| (Cite
as: 462 N.W.2d 485)
Supreme
Court of South Dakota.
In
the Matter of the ADOPTION OF John Michael BAADE, a
Minor Child.
No.
16783.
Argued
April 24, 1990.
Decided
Oct. 31, 1990.
*486
Daniel L. Jongeling of Dakota Plains Legal Services, Sisseton, for
appellant and natural father, Justin Kongi.
Terry L. Pechota of Finch, Viken, Viken and Pechota, Rapid
City, for appellees and adoptive parents, Nancy and Dan Ponton.
SABERS, Justice.
Justin Kongi appeals an order terminating his parental rights and
declaring the child adopted.
*487
Facts
Justin is the natural father of John Baade, who was
born in Pierre, South Dakota on October 18, 1986.
Connie Baade is the natural mother. Both
were living in Pierre, South Dakota at the time of
conception and birth. At the time of John's
birth, Justin was fifteen and Connie was sixteen years old.
Although Justin was aware of the pregnancy, he had no
contact with Connie after the conception.
Connie decided during her pregnancy to have her sister and
brother-in-law, Nancy and Daniel Ponton, adopt the child.
As a result, the Pontons have had physical custody of
John since his birth. Justin and his mother,
Evelyn Black Smith, knew of the adoption plans because they
were presented with adoption papers before John's birth.
The adoption consent papers were never signed. Evelyn saw the
Pontons in Pierre about a week after John was born,
and she knew they were taking John with them to
Rapid City. Shortly thereafter, she and Justin moved
to Waubay, South Dakota. Justin has never seen
John.
In April of 1988, the Pontons filed a petition in
circuit court to adopt John, and
Connie filed her consent to the adoption. The
petition alleged that Justin abandoned John, making his consent unnecessary.
The court ordered that an investigation report be
prepared in accordance with SDCL 25-6-10.
[FN1]
FN1.
SDCL
25-6-10. Time of hearing on petition fixed-- Investigation
ordered by court.
Whenever a person, or a husband and wife
jointly, petition the circuit court for leave to adopt a
minor child, the judge of the circuit court shall fix
a time for hearing not less than ten days from
the filing of such petition and may, in the case
of a stepparent adopting a stepchild, and shall in all
other cases, direct a court services officer or other officer
of the court or an agent of the department of
social services or some other discreet and competent person to
make a careful and thorough investigation of the matter and
report his findings in writing to the court.
Justin was served with notice of the adoption proceeding in
May of 1988. Shortly thereafter, he petitioned the circuit
court to transfer the adoption proceeding to the Sisseton-Wahpeton tribal
court. In response, Connie filed an objection to
the transfer of the proceeding. The petition to
transfer was later denied and not appealed.
Justin started a paternity action in tribal court in November
of 1988, and, after being adjudged the father of John,
he enrolled John as a member of the Sisseton-Wahpeton Sioux
Tribe. The tribe received notice of the adoption
proceeding in January of 1989.
A hearing to determine whether Justin abandoned John was held
on April 10, 1989. The tribe was represented
at the hearing by Judge Lorraine Rousseau of the Sisseton-Wahpeton
tribal court. At the hearing, the investigation report,
prepared in accordance with SDCL 25-6-10, was admitted into evidence
and the author of the report testified. The
court found that Justin abandoned John and his consent to
the adoption was not necessary. The court's specific
findings include:
7.
There has been no attempted contact with the child
on the part of [Justin] whatsoever since the birth of
the child.
8.
[Justin] made no efforts to exercise responsibility or interest in
[John] until the filing of the petition for adoption.
Even after the filing, the only thing that [Justin]
did was to file an action in Sisseton-Wahpeton Tribal Court
claiming paternity of [John].
. . .
. .
10.
Both [Evelyn and Justin] have had the unrestricted opportunity since
the birth of [John] to be involved in [John's] life,
aware of [his] whereabouts, to request visitation and contact with
[John], but neither have attempted to do so except
as set forth above.
11.
