Appellant: IN THE MATTER OF THE ADOPTION OF A.L.G.: A Minor Child GABRIELLE BAKER
Appellee: ERIK LEE ORRand LAURA MARIEORR

( Prince )

( Tulsa County - Kurt G. Glassco )

UNPUBLISHED

Gerald J. Lovoi, Tulsa, Oklahoma, For Respondent/Appellant

Catherine Z. Welsh, Jim C. McGough, Daphne A. Burns, WELSH & MCGOUGH, Tulsa, Oklahoma, For Petitioners/Appellees

OPINION

¶1 Petitioners/Appellees, Erik and Laura Orr, petitioned to adopt A.L.G., a minor child, without the consent of her parents, Gabrielle Baker ("Baker") and Jonathan Gary. A.L.G. was born during August, 2012, and the Orrs were appointed as guardians of the child during December, 2012. Gary consented to the adoption but Baker objected. The trial court granted the Application for a determination that the child was eligible for adoption without consent based on Baker's failure to support the minor child. In a separate hearing, the trial court held that the adoption was in the best interests of the child. Baker appeals, claiming that the evidence was insufficient to justify proceeding with the adoption without her consent and that, in addition, the evidence presented regarding her husband's deprived child proceeding, involving a child unrelated to A.L.G., was highly prejudicial to her. We find that Baker failed to undertake her statutory duty as a parent to support A.L.G. and viewed that such duty to be the guardians' responsibility. Furthermore, even if it was error to admit evidence of the deprived child proceeding, other evidence in the record was sufficient to support, by clear and convincing evidence, that adoption is in the child's best interests.

The trial court committed no error and the Final Decree of Adoption is affirmed.

BACKGROUND

¶2 A.L.G. was born on August 15, 2012. The Orrs are A.L.G.'s maternal aunt and uncle. When the child was approximately four months old, the Orrs commenced a guardianship action and have been the legal guardians of A.L.G. since that time. The Orrs filed their Petition for Adoption on June 8, 2018. At that time, A.L.G. was five years old. On June 11, 2018, the Orrs filed their Application for Order Determining Child Eligible for Adoption Without Consent of Biological Mother. In the Application, the Orrs alleged that, pursuant to 10 O.S. 7505-4.2(B)(2), the adoption should proceed without Baker's consent due to Baker's willful failure to contribute to the support of A.L.G. for a period of twelve consecutive months out of the last fourteen months immediately preceding the filing of the Petition for Adoption.' The relevant fourteen month period was April 8, 2017 through June 8, 2018. The matter proceeded to trial on July 24, 2019.

Hearing on Application to Adopt Without Consent

¶3 Two witnesses testified at the hearing on the Application to Adopt Without Consent: Baker and Laura Orr. The evidence established that, during the relevant fourteen month period (April 8, 2017 through June 8, 2018), Baker was employed from April through July, 2017. Baker was employed with Crossmark and her job entailed providing samples of various products to customers at a Sam's Club location.2 Baker left that employment during July or August, 2017. Baker was not employed from August, 2017, through June, 2018.

¶4 In addition to her income with Crossmark, Baker received disability income during the relevant fourteen month period. The disability received by her was approximately $700.00 per month.' Baker is a member of the Cherokee Tribe and receives disabled housing benefits through the Cherokee Nation.4 The benefits provided by the Cherokee Nation assist with payment of Baker's rent (which is $330.00 per month). Baker was questioned as to whether she was entitled to receive assistance with payment of utilities on two occasions each year and she testified that she was eligible but had not applied during the relevant time period.

In addition to the disability income and the assistance from the Cherokee Nation, Baker received food stamps each month which provided income in the amount of approximately $136.00 per month. The total amount of income received by Baker during the relevant fourteen month time period was $13,383.83, or approximately $955.00 per month.

¶5 Baker's Financial Declaration was admitted into evidence at trial. According to that declaration, she had income in the amount of $896.78 per month, and that her expenses were $905.00 per month.' She testified that when she needed money either her husband or her husband's father would provide financial assistance.

¶6 Baker admitted at trial that she did not pay any support to the Orrs during the relevant time period. She testified that an attorney advised her not to give any money to them. The following exchange occurred at trial:

"Q. Okay. And during this relevant time period, even on the months, like, April of 2017 and May of 2017, and June of 2017 when you were working and had surplus income, did you give that income as child support, even $50 a month, to the parties?

"A. [Baker] No.

"Q. Okay. Why?

"A. Because I was told not to.

"Q. By who?

"A. Another attorney.

"Q. Told you not to pay child support?

"A. Yes. When Baker was questioned regarding her responsibility as a parent to provide support for A.L.G., the following transpired:

"Q. Okay. But you knew you had a child other people have been taking care of since 2012. Is that fair to say?

