Schneider v. S.L.M., 10501

• Decision Date: 21 March 1984
• Docket Number: No. 10501,10501
• Parties: William G. SCHNEIDER, and Janice Marie Schneider, Petitioners and Appellees, v. S.L.M. and James Geyer, Guardian ad Litem, Respondents and Appellees, and J.R. and the North Dakota Department of Human Services, Respondents, and David Remmen and Sharon Remmen, Respondents and Appellants. In the Matter of the ADOPTION OF M.A.S., a/k/a B.M., a Child. Civ.
• Court: North Dakota Supreme Court

Page 126

347 N.W.2d 126

William G. SCHNEIDER, and Janice Marie Schneider Petitioners and Appellees, v. S.L.M. and James Geyer, Guardian ad Litem, Respondents and Appellees and J.R. and the North Dakota Department of Human Services Respondents and David Remmen and Sharon Remmen, Respondents and Appellants. In the Matter of the ADOPTION OF M.A.S., a/k/a B.M., a Child.

Civ. No. 10501.

Supreme Court of North Dakota.

March 21, 1984.

Diane Melbye, of Greenwood, Greenwood & Greenwood, Dickinson, for petitioners and appellees.

Eugene F. Buresh, of Freed, Dynes, Reichert & Buresh, Dickinson, for respondent and appellee S.L.M.

James Geyer, guardian ad litem, pro se.

Robert A. Keogh, of Keogh & Boening, Dickinson, for respondents and appellants.

VANDE WALLE, Justice.

David and Sharon Remmen, foster parents of a child designated in previous litigation in this court as "B.M.," appealed from an interlocutory decree of adoption granted to William and Janice Schneider by the district court of Stark County. We affirm.

The circumstances surrounding the birth and care of B.M. have been previously discussed in In Interest of B.M., 335 N.W.2d 321 (N.D.1983). In that decision the Stark County Social Service agency had petitioned the juvenile court for an involuntary termination of parental rights because S.L.M., the unwed, 14-year-old mother of B.M., had placed B.M. for adoption with Janice Schneider, a nurse she met while in the hospital. This court reversed the juvenile court's order to terminate parental rights because the original deprivation, caused by S.L.M.'s unlawful placement of B.M. with the Schneiders, would not continue after the Social Service agency obtained custody of B.M. by an emergency shelter order. B.M. had stayed with the Schneiders for five or six days. She was removed from their care by the Social Service agency and placed with the Remmens, who provided foster care. We remanded the case to permit an orderly disposition of a petition for adoption filed by the Schneiders when the agency had sought an involuntary termination of parental rights. More than five months later, the Remmens filed their petition for adoption. On July 18, 1983, the district court began conducting its hearing to determine if it should grant the Schneiders' petition. It permitted the Remmens to intervene. A hearing on the Remmens' petition for adoption had been scheduled for August 29, 1983, after a home-study evaluation of the Remmens had been completed.

At the hearing on July 18, S.L.M. testified that she would consent to terminating her parental rights in favor of the Schneiders. ¹ On July 22, 1983, at the final hearing, the district court stated that it would grant the Schneiders' petition and that it would allow the Remmens to retain custody until July 27, 1983. The court issued an interlocutory decree of adoption on July 27, 1983. The Remmens filed a motion to alter or amend the decree and also sought a stay of execution of the district court's decree. The district court denied the motion but granted a stay of execution for a period of two weeks. The Remmens then sought a stay of execution in this court, which was denied. This appeal followed.

Before proceeding to the merits of the appeal we consider the contention of the guardian ad litem that because the Remmens have appealed from an interlocutory decree of adoption and not a final decree of adoption this court should dismiss this appeal.

In adoption proceedings the right to appeal is governed by Section 14-15-15, N.D.C.C., of the Revised Uniform Adoption Act, which provides, in part:

"14-15-15. Appeal and validation of adoption decree.

"1. An appeal from any final order or decree rendered under this chapter may be taken in the manner and time provided for appeal from a judgment in a civil action."

The Remmens broadly construe the statute by emphasizing the unique nature of adoption proceedings. To interpret Section 14-15-15(1) this court may consider the decisions of States that have also adopted the Uniform Adoption Act. ² See Section 14-15-21, N.D.C.C.

In Matter of Appeals From Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982), the Arkansas Supreme Court in an original proceeding stated that lawyers are justifiably confused in determining when under the Revised Uniform Adoption Act they may appeal an order of adoption. The court recognized that the Revised Uniform Adoption Act permits a court to issue both interlocutory and final decrees of adoption:

"... (1) a final decree may be granted upon the initial application, or (2) a final decree may be granted after a hearing and after six months have lapsed from the date of the interlocutory decree, or (3) the interlocutory decree may become a final decree by its own terms without a final hearing." 277 Ark. at 520-521, 642 S.W.2d at 573.

