Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Lisa K. Fair McEvers, Judge.
The opinion of the court was delivered by: Maring, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect]
Opinion of the Court by Maring, Justice.
[¶1] J.R. and S.R. appeal from the trial court's order dismissing their petition to adopt S.E. We conclude the trial court erred by dismissing J.R. and S.R.'s petition for adoption, and we reverse and remand for the trial court to hold a hearing under N.D.C.C. § 14-15-11.
[¶2] S.E. was born in April 2009 and, on May 17, 2010, was placed in the care of S.R., S.E.'s grandmother, and J.R., S.R.'s husband. On July 14, 2011, S.E.'s biological parents voluntarily terminated their parental rights to S.E. Following the termination of the biological parents' parental rights, S.E. was placed in the custody of the Executive Director of the Department of Human Services ("Department") and a permanency goal of adoption was established. Two couples, S.R. and J.R., and S.L., S.E.'s biological father's cousin, and her husband, expressed an interest in adopting S.E. Prior to either pair of potential adoptive parents submitting petitions for adoption, the Department contracted with Adults Adopting Special Kids to conduct adoption investigations of both couples. The investigation reports and recommendations are not part of the record.
[¶3] On November 29, 2011, J.R. and S.R. petitioned to adopt S.E. and requested expedited determination of interim placement. J.R. and S.R.'s petition mistakenly alleged S.E. was in the custody of Cass County Social Services ("Cass County"), rather than in the custody of the Department. The Department ultimately was served and received notice of the petition to adopt S.E. On December 1, 2011, Cass County responded, requesting the trial court dismiss the petition. Cass County primarily argued it had not been properly served and it was not S.E.'s guardian. On December 9, 2011, the Department filed an objection and moved to dismiss the petition. The Department argued J.R. and S.R. failed to comply with statutory requirements by naming Cass County as S.E.'s guardian rather than the Department; the Department's consent was required and its refusal to give its consent was reasonable; J.R. and S.R. lacked standing to adopt S.E.; and J.R. and S.R. lacked standing to contest S.E.'s placement. On January 13, 2012, the trial court, after considering the parties' briefs, concluded J.R. and S.R. had standing to petition for adoption but had not satisfied the statutory requirements of a petition for adoption because they had not properly sought the Department's written consent to adopt S.E. or shown that the Department was unreasonably withholding its consent. The trial court dismissed the petition for adoption and entered its order on January 17, 2012.
[¶4] On February 7, 2012, J.R. and S.R. moved for reconsideration claiming an email was sent to the Department on November 30, 2011, seeking the Department's written consent. In its February 8, 2012, response, the Department acknowledged receipt of an email requesting its consent to allow J.R. and S.R. to adopt S.E. The trial court considered J.R. and S.R.'s motion for reconsideration and concluded the Department declined to consent to the request and the Department's decision to withhold its consent was reasonable. On March 16, 2012, J.R. and S.R. appealed the trial court's Order Dismissing Petition to Adopt and Denying Request for Interim Placement to this Court. On appeal, J.R. and S.R. argue there was insufficient evidence presented to the trial court for it to conclude the Department's decision to withhold its consent for J.R. and S.R. to adopt S.E. was reasonable. Further, the trial court should have conducted a hearing under N.D.C.C. § 14-15-11 on J.R. and S.R.'s petition for adoption to determine whether the Department's decision to withhold its consent was reasonable and whether J.R. and S.R.'s petition for adoption should be granted.
[¶5] The oral argument on appeal before this Court was scheduled for June 27, 2012. On June 26, 2012, the Department moved to dismiss the appeal, arguing the issue had become moot because S.E. had been adopted and was no longer in the Department's custody. J.R. and S.R. submitted their brief opposing the Department's motion to dismiss on July 16, 2012. J.R. and S.R. argued the Department failed to present any competent, admissible evidence demonstrating S.E. had been adopted. J.R. and S.R. also argued the trial court lacked jurisdiction over S.E. while the appeal was pending before this Court; this Court has the ability to render effective relief; and, even if this Court ...