"A. [Baker] Yes.

"Q. And that child needs clothes? Yes?

"A. I didn't think so.

"Q. Why?

"A. Because they are the guardians. And they never asked.

Q. So it's their problem? They need to provide the clothes; right?

"A. Yes.

"Q. Okay. And that child needs to eat. Yes?

"A. Yes.

"Q. Who's supposed to provide all that?

"A. Guardians.

"Q. I see. And what about when the child needs basic inoculations, and vaccines, and doctor appointments and medicine? Who's supposed to provide that?

"A. Guardians.

"Q. So you have no obligation to provide for your child is your belief? A. I do.

"Q. You do what?

"A. I'm her mother.

"Q. Okay. I understand you're her mother, but do you provide for her basic needs?

"A. On visitations."

Baker had supervised visitation with A.L.G. twice a month. During the visitations she would purchase food for A.L.G. and occasionally purchased a toy or other items such as shoes or a dvd. 117 Laura Orr testified that Baker is her sister and that, when the child returned from visitations, the child would now and then bring random items home that were provided to her by Baker. Ms. Orr also testified that Baker did not provide any money to assist with support for the child. The trial court found that the Application to Adopt Without Consent was supported by clear and convincing evidence and set a hearing to determine whether the adoption was in the best interests of the child. Best Interests Hearing

¶8 A hearing on the best interests of the child was held on January 29, 2020. Five witnesses testified at the hearing.6 Baker testified that she had not obtained employment since the last hearing because nobody would hire her. Her primary source of income was from disability benefits. She also participated in Job Corps, but did not obtain employment through Job Corps. She testified that she ultimately stopped going to Job Corps because "It wasn't for me." R. at 308, p. 14.

¶9 Baker testified that she resides in a two bedroom home, with one bedroom for A.L.G. She moved into her current home approximately three or four years ago, but the child has not spent the night in her home. Baker claimed that the Orrs prevented the child from spending the night in her home. Baker exercised visitation with the child (with the Orrs supervising each visit) until December, 2016. During December, 2016, there was an altercation between Baker and her sister, Ms. Orr. Baker slapped Ms. On while Ms. On was holding the child. The Parties disagree as to what occurred regarding visitation after the incident where Baker slapped her sister. The Orrs claimed that they continued to facilitate visitation with Baker, but that she refused because Mr.

On was the individual bringing the child to visitation. Baker claimed that the Orrs were denying her visitation with the child. However, Baker did admit that there were multiple text messages indicating that she refused to participate in visitation if Mr. On was present. Baker testified that she does not trust Mr. On and she filed a motion in the guardianship action to enforce visitation. The court in the guardianship action entered an order for supervised visitation with a professional supervisor on two occasions per month.

¶10 Baker testified that, since the commencement of the guardianship action, she has participated in classes, including parenting classes, anger management, surviving high conflict, and nutrition. She also participated in classes for security and hospitality in order to assist with obtaining employment. Baker testified that adoption was not in the child's best interests because the child needs her mother and needs to maintain the mother and child bond.

¶11 Maternal grandmother, Barbara Robnett, testified. Ms. Robnett testified that she helps Baker at times and buys gifts or other items for A.L.G. She was present during the incident when Baker slapped Ms. Orr. Ms. Robnett testified that Baker slapped Ms. Orr after Ms. Orr did not allow Baker to hold the child and say goodbye at the end of visitation. Ms. Robnett testified that, in her opinion, it was not in the best interests of the child for the adoption to proceed.

¶12 Baker's sister, Priscilla Chiquin, testified at trial. Ms. Chiquin testified that when the child was born, during August, 2012, Baker was living with their mother, Ms. Robnett. According to Ms. Chiquin, however, Ms. Robnett's home was very unsanitary at the time. The child was frequently left with Ms. Chiquin for her to provide care. Ms. Chiquin stated that she had to replace a bassinet because it was not possible for her to get it clean enough to be safely used by a child. She testified that, during the first few months of the child's life, A.L.G. primarily resided with her. Ms. Chiquin testified that adoption was in the child's best interests because the Orrs have financially and emotionally supported A.L.G. and ensured that her needs were met.

¶13 Corwin Baker, Baker's husband, was called to testify by the Orrs' attorney. The reason stated by counsel to call Mr. Baker as a witness was for rebuttal purposes because of "his juvenile deprived history, his being married to this lady and evidently living with her quite a bit." R. at 308, page 74. Baker's counsel objected because Mr. Baker was not listed on any witness list. Baker's counsel did not object on the basis of relevance or undue prejudice. Mr. Baker testified regarding the juvenile case involving him. He testified that he was aware of Jessica Taylor. Ms. Taylor was his brother's girlfriend. Ms. Taylor had a child. Mr. Baker acknowledged that he took a paternity test and was determined to be the biological father of the child, but he denied ever having met Ms. Taylor or the child. Mr. Baker also acknowledged that he was ordered to pay child support for Ms. Taylor's child for about three months.

