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In re A.M.W.

August 17, 2010

IN THE MATTER OF A.M.W., A MINOR CHILD
A.M.W. AND L.M.W., PETITIONERS AND APPELLANTS
v.
NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, RESPONDENT AND M.L.F., RESPONDENT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

AFFIRMED.

[¶1] A.W. and L.W. appeal from a district court order denying their petitions to terminate the parental rights of M.F. and for adoption. Because we conclude the district court's findings of fact are not clearly erroneous, we affirm.

I.

[¶2] A.W. is the mother and M.F. is the father of a child born in 2006. A.W. and M.F. were never married. In August 2008, A.W. married L.W. In March 2009, A.W. and L.W. filed petitions in the district court for the termination of M.F.'s parental rights and for L.W.'s adoption of the child. In their petition to terminate M.F.'s parental rights, A.W. and L.W. asserted grounds under N.D.C.C. § 14-15-19, including M.F.'s purported failure without justifiable cause to significantly communicate with the child for a year in addition to his failure to provide the required care and support of the child.

[¶3] The district court held a hearing on November 24, 2009. At the hearing, the court heard testimony from A.W., L.W., and M.F., in addition to testimony from M.F.'s mother, sister, and girlfriend. On November 25, 2009, the court entered an order denying the petitions. In its order, the district court found there was not clear and convincing evidence of M.F.'s intent to abandon the child. The court observed that M.F. initially had an unrestricted parent and child relationship with the child until the entry in August 2007 of a second amended judgment in a separate action, which addressed child custody and visitation, and in which M.F. was made subject to supervised visitation with the child through M.F.'s mother. When M.F.'s mother moved to Lisbon, a third amended judgment addressing custody and visitation was entered in June 2008, permitting M.F. supervised visitation only through the Family Safety Center.

[¶4] The district court found M.F. had been unable to make the necessary arrangements to visit the child through the Family Safety Center, in part because A.W. did not provide information to the Family Safety Center "on a timely basis." The court also found that, although M.F. made little or no child support payments for approximately 18 months, "he ha[d] at least made some child support payments." The court concluded the evidence for termination of M.F.'s parental rights was not clear and convincing and denied both the petition to terminate parental rights and the petition for adoption. A.W. and L.W. appealed.

II.

[¶5] Parental consent is generally a prerequisite to adoption. N.D.C.C. §§ 14-15-05, 14-15-06. Consent, however, is not required of:

a. A parent who has deserted a child without affording means of identification or who has abandoned a child.

b. A parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause:

(1) To communicate with the child; or

(2) To provide for the care and support of the child as required by law or judicial decree.

e. A parent whose parental rights have been terminated by order of court under section 14-15-19. N.D.C.C. ยง 14-15-06(1). Parental rights, including the right to withhold consent to an adoption, may be ...


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