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In re Adoption of Z.N.F.

Supreme Court of South Dakota

December 18, 2013

In the Matter of the ADOPTION OF Z.N.F., a minor child.

Considered on Briefs Sept. 30, 2013.

Page 461

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 463

Michael V. Wheeler of DeMersseman Jensen Tellinghuisen & Huffman, LLP, Rapid City, South Dakota, Attorneys for appellant father D.L.F.

Brian Utzman of Smoot & Utzman, PC, Rapid City, South Dakota, Attorneys for appellee mother H.S.S. and adoptive father T.E.S.

SEVERSON, Justice.

[¶ 1.] D.L.F. (Father) appeals the judgment and order waiving Father's consent to step-parent adoption entered on February 14, 2013, and the order for adoption entered on March 15, 2013. We affirm.

Background

[¶ 2.] Father and H.S.S. (Mother) are the biological parents of minor child Z.N.F., who was born in 2002. Father and Mother were married in 2001 in Rapid City, South Dakota. After marrying, the couple moved to Oregon. In November 2006, while residing in Oregon, Mother and Father separated.

[¶ 3.] On the evening of February 21, 2007, Mother awoke to a fire consuming her house and attached garage. She and Z.N.F., who was four years old at the time, escaped. Mother believes Father intentionally caused the fire; however, Father was never criminally charged.[1] After the fire, Father voluntarily moved to Colorado, where he resided at the beginning of these proceedings.

[¶ 4.] Shortly after the fire, on February 22, 2007, Mother sought and received a restraining order against Father.[2] She extended the restraining order on March 8, 2008, and again on February 25, 2009. The last restraining order expired in 2010. Mother withheld her contact information from the restraining orders, but maintained the cellphone number she acquired in Oregon until 2011.

[¶ 5.] Mother and Father divorced in Oregon on January 24, 2008. By all accounts, the divorce was very contentious. The Oregon court granted Mother sole legal and physical custody of Z.N.F. Father was granted supervised visitation with Z.N.F. at least once a month for two to six hours. The Oregon court required Father to arrange and pay for all professionally supervised visits. Father visited Z.N.F. on two occasions. The first visit occurred on March 22, 2008. The visit lasted two hours. His next visit was on March 17, 2009. It lasted three hours. According to reports, Father's visits with Z.N.F. were appropriate and positive. The 2009 visit was the last time Father had contact with Z.N.F. Father did not attempt to modify his visitation rights in Oregon and did not attempt to register the Oregon court's decree of dissolution in South Dakota until August 9, 2012.[3]

Page 464

[¶ 6.] The Oregon court also ordered Father to pay $505 per month in child support retroactive to September 1, 2007. Father did not pay child support until 2009. From May 2009 through July 2009, Father paid $2,860 in child support. After July 2009, Father did not pay child support. The South Dakota trial court found that Father's child support arrearage was $67,440. The South Dakota trial court also found that Father had been employed full-time since 2009. During the year he paid child support, Father's adjusted gross income was $7,363. In the years he did not pay child support, Father's adjusted gross income was $35,002 in 2010 and $32,645 in 2011.

[¶ 7.] In April 2009, Mother and Z.N.F. relocated to Colorado. Mother did not inform Father she was moving. In July 2009, Mother and Z.N.F. moved to Rapid City, South Dakota. Once again, Mother did not inform Father she was moving. The South Dakota trial court found that Mother did not want Father to know where she was living and intended to conceal her whereabouts from him and his family. Mother stated that she did this for her safety and the safety of Z.N.F. Father testified that during this time he did not know where Mother and Z.N.F. resided. Father did, however, receive notification of Mother's whereabouts when he received a copy of Mother's Chapter 7 bankruptcy case in 2010.

[¶ 8.] In 2010, Father purchased a life insurance policy identifying Z.N.F. as the beneficiary. Father was required to purchase the policy immediately after the divorce in 2008. Mother claims that she and Z.N.F. were unaware of its existence. Father also acquired health insurance benefits for Z.N.F. through his employer. According to Mother, she and Z.N.F. never benefitted from the insurance policy.

[¶ 9.] Since the divorce, Father's parents (Grandparents) have made efforts to contact Z.N.F. They have utilized email, Facebook, and letters to reach Mother so that they could contact Z.N.F. Although Grandparents made efforts to stay in contact with Z.N.F., their success was limited. The trial court found that Father failed to make similar efforts. The court found that Father's efforts to contact Mother and Z.N.F. since 2009 were " de minimus." Father testified that he feared he may violate the restraining order by contacting Mother.

[¶ 10.] Mother eventually married T.E.S. (Stepfather). Mother and Stepfather initiated proceedings for adoption of Z.N.F. on October 18, 2011. Mother and Stepfather sought an order waiving Father's consent to the adoption, terminating his parental rights, and allowing a stepparent adoption. Mother and Stepfather alleged abandonment, continuous neglect, and failure to pay child support as grounds for the waiver of consent pursuant to SDCL 25-6-4(2), (3), and (4). Father opposed the adoption. He asserted that his consent could not be waived because he did not abandon Z.N.F.

[¶ 11.] The trial court bifurcated the consent and adoption issues. The court first tried the consent issue on August 7, 2012. On February 14, 2013, the trial court entered an order waiving Father's consent to the adoption under SDCL 25-6-4(2), (3), and (4). The court found that Father had abandoned Z.N.F., was continuously neglectful, and failed to provide child support. The court next held the adoption hearing on March 5, 2013. Father was not allowed to participate in the adoption hearing. On March 15, ...


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