#26656-a-GAS

2013 S.D. 97

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE

ADOPTION OF Z.N.F., 

a minor child.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

MEADE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JEROME A. ECKRICH, III

Judge

* * * *

MICHAEL V. WHEELER of

DeMersseman Jensen Tellinghuisen

 & Huffman, LLP

Rapid City, South Dakota Attorneys for appellant 

father D.L.F.

BRIAN UTZMAN of

Smoot & Utzman, PC

Rapid City, South Dakota Attorneys for appellee mother 

H.S.S. and adoptive father 

T.E.S.

* * * *

CONSIDERED ON BRIEFS

ON SEPTEMBER 30, 2013

OPINION FILED 12/18/13
#26656

-1-

SEVERSON, Justice

[¶1.] D.L.F. (Father) appeals the judgment and order waiving Father’s 

consent to step-parent adoption entered on February 14, 2013, and the order for

adoption entered on March 15, 2013. We affirm. 

Background

[¶2.] Father and H.S.S. (Mother) are the biological parents of minor child

Z.N.F., who was born in 2002. Father and Mother were married in 2001 in Rapid 

City, South Dakota. After marrying, the couple moved to Oregon. In November 

2006, while residing in Oregon, Mother and Father separated. 

[¶3.] On the evening of February 21, 2007, Mother awoke to a fire 

consuming her house and attached garage. She and Z.N.F., who was four years old

at the time, escaped. Mother believes Father intentionally caused the fire; however,

Father was never criminally charged.1 After the fire, Father voluntarily moved to 

Colorado, where he resided at the beginning of these proceedings. 

[¶4.] Shortly after the fire, on February 22, 2007, Mother sought and 

received a restraining order against Father.2 She extended the restraining order on 

March 8, 2008, and again on February 25, 2009. The last restraining order expired 

in 2010. Mother withheld her contact information from the restraining orders, but 

maintained the cellphone number she acquired in Oregon until 2011.

 

1. The Oregon court determined that “it is very probably (sic) that [Father]

caused the fire at Wife’s home on February 21, 2007.” 

2. The restraining order was administered under Oregon law. It appears that 

the restraining order is similar to a protection order under South Dakota law. 
#26656

-2-

[¶5.] Mother and Father divorced in Oregon on January 24, 2008. By all 

accounts, the divorce was very contentious. The Oregon court granted Mother sole 

legal and physical custody of Z.N.F. Father was granted supervised visitation with 

Z.N.F. at least once a month for two to six hours. The Oregon court required Father 

to arrange and pay for all professionally supervised visits. Father visited Z.N.F. on 

two occasions. The first visit occurred on March 22, 2008. The visit lasted two 

hours. His next visit was on March 17, 2009. It lasted three hours. According to 

reports, Father’s visits with Z.N.F. were appropriate and positive. The 2009 visit 

was the last time Father had contact with Z.N.F. Father did not attempt to modify 

his visitation rights in Oregon and did not attempt to register the Oregon court’s 

decree of dissolution in South Dakota until August 9, 2012.3

[¶6.] The Oregon court also ordered Father to pay $505 per month in child 

support retroactive to September 1, 2007. Father did not pay child support until 

2009. From May 2009 through July 2009, Father paid $2,860 in child support. 

After July 2009, Father did not pay child support. The South Dakota trial court 

found that Father’s child support arrearage was $67,440. The South Dakota trial 

court also found that Father had been employed full-time since 2009. During the 

year he paid child support, Father’s adjusted gross income was $7,363. In the years 

 

3. The South Dakota trial court also reviewed correspondence between Father’s 

attorney, Mother’s attorney, and a parenting consultant, Judith Swinney. 

The trial court found that the correspondence suggests at least three things: 

“(1) Father requested additional visitation; (2) Mother could not or would not 

accommodate supervised visits at the time/dates requested by Father; and (3) 

Father’s voluntary absence from the state of Oregon substantially 

complicated scheduling parenting time.”
#26656

-3-

he did not pay child support, Father’s adjusted gross income was $35,002 in 2010 

and $32,645 in 2011. 

