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In re Adoption of I.R.R.

Supreme Court of North Dakota

November 21, 2013

In the Matter of the ADOPTION OF I.R.R.
v.
D.E.L., Jr., natural father of I.R.R., and Department of Human Services, State of North Dakota, Respondents M.M.R., natural mother of I.R.S., and J.A.R., adoptive parent, Petitioners and Appellees D.E.L., Jr., natural father of I.R.R., Appellant.

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Bobbi B. Weiler, Bismarck, N.D., for petitioners and appellees.

Susan Schmidt, Bismarck, N.D., for appellant.

KAPSNER, Justice.

[¶ 1] The biological father of a minor child appeals from an order terminating his parental rights to the child and from an order granting a petition for adoption of the child. The biological father argues he did not fail to communicate with and fail to manifest a significant parental interest in his child without justifiable cause when, while he was incarcerated, the biological

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mother obtained a protection order against him, returned all correspondence and packages sent by him or his family, refused all phone or electronic communications from his family, and refused any visitation between the child and him or any of his family. We affirm the orders terminating the biological father's parental rights and granting the adoption.

I

[¶ 2] The biological father and biological mother had one child together in February 2010, but were never married. In October 2009, the biological father was arrested and has since been incarcerated. According to the biological father, he was incarcerated for possession of a controlled substance, resisting arrest, assaulting an officer, and criminal mischief. In December 2009, the biological mother obtained a domestic violence protection order against the biological father. The protection order stated the biological father was not present or represented by counsel at a hearing on the order and found he " represent[ed] a credible threat to the safety" of the biological mother. The protection order prohibited the biological father from calling, writing, visiting, or having messages delivered to the mother through anyone other than his attorney or a law enforcement officer. The order prohibited the biological father from coming within 100 yards of the biological mother's home or place of employment and a Bismarck hospital during the time of the baby's birth. The order required the biological father's visitation to be exercised through supervised visitation at the Family Safety Center at his request and expense. The order stated it was valid and effective until further order of the court.

[¶ 3] The biological mother married the adoptive father in January 2011, and in October 2012, they petitioned to terminate the biological father's parental rights to the minor child and to adopt the child. The petition alleged the biological father had been incarcerated since before the child's birth in February 2010, and had never seen or had any communication with the child except for one letter. The petition alleged the biological father did not consent to the termination of his parental rights or to the adoption of the child.

[¶ 4] At an August 2013, evidentiary hearing, the district court heard testimony from the biological mother, the biological father, the adoptive father, and the biological father's mother. The biological mother testified the biological father's only contact with the child was a letter sent in March 2011, which the mother returned because of the protection order. According to her, the protection order did not prohibit the biological father from contacting her attorney and the father's only contact with her attorney was a March 2011, letter stating he would be writing regularly. She testified she had obtained an order requiring the biological father to pay child support, but she had never received any child support from him. She further testified the father had never seen the child and she did not want to take the child to the prison for visitation. She also testified the biological father's mother was present at the hospital after the child's birth, but there has been no subsequent contact with his family and the biological mother has returned gifts and letters from them because she did not want to confuse the child.

[¶ 5] The biological father testified he was incarcerated before the child was born and he has never seen the child. He testified he sent the child a letter in 2011 after he obtained the mother's address from her attorney, but the letter was returned and prison officials told him he could not write letters to the biological mother because of the protection order. The biological father

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testified he has never requested visitation, and he thought prison officials were taking money for child support from his prison paycheck but he was not sure if the money was going to the biological mother for this child, or if the money was withheld for another child.

[¶ 6] The biological father's mother testified the father's family, including his child from another relationship, wants a relationship with the child. She testified she has attempted to call the biological mother, but not in the last year or two. She testified that in her capacity as a grandmother and not on behalf of her son, she had sent presents for the child to the biological mother, but the presents have all been returned. The biological father's mother also testified she saw the child in the hospital ...


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