dissenting.
I respectfully dissent. This may be a close case, but close cases, combined with our de novo review, ought to be decided in favor of a parent’s constitutionally protected right to maintain a parent-child relationship. The remedy for nonpayment of child support is a request for a support order, not termination of parental rights. We have not rid ourselves of debtor prisons only to substitute for that Dickensian horror, the termination of the debtor’s parental rights. See generally George Muhar, “Incarceration and Termination of Parental Rights,” 12 J.Juv.L. 70 (1991) [contending incarcerated parents have to fear termination of their parental rights as well as loss of liberty].
Apparently, the fact that John sent money to his girlfriend to use for her and her children’s support is the clincher here. Yet, notwithstanding section 1^07-17, NDCC, which must be carefully limited in order to accommodate a father’s constitutional fundamental right to a relationship with his child, James’ rights are not being terminated for nonsupport, but for abandonment.
The record simply does not support the trial court’s finding that John has intentionally abandoned James. The majority does not, nor could it, rely solely on John’s incarceration to find abandonment and terminate his rights. See Thompson v. King, 393 N.W.2d 733 (N.D.1986); In Interest of F.H., 283 N.W.2d 202 (N.D.1979). Incarceration must be combined with other factors which would support a finding of abandonment by a non-incarcerated parent. F.H., supra. The question of abandonment is one of intent, based upon the facts of each ease. Pritchett v. Exec. Dir. of Social Service Board, 325 N.W.2d 217 (N.D.1982). Plainly speaking, the trial court thought that Walter would make a better parent for James; however, that is not the proper inquiry in a case alleging abandonment and effectively terminating a natural parent’s rights through adoption. The proper determination for the trial court is whether a natural parent’s conduct demonstrates a course of conduct suggesting conscious disregard of or indifference to parental obligations, Pritchett, supra, thus forfeiting his constitutionally protected fundamental right to a relationship with his child. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). See F.H., supra at 214. Whether an incarcerated parent intends to abandon his parental responsibilities may be inferred from his conduct both before and after his imprisonment. Thompson, supra.
Prior to the mother’s move to North Dakota, and until James was nearly three years old, John lived with and helped care for James. Even after the mother moved out of John’s home, taking James with her, John had visitation approximately one weekend per month and “babysat” for James at the mother’s request. The mother testified that shortly after her unannounced move to North Dakota, John called her and told her he was upset that she had taken “his son.”
Since the adoption petition was filed and while incarcerated, John has phoned James three times and sent two letters and a Christmas gift. Cf. Thompson, supra [finding parent made no attempt to contact child, by telephone or letter, after parent’s incarceration]; F.H., supra [terminating father’s rights when father had known about mother’s pregnancy but moved away, failed to inquire about child or send support and was subsequently incarcerated]; In Interest of L.V., 482 N.W.2d 250 (Neb.1992) [finding abandonment when father was incarcerated for most of child’s infancy, had visited child only once during infancy and then moved to *381Texas without notifying mother, where he was incarcerated for aggravated sexual assault of a child]. Given the circumstances, the mother’s move to North Dakota and John’s subsequent imprisonment, it seems to me that John has made an effort to stay in contact with both the mother and James. See In the Matter of the Adoption of G.F.C., 118 Misc.2d 705, 461 N.Y.S.2d 949 (Sur.1983); In re Guardianship of Sain, 217 Neb. 96, 348 N.W.2d 435 (1984) [intent to abandon may be mitigated by circumstances].
There is no public policy that says it is bad for a child to have a father and a stepfather. See Matter of Adoption of K.S.H., 442 N.W.2d 417 (N.D.1989) [affirming trial court’s refusal to terminate father’s rights when child was adequately eared for by grandparents and no serious harm shown if father’s rights were not terminated]. See also Candace M. Zierdt, “Make New Parents But Keep the Old.” 69 N.D.L.Rev. 497 (1993). The fact that two men love James enough to go to court to fight for a legal bond to him indicates to me a benefit to James, not a detriment. That Walter wants sole billing should not carry the day.
I respectfully dissent.
Mesehke, J., concurs.