#26656-a-GAS

2013 S.D. 97

                           IN THE SUPREME COURT

                                   OF THE

                           STATE OF SOUTH DAKOTA

                                   ****

                           IN THE MATTER OF THE
                             ADOPTION OF Z.N.F.,
                                a minor child.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                              ****
                THE HONORABLE JEROME A. ECKRICH, III
                              Judge

                                   ****


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.

                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON SEPTEMBER 30, 2013

                                            OPINION FILED 12/18/13
#26656

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.




1.      The Oregon court determined that “it is very probably (sic) that [Father]
        caused the fire at Wife’s home on February 21, 2007.”

2.      The restraining order was administered under Oregon law. It appears that
        the restraining order is similar to a protection order under South Dakota law.

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[¶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

[¶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




3.      The South Dakota trial court also reviewed correspondence between Father’s
        attorney, Mother’s attorney, and a parenting consultant, Judith Swinney.
        The trial court found that the correspondence suggests at least three things:
        “(1) Father requested additional visitation; (2) Mother could not or would not
        accommodate supervised visits at the time/dates requested by Father; and (3)
        Father’s voluntary absence from the state of Oregon substantially
        complicated scheduling parenting time.”

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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.


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[¶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, 2013, the trial court entered an order for adoption

and terminated Father’s parental rights. The court found that it was in the best

interest of Z.N.F. to place him in the care of Mother and Stepfather.

[¶12.]         Father appeals to this Court, arguing that the trial court erred in

waiving his consent to the adoption, terminating his parental rights, and entering

the order for adoption. 4



4.       Mother asserts that the appeal of the waiver of consent is not timely. Even
         though the proceedings were bifurcated, the proceedings became final after
         the final order for adoption. The appeal from the final order for adoption was
         timely.

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                                 Standard of Review

[¶13.]       “Natural parents have a fundamental right to the care, custody, and

control of their children.” In re Guardianship of S.M.N., 2010 S.D. 31, ¶ 17, 781

N.W.2d 213, 221 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060,

147 L. Ed. 2d 49 (2000)). Typically, a child may not be adopted without the consent

of the child’s biological parents. SDCL 25-6-4. “However, if it is in the best interest

of the child, the court may waive consent from a parent or putative father” when

certain conditions are met. Id. The three conditions at issue in this case are

abandonment, neglect, and failure to pay child support. SDCL 25-6-4(2), (3), (4).

[¶14.]       “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.” In re Termination of Parental

Rights over T.E.L.S., 2007 S.D. 50, ¶ 24, 732 N.W.2d 740, 746 (citing In re Adoption

of C.D.B., 2005 S.D. 115, ¶ 10, 706 N.W.2d 809, 814). Whether a parent has

neglected a child under SDCL 25-6-4(3) or has failed to pay child support under

SDCL 25-6-4(4) are also questions of fact reviewed under the clearly erroneous

standard. “Findings of fact are clearly erroneous when, after a careful review of the

record, ‘we are left with a firm conviction that a mistake has been made.”’ T.E.L.S.,

2007 S.D. 50, ¶ 24, 732 N.W.2d at 746 (quoting C.D.B., 2005 S.D. 115, ¶ 10, 706

N.W.2d at 814). “In reviewing a circuit court’s ruling on whether a parent has

abandoned a child for purposes of adoption, ‘we are in no position to reweigh the

evidence and . . . must defer to the judge’s firsthand perception of the witnesses and




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the significance the judge gave to their testimony.’” Id. (quoting C.D.B., 2005 S.D.

115, ¶ 16, 706 N.W.2d at 815).

[¶15.]       If the court waives a parent’s consent under SDCL 25-6-4, it must then

exercise its discretion to determine whether it is in the best interest of the child to

terminate the parent’s rights so that the adoption can proceed. See C.D.B., 2005

S.D. 115, ¶ 11, 706 N.W.2d at 814. It is an abuse of discretion when the court has

made “a fundamental error of judgment, a choice outside the range of permissible

choices, a decision, which, on full consideration, is arbitrary or unreasonable.”

Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616

(quoting State v. Lemler, 2009 S.D. 86, ¶ 40, 774 N.W.2d 272, 278) (additional

citations omitted).

                                       Analysis

[¶16.]       (1) Whether the trial court erred in waiving Father’s consent to
             the adoption.

