Abandonment, Incarceration, and Step-Parent Adoption: The Constitutional Application of N.D.C.C. § 14-15-01(1) in Adoption of G.M.H.

I. Introduction

The North Dakota Supreme Court’s decision in Adoption of G.M.H., 2025 ND 208, addresses the termination of a biological father’s parental rights in the context of a step-parent adoption petition, where the father was incarcerated for nearly three years on child pornography offenses. The opinion reinforces and clarifies several key points of North Dakota law:

The interpretation of “abandonment” under N.D.C.C. § 14‑15‑01(1) as applied to a noncustodial, incarcerated parent;
The structure of N.D.C.C. § 14‑15‑19(3), confirming three independent statutory grounds for terminating parental rights in adoption proceedings;
The standards of review applicable to findings of abandonment and to discretionary termination decisions; and
The constitutionality—on an as-applied basis—of applying the statutory definition of “abandon” to an incarcerated parent under the United States and North Dakota Constitutions.

The Court, in an opinion by Justice Bahr, unanimously affirmed the district court’s order terminating the father’s parental rights, upholding a finding of abandonment and rejecting an as-applied due process challenge. The ruling provides an important restatement of the expectations placed on incarcerated parents who wish to preserve their parental status in the face of step-parent adoption petitions.

II. Factual and Procedural Background

A. The Family Context

D.A.D. (father) and K.R.H. (mother) are the biological parents of G.M.H., born in 2020. The parents separated in June 2022. In September 2022, father was arrested and later convicted—April 2023—of four counts of possession of child pornography. He was incarcerated for approximately 34 months, a period the district court characterized as a “pivotal time” in the child’s life ([¶9]).

During his incarceration:

Father had no substantive contact with G.M.H.;
He attempted to send four letters and place three phone calls to the child ([¶9]); and
He did not provide child support or other meaningful care, emotional or financial, according to the district court’s findings.

B. The Divorce Judgment and Parenting Provisions

While incarcerated, father initiated divorce proceedings. The resulting divorce judgment granted him supervised parenting time upon his release, but that parenting time was expressly conditioned on his providing the mother with:

Information about his release terms and conditions;
His sex offender registration requirements; and
Proof of completion of any required treatment programming ([¶2]).

The district court ultimately found he failed to provide this required information both during and after his incarceration ([¶9], [¶15]).

C. The Step-Parent Adoption Petition

In April 2025, the mother and her new husband, D.A.H. (step-parent), filed a petition in district court seeking:

Termination of father’s parental rights; and
Adoption of G.M.H. by the step-parent.

A hearing was held in August 2025. In September 2025 the district court issued its order:

Finding by clear and convincing evidence that father had abandoned G.M.H. and
Concluding that father’s parental rights should also be terminated based on “misconduct, faults, and continuous neglect” under N.D.C.C. § 14‑15‑19(3)(b) ([¶3], [¶11]).

Father appealed, raising four principal issues:

The finding of abandonment was clearly erroneous;
The finding of misconduct/fault/neglect (under § 14‑15‑19(3)(b)) was clearly erroneous;
The court abused its discretion in deciding to terminate his parental rights; and
The application of N.D.C.C. § 14‑15‑01(1)’s definition of “abandon” violated his federal and state constitutional rights.

III. Summary of the Supreme Court’s Decision

The North Dakota Supreme Court affirmed the termination of father’s parental rights and the step-parent adoption. Its core holdings are:

