Adoption of R.D.J. ( 2021 )

09/07/2021
DA 20-0614
Case Number: DA 20-0614
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 223N
IN RE THE ADOPTION OF:
R.D.J., a Minor Child,
JEREMY JAMES,
Petitioner and Appellee,
v.
WAYNE DARRELL DAILEY,
Respondent and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Anaconda-Deer Lodge, Cause No. DA 20-05
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robyn L. Weber, Attorney at Law, Helena, Montana
For Appellee:
Brad L. Belke, Attorney at Law, Butte, Montana
Submitted on Briefs: August 4, 2021
Decided: September 7, 2021
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Wayne Darrell Dailey appeals from the Third Judicial District Court’s October 16,
2020 order terminating his parental rights to R.D.J. pursuant to § 42-2-607, MCA, and from
that court’s December 2, 2020 final decree of adoption relieving him of all parental rights
over R.D.J. and establishing Jeremy James, R.D.J.’s stepfather and the appellee, as R.D.J.’s
adoptive parent pursuant to § 42-5-202, MCA. We affirm.
¶3 R.D.J. was born to Mother in June 2015, while she was married to and residing with
Stepfather. Mother and Father both acknowledge they engaged in an intimate relationship
that resulted in Mother’s pregnancy with R.D.J., and Mother informed Father of her
pregnancy and his paternity. However, Stepfather is listed on R.D.J.’s birth certificate as
R.D.J.’s natural father. Stepfather is known to R.D.J. as his natural father, and R.D.J. has
always lived with Mother and Stepfather and the other children of Mother and Stepfather’s
marriage.
¶4 On July 12, 2017, Mother and Stepfather divorced. Father made no requests for
legal custody of R.D.J. at that time, nor did he appear in the action to determine custody.
Since their divorce in 2017, Mother and Stepfather have co-parented R.D.J. under a
court-ordered parenting plan.
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¶5 On October 7, 2019, over four years after R.D.J.’s birth, Father filed a Verified
Petition to Establish Paternity that included a request for DNA testing of the parties and
R.D.J. The DNA test report published February 5, 2020, indicated Father’s probability of
paternity of R.D.J. was 99.9999995%.
¶6 On February 28, 2020, Stepfather filed a petition to terminate Father’s parental
rights to R.D.J. and a petition for adoption of R.D.J. In June 2020, the parties attended
court-ordered mediation, but the case did not resolve. Subsequently, on August 18, 2020,
Father filed a petition for a final parenting plan requesting visits with R.D.J.
¶7 On September 11, 2020, the District Court held a Zoom hearing on Stepfather’s
petition to terminate Father’s parental rights to R.D.J. At that hearing, Mother testified
Father was offered the opportunity to sign R.D.J.’s birth certificate immediately following
R.D.J.’s birth; Father declined.
¶8 Father testified he had no knowledge of the Putative Father Registry until three years
after R.D.J.’s birth.1 However, approximately four years before R.D.J.’s birth, Father
participated in a paternity action for another child.
¶9 By Father’s own testimony, he was aware of his paternity and R.D.J.’s birth. Father
acknowledged he has not paid any child support over the course of R.D.J.’s life. He stated
he had provided clothes, gifts, and toys and that his offers to provide child support were
1
The Putative Father Registry is a procedural mechanism whereby a man who believes he is
the biological father of a child may voluntarily register as the child’s putative father with the Vital
Statistics Bureau. Registration creates a rebuttable presumption as to the paternity of the child,
§ 42-2-209, MCA, and entitles a putative father to notice of any proceedings involving termination
of parental rights to the child, § 42-2-203(2), MCA.
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declined by Mother and Stepfather. Father did not provide medical insurance for R.D.J.
Father has maintained employment over the past five years and testified he could provide
medical insurance for R.D.J. through his work. He testified he was willing to obtain
medical insurance for R.D.J. and to pay child support, including back support. He said he
attempted to open an account with the Montana Child Support Services Division in the
summer of 2020 but was denied because he lacked a court order establishing his obligation.
