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In re Adoption of Child Known AS J. Q. P.

Supreme Court of South Dakota

November 1, 2017

IN THE MATTER OF THE ADOPTION OF THE CHILD KNOWN AS J. Q. P., a Minor Child

          CONSIDERED ON BRIEFS ON OCTOBER 2, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER Judge

          THOMAS E. BRADY of Lynn, Jackson, Shultz & LeBrun, PC Spearfish, South Dakota Attorneys for petitioners and appellants, K. H. & K. H.

         ROSE ANN WENDELL Pierre, South Dakota JOAN SCHUELLER Pierre, South Dakota Attorneys for respondent and appellee, G. L. P.

          ZINTER, JUSTICE.

         [¶1.] Mother and Stepfather (Petitioners) petitioned to have Stepfather adopt Mother's child without the biological father's consent. The circuit court denied the petition, concluding Petitioners failed to show that the biological father had abandoned the child. We affirm.

         Facts and Procedural History

         [¶2.] G.L.P. (Father) and K.H. (Mother) are the biological parents of J.Q.P. Mother became pregnant with J.Q.P. in December 2007, three months after Mother and Father began dating. Both parents were living and working in Spearfish at the time, and Father moved in with Mother in 2008.

         [¶3.] On August 4, 2008, Father and Mother were hosting a barbeque at their home for Father's friends in the Marines who were returning home. A pan in the kitchen caught fire, and Father suffered first, second, and third-degree burns on thirty percent of his body in the accident. Father's injuries required intensive burn care in Colorado, where he remained for approximately one month.

         [¶4.] As a result of his injuries, Father was prescribed a strong narcotic and was required to wear a compression suit for one year. Skin grafts caused Father to have difficulty bending his arm and required the use of a walker. During this time, Mother cared for both Father and J.Q.P. Father, who was unable to work due to his injuries, cared for J.Q.P. when Mother was at work.

         [¶5.] At some point, Father voluntarily stopped taking his pain medication so that he could drive to required medical appointments. However, he began experiencing increased pain, alternating insomnia and hypersomnia, cold sweats, irritability, and mood swings. In order to ease his pain, Father smoked marijuana prior to physical therapy appointments on three or four occasions. Although Father initially denied marijuana use, he admitted to its use after Mother found marijuana residue in their garbage. In November 2008, Mother demanded Father leave the home and he complied.

         [¶6.] Mother hired an attorney to draft a visitation agreement. According to Father, the proposed agreement only permitted a single, two-hour supervised visitation period each week at Mother's parents' home. Additionally, in order to obtain the visitation, Father would have been required to pay child support, be consistently employed for ninety days, pass drug tests, live independently in his own residence, and regularly attend counseling. These terms differed from the unsigned visitation agreement in the record, which provided that Father would immediately have supervised visitation once a week for two hours and Mother and Father would revise visitation if Father complied with the aforementioned terms. In any event, Father did attend one counseling session, but both he and the counselor agreed that counseling was not necessary because Father was working through a traumatic event from which it would take time to recover. Father objected to the remaining terms and never signed the agreement. He believed the terms were too stringent given his limited ability to work and his lack of money due to medical bills.

         [¶7.] In January 2009, believing he could not support himself in Spearfish, Father moved in with his parents and family in Colome and continued his therapy. Colome is a four-hour drive from Spearfish. Father testified he would frequently text Mother telling her he wanted to see J.Q.P. Mother, however, said he could only have two hours of supervised visitation if he drove to Spearfish. In May 2009, Father scheduled a two-hour supervised visit at a facility in Rapid City. He exercised that visitation in a locked room under supervision.

         [¶8.] Father continued to ask Mother about J.Q.P. and visitation, but Mother either denied his requests or demanded he come to Spearfish. In September or October 2009, Mother sought and obtained child support.[*] She also informed Father that if he attempted to contact her again, she would report him to law enforcement or obtain a protection order. She then blocked ...


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