#28158-a-SLZ
2017 S.D. 67

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                   ****

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

                                   ****

                  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                               Attorneys for petitioners and
Spearfish, South Dakota                      appellants, K. H. & K. H.

ROSE ANN WENDELL
Pierre, South Dakota

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

                                   ****

                                             CONSIDERED ON BRIEFS
                                             ON OCTOBER 2, 2017
                                             OPINION FILED 11/01/17
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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,


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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


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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 his cell phone number.

Father ultimately quit trying to contact Mother after he was unable to reach her.

[¶9.]          Father went to Spearfish in 2011 to attend the funeral of a friend.

Mother also attended the funeral. Due to her previous threat to call law

enforcement, Father did not speak with Mother and instead asked the friend’s aunt

to speak with Mother about Father seeing J.Q.P. Mother declined to let Father see

J.Q.P. Father then tried texting Mother from a new number. He said he hoped

they could be friends and apologized for everything, sharing his feeling that the

accident had robbed them of their relationship. Father testified that Mother

responded by saying, “You are completely delusional,” and blocked the new number.

[¶10.]         In July 2011, Father had a friend contact Mother about seeing J.Q.P.

when Father would be visiting Sturgis. According to Father, Mother responded by

saying Father was “still a loser and that was that.” Father testified that he again

stopped trying to contact Mother because he felt she “obviously didn’t want to let


        Thereafter, Father consistently made child-support payments and caught up
         on all arrearages.
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[him] see” J.Q.P. Father sent J.Q.P. a birthday card in September 2013, but he did

not know if J.Q.P. received it. He admitted that he did not send any additional

cards or gifts, but explained: “When somebody repeatedly tells you, no, that you’re

not going to be able to see your son, it’s very frustrating and very demoralizing as a

person to where you don’t know if he’s even going to get those gifts anyways.”

[¶11.]       In April 2016, Father received a notification from the Office of Child

Support Enforcement that ordered him to put J.Q.P. on Father’s health insurance.

Father contacted Mother from another new number to ask for J.Q.P.’s social

security number. Mother had since married Stepfather, and she asked Father if he

would consent to changing J.Q.P.’s last name. Father refused and asked if he could

see J.Q.P. According to Father, Mother replied he could “drive by and look in the

car window while I drive by.” Mother again blocked Father’s new number.

[¶12.]       In May 2016, Father retained an attorney to try and obtain a visitation

order. Several months later, Mother and Stepfather filed this petition for a

stepparent adoption. Petitioners contended that Father’s consent was unnecessary

because, among other things, Father had abandoned J.Q.P. The circuit court found

that Petitioners failed to prove by clear and convincing evidence that Father

abandoned J.Q.P., and the court denied the adoption. Petitioners appeal.

                                       Decision

[¶13.]       Generally, a child may not be adopted without the consent of the

biological parents. In re Adoption of Z.N.F., 2013 S.D. 97, ¶ 13, 841 N.W.2d 460,

465. However, parental consent may be waived if the parent has “abandoned the

child for six months or more immediately prior to the filing of the petition.” SDCL


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25-6-4(2). Proof of abandonment requires “clear and convincing evidence that there

has been by the parent a giving-up or total desertion of the minor child.” Z.N.F.,

¶ 18, 841 N.W.2d at 466. “Whether a parent has abandoned a child within the

meaning of SDCL 25-6-4 is a question of fact to be decided by the trial court, a

decision that will not be overturned unless the finding is clearly erroneous.” Id.

¶ 14, 841 N.W.2d at 465.

[¶14.]       Father does not dispute that he has not seen J.Q.P. since May 2009 or

that his only contact since then is a single birthday card in 2013. Petitioners argue

these facts demonstrated a lack of effort on Father’s part to try and be a part of

J.Q.P.’s life. To prove abandonment, however, there must be “an intent on the part

of the parent to abandon and to relinquish parental obligations.” Id. ¶ 18,

841 N.W.2d at 466. Here, the circuit court considered Father’s minimal contact but

found that it was insufficient to show that Father intended to abandon J.Q.P. The

court found that Father tried to provide J.Q.P. love, care, and affection but that it

was Mother’s actions that prevented him from doing so.

[¶15.]       There is evidence in the record supporting these findings. As the

circuit court noted, the lack of contact started when Mother demanded Father leave

their home. The court also noted that thereafter, Father was unable to visit J.Q.P.

due to Father’s severe injury and his inability to work, afford housing, or provide for

himself for two years—all of “which were requirements to see [J.Q.P.] in the

proposal [Mother] presented to [Father] in 2009.” Moreover, the court found that

Mother’s visitation requirements were “unrealistic” because they were based on her

misplaced beliefs about Father’s lifestyle. The court found:


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             [Mother’s] allegations against [Father] were based on her
             experiences with [Father] at his worst: after he had been
             seriously injured and when he was experiencing on-going pain,
             was financially devastated, and when he was depending upon
             [Mother] for assistance with his medical and day-to-day needs.
             At the same time, they had a newborn child and their
             relationship was ending. [Mother] erroneously used her
             experiences during those few months of [Father’s] life as the
             basis for her belief [Father] is a drug and/or alcohol abuser, that
             he has mental and emotional issues and that he is generally an
             unfit parent.

[¶16.]       Petitioners, however, contend that Mother did not prevent Father from

contacting J.Q.P. and that Father’s injuries do not explain his minimal contact after

he recovered. Petitioners fail to acknowledge the effect of Mother’s actions after

Father moved to Colome. Although Father repeatedly contacted Mother about

J.Q.P., the evidence shows that Mother blocked his calls, denied his requests, or

demanded that he adhere to unreasonably restrictive terms. Moreover, the court

found that Mother “has always known [Father] desired to have a relationship with

[J.Q.P.] and [she] never took steps to encourage or accommodate that relationship.”

Instead, Mother threatened to report Father to law enforcement and blocked his

number, thus preventing contact with Mother or J.Q.P. As the court noted:

“[Mother] was the only person in the position to affect [J.Q.P.’s] relationship with

[Father] because [J.Q.P.] has been in her care but, instead, she took steps to [sever]

that relationship when she blocked [Father’s] phone number.” The evidence

supports the court’s finding that it was Mother’s actions—not Father’s alleged

intent to abandon—that caused Father’s minimal contact.

[¶17.]       In sum, this is not a case involving a parent’s unexplained failure to

maintain contact with their child. Cf. Z.N.F., 2013 S.D. 97, ¶ 20, 841 N.W.2d


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at 466-67 (upholding finding of abandonment, even though mother deliberately

concealed her whereabouts, because father obtained mother’s address and knew her

phone number but never attempted to contact the child). In this case, Father was

recovering from a severe injury. He did not have the means to support himself, and

he had to move away from J.Q.P. to obtain the financial and emotional support he

needed. And during this time, Mother actively prevented Father from contacting

her by threatening to report him to law enforcement and blocking his phone

number. Once he recovered, Father still tried to indirectly contact Mother, and

each time she turned him away. After these repeated rejections, Father lost hope

that Mother would ever let him see his child. Nevertheless, he continued to support

J.Q.P. by paying child support. And when he most recently attempted to force

visitation by retaining an attorney, Petitioners proceeded with this adoption.

Ultimately, this is a case where Father was trying to have a relationship with

J.Q.P. but was thwarted by Mother. On this record, the circuit court did not err in

determining that Petitioners failed to show clear and convincing evidence that

Father had given up or totally deserted J.Q.P.

[¶18.]       Affirmed.

[¶19.]       GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices,

and WILBUR, Retired Justice, concur.




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