IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 23

 OCTOBER TERM, A.D. 2019

February 20, 2020

IN THE MATTER OF THE ADOPTION OF: 

CJML and KDL, minor children,

CML and SRL,

Appellants

(Petitioners)

v.

ADBL,

Appellee

(Respondent).

S-19-0139

Appeal from the District Court of Fremont County

The Honorable Norman E. Young, Judge

Representing Appellants:

Sky Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee:

Alexandria Zafonte, Joel M. Vincent Law Office, Riverton, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are 

requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of 

any typographical or other formal errors so that correction may be made before final publication in the 

permanent volume.
1

FOX, Justice.

[¶1] CML (Father) and SRL (Stepmother) petitioned the district court for adoption of 

CML and ADBL’s (Mother) two minor children pursuant to Wyo. Stat. Ann. § 1-22-

110(a)(ix). Mother contested the adoption. After a two-day bench trial, the district court 

denied the petition, and this appeal followed. We affirm. 

ISSUE

[¶2] Did the district court abuse its discretion in determining Mother’s failure to pay 70% 

or more of the court-ordered child support for a two-year period was not willful?

FACTS

[¶3] Father filed for divorce in August 2013. Mother tested positive for 

methamphetamine on the day of the temporary custody hearing, and the district court 

awarded Father temporary custody. The divorce was finalized on May 5, 2014. The 

stipulated divorce decree required Mother to pass biweekly drug tests for eight consecutive 

weeks. It also stated that Mother would have visitation every other weekend and that the 

first two visits would be supervised. Mother moved to Pinedale shortly after the district 

court entered the divorce decree. Mother exercised unsupervised visitation while in 

Pinedale, though this was complicated by Father intermittently suspending visitation rights. 

In September 2014, Mother was charged with possession of a controlled substance. Mother 

was arrested in November 2014 for a bond violation. When Father called to arrange the 

Christmas visitation schedule, he learned she was in jail and suspended visitation. Mother 

has not had visitation with her children since December 2014. Mother moved from 

Pinedale to Riverton and then from Riverton to Casper to find better paying employment 

to meet her support obligation. Mother also paid for and received multiple substance abuse 

evaluations in an effort to reinstate visitation. 

[¶4] Despite being employed and switching jobs to obtain higher paying employment, 

Mother is behind on child support and the district court twice held her in contempt for 

failure to meet her child support obligation. On August 17, 2017, Father and Stepmother 

petitioned the district court to allow Stepmother to adopt Father and Mother’s two minor 

children, based on Wyo. Stat. Ann. § 1-22-110(a)(ix) (willful failure to pay at least 70% of 

court-ordered support for a two-year period).1

 The parties agreed that Mother failed to pay 

at least 70% of the court-ordered support for a period of two years or more, and that she 

failed to bring the support obligation current within sixty days after service of the petition 

for adoption. However, the parties disagreed over whether the failure to pay the support 

1 Father and Stepmother initially petitioned on two grounds, Wyo. Stat. Ann. § 1-22-110(a)(iii) 

(abandonment) and § 1-22-110(a)(ix) (willful failure to pay at least 70% of court-ordered child support for 

a two-year period). They later dropped the abandonment claim. 
2

was willful. The district court determined that Mother’s failure to pay was not willful and 

denied the petition. 

STANDARD OF REVIEW

[¶5] We first address Appellants’ argument that the district court erred as a matter of law 

in interpreting and applying Wyo. Stat. Ann. § 1-22-110(a)(ix). Appellants mischaracterize 

the district court’s decision as a finding that Mother’s failure to meet her support obligation 

was justified by her attempts to regain visitation, and then argue that finding was contrary 

to law because denial of visitation is not grounds for the nonpayment of child support. 

They contend this is an incorrect interpretation of the statute, thus requiring de novo

review. It is undisputed that denial of visitation does not excuse a parent from payment of 

child support. Broyles v. Broyles, 711 P.2d 1119, 1128 (Wyo. 1985). However, the issue 

in this case is not whether Mother’s failure to fully pay child support was justified because 

Father denied her visitation. See In re Adoption of MMM, 2018 WY 60, ¶ 26, 419 P.3d 

490, 498 (Wyo. 2018). Rather, the issue is whether she willfully withheld support. The 

question of whether a parent willfully withheld support is not subject to de novo review.2

 

E.g., MMM, 2018 WY 60, ¶ 10, 419 P.3d at 493; In re Adoption of AMP, 2012 WY 132, 

¶ 9, 286 P.3d 746, 748 (Wyo. 2012); In re Adoption of RMS, 2011 WY 78, ¶ 7, 253 P.3d 

149, 151 (Wyo. 2011); In re CW, 2008 WY 50, ¶ 8, 182 P.3d 501, 503-04 (Wyo. 2008); In 

re Adoption of JRH, 2006 WY 89, ¶ 13, 138 P.3d 683, 686-87 (Wyo. 2006). 

