In re Adoption of Eva S. & Elijah S. ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE ADOPTION OF EVA S. & ELIJAH S.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE ADOPTION OF EVA S. AND ELIJAH S., MINOR CHILDREN.
SAMANTHA G. AND CHAD G., APPELLANTS,
V.
GABRIEL S., APPELLEE.
Filed December 2, 2014. No. A-14-244.
Appeal from the County Court for Lancaster County: LAURIE YARDLEY, Judge. Reversed
and remanded with directions.
Kelly N. Tollefsen, of Kelly Tollefsen Law Offices, P.C., L.L.O., for appellants.
No appearance for appellee.
IRWIN, INBODY, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Samantha G. and Chad G. appeal from an order of the county court for Lancaster County
finding that Chad, as a stepparent, could not adopt Samantha’s children. The trial court found
that Samantha and Chad failed to show that Gabriel S., the children’s biological father, had
abandoned the children and that therefore, alternative consent for adoption could not be given by
the children’s guardian ad litem (GAL). Based on the reasons that follow, we reverse, and
remand with directions.
BACKGROUND
Samantha and Gabriel are the biological parents of Elijah S., born in April 2008, and Eva
S., born in July 2009. The children were born out of wedlock. Chad is Samantha’s husband, who
seeks to adopt Elijah and Eva.
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On November 7, 2012, Samantha and Chad filed a petition in the county court for
Lancaster County for the adoption of Elijah and Eva by Chad. The petition alleged that Gabriel
had abandoned the minor children in that he had not had contact with the minor children for 6
months preceding the filing of the adoption petition. The court appointed Stefanie Flodman as
the GAL to investigate the issue of abandonment and prepare a report for the court.
A trial on the matter was subsequently held in January 2014. The evidence showed that
an order of paternity and support was entered on May 5, 2009, naming Gabriel as the father of
the minor children. Gabriel did not show up for the hearing on that matter. He was ordered to pay
$328 per month in child support. Gabriel has not paid child support since January 2012. He made
payments in December 2011 and January 2012 of nearly $6,000 and became current on his child
support at that time. No further payments have been made since then.
Gabriel was incarcerated from July 30, 2009, to March 1, 2010, for felony possession
with intent to deliver a controlled substance. Gabriel was again incarcerated from April 21 to
September 1, 2011, for possession with intent to deliver cocaine.
In November 2011, 2 months after his release from incarceration, Gabriel filed a
complaint to modify the court’s order of paternity and support, requesting parenting time. A
temporary order was entered on May 18, 2012, providing Gabriel with limited supervised
parenting time with the minor children. Gabriel knew of the court order allowing parenting time,
but did not exercise any of his parenting time during the existence of the temporary order.
Gabriel further testified that he understood that the temporary order required him to work with
Samantha to arrange parenting time and to designate a supervisor, but he failed to contact her.
Gabriel claimed that there were three people approved to supervise his visits and that they either
were unwilling to supervise or were unavailable. Stephanie testified that Gabriel never contacted
her about making arrangements for visitation and that she did not do anything to prevent the
visits from taking place. Two months passed after Gabriel was granted visitation, and no
visitation took place. Gabriel was also arrested on two separate occasions after the temporary
order was entered. A final hearing on visitation was scheduled in July 2012. Gabriel failed to
appear at the hearing and was not incarcerated at that time.
Gabriel was again incarcerated from August 27, 2012, to December 6, 2013, for
possession and theft of stolen property. Between the time he was released on December 6 until
the time of trial in this case, he had not provided any financial support to the children, nor had he
made any contact with Samantha to see the minor children.
Gabriel admitted at trial that he had not had contact with the minor children for over 2½
years. He had not provided financial support for the children since January 2012. Gabriel had not
sent any correspondence to the minor children, including any Christmas gifts or birthday cards,
for 2½ years prior to trial.
Gabriel denied knowing where Samantha lived, but he was aware of Samantha’s father’s
address. He did not attempt to send any support or correspondence to the children through
Samantha’s father. Gabriel testified that he sent correspondence to Samantha’s father on one
occasion in May or June 2013, while incarcerated, in which he inquired about visitation.