[¶7.] In April 2009, Mother and Z.N.F. relocated to Colorado. Mother did 

not inform Father she was moving. In July 2009, Mother and Z.N.F. moved to 

Rapid City, South Dakota. Once again, Mother did not inform Father she was 

moving. The South Dakota trial court found that Mother did not want Father to 

know where she was living and intended to conceal her whereabouts from him and 

his family. Mother stated that she did this for her safety and the safety of Z.N.F. 

Father testified that during this time he did not know where Mother and Z.N.F. 

resided. Father did, however, receive notification of Mother’s whereabouts when he 

received a copy of Mother’s Chapter 7 bankruptcy case in 2010. 

[¶8.] In 2010, Father purchased a life insurance policy identifying Z.N.F. as 

the beneficiary. Father was required to purchase the policy immediately after the 

divorce in 2008. Mother claims that she and Z.N.F. were unaware of its existence. 

Father also acquired health insurance benefits for Z.N.F. through his employer. 

According to Mother, she and Z.N.F. never benefitted from the insurance policy. 

[¶9.] Since the divorce, Father’s parents (Grandparents) have made efforts 

to contact Z.N.F. They have utilized email, Facebook, and letters to reach Mother 

so that they could contact Z.N.F. Although Grandparents made efforts to stay in 

contact with Z.N.F., their success was limited. The trial court found that Father 

failed to make similar efforts. The court found that Father’s efforts to contact 

Mother and Z.N.F. since 2009 were “de minimus.” Father testified that he feared he 

may violate the restraining order by contacting Mother. 
#26656

-4-

[¶10.] Mother eventually married T.E.S. (Stepfather). Mother and Stepfather 

initiated proceedings for adoption of Z.N.F. on October 18, 2011. Mother and 

Stepfather sought an order waiving Father’s consent to the adoption, terminating 

his parental rights, and allowing a stepparent adoption. Mother and Stepfather 

alleged abandonment, continuous neglect, and failure to pay child support as 

grounds for the waiver of consent pursuant to SDCL 25-6-4(2), (3), and (4). Father 

opposed the adoption. He asserted that his consent could not be waived because he 

did not abandon Z.N.F. 

[¶11.] The trial court bifurcated the consent and adoption issues. The court 

first tried the consent issue on August 7, 2012. On February 14, 2013, the trial 

court entered an order waiving Father’s consent to the adoption under SDCL 25-6-

4(2), (3), and (4). The court found that Father had abandoned Z.N.F., was 

continuously neglectful, and failed to provide child support. The court next held the 

adoption hearing on March 5, 2013. Father was not allowed to participate in the 

adoption hearing. On March 15, 2013, the trial court entered an order for adoption

and terminated Father’s parental rights. The court found that it was in the best 

interest of Z.N.F. to place him in the care of Mother and Stepfather. 

[¶12.] Father appeals to this Court, arguing that the trial court erred in 

waiving his consent to the adoption, terminating his parental rights, and entering 

the order for adoption.4

 

4. Mother asserts that the appeal of the waiver of consent is not timely. Even 

though the proceedings were bifurcated, the proceedings became final after 

the final order for adoption. The appeal from the final order for adoption was 

timely. 
#26656

-5-

Standard of Review

[¶13.] “Natural parents have a fundamental right to the care, custody, and 

control of their children.” In re Guardianship of S.M.N., 2010 S.D. 31, ¶ 17, 781 

N.W.2d 213, 221 (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 

147 L. Ed. 2d 49 (2000)). Typically, a child may not be adopted without the consent 

of the child’s biological parents. SDCL 25-6-4. “However, if it is in the best interest

of the child, the court may waive consent from a parent or putative father” when 

certain conditions are met. Id. The three conditions at issue in this case are 

abandonment, neglect, and failure to pay child support. SDCL 25-6-4(2), (3), (4). 

