Matter of Adoption of Gibson

655 P.2d 604, 60 Or. App. 768

• Court: Court of Appeals of Oregon
• Decided: March 1, 1983
• Docket: 1181, CA A22688
• Status: Published

Opinions

ROSSMAN, J.

In this adoption proceeding, mother and stepfather, petitioners, contend that consent by the biological father, respondent, is not required, because he has either (1) wilfully deserted his two minor children or (2) wilfully neglected them without just and sufficient cause for one year next preceding the filing of the petition for adoption. ORS 109.324. The trial court found against mother and stepfather on both grounds and ordered the adoption petition dismissed. They appeal. We reverse and remand.

JURISDICTION

The original notice of appeal in this case stated that “Appellant hereby gives Notice of Appeal” without identifying the appealing party or parties by name. The notice did include “[t]he names, regular mailing addresses and telephone numbers of the attorneys for the respective parties,” who were identified as “PETITIONERS” and “RESPONDENT.” Attached to the notice was a copy of the judgment order in which Robert W. Gibson, the biological father, is identified as the “Respondent” in the adoption proceeding; the “petitioners” are not named in the order, although both are named in the petition for adoption. The briefs on appeal named only one appellant, Louise Gibson Street. Accordingly, we addressed the following questions to counsel:

(1) Is the notice of appeal sufficient in view of the provisions of ORS 109.310(1), ORS 109.370 and ORS 19.029?

(2) Is Robert D. Street an indispensable party to this appeal?

(3) Does the court have jurisdiction to decide this appeal?

Having reviewed the matter and considered the arguments of counsel, we conclude that this court has jurisdiction to decide the merits of this appeal.

Mother and stepfather were petitioners in the adoption proceeding below. See ORS 109.310(1).¹ Their petition was dismissed. In that context, it is reasonable and appropriate to construe the notice of appeal to state that “Appellant[s] hereby [give] notice of appeal” and that the appellants are Louise Gibson Street and Robert Street, mother and stepfather. That construction is consistent with petitioners’ intent. Counsel for mother and stepfather and Robert Street himself have furnished the court affidavits asserting that it was intended that Robert Street be a party to the appeal and that the failure to refer to him in the notice of appeal was inadvertent, the result of a scrivener’s error.² The question to be decided on appeal is the same in either case, and it cannot be said that any defects in the notice of appeal have prejudiced respondent. Finally, we note that ORS 19.130(1) provides that:

“Upon an appeal, the court to which the appeal is made may affirm, reverse or modify the judgment or part thereof appealed from as to any or all of the parties joining in the appeal, and may include in such decision any or all of the parties not joining in the appeal, except a codefendant of the appellant against whom a several judgment might have been given in the court below; and may, if necessary and proper, order a new trial.”

THE MERITS

The children’s parents were divorced in Virginia in 1975. A “Stipulation Agreement” entered by them provided, in pertinent part:

“The Wife will have the care and custody of the infant children born to the marriage, to-wit: Robert Kenton Gibson and the child not yet born, with the right of Husband to visit the children during two (2) separate two (2) week periods during the Summer, with the understanding that the Husband will be able to bring the child (children) to the State of Virginia.

<<* * * * *

“Husband will pay to the Wife $400.00 per month child support for twelve (12) monthly payments after which time he will pay $375.00 per month until the child (children) born to the parties becomes emancipated or finishes college, whichever occurs last. Husband also agrees to pay the expenses for the child’s (children’s) college education, including tuition and living expenses.”³

At that time, they had a four-year-old son, Ken, and mother was pregnant with a daughter, Emily Lou, who was born in Roseburg, Oregon, in 1976. Father has never seen his daughter, nor has he ever asked or attempted to do so. He has seen his son only once since the dissolution. That occurred in 1976, when mother took the boy to Virginia. Father made no child support payments from January, 1977, until May, 1981, approximately one month after the petition for adoption was filed. Both parents have remarried. Mother, stepfather and the two children have lived at the same address in Corvallis since May, 1977. Father has known that address since 1977. He still resides in Virginia and has a stepson and an infant daughter from his present marriage.

On appeal, mother and stepfather contend that the trial court erred in finding that father did not wilfully desert his minor children and had not neglected them without just and sufficient cause. The controlling statute is ORS 109.324.^{3 4} It is written in the disjunctive: On finding either wilful desertion or wilful neglect without just and sufficient cause to provide proper care and maintenance for a child for the year next preceding the filing of the adoption petition, the court may remove the requirement of obtaining that parent’s consent to the adoption. Our review is de novo.