The court held that a decree of adoption would be appealable, even if it is interlocutory, if no subsequent hearing is required by the terms of the decree. ³

The Revised Uniform Adoption Act provides that "[i]n an interlocutory decree of adoption the court may provide for observation, investigation, and further report on the adoptive home during the interlocutory period." [Emphasis supplied.] Rev.Unif.Adoption Act Sec. 13(d), 9 U.L.A. 41. See Section 14-15-13(4), N.D.C.C.; see also Ark.Stat.Ann. Sec. 56-214(d). Under the Act a court thus has discretion in determining if a subsequent hearing is necessary when it issues an interlocutory decree. A court may decide to delay a hearing for the purpose of permitting further investigation or supervision rather than to issue an interlocutory decree that requires a subsequent hearing. Rev.Unif.Adoption Act Sec. 13, Commissioner's Note. Under certain circumstances a court cannot immediately issue a final decree. See Rev.Unif.Adoption Act Sec. 12, 9 U.L.A. 39; Section 14-15-12, N.D.C.C.; Ark.Stat.Ann. Sec. 56-213. When issued, however, "[a]n interlocutory decree of adoption, ... has the same legal effect as a final decree of adoption." Rev.Unif.Adoption Act Sec. 14(c), 9 U.L.A. 45; Section 14-15-14(3), N.D.C.C.; Ark.Stat.Ann. Sec. 56-215(c). An interlocutory decree of adoption that does not require a hearing after its issuance thus resembles a final decree of adoption in many important respects. Under such circumstances a party should not need to wait six months for the interlocutory decree to ripen automatically into a final decree. We therefore find persuasive the Arkansas Supreme Court's interpretation of the right to appeal in adoption proceedings.

In the present case the interlocutory decree of adoption does not state that a subsequent hearing is required but does provide that on February 1, 1984, a few days more than six months after its issuance, the decree was to become final. The Remmens therefore have the right to appeal from the interlocutory decree of adoption.

The Remmens argue that in adoption proceedings this court has de novo review. They contend that standard of review provided by Rule 52(a), N.D.R.Civ.P., that findings of fact shall not be set aside unless clearly erroneous, is not applicable in adoption proceedings. ⁴ The Schneiders brought their petition for adoption and termination of parental rights pursuant to the Revised Uniform Adoption Act.

In Pritchett v. Executive Dir. of Soc. Serv. Bd., 325 N.W.2d 217 (N.D.1982), this court reviewed de novo a determination of abandonment under the Revised Uniform Adoption Act. We stated that de novo review is the proper scope of review because the result of a determination of abandonment under the Revised Uniform Adoption Act is as severe and permanent as under the Uniform Juvenile Court Act. Because this court reviews de novo termination of parental rights under the Uniform Juvenile Court Act, we adopted the same standard of review for termination of parental rights based upon abandonment under the Revised Uniform Adoption Act.

In the present case this court is not asked to review the termination of S.L.M.'s or the father's parental rights under the Revised Uniform Adoption Act, but rather to review the district court's decision that adoption by the Schneiders is in B.M.'s best interests.

This court has recognized that "[t]here is a vast difference between granting 'custody' in a divorce action and the 'termination of parental rights.' " Kottsick v. Carlson, 241 N.W.2d 842 (N.D.1976). In this adoption proceeding, however, the determination of the child's best interests is somewhat analogous to the decision a trial court makes in awarding custody to a parent in a divorce proceeding. In a divorce proceeding the court must choose between two parents; in this case the court considered both the Schneiders and the Remmens as adoptive parents, even though the court's authority was limited to granting or denying the Schneiders' petition. The two proceedings, however, are significantly different in that petitioners in adoption proceedings do not have a fundamental right to care for children.

In Voth v. Voth, 305 N.W.2d 656 (N.D.1981), we stated that since 1972 we have applied the standard of review provided by Rule 52(a) when reviewing the trial court's decision that the best interests of a child require awarding custody to a parent. See Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972). Because the Revised Uniform Adoption Act does not specify a standard of review and because other States that have adopted the Uniform Adoption Act have not approached appellate review in a unified manner, ⁵ we believe that the standard of review provided by Rule 52(a) supports the principles underlying the Revised Uniform Adoption Act with regard to that portion of the decree that determines adoption is in the best interests of the child.

The Remmens further argue that the findings of fact required by Rule 52(a), N.D.R.Civ.P., are grossly inadequate. They maintain that this court should consider the district judge's statements during the final hearing. The district court had stated that...