[¶14.] “Whether a parent has abandoned a child within the meaning of SDCL 

25-6-4 is a question of fact to be decided by the trial court, a decision that will not be 

overturned unless the finding is clearly erroneous.” In re Termination of Parental 

Rights over T.E.L.S., 2007 S.D. 50, ¶ 24, 732 N.W.2d 740, 746 (citing In re Adoption 

of C.D.B., 2005 S.D. 115, ¶ 10, 706 N.W.2d 809, 814). Whether a parent has 

neglected a child under SDCL 25-6-4(3) or has failed to pay child support under 

SDCL 25-6-4(4) are also questions of fact reviewed under the clearly erroneous 

standard. “Findings of fact are clearly erroneous when, after a careful review of the 

record, ‘we are left with a firm conviction that a mistake has been made.”’ T.E.L.S., 

2007 S.D. 50, ¶ 24, 732 N.W.2d at 746 (quoting C.D.B., 2005 S.D. 115, ¶ 10, 706 

N.W.2d at 814). “In reviewing a circuit court’s ruling on whether a parent has 

abandoned a child for purposes of adoption, ‘we are in no position to reweigh the 

evidence and . . . must defer to the judge’s firsthand perception of the witnesses and 
#26656

-6-

the significance the judge gave to their testimony.’” Id. (quoting C.D.B., 2005 S.D. 

115, ¶ 16, 706 N.W.2d at 815).

[¶15.] If the court waives a parent’s consent under SDCL 25-6-4, it must then 

exercise its discretion to determine whether it is in the best interest of the child to 

terminate the parent’s rights so that the adoption can proceed. See C.D.B., 2005 

S.D. 115, ¶ 11, 706 N.W.2d at 814. It is an abuse of discretion when the court has 

made “a fundamental error of judgment, a choice outside the range of permissible 

choices, a decision, which, on full consideration, is arbitrary or unreasonable.”

Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616 

(quoting State v. Lemler, 2009 S.D. 86, ¶ 40, 774 N.W.2d 272, 278) (additional 

citations omitted). 

Analysis

[¶16.] (1) Whether the trial court erred in waiving Father’s consent to 

the adoption. 

[¶17.] During the first stage of the bifurcated proceeding, the trial court 

decided whether Father’s consent to the adoption could be waived under SDCL 25-

6-4. Ultimately, the court waived Father’s consent to the adoption under SDCL 25-

6-4(2) because Father had abandoned Z.N.F. The court also waived Father’s 

consent under SDCL 25-6-4(3) because he continuously neglected Z.N.F. Finally, 

the court waived Father’s consent under SDCL 25-6-4(4) because he had failed to 

pay child support owed to Mother for the care of Z.N.F. Because SDCL 25-6-4(2), 

(3), and (4) provide alternative grounds for a court to waive a parent’s consent to an 

adoption, we address each of them in turn. 
#26656

-7-

Abandonment

[¶18.] Father first argues that the trial court erred in finding that he had 

abandoned Z.N.F. under SDCL 25-6-4(2). “[T]o constitute abandonment under our 

code it must appear by clear and convincing evidence that there has been by the 

parent[ ] a giving-up or total desertion of the minor child.” T.E.L.S., 2007 S.D. 50, ¶ 

27, 732 N.W.2d at 747 (quoting C.D.B., 2005 S.D. 115, ¶ 12, 706 N.W.2d at 814). 

There must be a showing of an intent on the part of the parent 

to abandon and to relinquish parental obligations; this intent 

may be inferred from conduct. In establishing abandonment, 

factors to be considered include a parent’s presence, love, care 

and affection, and monetary support. The trial court may 

consider the subjective statements of the parents in addition to 

objective factors. 

Id. (quoting In re Adoption of Sichmeller, 378 N.W.2d 872, 873-74 (S.D. 1985)). 