Abandonment: There was evidence to support the district court’s finding that father abandoned his child under N.D.C.C. § 14‑15‑01(1) and § 14‑15‑19(3)(a), and that finding was not clearly erroneous ([¶10]).
Independent statutory grounds: Because § 14‑15‑19(3) sets out independent grounds for termination, and abandonment alone sufficed, the Court did not need to reach the district court’s alternative finding of termination for misconduct, faults, or neglect under § 14‑15‑19(3)(b) ([¶12]).
No abuse of discretion: Once the statutory grounds were met by clear and convincing evidence, the district court acted within its discretion in ordering termination. The Supreme Court found no abuse of discretion; the court did not treat incarceration as per se abandonment and engaged in a rational, fact-based analysis ([¶13]–[¶16]).
Constitutionality as applied: The Court rejected father’s as-applied constitutional challenge to N.D.C.C. § 14‑15‑01(1). The definition of “abandon” — which expressly requires a finding that the parent’s failure occurred “without justifiable cause” — is compatible with the due process protections of the Fourteenth Amendment and Article I, Section 1 of the North Dakota Constitution. The statute does not create a presumption of abandonment for incarcerated parents and, as applied here, did not violate father’s constitutional rights ([¶19]–[¶23]).

IV. Detailed Analysis

A. Statutory Framework for Termination in Adoption Proceedings

1. N.D.C.C. § 14‑15‑19(3): Three Independent Grounds

Section 14‑15‑19(3), N.D.C.C., governs termination of parental rights in the context of an adoption proceeding. It provides that a court may terminate parental rights:

On any ground provided by other law (e.g., juvenile protection statutes), and
“In any event” on one of three enumerated grounds:
- (a) Abandonment;
- (b) Misconduct, faults, habits, or repeated and continuous neglect or incapacity causing serious harm or probable harm; or
- (c) Unreasonably withheld consent by a noncustodial parent, contrary to the child’s best interests ([¶4]).

The Court emphasizes that the word “or” in § 14‑15‑19(3) is disjunctive and creates separate and independent grounds for termination ([¶5]). Relying on:

Clemenson v. Clemenson, 2025 ND 195, ¶ 11;
State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 14, 712 N.W.2d 828; and
Matter of Adoption of A.S., 2018 ND 265, ¶ 16, 920 N.W.2d 301,

the Court reiterates that terms separated by “or” each carry independent significance. Thus, proof by clear and convincing evidence of any one of the three subsections—(a), (b), or (c)—is sufficient to authorize termination.

This independent-ground structure is critical for the outcome in Adoption of G.M.H. Once the Court affirmed the finding of abandonment under § 14‑15‑19(3)(a), it did not need to analyze the separate ground under § 14‑15‑19(3)(b) ([¶12]).

2. Cross-Reference to “Other Law”

The Court also notes, via footnote and citation to Interest of K.M.T., 2022 ND 109, ¶ 18, 974 N.W.2d 641, that § 14‑15‑19(3) permits a district court to terminate parental rights in an adoption action under “other law” ([¶5] n.1). This cross-reference allows the adoption court to rely on grounds codified in other statutory regimes (such as juvenile protection or deprivation statutes) when appropriate. Though not directly applied here, the case confirms the expansive reach of § 14‑15‑19(3).

B. The Legal Definition and Finding of Abandonment

1. Statutory Definition of “Abandon”

N.D.C.C. § 14‑15‑01(1) defines “abandon” with respect to a noncustodial parent as:

“failure by the noncustodial parent significantly without justifiable cause to:

Communicate through physical contact or oral conversation with the child; or

Provide for the care and support of the child as required by law.”

Two components are central:

Conduct element: Lack of communication or lack of support; and
Culpability element: The failure must be “significant” and “without justifiable cause.”

The emphasized “justifiable cause” phrase is pivotal to the constitutional analysis and to how courts must treat incarceration in abandonment determinations.

2. Standard of Review for Abandonment Findings

Whether a child has been abandoned is a question of fact, reviewed under the “clearly erroneous” standard ([¶6]; see also Interest of C.A.R., 2020 ND 209, ¶ 8, 950 N.W.2d 186). A finding is clearly erroneous if:

There is no evidence to support it;
It is induced by an erroneous view of the law; or
The appellate court is left with a definite and firm conviction that a mistake has been made ([¶6]).

Thus, appellate review is highly deferential to the trial court’s factual assessments, including credibility and the weighing of evidence.