No one has ever concealed from [Justin and Evelyn] the
location of [John] and his custodian, or the fact that
[he] was born and was in existence.
. . .
. .
14.
Neither [Justin or Evelyn] have ever shown any love, care,
or affection for said child.
15.
Prior to and after the birth of [John], efforts were
made by the natural mother's family to contact [Justin], but
there was difficulty doing so; [Justin] *488
never recognized paternity of [John] until after the filing of
the petition for adoption.
16.
[Justin] has no intention of himself providing for the care
of [John] in the immediate future.
. . .
. .
18.
[John] has bonded with the ... Ponton ... family and
has known the Pontons as his parents since birth.
19.
That beyond a reasonable doubt the physical and emotional health
of John and his best interest would be jeopardized and
deleteriously affected if the bonding that exists with the Pontons
is broken or interrupted, and any such disruption could be
permanent.
20.
[Justin] could not replace the bonding which has been established
with the Pontons. At the very best, under
the scenario given by [Justin], he would see
[John] on a monthly basis for the next four or
five years without any parental involvement with [him]. [John]
could not become bonded with [Justin] until he had finished
school which would deprive [John] of a major benefit in
his health, well being, and development.
. . .
. .
25.
Any custody of [John] by [Justin] is likely to result
in serious emotional or physical damage to [John] and this
has been established beyond a reasonable doubt.
A hearing to determine whether the adoption was in the
best interest of John was held on June 8, 1989.
Neither the tribe nor Justin appeared.
The court approved the adoption and entered its order declaring
the child adopted. Justin appeals the order. We
affirm.
1.
Consideration
of SDCL 25-6-10 investigation report during abandonment
hearing.
Justin claims
the trial court improperly admitted the investigation report during the
abandonment hearing, contrary to In
re Adoption of Zimmer,
299 N.W.2d 574 (S.D.1980). However, Justin did not object at the time
the report was admitted nor did he object to the testimony of its author.
Objection to the report was not raised until Justin filed his Objections
to Prospective Adoptive Parents' Proposed Findings of Fact and Conclusions
of Law. Such objection is too late to preserve the issue for appeal because
the trial
court could easily have corrected the alleged error by refusing admission.
As we stated in In
re A.I., 289
N.W.2d 247, 249 (S.D.1980): "Generally, error must be brought to
the attention of the trial court as soon as it is apparent and failure
to object at a time when the court can take corrective action precludes
appellate review." Cf.
Franz v. Brennan,
146 Wis.2d 541, 431 N.W.2d 711, 715 (Wis.App.1988) ("[A]n objection
to the court's failure to give an instruction cannot be made for the first
time in a post-trial motion."), aff'd,
150 Wis.2d 1, 440 N.W.2d 562 (1989); Peterson
v. First Nat'l Bank of Iowa,
392 N.W.2d 158, 163 (Iowa App.1986) ("Objections first raised in
a motion for judgment notwithstanding a verdict or for a new trial are
too late to be considered on appeal because such objections must be made
before instructions are read to the jury.") Aff'd,
423 N.W.2d 889 (Iowa 1988).
Justin claims that he objected at his first opportunity because his counsel
did not have a copy of the report until after it was offered and received.
However, Justin's counsel knew that it was the report prepared in accordance
with SDCL 25-6-10. Since the objection is not to the content of the report,
but to the admission of the report, it was not necessary to review the
content before deciding whether to object. Therefore, Justin is precluded
from raising this issue on appeal.
2.
Trial
court's findings of fact were not clearly erroneous.
Justin challenges ten of the trial court's findings as clearly erroneous.
We will not set aside the trial court's findings of fact unless they are
clearly erroneous and we are left with a firm conviction that a mistake
has been made. In
re J.J. & S.J.,
454 N.W.2d 317, 321 (S.D.1990).
Justin claims that Findings 7, 8, 10, 11 and 14
overlook numerous relevant material factors. He dislikes the
inferences that *489
can be drawn from these findings and believes they do
not present a complete picture of the facts.
