EOS v. JLS

2011 WY 78, 253 P.3d 149, 2011 Wyo. LEXIS 80
CourtWyoming Supreme Court
DecidedMay 5, 2011
DocketNo. S-10-0209
StatusPublished
Cited by1 cases

This text of 2011 WY 78 (EOS v. JLS) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
EOS v. JLS, 2011 WY 78, 253 P.3d 149, 2011 Wyo. LEXIS 80 (Wyo. 2011).

Opinion

KITE, Chief Justice.

[¶1] EOS, biological mother (Mother), appeals from the order allowing JLS's and RS's (Father and Stepmother) petition to adopt minor child, RMS, to proceed without Mother's consent because she did not pay child support for a year before the petition was filed. She claims there was insufficient proof that her failure to pay child support was willful.

[¶2] We affirm.

ISSUE

[¶3] Mother presents the following issue on appeal:

1. The District Court abused its discretion by allowing the petition for adoption to proceed without the consent of the Appellant (Respondent). The evidence was insufficient to support a finding that the Appellant had willfully failed to pay child support.

Although phrased differently, Father and Stepmother essentially present the same issue.

FACTS

[¶4] Mother and Father are the biological parents of RMS. The parents divorced in 2006, and were initially awarded joint custody of the child. In 2008, the district court issued a modification order granting Father primary custody of RMS and requiring Mother to pay $250 per month in child support. Later that year, Father married Stepmother. Mother made one partial child support payment in April 2008, but thereafter did not pay any child support.

[¶5] On March 2, 2010, Father and Stepmother filed a petition to adopt RMS. They asserted that the adoption should be granted without Mother's consent under Wyo. Stat. Ann. § 1-22-110(a)(iv) (LexisNexis 2009) because she had willfully failed to contribute to the support of RMS for one year immediately prior to filing the adoption petition. At the time the petition was filed, Mother was over $5,000 in arrears on her child support obligation.

[¶6] Mother conceded that she had not paid child support and she did not bring her support obligation current after the petition was filed. She asserted, however, that her failure to pay support was not willful because she was unemployed and did not have the ability to pay. The district court held a hearing and ruled that Father and Stepmother had established by clear and convincing evidence that Mother's failure to support the . child was willful and the adoption could proceed without her consent. Mother appealed.

[151]*151STANDARD OF REVIEW

[T7] Mother challenges the sufficiency of the evidence to support the district court's decision. Courts have the authority and discretion to grant adoptions without parental consent "provided all the statutory elements are satisfied." TF v. Dep't of Family Servs., 2005 WY 118, ¶10, 120 P.3d 992, 998 (Wyo.2005). We review the district court's decision for abuse of discretion. MJH v. AV, 2006 WY 89, ¶13, 138 P.3d 683, 686 (Wyo.2006). "'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, 930 P.2d 371, 377-78 (Wyo.1996), quoting ALT v. DWD, 640 P.2d 73, 76 (Wyo.1982).

[18] We apply our traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting an adoption without consent. On appeal, the evidence is examined in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. CJ v. S4, 2006 WY 49, 15, 132 P.3d 196, 199 (Wyo.2006).

DISCUSSION

[19] Father and Stepmother petitioned for adoption under § 1-22-110(a)(@iv), which states in pertinent part:

(a) [The adoption of a child may be ordered without the written consent of a parent ... if the court finds that ... the nonconsenting parent or parents have:
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(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[.]

[¶ 10] A district court's determination that a parent's consent for an adoption is not required effectively terminates that parent's parental rights. PAA v. Doe, 702 P.2d 1259, 1264 (Wyo.1985); SLH v. CST, 778 P.2d 124, 126 (Wyo.1989). The right to associate with one's family is fundamental; consequently, courts strictly serutinize petitions to terminate a parent's rights to his or her children. CL v. Wyo. Dep't of Family Servs., 2007 WY 28, ¶9, 151 P.3d 1102, 1105 (Wyo.2007). The petitioners have the obligation to establish by clear and convincing evidence that termination and adoption is appropriate. SLJ v. Dep't of Family Servs., 2005 WY 3, 119, 104 P.3d 74, 79-80 (Wyo.2005). "'Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable" Id., quoting MN v. Dep't of Family Servs., 2003 WY 135, ¶5, 78 P.3d 232, 234 (Wyo.2003).

[T11] The record does not contain a tran-seript of the hearing; however, the district court approved, pursuant to W.R.A.P. 3.03, Mother's statement of the evidence as amended by Father's and Stepmother's submission. The evidence established:

© Mother was ordered to pay $250 per month in child support beginning April 1, 2008.
® - She paid only one payment of $170 in April, 2008, and at the time of the hearing, she was $6,830 in arrears.
© - Mother quit her job at a daycare shortly after being ordered to pay child support.
e - Although Mother had employment experience at the daycare and as a cashier, housekeeper and nursing assistant, she had been unemployed since she quit the daycare job, except for the babysitting described below.
e - Mother had no physical or mental disabilities which prevented her from working.
® - Mother did not have a high school education and had enrolled in a GED program, but later quit it.
® - Mother lived with her parents who provided all of her clothing and food and purchased cigarettes for her.
e - Mother did not petition for modification of her child support obligation.
© Mother testified that she had applied for numerous jobs, but had not been offered one. She also had not pursued [152]*152any means of self employment, such as daycare provider or lawn mowing, to earn a living.
e - Mother had not registered for any employment services.
e Mother received $100 for babysitting for her cousin between April 2008 and January 2009. She did not use any of that money to pay her child support.
e - Mother testified that she was not deliberately remaining unemployed and she wanted to pay her child support, but did not have the means to do so.

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Related

In Re Adoption of Rms
2011 WY 78 (Wyoming Supreme Court, 2011)

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Bluebook (online)
2011 WY 78, 253 P.3d 149, 2011 Wyo. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eos-v-jls-wyo-2011.