In re the Adoption of Olopai

2 N. Mar. I. 91, 1991 N. Mar. I. LEXIS 9

• Court: Supreme Court of The Commonwealth of The Northern Mariana Islands
• Decided: June 12, 1991
• Docket: APPEAL NO. 90-021; CIVIL ACTION NO. 88-72A
• Status: Published

Opinions

OPINION

BORJA, Justice:

FACTS

This is an appeal from a decree granting a petition for adoption. Juan T. Taitano, Jr. (hereafter Taitano)¹ filed the petition November 3, 1988. Taitano sought to adopt Noel Tudela Olopai and Giovanni Tars Tudela Olopai, the minor children of Primitiva T. Taitano, Jr. (hereafter Primitiva), the wife of Taitano. The natural father of the children is Tarsicio K. Olopai (hereafter Olopai). Primitiva previously lived with Olopai for approximately three years.

A notice of hearing was issued on November 3, 1988. Another notice of hearing was issued on November 9. The petition was set for hearing on November 17.

Olopai did not see a copy of the Notice of Hearing until the morning of the 17th.² The petition itself was never served on Olopai.

Olopai moved for a continuance on the 17th. The court granted the continuance until the 22nd, at 1:30 p.m. One of the matters considered by the Court was that Taitano was stationed at an Army Base in Germany. He was scheduled to depart Saipan with his wife and the two minor children on November 23, 1988.

On November 22, 1988, Olopai again moved for a continuance to have more time to prepare his objection to the petition. The motion was denied. The petition was heard on the 22nd, and the decree issued the next day granting the adoption.

Olopai and Primitiva were never married but lived together since the latter part of 1984 until September 1987. They lived together at the home of Olopai!s uncle. While living together, they had two children, Noel Tudela Olopai (born February 14, 1985) and Giovanni Tars Tudela Olopai (born March 25, 1987). These two children were the subject of the adoption proceeding.

Olopai and Primitiva separated in September 1987. Primitiva moved out of the home they were staying in and took the two children with her.

Olopai unsuccessfully tried to visit the children where they were staying. He did manage to have the children visit him once at his residence. He further managed to visit each of the children once when they were hospitalized at different times.

Olopai never provided financial support to the boys since they were separated from him. When the boys were hospitalized, Olopai brought them toys and pajamas.

On January 6, 1988, Primitiva and Taitano were married and Taitano started supporting the children.

Based on the above facts, the trial court granted the petition for adoption and concluded that:

1. Although Olopai had not consented to the adoption of the children, he was given notice and he did appear and was represented at the proceeding by an attorney.

2. The interests of the children would be promoted if they are ■ adopted by the petitioner.

3. Olopai abandoned the children for more than six months.

Olopai, in this appeal, argues that the trial court erred in denying his motion for a continuance, and in concluding that an abandonment had occurred.

STANDARD OF REVIEW

The denial of a motion for continuance is subject to the abuse of discretion standard. Commonwealth v. Bordallo, No. 90-003, slip qp. at 10 (N.M.I. June 8, 1990).

Whether an abandonment had occurred is a legal conclusion subjeqt to de novo review. Loren v. E'Saipan Motors. Inc., No. 89-006, slip op. at 3 (N.M.I. April 16, 1990).

ANALYSIS

I.Denial of Motion for Continuance

In Commonwealth v. Bordello, supra, we adopted the four factors to be considered, as stated in U.S. v. 2.61 Acres of Land More Or Less, 791 F.2d 666, 671 (9th Cir. 1985), in reviewing a denial of a motion for continuance. They are;

1, Mqvant's diligence in his efforts to ready his defense prior to the date set for hearing;

2, The likelihood that the need for a continuance could have been met if the continuance had been granted;

3, The extent a continuance would have inconvenienced the court and opposing party; and

4, The extent the mqvant might have suffered harm as a result of the denial.

No one factor is dispositive. We weigh each one to determine whether th.e denial was arbitrary or unreasonable. However, if appellant cannot show prejudice by the denial, we will not reverse the trial court's ruling.

In considering the four factors, we hold that the trial court abused its discretion in denying the request for a continuance. Three of the four factors weigh heavily in favor of Olopai.

We cannot say that Olopai was not diligent when he was not even given time to file a response to the petition, much less prepare a defense.

Olopai wanted more time to adequately prepare for the hearing. However, he should have been given more time to file a response first. Thereafter, the time for the hearing could have been scheduled.

The record does not show that the court would have been inconvenienced had a continuance been granted. While Taitano would have been inconvenienced due to his scheduled departure from the Commonwealth, his inconvenience is minimal compared to the prejudice suffered by Olopai by the denial of the continuance.

The denial of the continuance severely prejudiced Olopai. His natural parental rights to his children were at stake. Yet, he was not only denied adequate time to prepare his defense, he was also denied adequate time to file a response. His right to procedural due process was violated because he was not given a meaningful opportunity to be heard. Boddie v. Connecticut. 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

The NMI does not have a specific statute dealing generally with proceedings to terminate parental rights. The closest statute is the Uniform Parentage Act, 8 CMC §§ 1700-1726 (hereafter sometimes referred to as the Act) . This Act has provisions for the termination of parental rights in the event that the natural mother wishes to relinquish a child for adoption and the natural father cannot be identified (section 1725(d)); or if the natural father has been identified but does not appear at a hearing, after due notice; or, if he appears, fails to claim custodial rights (section 1725(c)). The Act does not provide for situations where the natural mother does not wish to relinquish her child for adoption, as in this case.