However, he fails to point to any evidence that would
indicate any of these findings are incorrect. For
example, he fails to point to any evidence that he
made an attempt to contact his son or that he
was ever prevented from doing so. While the
facts do not paint the picture Justin desires, he offers
no basis for deeming them clearly erroneous.
Justin claims that Finding No. 15 overlooks the underlying purpose
of the attempts by Connie's family to contact him.
Again, he does not point to any evidence that
is contrary to this finding or shows that he did
acknowledge paternity before the adoption proceedings began. Nor
does he dispute that efforts to contact him were made.
Therefore, we cannot set aside the finding.
Justin's challenge to Finding No. 16 likewise fails to show
how the finding is erroneous. Justin claims the
finding ignores the arrangements he has made with his mother
for her to care for John while he is attending
college. Yet those arrangements do not refute the
fact that Justin himself will not be providing
John's care.
Finally, Justin claims that Findings 19, 20 and 25 misstate
the testimony of the author of the investigation report.
The author of the report testified that John would
be emotionally damaged if he were taken from the Pontons.
Since custody by Justin would necessarily require removal of John
from the Pontons, serious damage to John would result from
such custody. Further, since Justin would be able
to see John on a very limited basis while he
was at school, he would not be able to replace
any lost bonding with the Pontons. Therefore, we cannot say
these findings are clearly erroneous.
3.
Indian
Child Welfare Act.
Justin claims the Indian Child Welfare Act (ICWA) prohibits termination
of his parental rights without evidence beyond a reasonable doubt that
continued custody of John by Justin is likely to result in serious emotional
or physical damage to John. 25 U.S.C. § 1912(f) (1988). The Pontons
contend ICWA is not applicable to this case due to our opinion in Claymore
v. Serr, 405
N.W.2d 650 (S.D.1987). That opinion followed the reasoning of the Kansas
Supreme Court in In
re Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168 (1982), and concluded that ICWA was concerned
with the removal of Indian children from existing Indian family units.
As a result, we concluded in Claymore,
supra at 653,
that: "[T]he Act is not applicable in a case where an illegitimate
child, who had never been a member of an Indian home or culture,
is the subject of a child custody proceeding."
In light of the United States Supreme Court decision in Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), and our decision in
J.J., supra,
we believe Claymore
is inapplicable to this case. See
Tellinghuisen, The
Indian Child Welfare Act of 1978: A Practical Guide With [Limited] Commentary,
34 S.D.L.Rev. 660, 671 (1989) ("After the decision in Holyfield,
it appears that the Kansas court in Baby
Boy L. may
have given inappropriate weight to the wishes of the family."). In
Holyfield,
the Supreme Court explained the broad scope of ICWA: "The numerous
prerogatives accorded the tribe through the ICWA's substantive provision
... must, accordingly, be seen as a means of protecting not only the interests
of individual Indian children and families, but
also of the tribes themselves."
Id.
109 S.Ct. at 1609 (emphasis added). Consequently, it is incorrect, when
assessing ICWA's applicability to a particular case, to focus only upon
the interests of an existing family. See
Note, The Indian
Child Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate
Indian Child?,
38 Cath.U.L.Rev. 511, 534 (1989) ( "In light of the legislative history
of the ICWA, the existing Indian family theory is thus contrary to the
intent of Congress." (footnotes omitted)). Such a practice fails
to recognize the legitimate concerns of the tribe that are protected under
the Act. See
Tellinghuisen, supra
at 666 ("Holyfield
also
carries the clear message that [ICWA] would be read liberally, *490
perhaps creatively, to protect the rights of the tribe even against the
clearly expressed wishes of the parents...."). ICWA's application
to a case is contingent only upon whether an "Indian child"
is the subject of a "child custody proceeding" as those terms
are defined by the Act. See
In re Adoption of a Child of Indian Heritage,
111 N.J. 155, 543 A.2d 925 (1988); see
also A.B.M. v. M.H.,
651 P.2d 1170, 1172 (Alaska 1982) ("The protections of the Act apply
to child custody proceedings involving Indian children."), cert
denied, 461
U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983); Note, supra,
38 Cath.U.L.Rev. at 540 ("Congress clearly intends that the only
prerequisite to the operation of the ICWA be the involvement of an Indian
Child in a child custody proceeding."). This was the approach this
court followed in its recent decision in J.J.,
wherein we stated: "It being undisputed that the children are of
Indian blood, the provisions of [ICWA] are implicated." Id.