3. Application to the Facts of Adoption of G.M.H.

The district court found, and the Supreme Court accepted, that:

Father was incarcerated for approximately 34 months during a critical early childhood period ([¶9]);
During incarceration he:
- Attempted to send four letters and placed three calls to the child,
- But overall did not make a concerted effort to maintain a relationship with her ([¶9]);
He failed to provide:
- Required information under the divorce decree (release terms, registration requirements, treatment completion), and
- Emotional or financial support before and during incarceration ([¶9], [¶15]);
After release, he:
- Did not contact the child,
- Did not provide the ordered information, and
- Had “no plan regarding his future” ([¶9], [¶15]).

The district court concluded there was clear and convincing evidence that father had abandoned his child:

“He has not communicated with her, cared for her, or supported her emotionally or financially as expected of a parent, both before and during his incarceration. His failure is significant and without justifiable cause.” ([¶9], [¶15])

The Supreme Court held that the record supported this conclusion and that the district court correctly applied the law. The Court was not left with a firm conviction of error and therefore declined to disturb the abandonment finding ([¶10]).

4. Incarceration as a Factor, Not a Presumption

A central contention on appeal was father’s argument that the district court effectively treated incarceration as per se abandonment. The Supreme Court rejected that characterization:

The district court expressly:
- Made detailed factual findings about father’s efforts (or lack thereof) during incarceration,
- Considered the limitations imposed by incarceration, and
- Found he exerted no more than a “modicum of effort” to maintain a relationship with his daughter ([¶15]).
The Court re-affirmed prior precedent:
- “Incarceration alone is insufficient to establish abandonment, but incarceration with other factors such as parental neglect, withholding affection, failure to provide financial support, and lack of contact can support a finding of abandonment.” In re Adoption of I.R.R., 2013 ND 211, ¶ 13, 839 N.W.2d 846 ([¶20]);
- An incarcerated parent must make a greater effort to sustain a relationship. In re A.M.W., 2010 ND 154, ¶ 9, 786 N.W.2d 727 ([¶20]).

The Court thus framed incarceration as one factor among many in evaluating whether failures to communicate or support were “without justifiable cause.” That approach becomes key to the constitutional holding.

C. Discretion to Terminate Parental Rights Once Grounds Are Met

Even where the statutory elements for termination are satisfied by clear and convincing evidence, the district court retains discretion whether to actually terminate parental rights under § 14‑15‑19. This principle is underscored by:

Interest of B.F., 2025 ND 127, ¶ 13, 23 N.W.2d 718 (quoting Interest of J.C., 2024 ND 9, ¶ 22, 2 N.W.3d 228); and
Interest of C.A.R., 2020 ND 209, ¶ 9.

The Supreme Court reviews the district court’s exercise of that discretion for abuse of discretion. A court abuses its discretion if:

It acts arbitrarily, unconscionably, or unreasonably;
Its decision is not the product of a rational mental process; or
It misinterprets or misapplies the law ([¶7]).

Father claimed the district court abused its discretion by:

Disregarding material evidence;
Issuing conclusory findings without proper credibility determinations; and
Misapplying the law by treating incarceration as equivalent to abandonment ([¶13]).

The Supreme Court’s response is twofold:

To the extent father challenged the weighing of evidence and credibility, those arguments are properly characterized as attacks on factual findings, which the Court had already upheld under the clearly erroneous standard ([¶14]).
The record showed the district court did not treat incarceration as dispositive but conducted a nuanced review of father’s conduct before, during, and after incarceration. Its ultimate decision to terminate was the product of a rational mental process and correct legal standards, so there was no abuse of discretion ([¶15]–[¶16]).

D. Rejection of the Constitutional Challenge to N.D.C.C. § 14‑15‑01(1)

1. Nature and Standard of Review of the Challenge

Father framed his constitutional argument as an as-applied challenge to N.D.C.C. § 14‑15‑01(1), claiming that its application to him—given his incarceration—violated:

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; and
Article I, Section 1 of the North Dakota Constitution ([¶17]).

