Matter of Adoption of CAM 1993 WY 136 861 P.2d 1102 Case Number: C-93-2 Decided: 10/29/1993 Supreme Court of Wyoming
Cite as: 1993 WY 136, 861 P.2d 1102
IN
THE MATTER OF THE ADOPTION OF CAM, a Minor: MKG,
Appellant
(Respondent),
v.
CM,
Appellee
(Petitioner).
Appeal from the District Court of
Laramie County: The Honorable Nicholas G. Kalokathis, Judge
Representing the Appellant:
Carol A. Serelson, Cheyenne, Wyoming. Representing the
Appellee: Maynard D. Grant of Grant & Newcomb, Cheyenne,
Wyoming.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN, and TAYLOR,
JJ.
MACY, Chief Justice.
[1]
The adoptive father appeals from the district court's order vacating a
final decree of adoption which had granted his adoption of the natural father's
son.
[2]
We affirm.
[3]
The adoptive father poses the following issues for our
consideration:
I.
Whether the trial court erred when it ruled that [the adoptive father] was
required to use due diligence in attempting to locate [the natural father] prior
to serving by publication.
II. Whether the trial court erred when it
ruled that the [adoptive father] failed to exercise due diligence in attempting
to locate [the natural father] prior to serving by
publication.
[4]
The natural father and the mother were married in Oklahoma City,
Oklahoma, in 1979, and the son was born in December 1980. The family lived in
Oklahoma until October 1981, when it moved to Fort Collins, Colorado. The family
returned to Oklahoma in December 1981. The natural father and the mother
separated shortly thereafter. The natural father remained in Oklahoma, and the
mother moved back to Fort Collins in early 1982. Following their separation, the
parents informally arranged for liberal visitations with their son. Each parent
had custody of the son for approximately six months during the first year after
their separation.
[5]
In June 1982, the mother filed for a divorce from the natural father in
the district court for Larimer County, Colorado. The court eventually dismissed
the petition for lack of prosecution. Apparently, the mother did not realize
that a divorce had not been granted because she married the adoptive father in
Fort Collins on December 1, 1982. Following their marriage, the mother and the
adoptive father lived in Cheyenne, Wyoming, where the adoptive father was
stationed at F.E. Warren Air Force Base. In February 1983, the Air Force
transferred the adoptive father to Germany for four years. The mother and the
son also moved to Germany.
[6]
The mother and the son lived with the adoptive father in Germany for the
first two years of his tour of duty, and they returned to the United States in
1985. In 1986, the mother and the adoptive father became estranged. The
mother became involved with drugs during this time and was unable to care for
the son. The adoptive father's parents obtained temporary custody of the son
while the mother was unable to care for him. In May 1987, the adoptive father
completed his tour of duty in Germany and returned to Wyoming. The son joined
him in Wyoming a few months later.
[7]
On December 3, 1987, the adoptive father petitioned the district court
for Laramie County, Wyoming, to adopt the son, and the mother filed her consent
to the adoption. The adoptive father served the natural father with notice of
the petition by publishing a notice in a Cheyenne newspaper. According to an
affidavit filed with his petition, the adoptive father and his attorney could
not ascertain the natural father's whereabouts. On February 19, 1988, the
district court entered a final decree of adoption granting the care and custody
of the son with all attendant rights and responsibilities to the adoptive
father. The natural father was unaware that the adoption proceedings were being
conducted.
[8]
The natural father's last contact with his son was in January 1983 when
he flew from Oklahoma City to Denver with the son to return him to his
mother and the adoptive father. At this time, the natural father was not aware
that the mother and the adoptive father were married. Nor did he know what the
adoptive father's last name was. The natural father first learned of the
mother's remarriage in March 1983 when his mother-in-law informed him that the
mother had remarried and moved from Fort Collins. The mother-in-law would not
tell the natural father where the mother had moved, and she told him in a letter
not to bother her family anymore. In the fall of 1991, the natural father first
learned what the adoptive father's name was and that the mother had died. The
natural father contacted the adoptive father to request permission to visit with
his son. The adoptive father refused. The natural father subsequently received a
letter from his mother-in-law informing him that the son had been adopted and
that it would not be appropriate for him to visit the son.
[9]
On February 27, 1992, the natural father filed a petition to vacate the
adoption decree. The district court granted the petition on November 17, 1992,
reasoning that the natural father's due process rights were violated because
the adoptive father failed to exercise reasonable diligence in attempting
to ascertain the natural father's whereabouts prior to making service by
publication.
[10]
The adoptive father's first issue on appeal is whether the district court
erred when it found that due diligence was required prior to making service by
publication. He argues that the applicable statute, WYO. STAT.
1-22-107(a)(1988), did not require him to exercise due diligence when he was
attempting to locate the natural father. Section 1-22-107(a) provides:
(a)
Prior to the hearing a copy of the petition to adopt a child and all orders to
show cause shall be served on any persons whose consent to adoption is required
by W.S. 1-22-109 and whose consent has not been filed with the petition to
adopt. Service shall be made in the same manner as provided for by rule 4 of the
Wyoming Rules of Civil Procedure and shall be accomplished so that a default
judgment could be rendered at the hearing against the person served. Service by
publication is specifically allowed where the defendant resides out of state,
or his residence cannot, with reasonable diligence, be
ascertained.
