MMM v. AMMJ (In re MMM)
MMM v. AMMJ (In re MMM)
Opinion of the Court
[¶ 1] Father and Stepmother petitioned for a decree of adoption allowing Stepmother to adopt MMM without Mother's consent. The district court denied the petition, finding that Father and Stepmother failed to show by clear and convincing evidence that Mother willfully abandoned MMM or that she willfully failed to pay child support. Father and Stepmother appeal and we affirm.
ISSUES
[¶ 2] 1. Did the district court abuse its discretion when it found that Father and *492Stepmother failed to demonstrate by clear and convincing evidence that Mother willfully abandoned MMM?
2. Did the district court abuse its discretion when it found that Father and Stepmother failed to demonstrate by clear and convincing evidence that Mother willfully failed to pay child support during the relevant period?
FACTS
[¶ 3] The facts in this case are generally undisputed. On November 5, 2008, MMM was born to Father and Mother, who were never married. Mother was a drug addict and was first arrested when MMM was two years old. She has spent a significant amount of time since then either in incarceration or in a court-ordered treatment program. MMM has lived the vast majority of her life with Father. Father and Stepmother were married on December 29, 2012, and MMM has resided with both since then.
[¶ 4] The district court entered a joint custody order in January 2013, granting Father primary physical custody of MMM, and granting Mother visitation by telephone every Tuesday from 5:00 to 6:00 p.m. for six months, with any other visitation at Father's discretion. The order set Mother's child support obligation at $50 per month, and gave her the right to petition for modification of both visitation and child support after six months. Mother never petitioned to modify visitation or child support.
[¶ 5] From the date of the order through the date the petition for adoption was filed (except for nine months from January 8 to October 13, 2016, and four days in June of 2016), Mother has been incarcerated or in inpatient treatment for her drug addiction. Mother's contacts with MMM consisted of phone calls and letters from prison and phone calls during the brief period when she was not incarcerated. Mother agreed that her phone calls have been inconsistent, but testified that both she and Father share in the responsibility for those inconsistencies. Sometimes Father and Stepmother would not allow contact with MMM and, according to Mother, "this would go on for extended periods of time, and then I would get a letter saying it was okay to call again, and ... I would initiate phone calls." Mother explained that Father and Stepmother would ask her not to call when they were visiting extended family in Arizona. And, while she was incarcerated, it was difficult to make consistent calls because she was not always available at the time she was supposed to call, but that "at all times, [she] was doing what [she] could." Mother also explained that she had talked with Father, trying to rekindle their relationship, probably 15 to 20 times between January 2016 and October 2016. During that time frame, she spoke to MMM "about 12" times. She testified, "When I was supposed to call, I would call. Sometimes I was working and I didn't. And then after [Father] and I had a dispute on personal matters, it got awkward between us. And I, at that time, had started using, and I quit attempting to make contact."
[¶ 6] With respect to her relationship with MMM, Mother explained:
At this point, I'm at a very pivotal point in my life and in my drug addiction. Instead of going and doing my time this time, I have voluntarily went into a program that is brutal.... This time is different. I am at a different place....
I at no point have agreed to or want to have my rights terminated....
Like this is my last chance.... And the only thing I have is the knowledge that I have to try to fight for myself as a parent for my daughter.
[¶ 7] Father testified that Mother's contact with MMM was "sporadic" and that when she did not call as scheduled, "she would say it was because they were on lockdown or whatever reason." He described contact while Mother was in prison as being "good for two, three weeks straight, and then it might not be for a month or two months, and then we'd get one here, one there." During the time Mother was not in prison, the times for Mother's calls changed to accommodate MMM's dance schedule and "for two months, [Mother] was on point calling ... and then all of a sudden nothing again." Mother told Father that the scheduled time conflicted with her work schedule so, again, they *493changed the time, but "she never tried to call again." Father also testified that Mother never sent MMM a birthday card, or anything for her birthday or Christmas, and that Mother had not called since the adoption petition was filed.
[¶ 8] Occasionally, while she was incarcerated, Mother held jobs and made approximately 30 cents an hour, but the record does not indicate the total amount she earned. In 2014, Mother's grandmother gave her some money, but the amount and frequency of those gifts are not contained in the record either. During the nine months when she was not confined, Mother worked part-time as a seasonal flagger for a road construction company and earned approximately $200 at that job. Mother made one $50 child support payment in January 2013 and has made no other support payments. Mother contributed nothing toward child support from her income at any of her jobs or from the money her grandmother gave her. Mother admitted that she "could have prioritized and sent money to [MMM]; however, when I spoke to [Father] about it, he ... stated they were not hurting for money, and that it wasn't that big of a deal."