An as-applied challenge asserts that a statute is unconstitutional in the particular way it was applied in a given case, rather than facially invalid in all or most of its applications. The Court reviews such challenges de novo (fresh, without deference), citing:

SCS Carbon Transp. LLC v. Malloy, 2024 ND 109, ¶ 8, 7 N.W.3d 268; and
State v. King, 2025 ND 174, ¶ 4, 26 N.W.3d 695 ([¶18]).

2. The “Justifiable Cause” Language as a Constitutional Safeguard

The crux of father’s claim was that the statutory definition of “abandon”:

Does not account for “the unique circumstances of incarcerated parents”; and
Effectively creates a presumption of abandonment unrelated to parental intent or realistic ability to maintain a relationship ([¶17], [¶21]).

The Court’s answer is direct: the statute itself contains the necessary flexibility and constitutional safeguard. By requiring that the failure to communicate or support be “without justifiable cause,” the definition of abandonment mandates consideration of the parent’s circumstances, including incarceration ([¶19], [¶21]).

The Court explicitly states:

“A noncustodial parent’s incarceration is a factor a court considers when determining whether a noncustodial parent’s actions were with cause” ([¶19]).
Section 14‑15‑01(1) does not:
- Fail to account for incarcerated parents’ unique constraints, or
- Create a presumption of abandonment divorced from intent or ability ([¶21]).

In support, the Court reaffirms its holdings in:

In re Adoption of I.R.R., 2013 ND 211, ¶ 13:
- “Incarceration alone is insufficient” to prove abandonment;
- But incarceration plus other negative factors (neglect, lack of support, absence of affection or contact) may establish it ([¶20]).
In re A.M.W., 2010 ND 154, ¶ 9:
- Incarcerated parents must make a greater effort to maintain a nurturing relationship, given the obvious constraints ([¶20]).

Thus, the statute as interpreted and applied in prior case law already embodies a context-sensitive approach that respects constitutional parental rights while protecting children’s interests.

3. Application of the Statute to Father’s Case

Father also argued that the district court devalued his limited attempts at communication during incarceration and therefore violated his constitutional rights. The Supreme Court characterizes this argument as essentially another disagreement with the court’s factual findings and evidentiary weightings, rather than a genuine constitutional defect ([¶22]).

Given the record—sparse contacts, lack of support, non-compliance with the divorce decree, and no efforts post-release—the Court concluded that:

The district court properly considered incarceration as a factor;
It did not presume abandonment from incarceration alone; and
The statute’s “justifiable cause” requirement was faithfully applied.

Accordingly, father failed to show a violation of his federal or state constitutional rights ([¶23]).

E. Precedents Cited and Their Influence

1. Interpretation of “Or” and Independent Grounds for Termination

The Court’s interpretation of § 14‑15‑19(3) as containing independent grounds for termination rests on general statutory interpretation precedents:

Clemenson v. Clemenson, 2025 ND 195, ¶ 11:
- Reiterates that the word “or” is disjunctive, signifying alternatives.
State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 14:
- Confirms that terms separated by “or” have separate and independent significance.
Matter of Adoption of A.S., 2018 ND 265, ¶ 16:
- Applies this principle to § 14‑15‑19(3), holding that it provides three independent grounds for termination.

These precedents allow the Court in Adoption of G.M.H. to streamline its analysis by affirming on the single ground of abandonment without addressing the alternative misconduct/neglect ground ([¶12]).

2. Abandonment, Standard of Review, and Evidentiary Threshold

The Court leans heavily on Interest of C.A.R., 2020 ND 209, for the governing standards:

Abandonment is a factual question reviewed for clear error ([¶6], [¶8]);
Once statutory elements are met by clear and convincing evidence, the court has discretion to terminate ([¶7]).

