In re the Termination of Parental Rights Over M.A.C.

512 N.W.2d 152, 1994 S.D. LEXIS 15

Opinions

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

In January 1989, CC (Natural Father), at the request of his ex-wife (EH), signed a petition voluntarily relinquishing his parental rights to MAC and ARC, their minor children. Two years later, Mother filed for divorce from MH (Stepfather), her husband when the termination order was entered. In March of 1992, she amended her divorce complaint to seek child support from Stepfather for her children from her previous marriage to CC. Under an adoption by estoppel theory, the divorce court determined Stepfather to be financially responsible for his stepchildren.

Footnotes

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* Stepfather then motioned to set aside the termination order, alleging that several procedural errors made the order void, which in turn would trigger Natural Father to be responsible for supporting MAC and ARC.

Although the trial court found that Stepfather had standing to challenge the order, it upheld the termination order, ruling the procedural errors harmless. Stepfather appeals on this singular issue:

Was the order terminating Natural Father’s parental rights over his children valid?

We affirm.

FACTS

Since he divorced Mother in 1984, Natural Father has had no contact with his children and has repeatedly been in arrears with child - support payments, even serving 30 days in jail for his failure to pay. On January 5, 1989, Natural Father signed, at the request of his ex-wife, a petition voluntarily surrendering his parental rights over the children. As it was his understanding that Stepfather was going to adopt the children, he gave Mother his power to consent to the adoption. In exchange for terminating his rights, he was released from paying future child support. Natural Father also signed a waiver of notice of the termination hearing. Five days later, Circuit Judge Judith K. Meierhenry approved the termination.

However, the paperwork trail fades at this point. Stepfather declined to sign the adoption consent forms. No order or notice of hearing was entered by Judge Meierhenry nor was Mother served "with notice of the hearing. Furthermore, no verbatim transcript of the hearing can be found. Despite these problems, both Mark Swanson, the attorney hired by Stepfather to handle the termination, and Judge Meierhenry state that a valid termination hearing did take place on January 10, 1989.

DECISION

Offhand, we have difficulty in determining how Stepfather has acquired standing; however, as this issue was not raised in the Notice of Review, it shall not be addressed here.

Due to alleged violations of SDCL ch. 25-5A, Stepfather asserts that the January 10, 1989 termination order is void. SDCL 25-5A-19 specifically provides that orders terminating parental rights are conclusive and binding on all parties except that an appeal may be taken within 30 days of the filing of the judgment, decree or order. Stepfather waited until the middle of his divorce from Mother — three years later — to challenge the order, well outside the 80-day window.

Nevertheless, “[a] void judgment is one where the court lacks jurisdiction over the subject matter or over the parties,” Kromer v. Sullivan, 88 S.D. 567, 225 N.W.2d 591, 592 (1975) (quoting Lange v. Johnson, 295 Minn. 320, 204 N.W.2d 205 (1973)), and there is no limit on challenging void judgments. Id. Stepfather cites numerous occasions where the parties and trial court did not technically comply with SDCL ch. 25-5A. Absent an abuse of discretion, however, we will not disturb the trial court’s decision. Overvaag v. City of Dell Rapids, 319 N.W.2d 171 (S.D.1982).

Stepfather also seeks judicial review of the termination order based on SDCL 15-6-60(b), which allows a court to relieve a party from a final order where such order is void. Rule 60(b) is an extraordinary remedy which should be granted only where there has been a showing of exceptional circumstances. Matter of T.M.B., 416 N.W.2d 260 (S.D.1987). Over three years passed between the termination proceeding, which he helped initiate, and this action. Albeit the motion was not denied for the foregoing reason, we fail to see how this action was brought within a reasonable amount of time, as required for 60(b) motions. Anderson v. Somers, 455 N.W.2d 219 (S.D.1990). This action should be silenced on this lapse of time alone.

Due to circumstances beyond Judge Meierhenry’s control, no verbatim transcript of the termination hearing, as required by SDCL 25-5A-17, can be found. Where the transcript, stenographic notes, or portions thereof are missing or lost, the aggrieved party is not necessarily entitled to revocation of an order. See State v. Dupris, 373 N.W.2d 446 (S.D.1985). “Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Draper v. State of Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963); Dupris, 373 N.W.2d at 449.

Reconstruction will be the procedure followed in most cases, unless the appellant can show some specific error or prejudice resulting from the failure to record and/or preserve records of the trial proceedings. United States v. Alfonso, 552 F.2d 605, 620 (5th Cir.1977) ... “The attorney, having been present at trial, should be expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded.” [United States v. ] Selva, 559 F.2d [1303] at 1306 [ (5th Cir.1977) ]. However, notes and memory can often be faulty or incomplete and it is up to the trial court to determine if a specific showing of prejudice exists and if adequate alternatives to a complete verbatim transcript alleviate the prejudice. Thus, the grant or denial of a motion for a new trial, because of lost or missing transcripts, or an order requiring reconstruction of the record, will be in the sound discretion of the trial court.