¶10 As to contact with R.D.J., Father admitted he has had no more than 80 hours of
contact with R.D.J. over the past five years and that there have been no extended or
overnight visits. Conflicting testimony provided he may have had either none or only one
visit with R.D.J. during the years of 2019 and 2020. Additionally, Father admitted there
were only about two visits with R.D.J. over the course of 2018. Father contended his
limited contact with R.D.J. was the result of interference by Stepfather, Mother’s husband
of 2017–2018, and Stepfather’s counsel.
¶11 On October 16, 2020, the District Court entered an order terminating Father’s
parental rights to R.D.J.
¶12 On December 2, 2020, the District Court held a hearing regarding Stepfather’s
adoption of R.D.J. and entered a final decree of adoption establishing Stepfather as R.D.J.’s
adoptive parent.
¶13 Our standard of review in adoption proceedings involving parental rights
terminations is as follows:
The decision to terminate parental rights is within the discretion of the
trial court, and we review such a ruling for an abuse of discretion. While the
decision to terminate parental rights is discretionary, the district court must
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make findings of fact and conclusions of law that support that decision. This
Court will review the district court’s findings of fact to determine if they are
clearly erroneous and the district court's conclusions of law to determine if
they are correct.
In re Adoption of B.W.Z-S, 2009 MT 433, ¶ 10, 354 Mont. 116, 222 P.3d 613 (internal
citations omitted).
¶14 “A district court’s findings are clearly erroneous if they are not supported by
substantial evidence, if the district court misapprehended the evidence, or if we come away
from our review with a definite and firm conviction that the district court made a mistake.”
In re Adoption of K.P.M., 2009 MT 31, ¶ 10, 349 Mont. 170, 201 P.3d 833 (citing Interstate
Prod. Credit Ass’n v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991)). “Because
parental rights are a fundamental liberty interest, an order terminating these rights must be
supported by clear and convincing evidence.” In re K.P.M., ¶ 10 (citing In re Adoption of
C.R.N., 1999 MT 92, ¶ 7, 294 Mont. 202, 979 P.2d 210). “Clear and convincing evidence
is not a mere preponderance of evidence nor is it unanswerable or conclusive evidence or
evidence beyond a reasonable doubt. Clear and convincing evidence is a preponderance
of evidence that is definite, clear, and convincing.” In re K.P.M., ¶ 10 (citing In re G.M.,
2008 MT 200, ¶ 23, 344 Mont. 87, 186 P.3d 229).
¶15 Under § 42-2-607, MCA, a court may terminate a parent’s rights to a child subject
to adoption upon determining the parent is unfit under § 42-2-608, MCA, or upon
determining the parent has irrevocably waived their parental rights by failing to timely act
to protect them. Section 42-2-607(2), (5), MCA.
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¶16 Section 42-2-608, MCA, provides various grounds upon which a court may
terminate parental rights for unfitness, including willful abandonment as defined in
§ 41-3-102, MCA. Section 42-2-608(1)(b), MCA.
¶17 Circumstances constituting abandonment are statutorily defined and include the
willful surrender of physical custody of a child for a period of six months without
manifesting to the child and the person having physical custody during that period a firm
intention to resume physical custody or make permanent legal arrangements for the care of
the child. Section 41-3-102(1)(a)(ii), MCA.
¶18 In In re R.A.J., this Court explicitly noted that pursuant to § 42-2-607, MCA, a court
may terminate parental rights for either a failure to establish or maintain a substantial
relationship under § 42-2-610, MCA, or upon a determination of unfitness under
§ 42-2-608, MCA. 2009 MT 22, ¶ 12, 349 Mont. 100, 201 P.3d 787. Father argues
Stepfather did not assert unfitness and that there was insufficient evidence at trial to
conclude Father was unfit.
¶19 Stepfather specifically raised the issue of abandonment in his petition to terminate
Father’s parental rights, as well as the issues of Father’s failure to provide financial or
medical support for R.D.J. The record contains definite, clear, and convincing evidence
Father willfully surrendered physical custody of R.D.J. to Mother and Stepfather for longer
than six months without manifesting a firm intention to resume physical custody or make
permanent legal arrangements for R.D.J., thus meeting the statutory definition for
abandonment under § 41-3-102(1)(a)(ii), MCA.