To conclude that evidence is clear and convincing, “the witnesses 

must be found to be credible, . . . the facts to which they have 

testified must be distinctly remembered and the details thereof 

narrated exactly and in due order, and . . . their testimony must 

be so clear, direct and weighty and convincing as to enable 

either a judge or jury to come to a clear conviction, without 

hesitancy, of the truth of the precise facts in issue.” 

Id. (quoting C.D.B., 2005 S.D. 115, ¶ 15, 706 N.W.2d at 815).

[¶19.] The trial court found by clear and convincing evidence that Father had

abandoned Z.N.F. In reaching its conclusion, the trial court stated: 

Father has done nothing of significance to maintain or 

reestablish contact with Z.N.F. Father’s conduct over the past 

four years, his near complete failure to pay any child support, 

his utter laying aside of his parental responsibilities, his failure 

to act to reconnect with Z.N.F. when the means and knowledge 

to do so were known to him demonstrate an absolute 

relinquishment of care and control of Z.N.F.
#26656

-8-

In response to the court’s finding, Father asserts that Mother made it difficult for 

him to maintain contact with his son. For instance, Father highlights Mother’s 

deliberate attempts to conceal her whereabouts from him. Mother contends that 

while she did not advertise her whereabouts, she could have easily been found had 

Father tried to locate her. The trial court stated, “Mother’s actions to conceal her 

whereabouts do not explain Father’s lack of effort.” The court then found that 

Father’s lack of effort to contact Z.N.F. demonstrated a total desertion of his son. 

[¶20.] There is little question that Mother took steps to restrict Father’s 

access to Z.N.F. Mother moved to Colorado and South Dakota in 2009 without 

telling Father. Mother also made it difficult for Grandparents to contact Z.N.F. We 

do not condone Mother’s actions to hinder visitation; however, Mother’s obstacles do 

not excuse Father’s limited efforts to contact his son. The trial court found that 

Grandparents were able to contact Z.N.F. Grandparents sent Mother emails and 

sent Z.N.F. birthday cards. Father did nothing. Father’s claim that he did not 

know where Mother lived is unconvincing. The trial court found that Father could 

have located Mother through an internet search, Facebook, or by asking his parents

(Grandparents). Additionally, Mother maintained the same cellphone number she 

acquired in Oregon until 2011. Father also obtained Mother’s address through 

Mother’s Chapter 7 bankruptcy proceedings in 2010. These facts convinced the trial 

court that Father could have attempted to contact Z.N.F., yet failed to do so. 

[¶21.] Father further argues that Mother’s restraining orders made it 

difficult for him to visit Z.N.F. because he could not contact Mother. As the trial 

court noted, the restraining orders did not restrict Father’s contact with Z.N.F. 
#26656

-9-

Father was still allowed visitation with his son. Notably, despite the restraining 

orders, Father had twice sought and received visitation with Z.N.F. in 2008 and 

2009. Father knew he could contact Z.N.F. without fear of the restraining orders. 

The restraining orders do not explain Father’s failure to contact Z.N.F. after 2009. 

[¶22.] Additionally, the trial court’s finding that Father abandoned Z.N.F. is 

further supported by Father’s failure to pay child support. The Oregon court 

required Father to pay $505 per month for child support retroactive to September 1, 

2007. However, Father did not pay child support until May 2009. From May 2009 

through July 2009, Father paid $2,860 in child support. Notably, Mother had 

already moved from Oregon to Colorado during that time. Father then did not pay

child support after July 2009. 