at 318. Therefore, with John falling within the Act's definition of "Indian
child" and the abandonment and adoption hearings falling within the
Act's definition of "child custody proceedings," the Act is
applicable to this case.
Since the circuit court order terminated Justin's parental rights and
declared John adopted, the evidentiary requirement of 25 U.S.C. §
1912(f) must be followed.
[FN2] Justin claims the evidentiary requirements were
not satisfied because the expert testimony at the hearing only addressed
the harm that would result to John if he were separated from the Pontons.
Justin contends compliance with ICWA requires the presentation of additional
evidence showing that he and his mother could not provide a good home
for John. We disagree. The evidence was sufficient to support the trial
court's finding that John would suffer serious emotional damage if Justin
were to retain continued legal custody. Although Justin has never had
physical custody of John, the custody referred to in § 1912(f) is
legal custody rather than physical custody. See
In re Adoption of a Child of Indian Heritage, supra; cf. In re Welfare
of W.R. and A.R.,
379 N.W.2d 544 (Minn.App.1985). Thus, ICWA requires a showing that continued
legal custody by Justin would result in serious emotional damage to John.
The author of the investigation report testified that John would suffer
serious emotional damage if he were removed from the care of the Pontons.
If Justin retained legal custody of John, the Pontons would be unable
to adopt John, and would have no basis for maintaining physical custody.
As a result, Justin's continued legal custody of John would result in
the child having to leave the Pontons, which would produce serious emotional
damage. Therefore, the requirements of ICWA were met.
[FN3]
FN2.
Parental
rights termination orders; evidence; determination of
damage to child
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.
FN3.
We note that the adoption of John by the Pontons
complies with the ICWA's directive that adoption by a member
of the child's extended family shall be given preference.
4. Abandonment.
Justin takes exception
to the trial court's first six conclusions of law.
[FN4] Justin claims that Conclusions 1 and 2 overlook his young age and
the lack of warmth and encouragement he received from the Baade *491
and Ponton families, who planned prior to John's birth to terminate Justin's
parental rights. As a result, Justin claims the evidence does not establish
the necessary intent on his part to abandon John. Finally, Justin claims
the evidence only established that damage would result to John if he were
removed from the Pontons, but there was no evidence that custody of John
by Justin would result in damage.
FN4.
Conclusions of Law numbers 1 through 6:
1.
Justin Kongi has failed to provide any monetary support,
his presence, love, care, and affection for his natural child
for a period of one year.
2.
[Evelyn] has failed to provide any monetary support, her presence,
love, care, and affection for [John] for a period of
one year.
3.
That [John] has been abandoned by his natural father under
the provisions of SDCL 25-6-4(2).
4.
That the consent of the father, Justin Kongi, is not
required as a condition of the adoption of [John] by
Daniel and Nancy Ponton.
5.
The petition for transfer to the Sisseton-Wahpeton tribal court should
be and hereby is denied in all respects.
6.
Any custody of [John] by [Justin] is likely to result
in serious emotional or physical damage and this finding by
the court is beyond a reasonable doubt.
To establish abandonment, there must be a showing by clear and convincing
evidence that the parent intended to abandon and relinquish parental obligations
to the minor child. Claymore,
supra. An intention
to abandon may be inferred from conduct, and factors to be considered
include a parent's presence, love, care, affection, and monetary support.
Id.
at 655. "Whether
a parent has abandoned a child under SDCL 25-6-4 is a question of fact
to be decided by the trial court." Id.
