and continuous neglect or refusal of the parent, the minor is without proper parental care and control, or subsistence, education, or other care or control necessary for his physical, mental, or emotional health or morals, or, by reason of physical or mental incapacity the parent is unable to provide necessary parental care for the minor, and the court finds that the conditions and causes of the behavior, neglect, or incapacity are irremediable or will not be remedied by the parent, and that by reason thereof the minor is suffering or probably will suffer serious physical, mental, moral, or emotional harm, or (c) that in the case of a parent not having custody of a minor, his consent is being unreasonably withheld contrary to the best interest of the minor.'

There is no claim or evidence that John Carney has been guilty of any of the conduct described in (a) or (b), or of any conduct which would constitute grounds for termination of his parental right. Kottsick contends that (c) applies and that under the facts of this case the court can terminate Carney's parental rights and permit the adoption of his sons. Kottsick argues that Carney is a 'parent not having custody of a minor'; therefore he, Kottsick, pursuant to (c) merely has to show that Carney is unreasonably withholding consent to the adoption, contrary to the best interest of the children.

The legal meaning of the word 'custody' as used in the statute, § 14--15--19(3)(c), is of prime importance and we must therefore first determine if it means physical possession or custody, temporary control, constructive custody, custody as used in a divorce proceeding, or something else, before we can resolve the main question.

The Commissioners' note to § 19 of the Uniform Adoption Act, 1969 Revised Act (the source for the North Dakota Act) states that 3(c) 'can be used in a case where a stepparent and the mother are in custody of the child but the natural father refuses to give consent, and withholding of consent is found by the court to be contrary to the best interests of the child. It cannot be used, however, to excuse the absence of consent of a parent who is in legal control of his child or who has custody of the child.' 9 ULA Uniform Adoption Act § 19, p. 139 (1972).

The Commissioners' notes are not very informative or helpful toward the resolution of the question under consideration because they do not adequately explain the meaning of the terms 'custody' and 'legal control' as used in the statute. Whatever explanation appeared in the notes was obtenebrated by the use of those same terms in the explanation.

The term 'custody' has variable meanings and is not easily defined. It takes full meaning from the manner and circumstances, as well as the context in which it is used. It is not the same as 'parental right.' There is a vast difference between the termination of parental rights and the awarding of child custody without termination of the parental rights. Adoption proceedings include, amongst other things, termination of parental rights if not previously terminated.

In determining the meaning ascribed to the term 'custody' by the Legislature, we must take into account and consider the objectives and purposes of the legislation as well as the position and relation such legislation has with other laws enacted contemporaneously touching upon the same or similar matters and their chronological significance, if any.

We must also consider the applicable statutory guidelines established by the Legislature as an aid to the courts on the interpretation and construction of statutes.

One of them is § 1--02--38, NDCC, which states:

'In enacting a statute, it is presumed that:

'1. Compliance with the constitutions of the state and of the United States is intended.

'2. The entire statute is intended to be effective.

'3. A just and reasonable result is intended.

'4. A result feasible of execution is intended.

'5. Public interest is favored over any private interest.'

Another one is § 1--02--39, NDCC, which states:

'If a statute is ambiguous, the court, in determining the intention of the legislation, may consider among other matters:

'1. The object sought to be attained.

'2. The circumstances under which the statute was enacted.

'3. The legislative history.

'4. The common law or former statutory provisions, including laws upon the same or similar subjects.

'5. The consequences of a particular construction.

'6. The administrative construction of the statute.

'7. The preamble.'

In 1971, the Legislature enacted Chapter 149, adding irreconcilable difference as another basis for divorce, and through Chapter 157 enacted the Uniform Adoption Act. We would deem the action of the Legislature incongruous to allow the granting of divorce by merely establishing irreconcilable differences so as to partly remove the traumatic effects and then, at the same time, provide that the custody of the children awarded in such 'friendly' divorce action be treated as almost the equivalent of termination of the parental rights of the parent who did not receive physical custody, but in fact, probably to avoid bitterness and for the sake of the children, consented to the award. This would be an inconsistent position by the Legislature.

We also take into consideration that the Legislature has set out in § 27--20--44, NDCC, the grounds for termination of parental rights. None of the grounds stated therein include anything which would be comparable to loss of custody in a divorce proceeding or the equivalent of not having been awarded custody of the children in a divorce proceeding. We are not aware of any language in the Uniform Adoption Act, as enacted by the North Dakota Legislature, which amends § 27--20--44. Amendment by implication is frowned upon.

In Rodgers v. Freborg, 240 N.W.2d 63 (1976), we said: 'Courts hesitate to find an implied amendment of a previous statute.' We then quoted from 1A Sands, Sutherland...