(1) Desertion

“Desertion,” as used in the statute, necessitates proof that the parent has foregone the exercise of all parental rights in the child. Moody v. Voorhies, 257 Or 105, 475 P2d 579 (1970). Further, the desertion for the one-year period must be voluntary. Moody v. Voorhies, supra. Thus, in Moody, the court found that there had been no wilful desertion when it was shown that the father, recently recovered from a mental illness, had been committed by court order to an institution for the year before the filing for adoption. Here, however, father is healthy and affluent. His complete inaction since 1977, the time he became aware of the children’s Corvallis address, can be interpreted only as being “voluntary.”

Because of the fundamental and vital importance of the rights of a parent, neither a showing of the voluntariness of a parent’s conduct nor evidence of a failure to visit and to provide support is enough, standing alone, to establish desertion. Mahoney v. Linder, 14 Or App 656, 668, 514 P2d 901 (1973). Mother and stepfather must show that father’s conduct was “wilful.” In this context, “wilful” refers to conduct that evidences “a settled purpose to forego all parental duties and to relinquish all parental claims to [a] child.” See Omlie et ux v. Hunt, 211 Or 472, 482, 316 P2d 528 (1957).

We discern father’s intent from his statements, his conduct and the surrounding circumstances. He has never asked to visit his daughter, nor is there any indication in the record that he ever sought to communicate with her. He has never contributed to her support and concedes in his brief that his “efforts toward [her] were minimal, if not nil * * He testified: “[W]hy should I be worried about seeing her when I haven’t been able to see my son who I raised for four years?” His failure to support and communicate with his daughter was not the result of financial hardship or other disability, or any agreement or understanding between the parties. We find by clear and convincing evidence that father has wilfully deserted his daughter.

(2) Neglect

Although failure to support is not conclusive proof of neglect, it is relevant evidence on the issue whether there has been neglect. Omlie et ux v. Hunt, supra. Since the dissolution, father’s annual income has been approximately $60,000. In order to collect accrued but unpaid child support, mother brought an action under URESA⁵ in late 1976. Father testified that he had made no support payments from January, 1977, until May, 1981. As discussed below, in an order entered in February, 1981, a Virginia court required father to resume the payment of child support “immediately.” This petition for adoption was filed April 3, 1981. Father contends that the evidence shows that he had “just and sufficient cause” for not supporting his children. He offers the following reasons: (1) he acted on the advice of a lawyer that he cease paying child support, and (2) his failure to provide support resulted from the actions of the mother and stepfather. The acceptance of bad advice, even from legal counsel, does not relieve a father of his support obligations. His second “reason” is likewise without merit. Although it is clear that the custodial parent’s interference with the noncustodial parent’s efforts to see a child may excuse what otherwise appears to be neglect, see Berry v. Letchworth, 19 Or App 261, 527 P2d 145 (1974),⁶ a parent cannot justify the failure to pay support or the lack of visitation by asserting that visitation was made “difficult” by the custodial parent. See Cramer v. Leistikow, 37 Or App 539, 588 P2d 53 (1978).

Father claims that he did not know where the children were, yet he admitted that an attorney provided him with mother’s Corvallis address in “early 1977.” She and stepfather have lived at the same address since May, 1977, and at all times have had a listed telephone number. Father did not send any correspondence to that address to either child during the years 1977, 1978, 1979 or 1980. He testified that he never called directory assistance for mother’s phone number. Mother testified that she had never attempted to hide the children’s whereabouts; father complains that she made no effort to keep him advised of her address.

This controversy came to a head in 1980. In the summer of that year, mother and stepfather went to Virginia for a family vacation. Several weeks after their arrival, father spoke with either mother or stepfather concerning visitation with his son, whom he had not seen for approximately four years. He requested a two-week visit, but mother suggested a one-day visit instead in light of the potential impact on the son, who, according to her, was “very upset.” Balking at the restrictive conditions of the proposed visit, father chose not to see his son. He did not think it would be “any satisfaction” to him. In December, 1980, a hearing was held by a Virginia court on father’s motion that the court enforce his visitation rights with Ken. Mother moved to dismiss that motion. By order entered February 11, 1981, the court (1) awarded father visitation rights as set forth in the “[Stipulation] Agreement,” (2) ordered him to resume payment of child support through the clerk of court “immediately,” (3) took under advisement the question of past due but unpaid support and (4) required mother to provide father with her address and phone number. After this adoption proceeding was commenced, father spoke with his son several times by telephone.⁷ In addition, there was testimony that he established a joint checking account with his son⁸ and in May, 1981, tendered a support check that was marked for the son but was not negotiated by mother. Finally, father argues that at all times his children had adequate food, clothing and shelter.