These cases reinforce both the high burden on petitioners (clear and convincing evidence) and the deference owed to trial courts in their factual determinations and ultimate termination decisions.

3. Discretion to Terminate: B.F. and J.C.

Interest of B.F., 2025 ND 127, and Interest of J.C., 2024 ND 9, are cited to reaffirm that:

Even when the statutory elements are proven, termination is not mandatory;
The district court must exercise judgment as to whether termination is appropriate in the circumstances; and
The Supreme Court reviews that judgment only for abuse of discretion ([¶7]).

Adoption of G.M.H. thus fits into a line of cases emphasizing that termination of parental rights is a drastic remedy to be imposed only after careful, individualized consideration—yet one that will be upheld on appeal so long as the lower court’s reasoning is rational and legally sound.

4. Incarcerated Parents and Abandonment: I.R.R. and A.M.W.

In re Adoption of I.R.R. and In re A.M.W. are the key authorities defining how incarceration factors into abandonment:

No per se rule: Incarceration by itself does not establish abandonment.
Enhanced duty: An incarcerated parent must expend greater effort to maintain communication and demonstrate concern.

Adoption of G.M.H. carries these principles forward, explicitly applying them to reject father’s constitutional claim and to uphold the district court’s abandonment finding when incarceration is coupled with:

Minimal contact attempts;
No financial support;
Lack of compliance with court-ordered conditions; and
No proactive efforts after release.

5. Constitutional Review: SCS Carbon Transp. and King

The Court’s discussion of as-applied challenges and de novo review draws on:

SCS Carbon Transp. LLC v. Malloy, 2024 ND 109, ¶ 8; and
State v. King, 2025 ND 174, ¶ 4 ([¶18]).

These cases provide the doctrinal framework for assessing as-applied constitutional challenges, though the real work in Adoption of G.M.H. is done by statutory interpretation (the “justifiable cause” language) and existing family-law precedent on abandonment and incarceration.

V. Clarification of Complex Legal Concepts

This section briefly explains several legal concepts appearing in the opinion in more accessible terms.

1. “Clear and Convincing Evidence”

This is a heightened standard of proof—more demanding than “preponderance of the evidence” (more likely than not), but less than “beyond a reasonable doubt” in criminal cases. It requires that the evidence produce a firm belief or conviction in the mind of the factfinder about the truth of the allegations. In termination cases, petitioners must show by clear and convincing evidence that one of the statutory grounds (e.g., abandonment) is present.

2. “Abandonment” by a Noncustodial Parent

In this statutory context, abandonment does not require an explicit statement (“I give up my child”). Instead, it is inferred from conduct:

Failing in a significant way to communicate with the child, or
Failing to provide financial or other legal support for the child,

and doing so without legitimate excuses (“without justifiable cause”). Courts examine the parent’s efforts and circumstances holistically.

3. “As-Applied” Constitutional Challenge

An as-applied challenge concedes that a statute may be valid in many or most situations, but argues that in the specific circumstances of a given case its application violates constitutional rights. Father in this case argued that applying the abandonment definition to an incarcerated parent in his situation was unconstitutional, even if the statute might be valid in other contexts.

4. “Abuse of Discretion”

This standard of appellate review asks whether the district court’s decision:

Was arbitrary or unreasonable;
Was based on a misunderstanding or misapplication of the law; or
Lacked a rational basis given the evidence.

It does not permit the Supreme Court to substitute its judgment just because it might have reached a different conclusion; there must be a clear error in the trial court’s reasoning process.

5. “Per Se” Abandonment

To say incarceration is per se abandonment would mean that imprisonment alone, without examining the parent’s efforts, intentions, or overall conduct, automatically equals abandonment. North Dakota law rejects such an automatic rule; instead, incarceration is one factor that must be considered alongside the parent’s attempts (or lack thereof) to maintain a relationship and support the child.