Dupris, 373 N.W.2d at 449. Through Mother’s affidavit and Natural Father’s testimony in these proceedings, plus copies of documents, the trial court was able to piece together what transpired at the January 10, 1989 hearing. All were in accord as to the terms of the order. Only Stepfather, who did not attend the hearing, disputes the record. Thanks to the reconstruction of the record, the trial court preserved the proceedings. It did not abuse its discretion by refusing to void the order based on a missing transcript. Id.

Under SDCL 25-5A-6(8), the petition for voluntary termination of parental rights requires consent of the person to whom parental rights are to be transferred. In his petition, Natural Father transferred his parental rights to Mother “with the power in such person to consent to the adoption of said children by [Mother] without further notice to [Natural Father].” It is undisputed that Mother solicited her ex-husband to petition the trial court and sought his consent to the termination; Mother has never challenged the petition; and Mother confirmed her consent to the termination in her affidavit. Proper procedure dictates that the consent should have been included with the petition. No party to these proceedings, however, including Stepfather, disputes Mother’s consent. Under these facts, the failure to physically attach the consent form was harmless error. Matter of T.K., 462 N.W.2d 893, 896 (S.D.1990).

Upon the filing of the termination petition, Stepfather asserts that the trial court failed to set a hearing date and failed to serve notice of the time, place, and purpose of the hearing upon Mother. SDCL 25-5A-9; SDCL 25-5A-11. Although Mother did not execute a waiver of notice as SDCL 25-5A-9 requires, she maintains that she was aware of the proceeding as she encouraged Natural Father’s petition and does not claim her rights were violated by lack of official notice. Enough said.

At a January 6, 1989 meeting with the attorney representing Mother and Stepfather and Tom Pokela, the latter attorney representing the state Department of Social Services Child Support Enforcement office, Natural Father was advised of his rights and responsibilities. Thereafter, he signed the Petition and Waiver of Notice and declined to attend the termination hearing. It is the duty of the trial court to determine whether parents are fully aware of the proceeding and consequences of their actions. T.M.B., 416 N.W.2d at 263. His awareness was confirmed during the October 8, 1992 motion hearing, where the trial court found that Natural Father “fully knew all of his rights and the consequences of his signing” the petition.

Stepfather claims Natural Father’s absence at the termination hearing means the trial court had no jurisdiction to enter the order. Though Natural Father’s failure to appear and failure to file a power of attorney with the trial court do not specifically comport with SDCL 25-5A-14, we hold that the spirit of the statute was met in this case. In the petition, Natural Father gave Mother the power to consent to the adoption of the children which, in effect, serves as power of attorney. The goal of SDCL 25-5A-16 is to ensure that the petitioner knows his rights and responsibilities, as well as the consequences of his action. As noted earlier, Natural Father attested to this knowledge in the petition and at the October 8 hearing. Although Mother’s affidavit does not indicate whether she made her mandatory SDCL 25-5A-14 appearance at the termination hearing, the trial court’s third Conclusion of Law maintains that she was present. Stepfather offers no evidence to dispute such a conclusion, and we do not seek reasons to reverse. Marnette v. Morgan, 485 N.W.2d 595 (S.D.1992).

Finally, Stepfather claims the order did not, as required by SDCL 25-5A-18, transfer Natural Father’s parental rights to anyone. Paragraph 3 of the petition’s prayer specifically requests a transfer of Natural Father’s parental rights to Mother. In the order, the trial court acknowledged Natural Father’s consent to termination, the best interests of the children, and that “all of the other allegations of the petition are true.” Simply stated, the trial court concurred with Natural Father’s transfer of parental rights to Mother and incorporated this concurrence into the order. Certainly the order could have been more precise, but all parties, including Stepfather, were well aware that Natural Father had relinquished to Mother his parental rights.

According to SDCL 15-6-61,, our state statute on harmless error, “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Kotteakos v. United States, 328 U.S. 750, 760, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), examined the harmless error rule, stating, “Do not be technical, where technicality does not really hurt the party whose rights in the trial and in its outcome the technicality affects.” We agree. In as much as both Mother and Natural Father sought the termination of Natural Father’s parental rights, perforce neither party was harmed by the procedural lapses in the termination hearing. Stepfather particularly was not harmed by any errors or by the valid termination of Natural Father’s parental rights.

Under Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985), an itemized statement is required upon which to base a prayer for attorneys’ fees. Such an itemization was filed herein by Mother. Upon review, we are convinced that no proper record has been made for any attorneys’ fee award at the trial court level. However, there are items set forth in the statement which justify an award at the appellate level. We have carefully reviewed this itemization. Mother prevailed in this action. In the interest of justice, we award $1,255.50 plus 6% state tax on services. SDCL 15-17-38.

Termination order affirmed.

WUEST, SABERS and AMUNDSON, JJ, concur. MILLER, C.J., dissents.

For further proceedings on the adoption by estoppel claim, see E.H. v. M.H., 512 N.W.2d 148 (S.D.1994).