[¶6] We have long held that the “decision to grant or deny an adoption without parental 

consent is within the discretion of the district court.” MMM, 2018 WY 60, ¶ 10, 419 P.3d 

at 493 (citing In Interest of SO, 2016 WY 99, ¶ 10, 382 P.3d 51, 54 (Wyo. 2016)). In 

determining whether the district court abused its discretion, the ultimate question is 

whether it could reasonably decide as it did. MMM, 2018 WY 60, ¶ 10, 419 P.3d at 493. 

We must also determine whether the evidence is sufficient to support the district court’s 

decision. Id. In reviewing the sufficiency of the evidence, “we accept the successful 

party’s submissions, granting them every favorable inference fairly to be drawn and leaving 

out of consideration conflicting evidence presented by the unsuccessful party.” Id.

(quoting SO, 2016 WY 99, ¶ 11, 382 P.3d at 54).

[¶7] A district court’s decision to grant an adoption without a parent’s consent 

“effectively terminates that parent’s parental rights.” AMP, 2012 WY 132, ¶ 11, 286 P.3d 

at 749. Because both the Wyoming and United States Constitutions protect the right to 

2 Appellants cite In the Interest of ECH, 2018 WY 83, ¶ 24, 423 P.3d 295, 303 (Wyo. 2018), and In the 

Matter of the Adoption of TLC, 2002 WY 76, ¶ 20, 46 P.3d 863, 871 (Wyo. 2002) in support of this assertion. 

However, the application of de novo review in those cases was to statutory construction, not to the question 

of willful failure to pay. ECH, 2018 WY 83, ¶¶ 23-24, 423 P.3d at 303 (interpreting whether Wyo. Stat. 

Ann. § 14-3-422(a) required the court to advise father of his right to counsel); TLC, 2002 WY 76, ¶ 20, 46 

P.3d at 871 (interpreting Wyo. Stat. Ann. § 1-22-110(a)(ix) for the first time). Their standards of review 

do not govern this issue. 
3

associate with one’s child, adoption statutes are “strictly construed when the proceeding is 

against a nonconsenting parent, and every reasonable [inference] is made in favor of that 

parent’s claims.” Id. The party requesting the adoption must prove the existence of at least 

one of the statutory factors by clear and convincing evidence. Id. We have defined clear 

and convincing evidence as the “kind of proof which would persuade a trier of fact that the 

truth of the contention is highly probable.” Id. (quoting JRH, 2006 WY 89, ¶ 13, 138 P.3d 

at 686-87). 

DISCUSSION

[¶8] Father and Stepmother petitioned for adoption under Wyo. Stat. Ann. § 1-22-

110(a)(ix). That provision allows the district court to order 

(a) [T]he adoption of a child . . . without the written consent 

of a parent . . . if the court finds that the nonconsenting parent 

. . . [has]:

. . .

(ix) Willfully failed to pay a total dollar amount of at 

least seventy percent (70%) of the court ordered support 

for a period of two (2) years or more and has failed to 

bring the support obligation one hundred percent 

(100%) current within sixty (60) days after service of 

the petition to adopt.

Wyo. Stat. Ann. § 1-22-110(a)(ix) (LexisNexis 2019).

[¶9] The parties agree that Mother failed to pay at least 70% of her child support 

obligation for the applicable time period (August 17, 2015 to August 17, 2017), and failed 

to bring the obligation current.3

 The only question is whether the failure to pay was willful. 

The district court concluded that Mother’s failure to pay was not willful. Analyzing

Mother’s intent and ability to pay, the district court found that 

18. [Mother] has been far from a model parent. She 

has made many poor choices. But she has never shown any 

indication or intent to abandon her children. To the contrary, 

she has gone to considerable effort, and importantly she has 

gone to considerable expense to maintain contact, gain and 

3 The parties disagree whether the 70% number within Wyo. Stat. Ann. § 1-22-110(a)(ix) should include 

arrearages in the calculation. We decline to decide that issue because, under either calculation, Mother 

failed to pay at least 70%. 
4

maintain stable employment, and meet the somewhat unilateral 

demands of Petitioner so that she could exercise even regular 

visitation. 