Although labeled conclusions of law, Conclusions 1 through 4 and 6 are
findings of fact because they address whether John has been abandoned.
Consequently, we may overturn the findings only if they are clearly erroneous.
We agree with Justin
that his age and the behavior of the Baade and Ponton families are factors
for the trial court to consider when determining whether John has been
abandoned by Justin. Nevertheless, Justin offers no evidence that the
trial court did not consider these factors. In fact, these factors were
testified to at the abandonment hearing, and one of the trial court's
findings recognized that Justin was a minor at the time of John's birth.
Furthermore, while these factors may affect Justin's success in attempting
to be involved in his son's life, they do not excuse the lack of any attempt
to become so involved for over one year. Such a failure to attempt any
contact allows a reasonable inference that abandonment was intended. In
addition, there was testimony that Justin denied he was the father while
Connie was pregnant with John, and he would not acknowledge he was the
father when contacted by Connie's sister during the pregnancy. This evidence
strengthens the inference that Justin intended to abandon the child. With
regard to the lack of evidence pertaining to Justin's ability as a parent,
such evidence is not necessary to demonstrate that damage to John would
result from custody by Justin,
as discussed above. Justin simply failed to offer evidence showing any
love, care or affection for John. As a result, we cannot say the trial
court was clearly erroneous in determining that Justin abandoned John.
MILLER, C.J., and, WUEST and MORGAN, JJ., concur.
HENDERSON, J., dissents.
HENDERSON, Justice (dissenting).
This case is a sad commentary on the justice system
in South Dakota. Deeming the majority opinion to
be totally without judgment as to the reality of the
social and economic circumstances of a 14 year old Indian
boy who impregnated a 16 year old white girl and
then has a son taken away from him on the
theory of "abandonment," who he was denied the right to
see, I respectfully dissent. He should not lose
his son--forever. And under the majority opinion, forever
and a day, he shall not see his son nor
enjoy his company.
SDCL 25-6-4 permits a court to terminate parental rights if
it is determined that the parent has abandoned his or
her child. The South Dakota Supreme Court has
determined the standard for determining if abandonment has occurred.
Mastrovich
v. Mavric,
66 S.D. 577, 287 N.W. 97, 97-98 (1939). In
Mastrovich,
we stated:
To
constitute abandonment under our code it must appear by clear
and convincing evidence that there has been by the parents
a
giving-up or total desertion of the minor child.
In other words, there must be shown an
absolute
relinquishment of the custody and control of the minor
and thus the laying aside by the parents of all
care for it. (Emphasis supplied mine).
See
also Adoption of Ernst,
318 N.W.2d 353 (S.D.1982); Matter
of Adoption of Everett,
286 N.W.2d 810 (S.D.1979) supra;
In *492
re
Adoption of Christofferson,
89 S.D. 287, 232 N.W.2d 832 (1975) supra.
In Christofferson,
supra,
we held that in order to support a finding of
abandonment the evidence must establish an intent on the part
of the parent to abandon and to relinquish parental obligations
with respect to a child. We also held
that this intent to abandon may be inferred from conduct.
We further established that the factors to be
considered in determining abandonment include a parent's presence, love, care
and affection, and monetary support. In Everett,
supra,
we held that, in determining if intent to abandon is
established by the evidence, the trial court may consider the
subjective statements of the parents in addition to objective factors.
In the present case, judging it on its own unique
facts, subjective statements and objective factors indicate that Justin did
not intend to abandon his son John.
Intent to abandon is an essential element of
abandonment and the conduct of the parent or parents involved
must evince a settled purpose to relinquish all rights in
the child. 43 C.J.S. Infants §
38. Some courts have held that mere inaction
or lack of interest in a child for an extended
period of time are insufficient. In
re Adoption of Farabelli,
460 Pa. 423, 333 A.2d 846 (1975). In
Farabelli,
the Supreme Court of Pennsylvania wrote:
We
have stated, even inaction or lack of interest in a
child for a period in excess of six months will
not conclusively establish the required settled purpose of relinquishment.
