Matter of Adoption of Lorraine Ann Lackey Civil No. 10,630

Pederson, Surrogate Judge.

This is an appeal from a final decree of adoption pursuant to the Revised Uniform Adoption Act. (Chapter 14-15, NDCC). We affirm the decree.

Joel Lackey and Dale Lyons were married in Casper, Wyoming on March 15, 1980. Lorraine Ann (hereinafter-Lori) their daughter, was born on November 7, 1980. In July 1981, Joel quit his $20,000.00 per year job in Casper and returned to his mother's home in St. Paul, leaving his wife and 8-month-old daughter Lori in Casper.

A divorce decree dated September 21, 1981, ended the 18-month marriage and ordered Joel to pay $200.00 per month toward the support of Lori. Custody of Lori was awarded to Dale and visitation rights were awarded to Joel.

After the divorce, Dale received a check in the amount of $2,200.00 by mail from Joel's former employer in Casper. It has been identified as a "savings and security" check. Dale's lawyer advised both Joel and Dale that it would be used to pay costs of the divorce and the balance credited toward child support. Neither of the parties objected.

From February 8, 1983 to September 13, 1983, eight-$40.00 checks were sent to Dale[362 N.W.2d 67]

by Joel's mother. These checks were marked "for Lori," and some were marked "from Joel."

On May 14, 1983, Dale married Kenneth Kelso Hansen, the petitioner in this adoption proceeding. A written consent that Kenneth adopt Lori was executed by Dale and filed (§ 1415-05, NDCC). Joel has refused to consent and Kenneth argues that Joel's consent is not required under § 14-15-06 (1) (b), NDCC, and that it is in Lori's best interest that Joel's consent should be excused under § 14-15-06(l)(j), NDCC.

The additional question - whether or not Joel's conduct constituted an abandonment of Lori under § 14-15-06(l)(a), NDCC, was raised on oral argument in this court. Courts may presume an intent to abandon from the failure to support a child for a period of three months (§ 14-07-17, NDCC). Because abandonment was not pursued in the trial court and there is no finding thereon, we will not consider it further at this time.

The parties agree that Joel had not seen or talked to Lori from the day he left Casper in July 1981 until the hearing in this adoption proceeding in Watford City in November 1983. They further agree that Joel made no support payments for Lori's benefit other than the credit for support that he received on account of the $2,200.00 "savings and security" check received by Dale late in 1981 and the eight-$40.00 checks from Joel's mother between February and September 1983.

Whether there were "dozens" of cards and letters and gifts from Joel to Lori or only "a few" is disputed. Disagreement also exists as to why Joel failed to exercise any of his visitation rights and whether or not Dale was obligated to encourage visitation. Dale did not prohibit Joel from visiting Lori.

The pertinent parts of 14-15-06, NDCC, which apply to this case are:

"1. Consent to adoption is not required of:

b. A parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause (1) to communicate with the child or (2) to provide for the care and support of the child as required by law or judicial decree.

j. A parent of the minor, if the failure of the parent to consent is excused by 1 the court in the best interest of the child by reason of the parent's... significant failure, without justifiable cause, to establish a substantial relationship with the minor or to manifest a significant parental interest in the minor,

Although the findings of fact are lacking in clarity, the trial court has disclosed the factual basis for its determination that Kenneth should be allowed to adopt Lori. When the findings are read along with the trial court's memorandum opinion, the following appear to be the basis upon which the adoption was granted without Joel's consent:

1. There were no visitation rights exercised by Joel with his daughter and under the circumstances of Lori's age and Joel's financial condition, this absence of visitation amounted to a significant failure to communicate, without justifiable cause for a period of more than one year.

2. The mailing of "some" cards,, letters and gifts to Lori, at her age, did not establish meaningful communication.

3. Credit towards child support payments from Joel to Lori could include the major part of the $2,200.00 "savings and security" check and the eight-$40.00 checks from Joel's mother but this nevertheless would average out to $80.00 per month, which fails significantly to provide for the[362 N.W.2d 68]

care and support of Lori "as required by the divorce decree."

4. Under all of the circumstances, it is in Lori's best interest that Joel's consent to this adoption be excused.

5. Joel failed significantly, without justifiable cause, to establish or to manifest, a parent-child relationship with Lori and has failed to exhibit any "substantial" concern, love or affection toward Lori.

6. It is in Lori's best interest that she be adopted by Kenneth.

Joel, citing Matter of Adoption of Gotvaslee, 312 N.W.2d 308 (N.D. 1981), contends that this court's scope of review in adoption cases "is governed partially" by Rule 52(a), NDRCivP. Dale cites the same case in arguing that Rule 52 (a) applies to the issues in this case. Both rely upon Pritchett v. Executive Dir. of Soc. Serv. Bd., 325 N.W.2d 217 (N.D. 1982).

The majority opinion in Pritchett authored by Justice VandeWalle established as precedent that"...we will review a termination of parental rights based on abandonment under the Revised Uniform Adoption Act in the same manner as we review terminations of parental rights based on abandonment under the Uniform Juvenile Court Act, i.e., a form of de novo proceeding." 325 N.W.2d at 220.

In a subsequent adoption proceeding, Schneider v. S. L. M., 347 N.W.2d 126, 129 (N.D. 1984), Justice VandeWalle for a unanimous court, wrote: "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, [footnote omitted] 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."

Section 27-20-56(l), NDCC, defines the scope of review on appeals under the Uniform Juvenile Court Act as: "The appeal shall be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." As we have often repeated, this describes a broader review than that contemplated by Rule 52(a), NDRCivP. Nevertheless, appreciable weight is required to be given to the findings of the juvenile court.

In this case, the decree has the effect of terminating Joel's parental rights to Lori on a basis other than abandonment. Considering all of the evidence, in the manner of a de novo review and giving appreciable weight to the findings of the juvenile court, we conclude that Joel's parental rights were appropriately terminated. To the extent that it was found that the granting of the adoption decree was in Lori's best interest, we apply Rule 52(a) and conclude that it is not clearly erroneous.

We affirm the decree of adoption.

Ralph J. Erickstad, C.J.
Gerald W. VandeWalle
Vernon R. Pederson, S.J
Roy Ilvedson, S.J.

Surrogate Judge Pederson participated in this case by assignment pursuant to 5 27-17-03, NDCC.

Ilvedson, S. J., sitting in place of Gierke, J., disqualified.

Justice Paul M. Sand, who died on December 8, 1984, was a member of this court at the time this case was submitted.

Footnotes:

1. In addition to the question of excusing a parent's consent, the best interest matter also involves the adoption itself. See § 14-15-13(3), NDCC.