VI. Likely Impact and Broader Significance

A. Clarifying the Role of Incarceration in Abandonment

Adoption of G.M.H. reinforces a clear, balanced rule for incarcerated noncustodial parents:

Incarceration is not an automatic ground for termination, but neither is it a shield.
Parents in custody must do more, not less, to maintain ties—writing letters, calling, complying with court orders, and demonstrating proactive concern.
Minimal, sporadic efforts (as found here: four letters, three calls in nearly three years) may fall far short of avoiding a finding of abandonment.

This opinion will likely be cited in future step-parent adoption and termination cases where an incarcerated parent asserts due process rights and argues that incarceration should excuse limited contact or support.

B. Strengthening the “Justifiable Cause” Inquiry

By emphasizing that “justifiable cause” is an integral part of the statutory definition of abandonment and is constitutionally significant, the Court:

Directs trial courts to make explicit findings about the reasons for a parent’s failures;
Requires consideration of real-world barriers (e.g., incarceration, protective orders, supervised-contact conditions); and
Reassures that the statute is capable of constitutional application when used in a fact-sensitive way.

This may encourage more detailed trial court findings explaining why a parent’s failures are or are not justified in light of their specific circumstances.

C. Practical Guidance for Litigants

For petitioners (step-parents, custodial parents, agencies):

This decision underscores the importance of building a robust factual record of:
- The noncustodial parent’s contact or lack of contact;
- Financial support history;
- Compliance or noncompliance with court orders (such as providing release and treatment information); and
- Efforts made (or not made) both during and after incarceration.

For incarcerated or noncustodial parents:

The case highlights the need for consistent, meaningful efforts to maintain a relationship with the child, even under constraints.
Parents must be proactive in:
- Communicating within institutional limits;
- Seeking to comply with court-imposed conditions; and
- Demonstrating ongoing concern and planning for the child’s welfare.

D. Confirming the Independence of Statutory Grounds

By relying solely on abandonment and declining to reach the alternative ground under § 14‑15‑19(3)(b), the Court reaffirms that any one of the three statutory grounds independently supports termination. This has at least two practical implications:

Appeals focusing on one ground will not require appellate courts to address others if one is sufficiently supported by evidence; and
Petitioners may prudently plead multiple grounds, but success on any single ground is legally sufficient.

E. Constitutional Stability of North Dakota’s Termination Framework

Finally, the rejection of the as-applied due process challenge strengthens the constitutional footing of North Dakota’s termination-of-parental-rights scheme in adoption proceedings. The Court essentially:

Confirms that the statutory framework, as interpreted, is compatible with parents’ fundamental rights to the care, custody, and control of their children; and
Signals that future constitutional attacks will likely fail where trial courts:
- Make thorough, individualized findings, and
- Demonstrate that incarceration was treated as one factor among many, not a dispositive presumption.

VII. Conclusion

Adoption of G.M.H., 2025 ND 208, reinforces North Dakota’s established approach to termination of parental rights in step-parent adoption cases, with several important clarifications:

N.D.C.C. § 14‑15‑19(3) provides three independent grounds for termination; proof of any one, including abandonment, is sufficient.
Abandonment under § 14‑15‑01(1) requires both a significant failure to communicate or support and a determination that the failure was “without justifiable cause.”
Incarceration alone does not equal abandonment, but incarceration plus minimal contact, no support, and noncompliance with court orders can—and did here—support a finding of abandonment.
The district court’s decision to terminate, once statutory grounds were met by clear and convincing evidence, is reviewed for abuse of discretion; the Court found none.
The application of the abandonment definition to an incarcerated father in this case did not violate constitutional due process. The statutory language and existing precedent provide sufficient flexibility to consider an incarcerated parent’s unique circumstances.

In sum, the opinion confirms that while parental rights are fundamental, they are not absolute. When a noncustodial, incarcerated parent fails to make sustained, meaningful efforts to communicate with and support a child, especially during formative years, North Dakota courts may—consistent with statute and constitution—find abandonment and terminate parental rights in favor of providing the child legal and familial stability through step-parent adoption.