In Brooke v. Bosley, 21 Or App 537, 536 P2d 543 (1975), an adoption proceeding, the father challenged the sufficiency of evidence to support a finding that he had wilfully neglected his son. In late 1970, he ceased making payments for the support of his son and had paid nothing until well after the petition for adoption was filed in June, 1973. He had last visited the child in July, 1970, and thereafter wrote his son several letters and sent three or four gifts. The father also had a daughter from a previous marriage. For the same period of time in 1970 and early 1971 he had not paid court-ordered support for that child, although her mother had financial need. According to the father, he left for Europe in late 1970 in an attempt to recoup stock market losses. He made no contact with his son or the mother until January, 1972, when he sent his son a gift. The mother wrote to the father reminding him of his failure to meet his financial and parental responsibilities to his son. The father visited the United States several times but made no attempt to see or speak with his son for fear that he would be jailed for nonsupport. He said that that was on his attorney’s advice. He contended that if he had had reason to believe his son was not being adequately cared for, he would have “taken steps to remedy the situation.” The court affirmed the finding of wilful neglect, holding as follows:

«* * * [T]he whole central question is whether for one year preceding the filing of the petition the nonconsenting parent wilfully and intentionally neglected without just and sufficient cause to provide proper care and maintenance.

“Sufficient evidence is present to support the finding. The father had money available. He had sharp warnings that he was grossly delinquent in all of his parental duties. He failed under these circumstances to not just one but two of his children. His intention about child neglect can be inferred from evidence of his failure toward his other child, whose mother is not well off financially. It also can be inferred from the other evidence we have reviewed. Finally, his own unbelievable testimony about his financial dealings and condition throws his entire credibility into question.” 21 Or App at 545-46.

Here, as in Brooke, the evidence does not establish the justification for father’s conduct that he claims. The 1976 URESA action and the 1981 Virginia court order that he pay child support constituted sufficient notice to him of his continuing responsibility to provide maintenance for his children and his failure to meet that obligation. He had the financial resources to pay but chose not to do so. He may have faced obstacles and constraints, but, unfortunate as they may have been, they did not constitute just and sufficient cause to neglect his children. Although mother did not encourage visits, we are not persuaded that she unreasonably interfered with his visitation rights. We conclude that his failure to visit his children resulted from his own neglect to assert and to exercise rights granted him under the decree. See Cramer v. Leistikow, supra. He knew where his children were, at least from 1977 until this proceeding began. He had the opportunity to visit them in Virginia. He had the means to travel to Oregon and to arrange visitations but did not.

The dissent finds “inescapable” the conclusion that mother and stepfather “embarked upon a systematic course of conduct designed to make it impossible for father to exercise [his visitation] rights” and asserts that “under these circumstances” our decision in this case constitutes “a gross miscarriage of justice.” The dissent’s analysis fails to account for father’s deliberate choice not to provide financial support for either of his children and, in addition, is not supported by the evidence.

First, father admitted making no support payments for the benefit of his children from January, 1977, until May, 1981. The dissent apparently concedes that father’s explanation that he withheld these payments “on the advice of an attorney” is without merit.⁹

Second, although mother testified that she personally did not supply father with her Corvallis address, it is undisputed that (1) an Oregon attorney provided him with that address in “early 1977”; (2) mother, stepfather and the two children had lived at that address since May, 1977; and (3) during that period, mother and stepfather had a listed telephone number. Whatever mother’s intent in not providing father with her address, father’s inaction and not mother’s conduct was the primary cause for his failure to communicate with his children during this four-year period. His neglect of his children was not the “result of constraints imposed by [mother].” See Cramer v. Leistikow, supra, 37 Or App at 542-43.

