State in Interest of Summers Children v. Wulffenstein, 14297
| Decision Date | 31 January 1977 |
| Docket Number | No. 14297,14297 |
| Parties | The STATE of Utah, In the Interest of SUMMERS CHILDREN, Tammy and Tina Marie, persons under 18 years of age, v. Orin John WULFFENSTEIN, Appellant. |
| Court | Utah Supreme Court |
Gary L. Paxton, Salt Lake City, for appellant.
Vernon B. Romney, Atty. Gen., Paul M. Tinker, Asst. Atty. Gen., Olaf Johnsson, Deputy Salt Lake County Atty., Jonathan H. King, Salt Lake County Bar Legal Services, Salt Lake City, fir respondent.
Orin John Wulffenstein appeals from a decree of the Juvenile Court terminating his parental rights to two little girls, Tammy and Tina. The girls were born in June 1970 and July 1971, and are the natural children of appellant. The parents were deprived of the temporary custody and guardianship of the children in March of 1972. On May 9, 1975, pursuant to hearing, the decree of termination was entered. We affirm. All statutory references are to U.C.A.1953.
The Juvenile Court found the father unfit or incompetent, by reason of conduct or conditions seriously detrimental to the children, viz., he was emotionally unstable and could not provide the security, stability, and modeling necessary for the children. The findings stated the father had a long history of aggressive criminal behavior; he was incarcerated in the Utah State Prison; and had once escaped from the prison.
The Juvenile Court further found the father had abandoned the children in that (a) he had not provided financial support for them; (b) he had had little or no contact with them since their birth; (c) he had not manifested any intention to resume custody of them; (d) his present whereabouts were unknown. The court also found the rights of the mother had been terminated on June 26, 1974, and she was dead, at the time of the hearing.
On appeal, the father contends there was insufficient evidence to support the findings of unfitness and abandonment. He further urges the court abused its discretion by denying his motion to vacate the decree and permit the introduction of additional evidence.
55--10--109(1), as enacted 1965, provides the court may decree termination of parental rights if the court finds:
(b) That the parent or parents have abandoned the child. It shall be prima facie evidence of abandonment that the parent or parents, although having legal custody of the child, have surrendered physical custody of the child, and for a period of six months following such surrender have not manifested to the child or to the person having the physical custody of the child a firm intention to resume physical custody or to make arrangements for the care of the child, . . ..
The second sentence of subsection (b) applies only to parents with 'legal custody' which is defined in 55--10--64(7), and the parents herein had been deprived of custody as defined in 55--10--64(13). Thus there are no guidelines or definition of the term 'abandoned' under the Juvenile Court Act of 1965.
Appellant urges that 'abandoned' should be interpreted and applied under 55--10--109(1)(b) as the term 'desert' has been applied under the adoption statute, Sec. 78--30--4, U.C.A.1953. He cites In re Jamesons Adoption, 1 wherein this court ruled 'desertion' meant an intentional abandonment of the child rather than a separation due to misfortune or misconduct.
Appellant further relies on In Re Adoption of Walton, 2 where this court stated:
. . . To sever the relationship successfully, one must have abandoned the child, and such abandonment must be with a specific intent so to do,--an intent to sever all correlative rights and duties incident to the relationship. Such intent must be proved by him who asserts it . . . 'by clear and indubitable evidence.' 3
In expanding on this concept this court explained:
Perhaps this court has traveled as far as any in giving expression to the type of abandonment intended to exist in order to sever parental ties when we said in a custody case, that
'abandonment, in such cases, ordinarily means that the parent has placed the child on some doorstep or left it in some convenient place in the hope that someone will find it and take charge of it, or has abandoned it entirely to change or fate.' 4
Citing the aforementioned standard, appellant contends the facts found are insufficient to sustain a finding of abandonment. Although we have not specifically defined abandonment under the Juvenile Court Act of 1965, we have set forth evidence which sustained such a finding in State in the Interest of A. 5 There, this court noted the children had spent a great part of their lives away from their mother, who had shown very little interest in them for two and one-half years. The effort she put forth to visit the children was nil. Her failure to manifest an interest in them after losing custody, and to manifest a firm intention to resume physical custody of her children for over a period of two years was held sufficient to sustain a finding of abandonment under 55--10--109(1)(b).
In D.M. v. State, 6 a termination proceeding, the appellant, as here, urged a traditional definition of abandonment, that it imports conduct on the part of the parent which evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child. The standard urged would require proof of an intent by the parent to relinquish all claim to a natural child in order to dissolve the normal legal relationship. In contrast, the State urged an objective standard, viz., appellant's intent was properly inferred from the realities of her conduct rather than from mere oral protestation.
We quote with approval the well-stated explanation of the principle. Whether or not there has been an abandonment within the meaning of the statute is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well. The subjective intent standard often focuses too much attention on the parent's wishful thoughts and hopes for the child and too little on the more important element of how well the parents have discharged their parental responsibility. . . .
While it may well be that a subjective intent is determinative when dealing with abandonment of personal property, over which the owner exercises an absolute property right, we believe that the relationship between parent and child mandates an objective standard of abandonment which looks to the parent's obligations...
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