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Johnson v. Johnson9/14/2000
ording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
[ ] If "equitable adoption" and "adoption" mean the same thing, the equitable adoption posited by the majority would be ineffective because it did not comply with the statutory prerequisites for a valid adoption. However, the majority concludes the legislature did not intend "stepparent" to include "step-grandparent," but it did intend "adoption" to include "equitable adoption."
[ ] Our child support guidelines reflect the continuing obligation of a parent whose child is in foster care or guardianship care. N.D. Admin. Code § 75-02-04.1-11. "Parents of a child subject to a guardianship order under North Dakota Century Code chapter 27-20 or 30.1-27 remain financially responsible for the support of that child." Id. The majority ignores the natural parents' obligation to their child, in favor of imposing that duty upon a child's former step-grandparent.
E.
[ ] The majority states, at 40 n.4:
We conclude an equitable adoption may occur without termination of the natural parents' parental rights. It would be antithetical to impose such a requirement on a doctrine, the existence of which is based on the noncompliance with other procedures.
Implicit in our previous holdings recognizing equitable adoption is the fact that the natural parents of the equitably adopted child were unavailable. Likewise, the cases used by the majority in support of its conclusion recognize that either the natural parent's rights have been terminated or the natural parent is no longer available. Here, David and Michelle Clayton's parental rights have not been previously terminated and both natural parents are presumably available. In addition, our case law and statutes suggest a similar conclusion.
[ ] Before an adoption can be granted, the parental rights of the natural parents must be terminated. Matter of Adoption of J.M.H., 1997 ND 99, 6, 564 N.W.2d 623 (citing Matter of Adoption of A.M.M., 529 N.W.2d 864, 866 (N.D. 1995); N.D.C.C. ch. 14-15). Except with respect to a petitioner's spouse, an adoption decree terminates the parental rights of the natural parents. Matter of Adoption of J.W.M., 532 N.W.2d 372, 376 n.3 (N.D. 1995) (citing N.D.C.C. § 14-15-14).
[ ] Involuntary termination of parental rights may occur under three provisions of North Dakota law. See Adoption of K.A.S., 499 N.W.2d 558, 560 (N.D. 1993) (identifying the three provisions: (1) the Uniform Juvenile Court Act, (2) the Uniform Parentage Act, and (3) the Revised Uniform Adoption Act). This Court has recognized that the Juvenile Court Act and the Parentage Act "give a party the right to legal counsel at all stages of the proceedings, and require the trial court to appoint counsel for a party who is financially unable to obtain counsel." Id. at 561 (citing N.D.C.C. §§ 27-20-26, 14-17-18). Recognizing that the Uniform Adoption Act had no similar provision, this Court stated, " ermination of the parental rights of an indigent parent who has been denied appointment of counsel would run afoul of the equal protection provision of our state constitution." Id. at 563.
[ ] Any conclusion that Antonyio Johnson has equitably adopted Jessica Clayton, when both natural parents are still available to provide support, would necessarily allow Antonyio Johnson to obtain custody of Jessica Clayton as the majority says at 18.
F.
[ ] The majority ignores the possible constitutional implications of its decision. "It is also well established that parents have a fundamental right to their children which is
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