[¶17.]       During the first stage of the bifurcated proceeding, the trial court

decided whether Father’s consent to the adoption could be waived under SDCL 25-

6-4. Ultimately, the court waived Father’s consent to the adoption under SDCL 25-

6-4(2) because Father had abandoned Z.N.F. The court also waived Father’s

consent under SDCL 25-6-4(3) because he continuously neglected Z.N.F. Finally,

the court waived Father’s consent under SDCL 25-6-4(4) because he had failed to

pay child support owed to Mother for the care of Z.N.F. Because SDCL 25-6-4(2),

(3), and (4) provide alternative grounds for a court to waive a parent’s consent to an

adoption, we address each of them in turn.



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                                   Abandonment

[¶18.]       Father first argues that the trial court erred in finding that he had

abandoned Z.N.F. under SDCL 25-6-4(2). “[T]o constitute abandonment under our

code it must appear by clear and convincing evidence that there has been by the

parent[ ] a giving-up or total desertion of the minor child.” T.E.L.S., 2007 S.D. 50, ¶

27, 732 N.W.2d at 747 (quoting C.D.B., 2005 S.D. 115, ¶ 12, 706 N.W.2d at 814).

             There must be a showing of an intent on the part of the parent
             to abandon and to relinquish parental obligations; this intent
             may be inferred from conduct. In establishing abandonment,
             factors to be considered include a parent’s presence, love, care
             and affection, and monetary support. The trial court may
             consider the subjective statements of the parents in addition to
             objective factors.

Id. (quoting In re Adoption of Sichmeller, 378 N.W.2d 872, 873-74 (S.D. 1985)).

             To conclude that evidence is clear and convincing, “the witnesses
             must be found to be credible, . . . the facts to which they have
             testified must be distinctly remembered and the details thereof
             narrated exactly and in due order, and . . . their testimony must
             be so clear, direct and weighty and convincing as to enable
             either a judge or jury to come to a clear conviction, without
             hesitancy, of the truth of the precise facts in issue.”

Id. (quoting C.D.B., 2005 S.D. 115, ¶ 15, 706 N.W.2d at 815).

[¶19.]       The trial court found by clear and convincing evidence that Father had

abandoned Z.N.F. In reaching its conclusion, the trial court stated:

             Father has done nothing of significance to maintain or
             reestablish contact with Z.N.F. Father’s conduct over the past
             four years, his near complete failure to pay any child support,
             his utter laying aside of his parental responsibilities, his failure
             to act to reconnect with Z.N.F. when the means and knowledge
             to do so were known to him demonstrate an absolute
             relinquishment of care and control of Z.N.F.




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In response to the court’s finding, Father asserts that Mother made it difficult for

him to maintain contact with his son. For instance, Father highlights Mother’s

deliberate attempts to conceal her whereabouts from him. Mother contends that

while she did not advertise her whereabouts, she could have easily been found had

Father tried to locate her. The trial court stated, “Mother’s actions to conceal her

whereabouts do not explain Father’s lack of effort.” The court then found that

Father’s lack of effort to contact Z.N.F. demonstrated a total desertion of his son.

[¶20.]       There is little question that Mother took steps to restrict Father’s

access to Z.N.F. Mother moved to Colorado and South Dakota in 2009 without

telling Father. Mother also made it difficult for Grandparents to contact Z.N.F. We

do not condone Mother’s actions to hinder visitation; however, Mother’s obstacles do

not excuse Father’s limited efforts to contact his son. The trial court found that

Grandparents were able to contact Z.N.F. Grandparents sent Mother emails and

sent Z.N.F. birthday cards. Father did nothing. Father’s claim that he did not

know where Mother lived is unconvincing. The trial court found that Father could

have located Mother through an internet search, Facebook, or by asking his parents

(Grandparents). Additionally, Mother maintained the same cellphone number she

acquired in Oregon until 2011. Father also obtained Mother’s address through

Mother’s Chapter 7 bankruptcy proceedings in 2010. These facts convinced the trial

court that Father could have attempted to contact Z.N.F., yet failed to do so.

[¶21.]       Father further argues that Mother’s restraining orders made it

difficult for him to visit Z.N.F. because he could not contact Mother. As the trial

court noted, the restraining orders did not restrict Father’s contact with Z.N.F.