[¶23.] Father contends that he did not pay child support because of limited 

financial resources, Mother’s constant moving, and a lack of knowledge about where 

to send the payments. Father argues that our decision in T.E.L.S. supports his 

failure to pay. 2007 S.D. 50, 732 N.W.2d 740. In that case, we upheld the trial 

court’s decision to deny termination of parental rights in connection with an

adoption. Id. ¶ 32, 732 N.W.2d at 748-49. We held that it was not clearly erroneous 

for the trial court to find that the father had not abandoned his child when he was 

of limited means and had paid over $16,000 in child support. Id. ¶ 33, 732 N.W.2d 

at 749. We noted that the father also attempted to send gifts to T.E.L.S. and father 

arranged trips to visit the child even though the father lived in California. Id. ¶ 34, 

732 N.W.2d at 749. In contrast to our holding in T.E.L.S., Father had more means 

to pay some semblance of child support, yet paid less than the father in T.E.L.S. 
#26656

-10-

The trial court found that Father had sufficient income to support Z.N.F., yet he 

willfully refused to do so. The court also found Father’s other reasons for failing to 

pay child support unpersuasive. In both 2010 and 2011, Father made over $30,000 

in gross income. Furthermore, Father paid child support after Mother had already 

moved. Father’s failure to provide monetary support for Z.N.F. is another factor 

leading to the conclusion that Father abandoned Z.N.F. 

[¶24.] Lastly, Father’s other explanations to show he did not intend to 

abandon Z.N.F. do not render the trial court’s decision clearly erroneous. Father 

argues that his purchase of a life insurance policy for Z.N.F. proves that he did not 

intend to abandon his son. The Oregon court required Father to purchase the policy 

in 2008; however, Father did not purchase the policy until 2010. Father, 

nonetheless, argues that the untimely purchase of the life insurance policy 

illustrates a recent intent not to abandon Z.N.F. The trial court found that this 

“demonstrates little, if any, intent to maintain contact or provide support for Z.N.F.” 

We agree with the trial court and conclude that its decision was not clearly 

erroneous. This one act of support, which was mandated by the Oregon court, does 

not show an intent not to abandon Z.N.F.

[¶25.] Father also highlights that he recently made Z.N.F. a beneficiary to his 

health insurance policy. He contends that this shows that he did not intend to 

abandon Z.N.F. The trial court found that neither Mother nor Z.N.F. benefitted 

from the policy. Father does not articulate how this policy benefitted Z.N.F. 

Additionally, Mother and Z.N.F. were completely unaware of its existence. There is 

also no evidence that Father purchased the policy. Given these facts, it was not
#26656

-11-

clearly erroneous for the trial court to reject Father’s argument that the acquisition 

of an insurance policy showed an intent not to abandon. 

[¶26.] When viewed in totality, the decision to waive Father’s consent to the 

adoption under SDCL 25-6-4(2) was not clearly erroneous. “[W]e are in no position 

to reweigh the evidence and . . . must defer to the judge’s firsthand perception of the 

witnesses and the significance the judge gave to their testimony.” C.D.B., 2005 S.D. 

115, ¶ 16, 706 N.W.2d at 815 (quoting Zepeda v. Zepeda, 2001 S.D. 101, ¶ 19, 632 

N.W.2d 48, 55). We understand “the seriousness and finality of this decision[.]” Id. 

However, “[d]ecisions to terminate parental rights and allow an adoption are not 

made to punish wayward parents, but to protect children.” Id. 

Continuous Neglect

[¶27.] The trial court also found by clear and convincing evidence that Father 

continuously neglected Z.N.F. under SDCL 25-6-4(3). Both briefs acknowledge this 

fact, however, neither one addresses it directly. Because we review continuous 

neglect, like abandonment, as a question of fact, we will not overturn the trial

court’s finding of continuous neglect unless it was clearly erroneous. 

[¶28.] Under SDCL 25-6-4(3), a finding of continuous neglect can serve as an 

independent basis to waive a parent’s consent to an adoption. While there is some 

overlap, a finding of continuous neglect is distinct from abandonment. Given that 

neither party contests the issue of continuous neglect under SDCL 25-6-4(3), and

that the factual record lends support for its finding, we hold that the trial court’s 

decision to find continuous neglect by clear and convincing evidence was not clearly 

erroneous.
#26656

-12-

Failure to Pay Child Support

[¶29.] The trial court also waived Father’s consent to the adoption of Z.N.F. 

under SDCL 25-6-4(4)5 because Father was financially able, yet willfully neglected 

to pay for “subsistence, education, or other care” where legal custody of Z.N.F. was 

with Mother and child support payments were ordered by the court. Consistent 

with SDCL 25-6-4(2) and (3), the failure to provide support under SDCL 25-6-4(4) is 

a finding of fact that must be proved by clear and convincing evidence. Thus, we 

will not upset the trial court’s finding unless it was clearly erroneous. 

