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In re Adoption of S.M.G.

September 3, 2010

IN THE MATTER OF THE ADOPTION OF S.M.G.
L.G., PETITIONER AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, J.P., RESPONDENTS AND J.D., RESPONDENT AND APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

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

REVERSED AND REMANDED.

[¶1] L.G. appeals a trial court's order denying her petition to adopt S.M.G. Because the trial court did not make sufficient findings of fact, we reverse and remand.

I.

[¶2] In December 2008, L.G. petitioned to adopt her grandson, S.M.G. The petition did not address the termination of parental rights. S.M.G. had been in L.G.'s custody since September 2008. L.G. has adopted S.M.G.'s older sister. J.D., S.M.G.'s biological mother, opposed the adoption of S.M.G. by his grandmother, L.G.

[¶3] The trial court held a hearing in December 2009. The trial court denied the petition on the grounds the evidence did not support a finding that J.D.'s parental rights should be terminated. The trial court found:

[W]hile [J.D.] has made bad choices which have resulted in providing poor care for her child and incarceration, the evidence does not support a finding that her rights should be terminated.

I am not able to find the conditions and causes of the poor parenting by [J.D.] are likely to continue. Nor can I find the type of abandonment which would warrant termination of parental rights.

[¶4] On appeal, L.G. argues the trial court's order denying her petition for adoption was clearly erroneous; the trial court abused its discretion by denying the adoption; and the trial court failed to follow N.D.R.Civ.P. 52(a).

II.

[¶5] Under N.D.C.C. ch. 14-15, the biological parent's rights must be severed before a petitioner can adopt the child. Adoption of S.R.F., 2004 ND 150, ¶ 6, 683 N.W.2d 913. Generally, parental consent is required for an adoption. N.D.C.C. § 14-15-05. However, N.D.C.C. § 14-15-06(1) provides exceptions:

1. Consent to adoption 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. A parent's parental rights, including the right to withhold consent to an adoption, may be terminated in certain ...


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