In The Matter Of The Adoption Of K.J.B., L.D.B., And R.J.B.

959 P.2d 853 (1998)

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Nature of the Case

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Facts

M and F had three children. K.J.B., L.D.B., and R.J.B. M and F were divorced in 1989. M was given residential custody of L.D.B and R.J.B., and F was given residential custody of K.J.B. Eventually, all three children began residing with M as a result of a child in need of care proceeding regarding K.J.B. M married stepfather (SF) in May 1991. F had been ordered to pay $254 per month in child support for the two children in M's custody. M never requested a change in the amount of support after all three children were placed in her custody. M testified the only check she ever received from F was one for $98. In 1991, F filed for social security disability benefits, and the children began receiving a portion of these benefits, which were back-dated to 1990. The children received $255 per month in social security benefits. F exercised regular visitation for approximately 1 year after the children began residing with M. On June 29, 1992, the district court entered an order approving the change of custody of all three children to M. The court permitted visitation by F, but due to F's mental problems, the visitation was to be under the direct supervision of the Pawnee Mental Health Center. F exercised four supervised visits with the children in the following 3 months. F eventually got specific visitation rights. On October 20, 1993, M filed a motion to alter visitation. F exercised no visitation or contact with the children from that point on. F did not appear. F is mentally disabled and suffers from depression and agoraphobia. F testified he called SF in April 1994 and was told that the children were not his anymore, they were SF's children, and to never call again. F testified he did not call the children because of SF's command. F was in and out of the State Hospital for his mental illness and jail for DUI. On November 6, 1995, SF, with the consent of M, filed a petition for adoption of the three children. The adoption proceedings were heard before a district magistrate judge. The petition claimed F's consent was unnecessary because he had failed or refused to assume the duties of a parent for the 2 years prior to the filing of the adoption petition. The issue of whether the father's consent was required for the adoption was removed to the district court. The court concluded that F had failed to assume his parental responsibilities for the 2-year period and his consent to the adoption was unnecessary. The district court returned the case to the magistrate court for the continuation of the adoption proceedings. SF's petition was granted. F filed a motion to stay the adoption and a notice of appeal concerning the district court's order finding his consent to be unnecessary.