19. Similarly her efforts at paying her full child 

support obligation, “ . . . cannot be characterized as model and 

may have, at times, been willful,” Matter of Adoption of MMM ̧ 

2018 WY 60, ¶ 24, 419 P.3d 490, 497 (Wyo. 2018). She had 

the ability and means during the applicable period to pay more 

and could have met the 70% threshold that would have 

arguably avoided this contention. 

20. However, her efforts to pay child support were 

complicated and made more difficult by her efforts to meet 

Petitioner’s demands for a substance abuse evaluation that met 

his standards and her decision to spend money pursuing better, 

higher paying employment and adequate housing to meet 

[P]etitioner’s standards in an effort to convince him to allow 

visitation. 

21. As a fundamental right, the parental child 

relationship is strongly protected and is subject to strict 

scrutiny. . . .

22. In summary, Petitioner did not prove by clear 

and convincing evidence that [Mother]’s failure to pay 70% 

over the entire two-year applicable period was willful, that is, 

“intentionally, knowingly, purposely, voluntarily, consciously, 

deliberately, and without justifiable excuse, as distinguished 

from carelessly, inadvertently, accidentally, negligently, 

heedlessly or thoughtlessly . . .” Matter of Adoption of MMM, 

2018 WY 60, ¶ 21, 419 P.3d 490, 496 (Wyo. 2018). 

[¶10] Regarding willfulness, we have held that

[I]t should be obvious without extensive elaboration that the 

penalty of the forfeiture of one’s parental rights cannot be 

imposed on the basis of strict liability through the application 

of a crude monetary equation. . . . Clearly, by inclusion of the 

modifying term “willfully” the statute draws a distinction, as it 

must, between the parent who though financially able to pay 

his court-ordered child support is unwilling to do so, and the 
5

parent who though willing to pay his court-ordered child 

support is financially unable to do so. 

TLC, 2002 WY 76, ¶ 27, 46 P.3d at 873. Here, “willfully” means “intentionally, 

knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable 

excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, 

heedlessly or thoughtlessly.” AMP, 2012 WY 132, ¶ 13, 286 P.3d at 749. We recognize 

that “[w]illfulness is rarely shown directly and there is often conflicting evidence on the 

element. Consequently, it is ‘within the district court’s province to weigh the evidence and 

judge credibility of the witnesses.’” RMS, 2011 WY 78, ¶ 14, 253 P.3d at 152 (citation 

omitted).

[¶11] A long line of cases guides our analysis of whether a parent willfully failed to pay 

a court-ordered support obligation. MMM, 2018 WY 60, 419 P.3d 490; AMP, 2012 WY 

132, 286 P.3d 746; RMS, 2011 WY 78, 253 P.3d 149; CW, 2008 WY 50, 182 P.3d 501; 

JRH, 2006 WY 89, 138 P.3d 683; In re Adoption of ADA, 2006 WY 49, 132 P.3d 196 

(Wyo. 2006); In re Adoption of CF, 2005 WY 118, 120 P.3d 992 (Wyo. 2005); TLC, 2002 

WY 76, 46 P.3d 863; In re Adoption of KJD, 2002 WY 26, 41 P.3d 522 (Wyo. 2002); In 

re Adoption of SMR, 982 P.2d 1246 (Wyo. 1999); Matter of Adoption of G.A.R., 810 P.2d 

113 (Wyo. 1991); Matter of Adoption of CJH, 778 P.2d 124 (Wyo. 1989); Matter of 

Adoption of CCT, 640 P.2d 73 (Wyo. 1982). ADA and MMM are particularly instructive 

here. In ADA, the issue was whether an intermittently incarcerated father’s failure to pay 

his court-ordered support was willful. 2006 WY 49, ¶¶ 8, 13, 132 P.3d at 200, 202. Father 

presented evidence that when he was not incarcerated, he looked for work but could not 

find steady employment and, thus, could not meet his support obligation. Id. at ¶ 13, 132 

P.3d at 202. Father also presented evidence that he met his obligation when he found 

periodic work. Id. at ¶ 16, 132 P.3d at 202. The district court denied the petition, and this 

Court held that “[a]lthough our review is made more difficult because the district court did 

not make any express findings, the record is sufficient to support the district court’s 

ultimate conclusion that stepfather had not proven by clear and convincing evidence 

father’s failure to pay was willful.” Id. at ¶ 18, 132 P.3d at 203. We reached this conclusion 

despite our finding that father’s efforts to pay “may have, at times, been willful.” Id. at 

¶ 21, 132 P.3d at 203. 

