Staton v. Shuler

COLBERT, J.

I 1 The issue in this matter is whether the trial court's determination, that the natural parents willfully failed to contribute to the support of their deprived child, is supported by clear and convincing evidence. This Court holds that the evidence that the natural parents' non-support was willful does not rise to the level of "clear and convincing." Therefore, the opinion of the Court of Civil Appeals which affirmed that decision is vacated and the judgment of the trial court which declared the child eligible for adoption without parental consent is reversed.

FACTS AND PROCEDURAL HISTORY

2 On June 23, 2003, the natural parents, Jason and Norma Shuler, placed their five-month-old daughter, L.D.S., with the child's paternal aunt and aunt's husband, Jennifer and Joseph Staton, so that the child would not be at home while the parents were having an argument. The next day, four half-siblings of L.D.S. were removed from the home because one of them had been spanked by her father and step-mother with excessive foree which caused physical injury. The District Attorney for Rogers County filed a petition on July 29, 2008, alleging that L.D.S. was a deprived child. A hearing was held on October 16, 2003, and L.D.S. was adjudicated deprived after the parties stipulated to the allegations contained in the petition.

T3 In a juvenile minute order dated November 20, 2008, the trial court ordered that L.D.S. was to remain in the custody of the Department of Human Services (DHS) and that she would continue to be placed with her aunt and aunt's husband as foster parents. The natural parents were provided a treatment plan which required them to enroll in classes and programs to teach them to discipline without abuse. Neither the plan nor the juvenile minute order set an amount of child support.

14 At the suggestion of the attorney appointed to represent the child, the natural parents tendered a check for $125.00 for the support of L.D.S. to the foster parents in December 2003. The foster mother refused the check stating that she "could not accept the check because [she] was already getting paid through the State for foster care." The check was held for three months at the natural parents' request "so they would have a record that they had paid" and then the check was returned to them. DHS would later acknowledge this tender of payment in a letter to the trial judge dated March 15, 2004.

[5 The trial court mentioned the issue of child support in a juvenile minute order on February 13, 2004. It states: "Documentation of Natural Father's employment issues to be provided to the court regarding child support." It was not until July 1, 2004, however, that an amount of child support was judicially determined. The order from that date provided: "[Natural Mother] to begin child support payments in the amount of $75 within 10 days and provide proof of payment, payable to caretaker." The record on appeal is silent as to why no separate formalized support order was entered, why child support was ordered only from the natural mother, why no provision was made for an income assignment, and why child support payments were made payable to the foster parents rather than to DHS. In an August 20, 2004, juvenile minute order, the trial court noted that "child support remains as previously ordered."

T6 Payments of $75.00 were tendered in September and October of 2004. The foster parents refused the tender of these payments citing the DHS rule prohibiting any foster parent who receives assistance from the state from accepting such payments. After the foster parents refused the September payment, the check was given to the DHS caseworker. It was held and then returned to the natural mother who would later testify that the caseworker refused the tender because no child support order was in place. The natural mother further testified that she never tendered a $75.00 check written in December because she knew no one would accept it. Grandmother of the child would later testify that all the checks had been written on her account, because her daughter had no bank account, and that the money represented by those checks remained in the account.

T7 The next pronouncement concerning child support came at a hearing on December 2, 2004. The juvenile minute order provided: "Child support order to be prepared by [attorney for the natural parents] from 12-15-03 to present. Full accounting to be prepared as to [the natural father], [the natural parents] to submit w2's as soon as they receive them to [their attorney]; any tax refund to be diverted to child support."

8 On January 14, 2005, the district attorney and the attorney for the child filed a motion to terminate the parental rights of the natural parents. The motion was based, among other things, on allegations of the natural parents' willful non-support. The matter was set for trial, but on February 11, 2005, the foster parents filed an application to adopt without the consent of the natural parents. This application was also based on allegations of willful non-support and on an alleged failure to maintain a significant relationship with the child. The motion to terminate parental rights was withdrawn and a hearing on the application to adopt was held on March 29th and 30th of 2005.

T9 At the conclusion of the hearing,¹ the trial court held that the testimonies of the natural mother and the grandmother were "not credible" and that the tendered payments were "mere token gestures." As a result, the trial court concluded that the natural parents' consent to their child's adoption was not required based on clear and convine-ing evidence of willful non-support. Child support was continued in the amount of $75.00 as to the natural mother and, for the first time, support was ordered to be paid from the natural father in the amount of $75.00 per month. Payments were to be paid to the natural parents' attorney to be held in his client trust account. In addition, the trial court suspended visitation between the natural parents and L.D.S., ordered that there be no contact between the natural and the foster parents, and announced that the natural parents would not be allowed to participate in the adoption proceeding. The holdings concerning parental consent and child support were memorialized in an order entered on May 27, 2005.

110 The dispositive issue on appeal was whether willful non-support had been demonstrated by clear and convincing evidence. The Court of Civil Appeals affirmed, but it was sharply divided on the issue. That issue continues to be dispositive and is before this Court on certiorari review.