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Father was still allowed visitation with his son. Notably, despite the restraining

orders, Father had twice sought and received visitation with Z.N.F. in 2008 and

2009. Father knew he could contact Z.N.F. without fear of the restraining orders.

The restraining orders do not explain Father’s failure to contact Z.N.F. after 2009.

[¶22.]       Additionally, the trial court’s finding that Father abandoned Z.N.F. is

further supported by Father’s failure to pay child support. The Oregon court

required Father to pay $505 per month for child support retroactive to September 1,

2007. However, Father did not pay child support until May 2009. From May 2009

through July 2009, Father paid $2,860 in child support. Notably, Mother had

already moved from Oregon to Colorado during that time. Father then did not pay

child support after July 2009.

[¶23.]       Father contends that he did not pay child support because of limited

financial resources, Mother’s constant moving, and a lack of knowledge about where

to send the payments. Father argues that our decision in T.E.L.S. supports his

failure to pay. 2007 S.D. 50, 732 N.W.2d 740. In that case, we upheld the trial

court’s decision to deny termination of parental rights in connection with an

adoption. Id. ¶ 32, 732 N.W.2d at 748-49. We held that it was not clearly erroneous

for the trial court to find that the father had not abandoned his child when he was

of limited means and had paid over $16,000 in child support. Id. ¶ 33, 732 N.W.2d

at 749. We noted that the father also attempted to send gifts to T.E.L.S. and father

arranged trips to visit the child even though the father lived in California. Id. ¶ 34,

732 N.W.2d at 749. In contrast to our holding in T.E.L.S., Father had more means

to pay some semblance of child support, yet paid less than the father in T.E.L.S.


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The trial court found that Father had sufficient income to support Z.N.F., yet he

willfully refused to do so. The court also found Father’s other reasons for failing to

pay child support unpersuasive. In both 2010 and 2011, Father made over $30,000

in gross income. Furthermore, Father paid child support after Mother had already

moved. Father’s failure to provide monetary support for Z.N.F. is another factor

leading to the conclusion that Father abandoned Z.N.F.

[¶24.]       Lastly, Father’s other explanations to show he did not intend to

abandon Z.N.F. do not render the trial court’s decision clearly erroneous. Father

argues that his purchase of a life insurance policy for Z.N.F. proves that he did not

intend to abandon his son. The Oregon court required Father to purchase the policy

in 2008; however, Father did not purchase the policy until 2010. Father,

nonetheless, argues that the untimely purchase of the life insurance policy

illustrates a recent intent not to abandon Z.N.F. The trial court found that this

“demonstrates little, if any, intent to maintain contact or provide support for Z.N.F.”

We agree with the trial court and conclude that its decision was not clearly

erroneous. This one act of support, which was mandated by the Oregon court, does

not show an intent not to abandon Z.N.F.

[¶25.]       Father also highlights that he recently made Z.N.F. a beneficiary to his

health insurance policy. He contends that this shows that he did not intend to

abandon Z.N.F. The trial court found that neither Mother nor Z.N.F. benefitted

from the policy. Father does not articulate how this policy benefitted Z.N.F.

Additionally, Mother and Z.N.F. were completely unaware of its existence. There is

also no evidence that Father purchased the policy. Given these facts, it was not


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clearly erroneous for the trial court to reject Father’s argument that the acquisition

of an insurance policy showed an intent not to abandon.

[¶26.]       When viewed in totality, the decision to waive Father’s consent to the

adoption under SDCL 25-6-4(2) was not clearly erroneous. “[W]e are in no position

to reweigh the evidence and . . . must defer to the judge’s firsthand perception of the

witnesses and the significance the judge gave to their testimony.” C.D.B., 2005 S.D.

115, ¶ 16, 706 N.W.2d at 815 (quoting Zepeda v. Zepeda, 2001 S.D. 101, ¶ 19, 632

N.W.2d 48, 55). We understand “the seriousness and finality of this decision[.]” Id.

However, “[d]ecisions to terminate parental rights and allow an adoption are not

made to punish wayward parents, but to protect children.” Id.