[¶ 9] Father and Stepmother petitioned for a decree of adoption in favor of Stepmother, without the consent of Mother, alleging that Mother willfully abandoned MMM and willfully failed to provide court-ordered child support. The district court found that Father and Stepmother failed to demonstrate by clear and convincing evidence that Mother intended to abandon MMM or that Mother's failure to pay child support was willful. This timely appeal followed.
STANDARD OF REVIEW
[¶ 10] The decision to grant or deny an adoption without parental consent is within the discretion of the district court. In Interest of SO ,
"In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did." GWJ v. MH (In re BGH) ,930 P.2d 371 , 377-78 (Wyo. 1996) (quoting Martinez v. State ,611 P.2d 831 , 838 (Wyo. 1980) ). "A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances." GWJ ,930 P.2d at 377 .
SO ,
DISCUSSION
[¶ 11] Father and Stepmother sought the adoption of MMM pursuant to two statutory provisions:
I. Did the district court abuse its discretion when it found that Father and Stepmother failed to demonstrate by clear and convincing evidence that Mother willfully abandoned MMM?
[¶ 12]
because the right to associate with one's child is a fundamental right protected by the Wyoming and United States Constitutions, adoption statutes are strictly construed when the proceeding is against a nonconsenting parent, and every reasonable intendment is made in favor of that parent's claims. [ In re Adoption of CF ,2005 WY 118 , ¶ 11,120 P.3d 992 , 999 (Wyo. 2005) ]. "[T]he party requesting adoption bears the burden of proving the existence of at least one of the statutory factors by clear and convincing evidence."Id. We have defined clear and convincing evidence as "that kind of proof which would persuade a trier of fact that the truth of the contention is highly probable."Id.
In re Adoption of JRH ,
[¶ 13] The district court relied upon TLC in reaching its conclusion that Father and Stepmother failed to demonstrate willful abandonment by clear and convincing evidence. There, the district court determined that TLC's father, who had been incarcerated for a portion of the time at issue, willfully abandoned TLC. TLC ,
[¶ 14] The district court here found that Mother's "contacts with MMM were sporadic at best," but concluded that Father and Stepmother "failed to demonstrate by clear and convincing evidence that [Mother] has evidenced an intent to sever her parental relationship with MMM." This finding is adequately supported by the record. Like the father in TLC , Mother's sporadic contact-her telephone calls and letters from prison-show that she attempted to maintain contact with MMM. Many of Mother's lapses in communication with MMM resulted from restrictions associated with her incarceration and her work schedule. In addition, not all the blame rests on Mother, as Father and Stepmother requested that Mother not call during certain periods of time.
[¶ 15] Father and Stepmother argue that because Mother quit trying to contact MMM sometime in 2016, she willfully abandoned her. Abandonment requires "conduct by the parent ... 'which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.' It involves more than temporary absence or neglect of parental duty." Voss ,
[¶ 16] The district court did not abuse its discretion when it concluded that Father and Stepmother failed to show willful abandonment by clear and convincing evidence, as required by
II. Did the district court abuse its discretion when it found that Father and Stepmother failed to demonstrate by clear and convincing evidence that Mother willfully failed to pay child support during the relevant period?
[¶ 17] Adoption may be ordered without the consent of a parent if the court finds that the nonconsenting parent:
(iv) Willfully failed to contribute to the support of the child for a period of one (1) year immediately prior to the filing of the petition to adopt and has failed to bring the support obligation current within sixty (60) days after service of the petition to adopt; or
....
(ix) Willfully failed to pay a total dollar amount of at least seventy percent (70%) of the court ordered support for a period of two (2) years or more and has failed to bring the support obligation one hundred percent (100%) current within sixty (60) days after service of the petition to adopt.
[Father and Stepmother] have failed to prove by clear and convincing evidence that [Mother's] failure to pay support was willful. [Mother] was incarcerated for all but 9 months of the relevant period. The Court concludes that her failure to pay while incarcerated was due primarily to her lack of ability to pay. For the brief period [Mother] was not incarcerated, she had limited means and to a certain extent may have been reassured by [Father] that she did not need to pay.
Father and Stepmother argue that this conclusion was an abuse of discretion because Mother's willfulness is shown by the fact that she earned some money working when she was not in prison and at her various jobs while she was incarcerated, and Mother's grandmother had sent her some money, yet Mother failed to make any contributions to her child support obligation.