In the absence of a specific statute, the procedure under the Act, including the notice provisions, for the termination of parental rights should be applied to situations like the case before us. Such procedure provides the minimum procedural due process safeguards. We hold that the procedures and notice provisions under the Act should be followed in cases where the natural mother, or father, does not wish to relinquish a child for adoption, but merely wishes to consent to the adoption of her or his child by her or his spouse.

The Act sets up certain procedures to be followed in a certain adoption proceeding governed by it. Applying such procedures to the present case, the following analysis would ensue.

Olopai is a presumed father under Section 1704(a) of the Act. This section gives five situations where a man is presumed to be the natural father of a child. Subsection (4) states that a man is presumed to be the father of the child if

while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child. . . .

The facts are uncontradicted that Olopai received the minor child, Noel, into his home since the date he was born on February 14, 1985, until September 1987. Olopai received the minor child, Giovanni, into his home since the date he was born, March 25, 1987, until September 1987. It is also uncontradicted that both minors' birth certificates list Olopai as the father, and have Olopai's signature, in addition to Primitiva's, as being the informant. Olopai openly held himself out as the father of the children.

Since Olopai is the natural father of the children, the children's adoption cannot proceed unless and until the parental rights of Olopai have been terminated.

Section 1725(a), in pertinent part, requires that:

[I]f a child otherwise becomes a subject of an adoption proceeding, the . . . mother or the person having custody of the child, shall file a petition in the Commonwealth [Superior Court] to terminate the parental rights of the ■ father, unless the father's relationship to the child has been previously terminated or determined by a court not to exist.

Olopai's relationship to the children had not been previously terminated or determined by a court not to exist. The trial court should hold the adoption proceeding in abeyance while Primitiva files a petition to terminate the parental rights of Olopai.

Section 1725(e) requires notice to Olopai of the proceeding to terminate parental rights. This section requires that such notice be given to Olopai "in the manner appropriate under the rules of civil procedure for the service of process in a civil action in this Commonwealth or in any manner the court directs."

When the petition to terminate parental rights is filed, Olopai will be served pursuant to section 1725(e) of the Act. Under Com.R.Civ.P. 12, he would then have twenty days to file an answer. The hearing on the petition could then be set for sometime thereafter.

This is not to say that there can never be a time when a hearing will be scheduled for an earlier time. There may be situations where it might be justifiable. But such a decision should be made only after a party has made an appropriate motion and the matter is heard after due notice.

II. Abandonment

We agree with Olopai €hat the parent and child relationship is fundamental and natural. Such a relationship is highly esteemed in our Commonwealth. See the Commonwealth Family Protection Act of 1936, 8 CMC §§ 1221-1233. 8 CMC § 1221(b) acknowledges that there exists "customary strong family relationships" in the Northern Mariana Islands. The term "family relationships" includes the parent and child relationship. 8 CMC § 1222(g).

Because the „parent-child relationship is natural and fundamental, it follows that termination of such a relationship should require proof beyond a preponderance of the evidence. We agree with the holding and reasoning of the majority in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) that clear and convincing evidence should be required.

We hold that the burden of proof necessary in a proceeding to terminate parental rights is clear and convincing evidence.

We agree with Olopai that the trial court's conclusion of abandonment is not supported by clear and convincing evidence. The record is undisputed that Olopai resided with the children from the date of their births to September 1987. After their separation, he attempted to visit the children once. Because of the manner and time that he made the attempt, he was advised by the police that he was to stay away from the residence where his children were staying. He complied. However, he made several attempts to have the children brought to him. He succeeded only once. He succeeded in having the children brought to him just five months before the hearing on the adoption proceeding. He visited the children on two different occasions when they ware hospitalized separately. The record shows that he attempted to have the children brought to him one month before the hearing on the adoption proceeding. His attempts were unsuccessful due to the refusal of Primitiva and/or Taitano to have the children taken to him. These undisputed facts do not establish clearly and convincingly that Olopai abandoned the children.

Although we declare the parent-child relationship to be fundamental and natural, such a relationship could be terminated when circumstances, not necessarily on the basis of abandonment, warrant it. We address the criteria to consider in terminating one's parental rights because of our decision to remand this case to the trial court for further proceedings.

The Commonwealth does not have any specific statute setting forth the criteria to be considered in a proceeding to terminate parental rights. However, in situations such as the present case, where the termination proceeding arises as a result of an adoption proceeding, i.e., the adoption proceeding cannot proceed unless and until the parental rights of the father has been terminated, we look to our adoption statute to see if the criteria can be determined.³

Our adoption statute states that an "adoption shall be granted only if the Court is satisfied that the interests of the child will be promoted by the adoption." 8 CMC § 1403.