Furthermore, mother’s conduct hardly rises to the level of a “systematic” attempt to make father’s exercise of his visitation rights “impossible.” In March, 1976, mother took Ken to Virginia for a two-week visit with father. The visit had been arranged during earlier conversations between father and mother. Later that same year, father asked for visitation with Ken during the Christmas holidays. Mother responded through her attorney that the proposed visit was outside the provisions of the “Stipulation Agreement” but did not foreclose visitation consistent with the agreement. The record indicates no attempts by father to arrange a visit with his son between the 1976 request and the request he made in the summer of 1980, during mother’s second trip to Virginia. Although we agree that mother’s insistence, in response to the latter proposal, that father’s visit with Ken be limited to a single day was not consistent with the visitation provisions of their agreement, this single refusal simply does not justify or explain father’s previous or subsequent lack of contact with his children. Finally, although the Virginia court in February, 1981, reaffirmed father’s rights to visit and communicate with Ken and ordered him to resume payment of support “immediately,” it was not until after the initiation of the adoption petition that father sent mother a child support check and began talking with Ken by telephone.

There is no question that father has failed “to provide proper care and maintenance” for his children for the statutory period. ORS 109.324. Father admitted that much, and the trial court so found. The issue is whether the neglect was “without just and sufficient cause.” His failure to provide support for or arrange visitations and communications with his children during the four years before the filing of the petition cannot be justified by his reliance on the advice of attorneys that he not pay support and mother’s failure personally to provide him with her address and phone number.

We find by clear and convincing evidence that father has neglected without just and sufficient cause to provide proper care and maintenance for both his children during the one-year period preceding the filing of the adoption petition.

Because our review is de novo, having made findings of desertion as to the daughter and neglect as to both children, we could proceed with an independent determination whether father’s consent to the adoption is required. We decline to do so. ORS 109.324 provides that, on a finding of wilful desertion or neglect, “the consent of such parent at the discretion of the court is not required.” Given the basis for the ruling below, it is clear that the trial court has had no opportunity to exercise its discretion. On remand, it will have that opportunity in light of our findings.

Reversed and remanded.

1 ORS 109.310(1) provides:

“Any person may petition any court having probate jurisdiction or, if the circuit court is not the court having probate jurisdiction, the circuit court if its jurisdiction has been extended to include adoption matters pursuant to ORS 3.275 for leave to adopt another and, if desired, for a change of the other’s name; but the prayer of the petition by a married person shall not be granted unless the petitioner’s spouse joins therein.”

2 We have allowed petitioners’ motion for leave to file an amended caption on the notice of appeal to reflect that intent.

3 The agreement purported to be “* * * IN ACCORDANCE WITH SECTION 20-109 OF THE 1950 CODE OF VIRGINIA” and further provided that:

“The parties agree that this Stipulation is to be submitted to the Circuit Court of Buchanan County, Virginia, for confirmation, ratification and approval, and that the terms of same will be made a part of any Decree the Court may herein enter.”

Father testified that the parties were divorced in 1975 and that the divorce became final in 1976. On appeal, mother and stepfather explain that a “decree was entered on October 6, 1975, awarding [her] a divorce a mensa et thoro" and that “on November 9, 1976, the Virginia divorce became a final divorce a vinculo matrimonii. ”

4 ORS 109.324 provides:

“If either parent is believed to have wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption and such parent does not consent in writing to the adoption, there shall be served upon such parent a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be decreed. Upon hearing being had, if the court finds that such parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court shall have authority to proceed regardless of the objection of such parent. In determining whether the parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318.”

5 Uniform Reciprocal Enforcement of Support Act, ORS ch 110.

6 In Berry v. Letchworth, 19 Or App 261, 263, 527 P2d 145 (1974), the court explained that:

“* * * the natural mother of the child is a person of relatively substantial means who declined the natural father’s admittedly minimal efforts to provide a minimal degree of child support, and who resisted with considerable vigor and with the aid of her present husband all attempts by the natural father to visit the child. * * *” (Emphasis supplied.)

That is not the case here.

7 Father testified that he attempted to call Ken on December 24 and 25, 1980, but was told that he was not at home.

8 As of October 21, 1981, the account balance was $382.81. According to father, the account was opened sometime after the December, 1980, Virginia court hearing.

9 In Garrison and Garrison, 28 Or App 297, 300-01, 559 P2d 513 (1977), we stated:

“To the extent that the wife is responsible for the reluctance of the child to continue visitation with the husband, the trial court was correct in noting that the appropriate remedy for violation of visitation rights is a contempt proceeding. To condition or reduce child support for the wife’s violation of visitation rights in effect punishes the child for contumacious acts of the wife.” (Citations omitted.)