[¶30.] Mother argues that the failure to pay child support under SDCL 25-6-

4(4) serves as an independent basis for a court to waive Father’s consent to the 

adoption. The trial court agreed. Father argues that he was not financially able to 

provide child support. He also contends that Mother made it difficult for him to 

provide support. Furthermore, Father argues that the failure to pay child support 

should not be the sole reason for waiving his consent under SDCL 25-6-4(4). 

[¶31.] SDCL 25-6-4(4) is a relatively new provision. We have yet to consider 

whether the failure to pay child support can be an independent reason to waive a 

natural parent’s consent to an adoption. Normally, we have considered monetary 

 

5. SDCL 25-6-4(4) provides: 

No child may be adopted without the consent of the child’s 

parents. However, if it is in the best interest of the child, the 

court may waive consent from a parent or putative father who: . 

. . (4) Being financially able, has willfully neglected to provide 

the child with the necessary subsistence, education, or other 

care necessary for the child’s health, morals, or welfare or has 

neglected to pay for such subsistence, education, or other care if 

legal custody of the child is lodged with others and such 

payment ordered by the court[.]
#26656

-13-

support as a factor in determining whether a child has been abandoned. See 

generally T.E.L.S., 2007 S.D. 50, 732 N.W.2d 740; C.D.B., 2005 S.D. 115, 706 

N.W.2d 809. Nevertheless, the use of “or” in the statute makes clear that the willful 

failure to pay court ordered child support can serve as an independent basis to 

waive a natural parent’s consent to an adoption. This reading is supported by a 

similar provision under Wyoming law. See In re Adoption of RMS, 253 P.3d 149 

(Wyo. 2011) (holding that a court may waive a parent’s consent to an adoption

under Wyo. Stat. Ann. § 1-22-110(a)(iv) (West 1977) where the parent willfully

failed to pay child support for a period of one year before the adoption petition).

Thus, we hold that a parent’s willful failure to pay child support can be grounds for 

waiving the parent’s consent to an adoption.6 

[¶32.] In seeking to waive an adoption under SDCL 25-6-4(4), the court must 

find by clear and convincing evidence that there was a failure to pay child support, 

and that such failure was willful. Father asserts that his failure to pay child 

support was not willful because he did not have sufficient money to pay, and did not 

know where to send it if he did. The evidence does not support his claim. First, 

Father never sought to amend the child support order. Additionally, when Father 

paid child support in 2009, his gross income was significantly lower than in 2010 

and 2011, years he did not pay child support. In total, Father has paid only $2,860 

in child support since the Oregon court ordered the payments in 2007. Meanwhile, 

 

6. Unlike other states, SDCL 25-6-4(4) does not provide a timeframe for how 

long an individual must fail to pay child support before his or her consent to 

an adoption can be waived. We need not decide that here. We believe 

Father’s failure to pay child support since 2009 coupled with over $67,000 in 

child support arrearage justifies the trial court’s use of SDCL 25-6-4(4). 
#26656

-14-

Father owes $67,440 in child support arrearage. Thus, Father has paid only four 

percent of the child support he was expected to provide to Mother and Z.N.F. since 

2007. The evidence supports the trial court’s finding that Father had the ability to 

pay child support, yet willfully refused to pay. 

[¶33.] Additionally, Father argues that Mother’s attempts to conceal her 

whereabouts obstructed his ability to pay child support. Father’s argument does 

not explain why he failed to pay child support from 2007 to 2009 when Mother 

resided in Oregon. In addition, his argument is undermined by the fact that he 

made his first child support payment after Mother moved to Colorado from Oregon. 