This section has been interpreted as requiring a deliberate
decision on the part of the parent to terminate the
parental relationship and that parent must persist in that determination
throughout the six-month period.
Therefore, I cannot conclude that there is clear and
convincing evidence in the record that Justin met the "abandonment
test" established in Mastrovich.
While it is true that Justin's contacts with John were
non-existent, the majority opinion completely overlooks the reasons why.
First, Justin was only 14 years of age when
John was born. Second, John was taken from
Pierre to Rapid City within one week of his birth.
Obviously, this denied this 14 year old boy's
opportunity to see his son. Third, Justin's mother
moved him halfway
across the state, making it virtually impossible to establish or
maintain any relationship with his son. Justin was
then 400 miles from his son with no transportation, no
job, no money, and totally dependent upon his own mother
for support. Justin has his own natural guardian,
his mother. In sum, it is my opinion
that Justin is being held to a legal standard applicable
to adults during a time when he was not an
adult. Under SDCL 15-6-17, he was an "infant"
who must be represented in law by a natural guardian
or guardian ad litem. The youth and inexperience
of a child of this age should be considered in
assessing conduct. So it logically follows that reasonableness
of conduct depends, in part, on the person's characteristics, examples
being his/her age, employability, health, economic infirmity and character.
We need to recognize Justin's immaturity of judgment and
lack of ability to appreciate his very own actions in
comparison to the judgment, discretion and experience of an adult.
He was, after all, a boy who sired
a boy. He cannot be said to be
a man--and judged like a man, because he indulged in
sexual intercourse one night at a teenage party, which the
evidence shows.
Furthermore, Justin has continually expressed the subjective intent to establish
his parental rights and gain custody of his son.
He has appealed the termination of his parental rights
in this case and he has expressed to others
his desire to raise his son.
The record does not sustain a finding that Justin's conduct
demonstrated a conscious disregard of his parental obligations.
Under SDCL 25-6-4, this is a question of fact to
be decided by the trial court as to whether a
parent has abandoned a child. If the finding
is clearly erroneous, the finding should be overturned on appeal.
Matter
of Adoption of Sichmeller,
378 N.W.2d 872 (S.D.1985). In my opinion, the
finding of abandonment here is clearly erroneous. Furthermore,
the evidence of abandonment *493
must be by "clear and convincing evidence standard"; it
does not exist under this factual scenario. Claymore
v. Serr,
405 N.W.2d 650 (S.D.1987).
Not once, since the birth of the child, has anyone
ever permitted this young Indian boy to see his son.
To me, that is inhumane. Only
hatred, hostility, and prejudice can birth such conduct.
The natural white mother made a decision, with the aid
of her parents, to have her own white family adopt
this child. The baby was removed from Pierre
to Rapid City within one week of its birth.
Within a very short time thereafter, Justin was moved
to the other end of the state. Picture
a 14 year old boy, living under his mother's rule,
with no car, no job, no money, and totally unemancipated
under the law in South Dakota, (see
SDCL 25-5-18) providing food, shelter, and clothing for his infant
son. Justin did try to make contact through
his mother, trying to contact
the Ponton family. From the time that the
young, white girl learned of her pregnancy, she decided unilaterally
that her sister, Nancy Ponton, would adopt the baby.
The young mother even failed to disclose to Justin
that she was pregnant by him. All adoption
proceedings and plans were "go," not only during the pregnancy,
but within one week after the birth of the child,
for an adoption consent was presented to Justin's mother.
Later, the white community presented Justin with adoption proceedings
and he emphatically said "No!" Justin tried to take his
case into Tribal Court. Denied. Justin did
succeed in having his son enrolled in the Sisseton-Wahpeton Sioux
Tribe. This reflects his interest in his son
and negates the conclusion of "Justin abandoned his son."
This decision is likened unto a wind bringing the cold.
It is a harsh north wind.
It causes the hills of hope to be further away
and the streams of fairness to sing low.
Does this decision keep our nobler purpose---certain?
462 N.W.2d 485
|