Samantha testified that Gabriel has known how to contact her for years. She testified that
her address has not changed in the last 2½ years before trial and that Gabriel had driven by her
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residence on more than one occasion. She testified that Gabriel had not contacted her in the last 2
years.
Flodman, the GAL, found that although Gabriel “had made efforts with the courts to seek
parenting time with the children in 2011, it does not appear that he followed through with the
efforts to see his children.” Flodman found that the children had not seen their father in nearly 3
years and do not know him. She found that “[a]lthough [Gabriel] desires to be a part of his
children’s lives he has not put himself in a position to be physically present.” She concluded that
Gabriel had abandoned the children and that alternative consent should be allowed.
Following trial, the trial court found that alternative consent for adoption could not be
given by the GAL based on the following reasoning:
The court does not find that the evidence in this case has shown that [Gabriel] has
acted toward his children in a manner evidencing a settled purpose to be rid of all
parental obligations. This is shown by his filing for parenting time as well as making
child supports payments. Clearly the evidence has shown that [Gabriel’s] efforts have
been few and far between and by committing law violations resulting in his incarceration,
he has put himself in a situation where his children do not even know him. However the
court is not making a finding as to best interest of the children, but only that the evidence
does not support the finding of abandonment by the natural father Gabriel . . . . Therefore
the court finds that alternative consent may not be given by the [GAL].
ASSIGNMENTS OF ERROR
Samantha and Chad assign that the county court erred in (1) failing to find that Gabriel
abandoned Eva and Elijah, (2) failing to find that Gabriel acted toward his children in a manner
evidencing a settled purpose to be rid of parental obligations, and (3) failing to find that
alternative consent to the adoption could not be given by the GAL.
STANDARD OF REVIEW
Appeals in adoption proceedings are reviewed by an appellate court for error appearing
on the record. Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014). When reviewing
a judgment for errors appearing on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.
ANALYSIS
Samantha and Chad’s three assignments of error challenge the trial court’s finding that
Gabriel did not abandon Elijah and Eva and that therefore, the GAL could not give alternative
consent to allow Chad to adopt the children.
Neb. Rev. Stat. § 43-104 (Reissue 2008) provides: “(2) Consent shall not be required of
any parent who . . . (b) has abandoned the child for at least six months next preceding the filing
of the adoption petition . . . .” The critical period of time during which abandonment must be
shown to eliminate the necessity for obtaining consent to adoption from a parent under this
section is the 6 months immediately preceding the filing of the petition for adoption. In re
Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990).
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Although § 43-104 specifies the 6 months preceding the filing of the petition as the
critical period of time during which abandonment must be shown, the Nebraska Supreme Court
has stated that this statutory period need not be considered in a vacuum. See In re Adoption of
Simonton, 211 Neb. 777, 320 N.W.2d 449 (1982). “One may consider the evidence of a parent’s
conduct, either before or after the statutory period, for this evidence is relevant to a
determination of whether the purpose and intent of that parent was to abandon his child or
children.” Id. at 783, 320 N.W.2d at 453.
To prove abandonment in adoption proceedings, the evidence must clearly and
convincingly show that the parent has acted in a manner evidencing a settled purpose to be rid of
all parental obligations and to forgo all parental rights, together with a complete repudiation of
parenthood and an abandonment of parental rights and responsibilities. See In re Adoption of
Simonton, supra.
The question of abandonment is largely one of intent to be determined in each case from
all the fact and circumstances. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205
(2010).
As stated above, the critical period of time during which abandonment must be shown to
eliminate the necessity for obtaining consent to adoption from a parent is the 6 months
immediately preceding the filing of the petition for adoption. See In re Guardianship of T.C.W.,
supra. In the present case, the petition for adoption was filed on November 7, 2012, and in the 6
months prior to that date, Gabriel had no contact or correspondence with the children and had not
paid any child support. Thus, the evidence supports a conclusion that Gabriel abandoned his
children in the 6 months preceding the filing of the petition for adoption.
