Summary 2006 WY 89

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Case Name: MJH v. AV and DV

Citation: 2006 WY 89

Docket Number: C-05-9

Appeal from the District Court of Johnson County, Honorable John C. Brackley, Judge

W.R.A.P. 12.09(b) Certification from the District Court of , Honorable , Judge

Representing Appellant (Respondent): Bert T. Ahlstrom, Jr., of Ahlstrom Law Offices, Cheyenne, Wyoming.

Representing Appellees (Petitioner): Christopher M. Wages, of Goodard, Wages & Vogel, Buffalo, Wyoming

Date of Decision: July 21, 2006

Issues: Whether this appeal must be dismissed because it was not timely filed. Whether the district court abused its discretion in holding that the non-consenting biological father in a contested adoption proceeding had willfully failed to pay child support, thus allowing the adoption to proceed without his consent pursuant to Wyo. Stat. 1-22-110(a)(ix) (2003)

Holdings: The timely filing of a notice of appeal is jurisdictional. Where the court lacks jurisdiction, an appeal must be dismissed. An appeal is timely if it is filed with the clerk of the district court within thirty days of the entry of the "appealable order." Appealable orders are generally outlined in the Wyoming Rules of Appellate Procedure 2.01. However, regardless of whether a set of Findings and Conclusions Regarding Adoption Without Consent are deemed an "order," Wyoming jurisprudence permits an appeal from the final decree of adoption. Thus, the appeal in the present action was timely filed. Appellant filed his notice of appeal within thirty days of entry of the Decree of Adoption. Appellant's failure to file a notice of appeal within thirty days after the district court issued its Findings and Conclusions does not bar review.

District courts have the power and discretion to grant adoptions without parental consent "provided all the statutory elements are satisfied." Because the right to associate with one's child is a fundamental right protected by the Wyoming and United States Constitutions, adoption statutes are strictly construed when the proceeding is against a non-consenting parent, and every reasonable intendment is made in favor of that parent's claims. The party requesting adoption bears the burden of proving the existence of at least one of the statutory factors by clear and convincing evidence.

The district court determined that Appellant's consent to the adoption was not required pursuant to Wyo. Stat. Ann. § 1-22-110 because he had willfully failed to pay a total dollar amount of at least seventy percent (70%) of the court ordered support for a period of two (2) years or more and had failed to bring the support obligation one hundred percent (100%) current within sixty (60) days after service of the petition to adopt. Appellant concedes that he failed to pay at least seventy percent of the court ordered child support for two years or more. He also does not dispute that he failed to bring the support obligation current within sixty days of the filing of the adoption petition. He does not contest the district court's finding that he failed to make any payments on his arrearage after the petition was filed. However, Appellant contends that there was insufficient evidence to support the district court's determination that his actions were willful. He states that the evidence supports his position that his failure to pay the required child support was due solely to his incarceration and that he "did the best he could." Incarceration, standing alone, does not provide the direct intent necessary to constitute willful failure to pay under the pertinent statute, the courts should look at whether the parent has demonstrated, through whatever financial means available to him, that the parent has not forgotten his statutory obligation to his child. In the present action, the district court did not make a specific finding that Father's willful failure to pay was due to incarceration. Rather, the finding related to "willfulness" simply stated that "Pursuant to W.S. §1-22-110(a)(ix) Father has willfully failed to pay at least 70% of court-ordered support for periods exceeding two years. Also, Father did not make any payments toward arrearages after being served with the petition to adopt herein." The underlying basis for this finding was not set forth by the district court.

Appellant bears the burden of providing this court with a sufficient record to allow proper evaluation of the district court's decision. Appellant failed to do so in this case. The consent determination hearing was unreported and a statement of the evidence was not filed pursuant to W.R.A.P. 3.03. As a result, a review is limited to the district court's findings of fact. The district court found that Appellant's failure to pay the requisite child support was willful and concluded that his consent was not required for the adoption. Although Appellant argues that clear and convincing evidence does not support that finding, without a sufficient record to review, it must be assumed that the district court's findings are adequately supported by the evidence presented at the hearing. Based upon the record presented, there was no error in the district court's determination that Appellant's consent to the adoption was not required.

Affirmed.

J. Burke delivered the opinion for the court.

C.J. Voigt, filed a specially concurring opinion, with which J. Golden joined.

The appeal should have been dismissed as untimely. The appellant should have appealed from the Findings and Conclusions Regarding Adoption Without Consent because, thereafter, he was no longer a party to the case. The adoption statutes clearly envision a bifurcated process. In the first hearing, a determination is made whether a defendant's parental rights should be terminated or whether the adoption should proceed without his consent. The defendant is a party to that proceeding. In the second hearing, a determination is made whether the proposed adoptive parent is appropriate. The defendant is not a party to that proceeding, does not receive notice of the proceeding, and is not served with a copy of the resultant decree. It simply cannot be that the adoption statutes and the amended appellate rules contemplate the defendant taking an appeal from something of which he has no official knowledge.