In Re the Adoption of J. Q. P.

2017 SD 67, 903 N.W.2d 736, 2017 S.D. LEXIS 131
CourtSouth Dakota Supreme Court
DecidedNovember 1, 2017
Docket28158
StatusPublished

This text of 2017 SD 67 (In Re the Adoption of J. Q. P.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Adoption of J. Q. P., 2017 SD 67, 903 N.W.2d 736, 2017 S.D. LEXIS 131 (S.D. 2017).

Opinion

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, irritability, arid 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 agreemerit 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 couriseling. 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 that 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 reinaining 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 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 then blocked his new number.

[1110.] 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 [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 that 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 convinbing 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.,m 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 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., 2013 S.D. 97, ¶ 18, 841 N.W.2d at 466.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of the Adoption of Z.N.F.
2013 SD 97 (South Dakota Supreme Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2017 SD 67, 903 N.W.2d 736, 2017 S.D. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-j-q-p-sd-2017.