                                Continuous Neglect

[¶27.]       The trial court also found by clear and convincing evidence that Father

continuously neglected Z.N.F. under SDCL 25-6-4(3). Both briefs acknowledge this

fact, however, neither one addresses it directly. Because we review continuous

neglect, like abandonment, as a question of fact, we will not overturn the trial

court’s finding of continuous neglect unless it was clearly erroneous.

[¶28.]       Under SDCL 25-6-4(3), a finding of continuous neglect can serve as an

independent basis to waive a parent’s consent to an adoption. While there is some

overlap, a finding of continuous neglect is distinct from abandonment. Given that

neither party contests the issue of continuous neglect under SDCL 25-6-4(3), and

that the factual record lends support for its finding, we hold that the trial court’s

decision to find continuous neglect by clear and convincing evidence was not clearly

erroneous.


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                            Failure to Pay Child Support

[¶29.]         The trial court also waived Father’s consent to the adoption of Z.N.F.

under SDCL 25-6-4(4) 5 because Father was financially able, yet willfully neglected

to pay for “subsistence, education, or other care” where legal custody of Z.N.F. was

with Mother and child support payments were ordered by the court. Consistent

with SDCL 25-6-4(2) and (3), the failure to provide support under SDCL 25-6-4(4) is

a finding of fact that must be proved by clear and convincing evidence. Thus, we

will not upset the trial court’s finding unless it was clearly erroneous.

[¶30.]         Mother argues that the failure to pay child support under SDCL 25-6-

4(4) serves as an independent basis for a court to waive Father’s consent to the

adoption. The trial court agreed. Father argues that he was not financially able to

provide child support. He also contends that Mother made it difficult for him to

provide support. Furthermore, Father argues that the failure to pay child support

should not be the sole reason for waiving his consent under SDCL 25-6-4(4).

[¶31.]         SDCL 25-6-4(4) is a relatively new provision. We have yet to consider

whether the failure to pay child support can be an independent reason to waive a

natural parent’s consent to an adoption. Normally, we have considered monetary


5.       SDCL 25-6-4(4) provides:

               No child may be adopted without the consent of the child’s
               parents. However, if it is in the best interest of the child, the
               court may waive consent from a parent or putative father who: .
               . . (4) Being financially able, has willfully neglected to provide
               the child with the necessary subsistence, education, or other
               care necessary for the child’s health, morals, or welfare or has
               neglected to pay for such subsistence, education, or other care if
               legal custody of the child is lodged with others and such
               payment ordered by the court[.]

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support as a factor in determining whether a child has been abandoned. See

generally T.E.L.S., 2007 S.D. 50, 732 N.W.2d 740; C.D.B., 2005 S.D. 115, 706

N.W.2d 809. Nevertheless, the use of “or” in the statute makes clear that the willful

failure to pay court ordered child support can serve as an independent basis to

waive a natural parent’s consent to an adoption. This reading is supported by a

similar provision under Wyoming law. See In re Adoption of RMS, 253 P.3d 149

(Wyo. 2011) (holding that a court may waive a parent’s consent to an adoption

under Wyo. Stat. Ann. § 1-22-110(a)(iv) (West 1977) where the parent willfully

failed to pay child support for a period of one year before the adoption petition).

Thus, we hold that a parent’s willful failure to pay child support can be grounds for

waiving the parent’s consent to an adoption. 6

[¶32.]         In seeking to waive an adoption under SDCL 25-6-4(4), the court must

find by clear and convincing evidence that there was a failure to pay child support,

and that such failure was willful. Father asserts that his failure to pay child

support was not willful because he did not have sufficient money to pay, and did not

know where to send it if he did. The evidence does not support his claim. First,

Father never sought to amend the child support order. Additionally, when Father

paid child support in 2009, his gross income was significantly lower than in 2010

and 2011, years he did not pay child support. In total, Father has paid only $2,860

in child support since the Oregon court ordered the payments in 2007. Meanwhile,


6.       Unlike other states, SDCL 25-6-4(4) does not provide a timeframe for how
         long an individual must fail to pay child support before his or her consent to
         an adoption can be waived. We need not decide that here. We believe
         Father’s failure to pay child support since 2009 coupled with over $67,000 in
         child support arrearage justifies the trial court’s use of SDCL 25-6-4(4).

