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Johnson v. Johnson9/14/2000
As this Court has noted, "Adoption is a relationship artificially created by statute. The proceedings are wholly statutory and do not depend upon equitable principles." Borner v. Larson, 293 N.W.2d 836, 839 (N.D. 1940) (citation omitted). The District of Columbia Court of Appeals has elucidated this point, saying:
Adoption is a creature of statute, and the legal requirements and procedures incident thereto are fully set forth therein. Formal adoption procedures are for the benefit of the child, and they cannot be circumvented or substituted by other procedures. . . . Any theory of adoption is based upon the proposition that the child is wanted for its own sake, and not upon the proposition that it is accepted incidentally as a result of marriage to the mother. Fuller v. Fuller, 247 A.2d 767 (D.C. Ct. App. 1968).
[ ] Our statutes allow only certain individuals to adopt. N.D.C.C. § 14-15-03. A husband and wife may adopt. If, however, only one spouse seeks to adopt, failure to consent by the other spouse must be "excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent" to allow one spouse alone to adopt. Id. Although the majority, at 26 n.3, concedes that compliance with statutory procedures is preferable, it continues on a course to circumvent the legislature's enactments.
[ ] "Generally, it may be stated that statutes which authorize adoption of a child . . . must be construed so as to authorize the adoption only in cases where the parents consent . . . the child has been abandoned . . . or where for other reasons it is manifestly to the interest of the child that it be taken from their custody." 2 Am. Jur. 2d Adoption § 10 at 878 (1994) (citations omitted). These protections exist for both the child and the parents:
So far as the child is concerned, the state, as his protector, may make the change for him, but the rights of the natural parents should be guarded so far as they do not come into conflict with the best interests of the child; when they do, it is the power of the state, by legislation, to separate children from their parents when their interests and the welfare of the community require it. Id.
B.
[ ] Representative of the legislative concern for an adoptee, the State, through the department of human services, must be a respondent for a statutory adoption. N.D.C.C. § 14-15-11(1)(a). Consent is also required from the adoptee's mother. N.D.C.C. § 14-15-05. A presumed father, or a father who has legitimated the minor, must also consent to adoption. Id. Further, a minor over the age of ten must consent to an adoption "unless the court in the best interest of the minor dispenses with the minor's consent." Id.
[ ] Although consent is not required from a parent who has deserted a child, the record reflects no attempt to obtain consent, or even to inform David or Michelle Clayton of the attempt to effect an equitable adoption. N.D.C.C. § 14-15-06. To establish abandonment-a question of fact-the intent to abandon must also be established. Matter of Adoption of Gotvaslee, 312 N.W.2d 308, 315 (N.D. 1981). Here, not only is Antonyio Johnson's consent not established, the consent of the minor child and her parents is also absent. The trial court made no findings on the issues of consent or abandonment, and such findings would be necessary on remand as noted below.
C.
[ ] Our statutes also reflect protection of a child's best interests through imposition of child support. The liability of a stepparent to support a stepchild is clearly defined by North Dakota law:
A stepparent is
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