JEG v. BCB (In re ZEM)

458 P.3d 21

In the MATTER OF the ADOPTION OF: ZEM, a minor child,

JEG and RJG, Appellants (Petitioners),

v.BCB, Appellee (Respondent).

S-19-0104

Supreme Court of Wyoming.

February 11, 2020

Representing Appellants: James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming; Nathaniel S. Hibben, Doby & Hibben, Torrington, Wyoming.

Representing Appellee: Hampton M. Young, Jr., Law Office of Hampton M. Young, Jr., P.C., Casper, Wyoming.

Before DAVIS, C.J., and FOX, BOOMGARDEN, GRAY, JJ., and RUMPKE, D.J.

FOX, Justice.

[¶1] Mother and Stepfather appeal the district court’s decision denying their petition to adopt the minor child, ZEM, over the objection of her Father. Finding no abuse of discretion, we affirm.

ISSUE

[¶2] Mother and Stepfather raise a single issue: "Did the district court abuse its discretion when it denied the Petition for Adoption on best-interests grounds?"¹

FACTS

[¶3] Mother and Father dated during 2015 and 2016. In June 2016, Mother gave birth to their child, ZEM. Mother has always served as ZEM’s primary caretaker. Father had little contact with ZEM in the first year of her life, by his account, because Mother discouraged his involvement. After a May 2017 hearing to establish custody, visitation, and support, the district court awarded Father graduated visitation and ordered him to pay monthly child support.

[¶4] About a year after the order establishing custody, visitation, and support, Mother and Stepfather filed a verified petition for adoption. They claimed Father failed to financially support ZEM, and they argued that it was in ZEM’s best interest to terminate Father’s parental rights and allow Stepfather to adopt her. It was uncontroverted that Father paid no child support for more than a year after the effective date of the child support order. In fact, Father made his first child support payment five days after Mother and Stepfather filed their petition to adopt. During the preceding year, Father spent money on beer, gambling, and other interests. As Father admitted, he relied upon Stepfather to provide for ZEM "so it wasn’t as big a pressing of a moral issue" for Father.

[¶5] Although it was undisputed that Father failed to pay child support, the parties told very different stories regarding Father’s relationship with ZEM. Mother claimed Father was an alcoholic and drug abuser. She claimed that Father threatened suicide in an attempt to rekindle their relationship, and was mentally abusive toward her during supervised visits. Mother testified that Father used ZEM as a pawn to try to have a relationship with Mother even though Mother was now married to Stepfather. Because Father remained interested in Mother, and not ZEM, Mother claimed Father’s relationship with ZEM was "nominal, if nonexistent."

[¶6] Father described his relationship with ZEM differently. First, Father pointed out that Mother opposed his unsupervised visits with ZEM. He also testified that Mother did not keep him informed about things in ZEM’s life like doctor’s appointments. Father generally denied Mother’s allegations regarding alcohol and drug abuse, as well as her claims that he threatened suicide as a way of trying to keep a relationship with Mother.

[¶7] The testimony indicated that, after obtaining visitation rights, Father engaged with ZEM. He read to her, played and sang songs with her, pulled her around on a sled when there was snow, and swam and rode bicycles with her at other times of the year. Shortly before the final hearing on the adoption petition, Father had ZEM for ten straight days over the Christmas holiday.

[¶8] The parties also had conflicting reports about how ZEM interacted with Father. According to Mother, ZEM would cry the entire drive to Douglas where the parties exchanged ZEM for visitation. Further, Mother claimed ZEM would say that she did not want to go with Father. However, Father testified that ZEM was always in a good mood during visits. Contrary to Mother’s testimony, Father testified that ZEM did not want to go back with Stepfather after visits with Father. ZEM’s paternal grandmother noted that ZEM had been visiting Father at her house for over a year and that everything seemed to go well throughout the year.

[¶9] Father took on an active role in parenting when ZEM stayed at "Daddy’s house." Father worked on potty training, making sure that the potty seat went with them at all times. During the ten-day Christmas visit, Father cared for ZEM when she had a cold. Although Father conducted his visitation at his Mother’s house in Casper, Father personally cared for ZEM during visits, rather than allowing ZEM’s grandmother to be her caretaker.