In concluding that Gabriel had not abandoned his children, the trial court relied on events
that occurred outside of the statutory 6-month period, specifically the fact that Gabriel had filed
for parenting time and made child support payments. As previously noted, evidence of a parent’s
conduct before and after the statutory 6-month period is also relevant to determine whether the
purpose or intent of the parent was to abandon the children. See In re Adoption of Simonton,
supra.
Gabriel filed for parenting time in November 2011, 1 year before the petition for
adoption was filed. However, after Gabriel was granted temporary supervised visits in May
2012, he never exercised any of the visitation he was awarded. He did not contact Samantha
despite his understanding that the temporary order required him to work with Samantha to
arrange parenting time and to designate a supervisor. He was arrested twice after the temporary
order was entered. He did not appear at the final hearing on his visitation in July 2012 and was
not incarcerated at that time. He never exercised any visitation at any time after the final hearing.
The evidence shows that even after being granted visitation, Gabriel made choices that were
inconsistent with any intent to parent the children.
In regard to child support, Gabriel made large payments of child support in December
2011 and January 2012, making him current on his support obligations at that time. Again, this
was more than 6 months before the petition for adoption was filed. Gabriel has not made any
child support payments since then.
The evidence in regard to Gabriel’s conduct before and after the statutory period also
shows that Gabriel has not seen and has not had any contact with the children for 2½ years prior
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to trial in this matter. Further, Gabriel has not sent any correspondence to his children, including
birthday cards or Christmas gifts, for at least 2½ years before trial. He has not provided any
financial support for his children since January 2012. He has been incarcerated at various times,
limiting his access to his children. Even when he was not incarcerated, however, he has not
corresponded with or had contact with the children. His own actions and decisions have
prevented him from parenting his children.
Flodman found that although Gabriel had sought parenting time with the children in
2011, he did not follow through with the efforts to see his children. Flodman determined that the
children had not seen Gabriel in nearly 3 years and do not know him. She found that although
Gabriel has a desire to be a part of his children’s lives, “he has not put himself in a position to be
physically present.” She concluded that Gabriel had abandoned the children and that alternative
consent should be allowed.
Gabriel’s lack of contact and support over the 2½ years before trial shows an intent to be
relieved of parental duties. The record shows not a mere inadequacy, but a total parental absence
toward the two children. Although Gabriel did file for visitation at one time and made one effort
to bring his child support current many months ago, the totality of the circumstances
demonstrates that these efforts were de minimis in comparison, and do not overcome the
remaining overwhelming evidence of his intent to abandon his children. Where there has been a
protracted period of totally unjustified failure to exercise parental functions, an isolated contact
or expression of interest does not necessarily negate the inference that a person no longer wishes
to act in the role of parent to a child. In re Adoption of Simonton, 211 Neb. 777, 320 N.W.2d 449
(1982). The parental obligation “requires continuing interest in the child and a genuine effort to
maintain communication and association with that child. Abandonment is not an ambulatory
thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a
discarded child.” Id. at 784, 320 N.W.2d at 454.
While the ties of a natural parent are not to be treated lightly in adoption proceedings,
neither should noncustodial parents treat lightly their rights and responsibilities toward the minor
children. In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990). Gabriel has
acted in a manner evidencing a settled purpose to be rid of all parental obligations and to forgo
all parental rights. The evidence shows a complete repudiation of parenthood and an
abandonment of parental rights and responsibilities. Therefore, we conclude that the trial court
erred in finding that Gabriel had not abandoned Elijah and Eva and in concluding that the GAL
could not give alternative consent for adoption.
CONCLUSION
We conclude that the trial court erred in finding that Gabriel did not abandon his children
and that alternative consent for adoption could not be given by the GAL. Accordingly, the
judgment of the county court is reversed and the matter is remanded to the county court with
directions to allow the GAL to execute consent so an adoption hearing can be held.
REVERSED AND REMANDED WITH DIRECTIONS.
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