¶14 Mr. Baker testified that he resides with his father in Iowa, that he receives disability benefits as his primary source of income, and that he has never met A.L.G. Mr. Baker travels to Oklahoma to visit Baker for extended periods of time each month. Mr. Baker testified that an adoption was not in the child's best interests because the Orrs have never given her a chance to raise the child and it tears his wife apart from not being with her child.

¶15 Petitioner, Erik Orr, was the last witness to testify. Mr. Orr testified that he and his wife have been the child's guardians since the child was approximately four months old. He stated that the child is seven years old and that she is an outstanding student. Mr. Orr stated that the relationship with Baker was cordial until December, 2016, when Baker slapped her sister. The Orrs live in Moore, Oklahoma and Baker lives in Tulsa. Prior to December, 2016, the Orrs helped make arrangements for Baker to relocate from Tulsa to Moore, Oklahoma, so that Baker could be closer to the child. The Orrs were going to assist Baker with a transfer to the Job Corps in Moore and to assist with finding housing. According to Mr. Orr, all offers were rejected by Baker.7

Mr. Orr testified that the child is in phenomenal health, that she is doing great in school, and that she has a close bond with the other child in the Orrs' home. He testified that, although Baker filed three motions to terminate the guardianship, the standards were never met by her and the guardianship was never terminated.8

GAL Report and Ruling of the Trial Court

¶16 The Guardian Ad Litem submitted her report approximately two weeks after the best interests hearing. The GAL concluded that Baker had questionable parenting abilities and was also concerned about Baker's ability to maintain a clean home. The GAL stated that Baker had a high level of animosity towards the Orrs and rejected their offers for assistance despite the fact that the assistance offered to her was designed to bring her closer to the child.' The GAL criticized the Orrs for interfering with visitation after the hearing on whether the adoption could proceed without Baker's consent. The GAL concluded, however, that:

Ultimately though, it has been more than seven years since Gabrielle Baker has parented [the child], provided for her 100% of the time, or tended to her every need. She has been unable or unwilling to put in the work to achieve a level of cleanliness, structure and security asked of her over the years. The bond between mother and child that Ms. Baker relies upon in support of her fight for [the child] is now a bond also held between the Orrs and [the child]. Mr. and Mrs. On have provided for, cared for and protected [the child] and to say they have not bonded as parent/child would be false and unfair. It was the GAL's opinion that the best interests of the child would be served by proceeding with the adoption."

¶17 A final hearing took place on February 28, 2020, after the GAL report was submitted to the Parties and to the trial court. The GAL testified and was examined by Baker's attorney and the Orrs' attorney regarding the report. The Parties were allowed to make closing arguments and, after consideration of all arguments, the trial court held that the Orrs satisfied their burden of proof and found that an adoption was in the best interests of the child. A Final Decree of Adoption was filed on November 15, 2021. Baker timely commenced this appeal.

STANDARD OF REVIEW

¶18 Parents have a constitutionally protected fundamental right to the care and custody of their children. In the Matter of the Adoption of M.A.S., 2018 OK 1, 10, 419 P.3d 204, 210. The law presumes that biological parents must consent before an adoption of their child proceeds. Id. at 10. The party seeking to adopt without consent of biological parents has the burden to establish, by clear and convincing evidence, that consent of the parents is not necessary. Id. at 11. A finding that an adoption is in the best interests of a child must also be supported by clear and convincing evidence. Id. at 31. "Clear and convincing evidence is the degree of proof which produces a firm belief or conviction as to the truth of the allegation in the mind of the trier of fact." In the Matter of C.M., 2018 OK 93, 19, 432 P.3d 763, 768.

ANALYSIS

¶19 Baker argues two propositions of error in this appeal. First, she asserts that the trial court committed error when it found that her consent was unnecessary as a result of her failure to support the child. Next, she claims that the trial court committed error when it allowed evidence or discussion regarding Mr. Baker's alleged child welfare proceedings because the evidence was highly prejudicial to Baker. We address each argument in turn.

¶20 Title 10 O.S. 7505-4.2(B)(2), states that:

"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 or a petition to terminate parental rights pursuant to Section 75052.1 of this title, has willfully failed, refused, or neglected to contribute to the support of such minor:

"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. For the purposes of this section, support for the minor shall benefit the minor by providing a necessity."