Olopai argues that this provision does not preclude consideration of the fitness of the parent, the neglect of the child, etc. As such, he contends that we should hold that in a proceeding to terminate parental rights, the criterion is consideration of not only the best interest of the child, but also the natural and fundamental right of the parent to the child.

We find that there is no reason why we cannot, or should not, extend the best interest of the child criteria in an adoption proceeding to a termination of parental rights proceeding. In either proceeding, it is the interests of the child that should be paramount. We hold that the best interest of the child is the paramount criteria to consider in a proceeding to terminate the parental rights of a parent or parents.⁴

The term "best interest of the child," réquires, at the very least, consideration of the fundamental relationship existing between the child and the natural parent(s). The interests of the adopting parent(s), although not fundamental unless and until the adoption is granted, should also be considered. Such consideration shall include, but not be limited to, the age of the child; the extent of the bond, or potential bond, between each natural parent to the child; the fitness or unfitness of either or both natural parents, taking into account whether the child has been abandoned, neglected, subjected to cruelty, both mental and/or physical, whether either parent is a habitual user of alcohol or drugs, whether either parent has been convicted of a felony where the nature of the crime is inconsistent with being a fit parent, etc.; the extent of the bond, or potential bond, between the adoptive parent(s) and the child; the ability of the natural parertt(s) to provide adequate and proper love, care, attention, and guidance to the child; and the ability of the adoptive parent(s) to provide adequate and proper love, care, attention, and guidance to the child. The term "best interest of the child" is sufficiently broad to include all the foregoing considerations.

CONCLUSION

The decision of the trial court is VACATED, and the matter is remanded with instructions that:

1. the adoption proceeding be held in abeyance until a petition to terminate the parental rights of Olopai is filed by Primitiva and disposed of, applying the burden of proof and the criteria set forth in this Opinion;

2. the issue of whether Tarsicio K. Olopai has abandoned his children shall not be re-litigated in the petition to terminate his parental rights since we have determined that an abandonment has not occurred; and

3. if a petition to terminate the parental rights of Olopai is not filed by Primitiva, the trial court shall dismiss the adoption proceeding.

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z%~u~ /esus C. Borja Associate Justice

1 We note that Taitano is not represented in this appeal. Several days before oral argument, this Court learned that counsel for Taitano in the adoption proceeding was not counsel on appeal.

2 Counsel for Olopai, prior to the hearing on the 17 th, represented to the court that his client saw the notice the day before. During the examination of Olopai, however, he testified that he saw it the day of the hearing.

3 We do not address the criteria to be used in a parental rights termination proceeding not resulting from an adoption proceeding.

The dissent contends that our decision to apply the best interest of the child criteria to a parental rights termination proceeding is tantamount to judicial legislation. Dissent at 25. We disagree. We point out that this is a case where the need for a termination proceeding is the result of the filing of an adoption proceeding. We are filling in certain gaps in the Uniform Parentage Act to make it meaningful and workable in this situation. This is, statutory ,, interpretation. Absent specific statutory factors to be considered in this type of parental rights termination proceeding, we are duty-bound to do so.

4 The dissent contends that this criteria violates due process. It maintains that "[d]ue process requires that the father's rights cannot be terminated without a finding of unfitness." Dissent at 24.

We cannot accept the dissent's position that a parent should have a veto power over the welfare of a child. The "best interests of the child" criteria provides a sufficient constitutional safeguard.

In constitutional analysis, a weighing of competing interests is often necessary. In this particular case, we need to balance three interests — the rights of the parent in a parent-child relationship,■ the rights of the minor children in such a relationship, and society's interest in maintaining harmony in, and fostering, such a relationship.

The dissent suggests that the criteria of "best interests of the child" and "unfit parent" are mutually exclusive. Such is not true. We recognize both the child's and the parent's interests as being natural and fundamental. The criteria "best interests of the child" requires consideration of the fitness or unfitness of a parent. The ultimate decision, however, as to which interest, when they compete, is paramount, is the child's interest. This does not violate due process.

A review of Commonwealth statutes dealing with children show that the "best interests of the child" criteria is the only criteria used. Our adoption statute allows an adoption only "in the interests of the child." 8 CMC § 1403. The Uniform Child Custody Jurisdiction Act, 8 CMC §§ 1601 et sea. . states that one of its purposes is to ensure that.a custody decree is rendered in the state that can best decide.the case "in the interest of the child." 8 CMC § 1602(a)(2). In section 1604(a)(2) of the same statute, the trial court is given jurisdiction to make a child custody determination if it is "in the best interest of the child." Under the same criteria, the trial court can also determine that another state assume jurisdiction. 8 CMC § 1608(c). In section 1609(b) of the statute, the court is.allowed to decline jurisdiction by reason of conduct, unless required "in the interest of the child." The dissent correctly notes at page 23 that the purpose of the Uniform Parentage Act is to establish paternity. 8 CMC §§ 1700 et seq. Yet in section 1713(a), it is stated that the judge or referee must evaluate whether a judicial declaration of the father and child relationship would be "in the best interest of the child." See also 8 CMC § 1715(c)'.