[¶ 18] Father and Stepmother rely on In re Adoption of RMS ,
[¶ 19] In AMP , the father lived in his father's home, had part-time employment, and paid child support until he was terminated for "Job Abandonment."
*496
[The father] did not make a reasonable effort to find employment and support his son. [The father] was unemployed for the entire year in 2010, but did not engage the assistance of a job service agency and did not seek to advance his employment prospects by enrolling in college courses or other job training programs. Further, despite [the father's] claim that he did not receive compensation during his time in basic training, the evidence unequivocally established that [the father] received military pay in March, before he was served with the adoption petition. He did not contribute any of that pay to his child support obligation. Additionally, [the father's] credibility was seriously undermined by his shifting testimony as to the timing of his attempt to create a military allotment and the fact that no child support payments had been made via allotment or otherwise as of the date of the adoption hearing, nearly a year after he completed basic training.
Id . at ¶ 20,
[¶ 20] Neither RMS nor AMP persuades us that the district court here abused its discretion when it concluded that Mother's failure to pay child support was not willful, particularly in light of the requirement that the district court make "every reasonable intendment" in favor of Mother. See In re Adoption of CF ,
[¶ 21] We have explained the importance of the willfulness requirement as follows:
Clearly, by inclusion of the modifying term "willfully" the statute draws a distinction, as it must, between the parent who though financially able to pay his court-ordered child support is unwilling to do so, and the parent who though willing to pay his court-ordered child support is financially unable to do so. "A natural parent's failure to support his or her child does not obviate the necessity of the parent's consent to the child's adoption, where the parent's financial condition is such that he or she is unable to support the child." 2 Am. Jur. 2d Adoption § 88 (1974).
Moreover, this court has defined willfully in the context ofWyo. Stat. Ann. § 1-22-110 as "intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly." Matter of Adoption of CCT ,640 P.2d 73 , 76 (Wyo. 1982).
In re Adoption of ADA ,
[¶ 22] Although "a parent's inability or lack of means to pay may refute an allegation of willful failure to pay child support, that does not mean a parent's unemployment, and resulting inability to pay child support, is always excusable." RMS ,
[¶ 23] Matter of Adoption of CCT ,
[¶ 24] More recently, in ADA ,
[¶ 25] The district court here concluded that Mother's "failure to pay while incarcerated was due primarily to her lack of ability to pay. For the brief period [Mother] was not incarcerated, she had limited means and to a certain extent may have been reassured by [Father] that she did not need to pay."
[¶ 26] Focusing on Mother's "intent and ability to pay," the facts in the record, when viewed in the light most favorable to Mother, and disregarding evidence to the contrary, support the district court's conclusion. Regarding Mother's intent, the district court relied upon Mother's testimony that Father told her that "they were not hurting for money, and that [child support] wasn't that big of a deal" when it concluded that "to a certain extent [Mother] may have been reassured by [Father] that she did not need to pay." We have consistently held that a custodial parent has no authority to waive child support. See , e.g. , Kimble v. Ellis ,
*498Accordingly, Father's statements regarding his financial condition and indicating that Mother's failure to make her child support payments was not a big deal could not have discharged Mother's obligation to pay support. Here, however, Mother's obligation to pay child support is not at issue; the issue is whether she willfully failed to meet that obligation. It was reasonable for the district court to rely upon Father's reassurances as a factor bearing upon Mother's intent to pay child support.
[¶ 27] The evidence also supports the district court's conclusion that Father failed to meet his burden of proof on Mother's ability to pay. The record establishes only that Mother earned approximately $200 during the nine months she was not incarcerated, may have earned some money while she worked during her confinement (the amount is not contained in the record), and received some unknown amount from her grandmother. Incarcerated individuals have an obligation to support their children, even in very modest amounts, from the amounts they earn or receive while in prison. However, the record here fails to show the amounts, if any, that Mother received or earned. The burden was on Father and Stepmother to establish that Mother had the financial means to make child support payments, and the record, viewed in the light required by our standard of review, does not support that conclusion. Based upon the facts in the record, and, given that we must view the evidence in the light most favorable to Mother, we cannot conclude that the district court acted in a manner which exceeds the bounds of reason when it found that Father and Stepmother did not prove by clear and convincing evidence that Mother willfully failed to pay her child support obligation.
CONCLUSION
[¶ 28] The district court did not abuse its discretion when it concluded that Father and Stepmother failed to establish the requirements of
Reference
- Full Case Name
- In the MATTER OF the ADOPTION OF: MMM, a minor child, MMM and CRM, (Petitioners) v. AMMJ, (Respondent).
- Cited By
- 6 cases
- Status
- Published