ANALYSIS

111 "[Thhe right of a parent to the care, custody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions." In re Adoption of D.T.H., 1980 OK 119, ¶ 18, 615 P.2d 287, 290 (overruled on other grounds). The magnitude of such a right requires clear and convincing evidence of a child's eligibility for adoption. Id. "Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." In re C.G., 1981 OK 131, ¶ 17 n. 12, 637 P.2d 66, 71 n. 12. The burden of proof is on the party seeking to sever the parent-child relationship to demonstrate why parental consent is not required. D.T.H., 1980 OK 119, ¶4, 615 P.2d at 288. The clear and convincing evidence requirement "balances the parents' fundamental freedom from family disruption with the state's duty to protect children within its borders." C.G., 1981 OK 131, ¶17, 637 P.2d at 70.

112 The statutory grounds for adoption without parental consent include the following:

B. Consent to adoption is not required from a parent who, for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child ... has willfully failed, refused, or neglected to contribute to the support of such minor:

1. In substantial compliance with an order entered by a court of competent jurisdiction adjudicating the duty, amount, and manner of support; or

2. According to such parent's financial ability to contribute to such minor's support if no provision for support is provided in an order.

Okla. Stat. tit. 10, § 7505-4.2 (2001). In applying this provision, "[the issue of wilfulness is a fact question for the trial court." D.T.H., 1980 OK 119, ¶9, 615 P.2d at 289. "The wilfulness requirement of the statute is intended to prevent an arbitrary application of the statute and a parent's inability to comply with a support order would always be relevant to show an absence of wilfulness." Id. 1 19, 615 P.2d at 291.

113 In this matter, the natural parents' inability to comply with their support obligation did not result from a lack of income. Rather, the record on appeal demonstrates that it was caused in large part by the apparent confusion and the misdirection of the trial court, counsel, and DHS in fulfilling the mandate of the Oklahoma Children's Code, Okla. Stat. tit. 10, §§ 7001-1.1 through 7007-1.9 (2001 & Supp.2005).

1 14 The Children's Code requires parents whose child is made a ward of the court to "Irleimburse the Department of Human Services, in whole or in part, for any costs and expenses incurred by the Department in providing any services or authorizing actions taken pursuant to the Oklahoma Children's Code for the child including, but not limited to, all or some part of placement services, medical care and mental health services of a child, as authorized by law." Id. § 7008-8.7(A)(1) (Supp.2005). The trial court must, within six months of the filing of a deprived child petition, address the issue of child support ² or refer the issue to the Child Support Enforcement Division of DHS. Id. § 70083-8.8(B)(2) (Supp.2005). The Children's Code further directs the trial court to calculate a total monthly child support obligation from the child support guidelines and to order each parent to pay his or her percentage of the obligation even if the parents reside together. Id. § 7008-8.8(B)(8)(b & d). A standard child support form is to be used and filed as a separate document. Id. § 7003-8.8(B)(8)(b)(1 & 2). "The child support order shall contain an immediate income assignment provision pursuant to Section 115³ of Title 48 of the Oklahoma Statutes." Id. § 70083-8.8(B)(8)(F). "Support monies collected while the child is in [DHS] custody and out-of-home placement are used to reimburse ... [DHS] for monies expended to meet the child's needs." Okla. Admin. Code 840:75-13-26(b).

[ 15 These clear and unambiguous statutory directives were not followed in this matter. Instead, the trial court belatedly entered a juvenile minute order which directed the natural mother to pay $75.00 per month "to caretaker." If the directives had been followed, an order of child support would have been entered and the required income assignment would have insured that child support was directed to the proper entity, DHS, through the Centralized Support Registry.

[ 16 Under the facts presented in this matter, the natural parents' failure to comply with their child support obligation cannot be considered to be clearly and convincingly "willful."⁴ The evidence presented to the trial court does not produce a firm belief or conviction that the failure to pay support was a product of the natural parents' will. Because the foster parents have not met their burden of proof, the natural parents' consent to adoption was required.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED.

CONCUR: WATT, C.J., HARGRAVE, OPALA, KAUGER, EDMONDSON, COLBERT, JJ. DISSENT: WINCHESTER, V.C.J., LAVENDER, TAYLOR, JJ.

1 . At the close of the foster parents' evidence, the trial court directed a verdict against the foster parents on their claim that the natural parents had failed to "establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption." Okla. Stat. tit. 10, § 7505-4.2(H)(1) (2001). The foster parents had failed to present any evidence regarding that issue.

2 . During the period between the filing of the deprived child petition and the entry of a child support order, a natural parent must contribute to the child's support according to the parent's financial ability. Okla. Stat. tit. 10, § 7505-4.2(B)(2) (2001).

3 . Section 115(A) requires that "[elvery order providing for the support of a minor child ... shall contain an immediate income assignment provision if child support services are being provided under the state child support plan...." Okla. Stat. tit. 43, § 115(A) (2001).

4 . Today's decision is based on the reasoning that natural parents' inability to comply with their child support obligation resulted from the misdirection of counsel, DHS, and the trial court. Under such unusual circumstances, the failure to comply cannot be considered willful. This decision does not hold that the payments tendered were in substantial compliance with the requirements of section 7505-4.2 of title 10. Thus, this matter is distinguished from In re C.D.0., 2002 OK CIV APP 9, 39 P.3d 828, which addressed the issue of what constitutes "substantial compliance."