(Emphasis
added.) The adoptive father contends, relying upon Voss v. Ralston, 550
P.2d 481, 485 (Wyo. 1976), that the first clause of the last sentence is a
separate alternative which does not require due diligence since that clause is
separated from the remaining clause in that sentence by the disjunctive "or." We
disagree because that interpretation is inconsistent with a plain reading of the
statute.
[11]
Section 1-22-107(a) plainly adopts the requirements of W.R.C.P. 4 when it
provides: "Service shall be made in the same manner as provided for by rule 4 of
the Wyoming Rules of Civil Procedure." Before its revision in 1992, W.R.C.P.
4(f) provided in part:
(f)
Requirements for service by publication.--Before service by publication
can be made, an affidavit of the party, his agent or attorney, must be filed
stating that service of a summons cannot be made within this state, on the
defendant to be served by publication, and stating his address, if known, or
that his address is unknown and cannot with reasonable diligence be ascertained
. . . .
W.R.C.P.
4(f) clearly required the serving party to exercise reasonable diligence when he
was attempting to ascertain a nonresident's address prior to making
service by publication. Consequently, if service pursuant to 1-22-107 were to
be made in the same manner as required by W.R.C.P. 4, the serving party would
have to exercise reasonable diligence when he was attempting to locate the
nonresident's address.
[12]
The adoptive father's second issue is whether, if due diligence was
required, the district court erred in finding that he had failed to exercise
such diligence in attempting to locate the natural father. In Colley v.
Dyer, 821 P.2d 565, 568 (Wyo. 1991), we defined due diligence as being
"'that
which is reasonable under the circumstances and not all possible diligence which
may be conceived. Nor is it that diligence which stops just short of the place
where if it were continued might reasonably be expected to uncover an address .
. . of the person on whom service is sought . . . . Due diligence must be
tailored to fit the circumstances of each case. It is that diligence which is
appropriate to accomplish the end sought and which is reasonably calculated to
do so.'"
Carlson
[v. Bos], 740 P.2d [1269,] 1277 n.13 [(Utah 1987)] (quoting Parker v.
Ross, 117 Utah 417, 217 P.2d 373, 379 (1950)).
[13]
Applying Colley's definition of due diligence to the facts of this
case, we conclude that the adoptive father failed to make a diligent effort to
locate the natural father. At the hearing on the petition to vacate the
adoption, the adoptive father explained his efforts to locate the natural
father:
Q.
[The adoptive father], what reasonable, probable efforts did you make to ensure
that [the natural father] knew that you were going to adopt . . . -- you were
going to adopt [the son]?
A. What did I do to ensure that he was
notified?
Q. Yes.
A. I followed what my lawyer had told me to do,
which was to take out an ad in the newspaper.
Q. And that's the only
thing you did?
A. And whatever else. That was it. That's all I can
recollect right now.
Q. Well, do you want a minute to reflect on
that?
Is there any possibility that you did anything else besides put an
ad in the newspaper?
A. Besides look in the phone directory down in Fort
Coffins, that was the extent of it.
The
adoptive father also testified that he questioned the mother about the natural
father's whereabouts but that she was unresponsive due to her involvement with
drugs.
[14]
The district court found that merely questioning his wife as to the
natural father's location and examining the Fort Collins telephone directory did
not constitute due diligence. We agree. Several factors indicated that the
Oklahoma City area was the logical place to locate the natural father. The
adoptive father knew that the son visited his natural father in Oklahoma City
during the summer of 1982. During that same summer, the adoptive father traveled
to Oklahoma City for a wedding, and during his visit he met the natural father
in Midwest City, which is a suburb of Oklahoma City. In January 1983, the
natural father flew from Oklahoma City to the Denver airport with the son to
return him to his mother. As stated by the district court: "It makes no sense to
limit the search to Ft. Collins when the last actual contact took place at the
airport with [the natural father] flying from Oklahoma City."
[15]
The adoptive father also could have attempted to contact the natural
father's relatives. While the adoptive father was in Oklahoma City during the
summer of 1982, he and the mother visited Tommy Leisy, the natural father's
cousin, at his house. Even though the adoptive father was under the erroneous
impression that Mr. Leisy was the son's uncle, attempting to contact Mr.
Leisy in order to discover the natural father's address would have been
logical.
[16]
Under the Colley test, the adoptive father was not required to
exercise all conceivable diligence prior to making service by publication but
rather was required to exercise that diligence which was reasonable under the
circumstances. That meant making sincere efforts to secure the natural father's
address. TG v. Lee (Interest of SVG), 826 P.2d 237, 242 (Wyo. 1992). The
adoptive father failed to exercise the requisite level of diligence in this case
when he made no effort to locate the natural father in the Oklahoma City
area.
[17]
Affirmed.
Citationizer Summary of Documents Citing This Document
Cite |
Name |
Level |
None Found. |
Citationizer: Table of Authority
Cite |
Name |
Level |
The Utah Supreme Court Decisions |
| Cite | Name | Level |
| 217 P.2d 373, | Parker v. Ross | Cited |
Wyoming Supreme Court Cases |
| Cite | Name | Level |
| 1991 WY 153, 821 P.2d 565, | Colley v. Dyer | Cited |
| 1992 WY 18, 826 P.2d 237, | In Interest of SVG | Cited |
|