[¶12] In MMM, we held that the district court did not abuse its discretion in finding that 

mother’s failure to pay was not willful, especially considering the requirement that the 

district court give every favorable inference in favor of the nonconsenting party, and our

standard of review. 2018 WY 60, ¶ 20, 419 P.3d at 496. There, the district court relied on 

the father’s assurances to mother that she need not pay child support. Id. at ¶ 26, 419 P.3d 

at 498. As here, the issue was not whether mother had the obligation to pay child support 

but, rather, whether her failure to pay was willful. Id. There, we recognized that our case 

law holds that custodial parents have no right to waive child support. Id. at ¶ 26, 419 P.3d 

at 497. However, we determined that the district court reasonably relied on father’s 
6

assurances as a factor regarding mother’s intent to pay child support. Id. at ¶ 26, 419 P.3d 

at 498. We also found that the record supported the district court’s determination that the

father and stepmother had not proven willful failure to pay by clear and convincing 

evidence. Id. at ¶ 27, 419 P.3d at 498. Quoting ADA, we again stated that the failure to 

pay “may have, at times, been willful.” MMM, 2018 WY 60, ¶ 24, 419 P.3d at 497. 

[¶13] Appellants argue that Mother’s net income during the months in question illustrates

that she had the financial ability to pay the full amount of her support obligation. They 

rely on two cases for the proposition that “[a] parent has the responsibility to pay child 

support in accordance with his or her financial ability.” RMS, 2011 WY 78, ¶ 14, 253 P.3d 

at 152; MMM, 2018 WY 60, ¶ 22, 419 P.3d at 496-97. Both cases go on to identify the test 

for determining whether a parent’s failure to pay was willful: “[t]he courts should look at 

whether the parent has demonstrated, through whatever financial means available to him, 

that the parent has not forgotten his statutory obligation to his child.” RMS, 2011 WY 78, 

¶ 14, 253 P.3d at 152; MMM, 2018 WY 60, ¶ 22, 419 P.3d at 497. Viewing the evidence 

in the light most favorable to Mother, ignoring evidence to the contrary, and focusing on 

Mother’s “intent and ability to pay,” we find that the evidence at trial was sufficient to 

support the district court’s conclusion that Mother had not forgotten her statutory 

obligation to her children and that Father and Stepmother failed to prove Mother’s 

willfulness by clear and convincing evidence.

[¶14] Mother testified that she tried to meet her obligation but, at times, was financially 

unable to do so. The record establishes that Mother was intermittently unemployed. 

Mother testified that she always called child support services when she switched 

employment to establish an automatic garnishment. She testified that she switched jobs 

often because she was always trying to make more money and that she tried to work 

multiple jobs at a time. Mother also testified that she sent extra money when she could in 

an effort to catch up on her support obligation. Mother testified that circumstances outside 

her control impacted her ability to meet her support obligation, especially her unreliable 

vehicles that she needed for transportation to and from work. Mother testified that she 

skipped meals at times and always prepared her meals at home to save money so she could

pay child support. 

[¶15] There was also evidence that Mother paid for several substance abuse evaluations 

to reestablish visitation. Appellants argue that the district court improperly relied on the 

cost of the substance abuse evaluations because only one occurred during the two-year time 

period. Additionally, they contend that no evidence supports the district court’s finding

that Mother spent money during the two-year period to find higher paying employment or 

to obtain adequate housing. However, the district court could reasonably rely on Mother’s 

expenditures on substance abuse evaluations, housing, and pursuing better and higher 

paying employment, both during and outside the two-year period at issue, in evaluating her 

intent and ability to pay child support. The evidence was unambiguous about the timing 

of the various substance abuse evaluations, housing changes, and employment changes, 
7

many of which were incurred by Mother in an attempt to meet Father’s demands. It was 

reasonable for the court to rely on this information in evaluating Mother’s intent and ability 

to pay child support. See MMM, 2018 WY 60, ¶ 26, 419 P.3d at 497-98. Viewing the 

evidence in the light most favorable to Mother and ignoring facts favorable to Appellants, 

we find that the evidence is sufficient to support the district court’s finding that Mother’s 

failure to meet her support obligation was not willful.

[¶16] Courts must stringently guard parents’ fundamental right to associate with their 

children. JRH, 2006 WY 89, ¶ 13, 138 P.3d at 686. Mother strongly opposed terminating 

her parental rights and allowing Stepmother to adopt the children. Father and Stepmother 

had the burden of proving by clear and convincing evidence that Mother had willfully 

failed to pay at least 70% of her court-ordered support obligation for a period of two years. 

We cannot conclude that the district court abused its discretion when it found that Father 

and Stepmother failed to prove by clear and convincing evidence that Mother’s failure to 

fully pay child support was willful. 

[¶17] We affirm.