The trial court found that Father’s excuses for failing to pay child support lacked 

credibility. Father provides no evidence to explain why that finding was clearly 

erroneous other than that Mother moved around. We conclude that this obstacle 

does not excuse the failure to pay child support. The trial court’s decision to waive 

Father’s consent to the adoption under SDCL 25-6-4(4) was not clearly erroneous.

[¶34.] (2) Whether the trial court should have considered the best 

interest of the child before waiving Father’s consent.

[¶35.] After waiving Father’s consent to the adoption, the trial court next 

found that it was in the best interest of the child to allow Stepfather to adopt 

Z.N.F., terminating Father’s parental rights. Father argues that the trial court 

failed to address whether it was in the best interest of the child to waive his 

consent. Father contends that SDCL 25-6-4 requires a court to consider the best 

interest of the child at the time the waiver of consent is requested. 

[¶36.] There is no question that the trial court must determine whether it is 

in the best interest of the child to terminate a natural parent’s parental rights and 
#26656

-15-

proceed with an adoption. C.D.B., 2005 S.D. 115, ¶ 11, 706 N.W.2d at 814. In the 

second part of the bifurcated proceeding, the trial court found that it was in the best 

interest of Z.N.F. to allow Stepfather to adopt the child. The court found that 

Stepfather, Mother, and Z.N.F. engage in numerous recreational activities together 

including skiing, hiking, and baseball. The court also found that both Mother and 

Stepfather are able to provide a “loving, nurturing, and wholesome environment to 

[Z.N.F.]” Additionally, the court found that Stepfather desires to and is willing to 

assume full parental responsibility of Z.N.F. Thus, we do not find that it was an 

abuse of discretion for the trial court to determine that it was in the best interest of 

the child to allow Stepfather to adopt Z.N.F. Father argues, however, that the trial 

court was also required to consider the best interest of the child when it chose to 

waive Father’s consent to the adoption. 

[¶37.] SDCL 25-6-4 states that “if it is in the best interest of the child, the 

court may waive consent from a parent or putative father who” meets the criteria of 

one of the enumerated categories. Father argues that a plain reading of the statute 

requires the trial court to consider the best interest of the child along with whether 

one of those categories is met. We conclude that the trial court adequately 

considered the best interest of the child in choosing to waive Father’s consent. 

[¶38.] In C.D.B., we stated that the trial court must first evaluate whether 

the natural parent had abandoned the child. 2005 S.D. 115, ¶¶ 10-11, 706 N.W.2d 

at 814. Then, the trial court should evaluate “whether the child’s best interests will 

be served by terminating the rights of the parent so that an adoption can proceed 

without that parent’s consent.” Id. ¶ 11. Here, the trial court bifurcated the 
#26656

-16-

proceedings according to In re Adoption of Zimmer, 299 N.W.2d 574 (S.D. 1980). 

The trial court first waived Father’s consent to the adoption. It then determined it 

was in the best interest of the child to proceed with the adoption. We hold that this 

was sufficient under SDCL 25-6-4. The trial court did not abuse its discretion in 

finding that it was in the best interest of the child to waive Father’s consent to the 

adoption and allow Stepfather to adopt Z.N.F. where Father had abandoned Z.N.F., 

continuously neglected him, and failed to provide child support.

Conclusion

[¶39.] Under a different set of facts, Mother’s deliberate attempts to conceal 

Z.N.F. from Father would likely excuse his failure to maintain contact with his son. 

We must reiterate that we do not condone Mother’s attempts to deny Father’s

visitation with his son. However, Mother’s obstacles do not excuse Father’s failure 

to attempt to make contact with Z.N.F., nor do the obstacles excuse Father’s willful 

failure to pay child support. The trial court did not err in waiving Father’s consent 

to the adoption and in determining that it was in the best interest of Z.N.F. to grant 

the stepparent adoption. We affirm. 

[¶40.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

WILBUR, Justices, concur.