[¶10] The district court concluded that adoption did not serve ZEM’s best interests and denied the petition to adopt, finding:

[Mother and Stepfather] raise concern[s] about [Father’s] behavior at exchanges and his continued inquiry into matters beyond the exchanges or needs of the child. While the Court notes [Father’s] poor conduct, these matters along with the enforcement of child support can be properly addressed in the parties’ [child support enforcement] case. [Mother and Stepfather] also point to the child’s behavior and demeanor before and after visitation with [Father]. The Court recognizes that the transition from one household to another is often difficult and stressful on the child and parents, and it is rarely ideal.

However, [Father] has been exercising visitation with the child. The child recently spent time with [Father] at Christmas. According to paternal grandmother, [Father] is attentive to the needs of the child and provides caretaking functions during visitation. When [Father] picks the child up ..., the minor child runs to his arms and gets excited to go to "Daddy’s House." [Father] engages in activities such as reading, playing, potty training, sledding, riding bikes, feeding, singing, taking the child to the park, swimming and taking pictures and videos. When the child is visiting, [Father] takes care of the day to day responsibilities of child rearing rather than delegate them to another such as the child’s paternal grandmother. If given the choice between asking [Father] or [Father’s] Mother for help, the child always asks for [Father’s] help. This demonstrates a meaningful bond between [Father] and child. [Father] recognizes she is an extremely smart child. The child knows her paternal uncle and grandmother and asks about them when she is with [Father]. These familial connections and the right of the child to know her biological relatives are important.

If the Court grants the proposed adoption, the right of the child to know her biological father and family would be legally and practically extinguished. In this case, it is in the best interests of the child that her biological father, whom she calls "daddy" remain in her life. A swift and sharp removal of [Father] from the child’s life runs a great risk of causing her emotional harm.

Should the Court deny the adoption, the child would have all of the benefits of knowing her biological family and the child would continue [ ] developing a relationship with [Father] and his family; the child will also maintain the benefit of [Stepfather’s] love, affection and support. While [Father] grossly neglected his parental responsibilities through willful nonpayment of child support, such failure does not outweigh the emotional benefit to the child’s wellbeing that comes from having her biological father in her life.

Mother and Stepfather timely appealed.

STANDARD OF REVIEW

[¶11] A district court’s decision to grant an adoption without a parent’s consent "effectively terminates that parent’s parental rights." In re Adoption of AMP , 2012 WY 132, ¶ 11, 286 P.3d 746, 749 (Wyo. 2012). The right to associate with one’s child is protected by both the Wyoming and United States constitutions, therefore adoption statutes are "strictly construed when the proceeding is against a nonconsenting parent, and every reasonable [inference] is made in favor of that parent’s claims." Id . The party requesting the adoption must prove the existence of at least one of the statutory factors by clear and convincing evidence. Id. This Court defines clear and convincing evidence as the "kind of proof which would persuade a trier of fact that the truth of the contention is highly probable." Id . (quoting MJH v. AV (In re JRH) , 2006 WY 89, ¶ 13, 138 P.3d 683, 686-87 (Wyo. 2006) ).

[¶12] "If all statutory elements are met, the power to grant or deny a petition for adoption is within the sound discretion of the district court, and we will not disturb the court’s decision absent a clear abuse of that discretion." AMP , 2012 WY 132, ¶ 9, 286 P.3d at 748. In determining whether the district court abused its discretion, the ultimate question is whether it could reasonably decide as it did. In re MMM , 2018 WY 60, ¶ 10, 419 P.3d 490, 493 (Wyo. 2018) (citing In Interest of SO , 2016 WY 99, ¶ 11, 382 P.3d 51, 54 (Wyo. 2016) ). "In the context of alleged abuse of discretion, the assessment of the circumstances in the case is tantamount to an evaluation of whether the evidence is sufficient to support the decision of the district court." In re Adoption of TLC , 2002 WY 76, ¶ 9, 46 P.3d 863, 868 (Wyo. 2002) (quoting In re Adoption of SMR , 982 P.2d 1246, 1248 (Wyo. 1999) ). In reviewing the sufficiency of the evidence, "we accept the successful party’s submissions, granting them every favorable inference fairly to be drawn and leaving out of consideration conflicting evidence presented by the unsuccessful party." MMM , 2018 WY 60, ¶ 10, 419 P.3d at 493 (quoting SO , 2016 WY 99, ¶ 11, 382 P.3d at 54 ).

DISCUSSION

[¶13] Wyo. Stat. Ann. § 1-22-110 provides the statutory bases for granting an adoption without the consent of a parent. In this case, Mother and Stepfather petitioned for adoption without Father’s consent under Wyo. Stat. Ann. § 1-22-110(a)(iv), which allows adoption over the objection of a parent when the parent has...