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¶20 R.D.J. has lived with Mother and Stepfather for the duration of his life, and Mother
and Stepfather have co-parented R.D.J. in accordance with a court-ordered parenting plan
since 2017. Father conceded he did not file with the Putative Father Registry and is not
listed on R.D.J.’s birth certificate. Father filed no actions to assert legal custody of R.D.J.
until October 2019, despite awareness of divorce proceedings granting Stepfather physical
and legal custody. Father admitted he has had no more than 80 hours of contact with R.D.J.
over the course of R.D.J.’s life and that in the two years preceding the adoption petition,
his contact with R.D.J. was no more than a single visit. Father has not provided medical
insurance or financial support for R.D.J.
¶21 As a result of Father’s failure to protect his parental rights at the time of R.D.J.’s
birth or any time prior to October 2019 when R.D.J. was over four years old, Father’s lack
of financial support for R.D.J., and his lack of substantial relationship with R.D.J., the
District Court held Father failed to demonstrate a timely commitment to the responsibilities
of parenthood. The District Court held Father had failed to assert and protect his rights to
R.D.J. in a timely manner as statutorily required by § 42-1-108(2)(f), MCA. The District
Court also found Father was capable of paying child support yet failed to provide financial
support for R.D.J. for more than five years. The court held Father’s rights were therefore
subject to termination for nonsupport. The District Court found Father’s contacts were
minimal and that no meaningful contact with R.D.J. had occurred in the 18 months
immediately preceding the adoption petition’s filing. The District Court ruled Father had
not established a parental relationship with R.D.J. that could be endangered by the
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termination of Father’s rights and that Father’s rights were subject to termination as a result
of willfully abandoning R.D.J. as defined by Montana statute.
¶22 “We defer to the District Court’s ability to judge the credibility of witnesses and to
resolve any conflicts in the evidence. . . . Absent a clear preponderance of the evidence
against the district court's valuation, its findings of fact will not be disturbed on appeal
when based on substantial though conflicting evidence.” In re K.P.M., ¶ 28 (internal
citations omitted).
¶23 Here, Father’s own testimony supports the relevant facts. As such, the District
Court did not abuse its discretion in concluding Father was unfit pursuant to statutory
abandonment. Sections 42-2-608(1)(b), 41-3-102(1)(a)(ii), MCA. This finding is
supported by substantial evidence in the record demonstrating Father’s willful surrender of
custody of R.D.J. to Mother and Stepfather for longer than six months and Father’s lack of
manifestations of firm intent to assert physical or legal custody of R.D.J. during that time.
The District Court did not misapprehend the evidence and was correct in its conclusions of
law.2
¶24 Where a district court relies on more than one statutory basis for terminating
parental rights, correct reliance upon any one basis is sufficient to support termination.
See In re Adoption of Snyder, 2000 MT 61, ¶¶ 12, 17, 299 Mont. 40, 996 P.2d 875. See also
2
Father additionally argues abuse of discretion and mistake by the District Court based on bias
in favor of Stepfather. However, Father filed no motion for recusal, only requesting a substitute
judge in his reply brief. We decline to reach the issue of bias given the substantial evidence in the
record supporting the lower court’s findings and that court’s correct application of the law.
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In re J.W.M., 2015 MT 231, ¶¶ 14, 15, 17, 380 Mont. 282, 354 P.3d 626. Thus, we need
not review the District Court’s other findings in support of termination.
¶25 We also conclude the District Court acted within its discretion in determining
adoption by Stepfather was in the best interests of R.D.J. based on Stepfather’s lengthy,
stable, and continuing day-to-day relationship with R.D.J. and his consistent and ongoing
support for R.D.J.’s physical care, protection, growth, and psychological needs.
¶26 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court’s ruling was not an abuse of discretion,
its findings of fact were not clearly erroneous nor suggestive of mistake, it did not
misapprehend the evidence, and its interpretation and application of the law were correct.
¶27 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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