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Father owes $67,440 in child support arrearage. Thus, Father has paid only four

percent of the child support he was expected to provide to Mother and Z.N.F. since

2007. The evidence supports the trial court’s finding that Father had the ability to

pay child support, yet willfully refused to pay.

[¶33.]       Additionally, Father argues that Mother’s attempts to conceal her

whereabouts obstructed his ability to pay child support. Father’s argument does

not explain why he failed to pay child support from 2007 to 2009 when Mother

resided in Oregon. In addition, his argument is undermined by the fact that he

made his first child support payment after Mother moved to Colorado from Oregon.

The trial court found that Father’s excuses for failing to pay child support lacked

credibility. Father provides no evidence to explain why that finding was clearly

erroneous other than that Mother moved around. We conclude that this obstacle

does not excuse the failure to pay child support. The trial court’s decision to waive

Father’s consent to the adoption under SDCL 25-6-4(4) was not clearly erroneous.

[¶34.]       (2) Whether the trial court should have considered the best
             interest of the child before waiving Father’s consent.

[¶35.]       After waiving Father’s consent to the adoption, the trial court next

found that it was in the best interest of the child to allow Stepfather to adopt

Z.N.F., terminating Father’s parental rights. Father argues that the trial court

failed to address whether it was in the best interest of the child to waive his

consent. Father contends that SDCL 25-6-4 requires a court to consider the best

interest of the child at the time the waiver of consent is requested.

[¶36.]       There is no question that the trial court must determine whether it is

in the best interest of the child to terminate a natural parent’s parental rights and

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proceed with an adoption. C.D.B., 2005 S.D. 115, ¶ 11, 706 N.W.2d at 814. In the

second part of the bifurcated proceeding, the trial court found that it was in the best

interest of Z.N.F. to allow Stepfather to adopt the child. The court found that

Stepfather, Mother, and Z.N.F. engage in numerous recreational activities together

including skiing, hiking, and baseball. The court also found that both Mother and

Stepfather are able to provide a “loving, nurturing, and wholesome environment to

[Z.N.F.]” Additionally, the court found that Stepfather desires to and is willing to

assume full parental responsibility of Z.N.F. Thus, we do not find that it was an

abuse of discretion for the trial court to determine that it was in the best interest of

the child to allow Stepfather to adopt Z.N.F. Father argues, however, that the trial

court was also required to consider the best interest of the child when it chose to

waive Father’s consent to the adoption.

[¶37.]       SDCL 25-6-4 states that “if it is in the best interest of the child, the

court may waive consent from a parent or putative father who” meets the criteria of

one of the enumerated categories. Father argues that a plain reading of the statute

requires the trial court to consider the best interest of the child along with whether

one of those categories is met. We conclude that the trial court adequately

considered the best interest of the child in choosing to waive Father’s consent.

[¶38.]       In C.D.B., we stated that the trial court must first evaluate whether

the natural parent had abandoned the child. 2005 S.D. 115, ¶¶ 10-11, 706 N.W.2d

at 814. Then, the trial court should evaluate “whether the child’s best interests will

be served by terminating the rights of the parent so that an adoption can proceed

without that parent’s consent.” Id. ¶ 11. Here, the trial court bifurcated the


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proceedings according to In re Adoption of Zimmer, 299 N.W.2d 574 (S.D. 1980).

The trial court first waived Father’s consent to the adoption. It then determined it

was in the best interest of the child to proceed with the adoption. We hold that this

was sufficient under SDCL 25-6-4. The trial court did not abuse its discretion in

finding that it was in the best interest of the child to waive Father’s consent to the

adoption and allow Stepfather to adopt Z.N.F. where Father had abandoned Z.N.F.,

continuously neglected him, and failed to provide child support.

                                     Conclusion

[¶39.]       Under a different set of facts, Mother’s deliberate attempts to conceal

Z.N.F. from Father would likely excuse his failure to maintain contact with his son.

We must reiterate that we do not condone Mother’s attempts to deny Father’s

visitation with his son. However, Mother’s obstacles do not excuse Father’s failure

to attempt to make contact with Z.N.F., nor do the obstacles excuse Father’s willful

failure to pay child support. The trial court did not err in waiving Father’s consent

to the adoption and in determining that it was in the best interest of Z.N.F. to grant

the stepparent adoption. We affirm.

[¶40.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

WILBUR, Justices, concur.




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