The finding of the trial court on whether an adoption may proceed without consent under 10 O.S. 7505-4.2, "will not be disturbed on appeal unless it fails to rest on clear and convincing proof." Matter of V.A.J., 1983 OK 23, 8, 660 P.2d 139, 141. Baker argues that, due to her financial circumstances, her de minimis contributions toward the support of the child was sufficient to require her consent to the adoption. She compares her situation to Matter of Adoption of V.A.J., where the parent received $25.00 per month while incarcerated. Id at 3. The stepfather of the child there sought to adopt the child without the consent of his father based on the father's failure to support the child. The child's father was serving a life sentence for murder. Id. at 1. The father's only monetary resource included receipt of $25.00 per month. Id at 3. The Court noted that adoption statutes must be strictly construed and that strict construction favors the rights of the natural parents. Id. at 6. The V.A.J. Court determined that the father's inability to support the child cannot be deemed willful unless the father intentionally incapacitated himself when he committed the felony resulting in imprisonment. Id. at 7. The Court found that the "evidence here does not support an inference that the father's commission of a felony, and subsequent incarceration therefor, was for the purpose of avoiding his support obligation." Id at 7. The V.A.J. Court concluded that the adoption could not proceed without the father's consent. Id. at 8.

¶21 Here, in contrast to V.A.J., Baker had the ability to support A.L.G. and, in fact, had been employed for several months during the relevant fourteen month period. She testified that she did not give the guardians any money because of advice she received from an attorney. Moreover, Baker did not view her role as a parent to include a duty to support the child with the exception of times that she visited the child. Her testimony clearly indicates that, in her opinion, all of the child's financial needs were the guardians' responsibility.

We find that the order of the trial court allowing the adoption to proceed without Baker's consent was supported by clear and convincing evidence. That Order is affirmed.

¶22 Baker claims, in her second argument, that the discussion of the alleged child welfare proceedings involving Baker's husband was unsubstantiated and extremely prejudicial. Baker relies on 12 O.S. 2403, which allows for relevant evidence to be excluded at trial if its probative value is substantially outweighed by the danger of unfair prejudice. Baker argues that evidence of "this alleged deprived child action was prejudicial in the extreme, given the fact that Mr. Baker was not a participant in these proceedings." Br.-in-chief, at 15. Baker's attorney did not object during the best interests hearing to any testimony by Mr. Baker (regarding the deprived child action involving Mr. Baker) on the basis of relevance or undue prejudice, relying, instead, only on the argument that Mr. Baker was not listed on any witness list. In Duke v. Duke, 2020 OK 6, 457 P.3d 1073, a mother in a child custody proceeding asserted that the court "erroneously used an expunged domestic abuse criminal conviction involving mother's fiance when awarding custody to the father." Id. at 4.

In the Journal Entry awarding the father custody, the court included a statement that the mother's fiance was convicted of domestic abuse. Id. at 5.

The Duke Court stated that:

"Failure to properly object to admission of evidence at trial may be raised on appeal when fundamental error and prejudice are shown by an appellant. Application of this standard does not relieve an appellant from the burden of showing the alleged improper evidence was both incompetent and prejudicial. Appellant's burden of showing incompetent testimony includes a burden to supply authority on the issue."

Id. at 27.

Furthermore, a showing of prejudice requires an appellant to frame an argument in the context of all of the evidence used by the judge when adjudicating the cause of action because "an erroneous decision to admit evidence in a nonjury trial will not be considered to be prejudicial when the other evidence is sufficient to support the judgment." Id. at 28.

¶23 During the best interests hearing, the trial court allowed Mr. Baker to testify over Baker's objection. The reason given by the trial court was the fact that if the adoption was not approved, Mr. Baker may at some point in time reside with A.L.G. The evidence presented indicated that Mr. Baker was involved with a paternity action and it was his understanding that his parental rights to the child in that action had been terminated. The evidence indicated that Mr. Baker was supportive of Baker's efforts to maintain a relationship with A.L.G. and that, when necessary, both he and his father financially assisted Baker.

There were no allegations that Mr. Baker was an abusive individual or that he could harm Baker or her child. Even if we were to conclude that admission of evidence regarding Mr. Baker's termination of parental rights action constituted error, a review of the entire record demonstrates that any alleged error did not change the outcome of the proceedings. The evidence presented at the best interests hearing focused on Baker's lack of a parental relationship with A.L.G. and A.L.G.'s home environment provided by the Orrs. The evidence demonstrated that Baker did not fulfill her role of providing support for A.L.G. for her entire life along with the evidence indicating that Baker had not spent a single night with A.L.G. in her current home where she had resided for years.

The evidence demonstrated further that A.L.G. was thriving with the Orrs, doing very well in school, viewed herself as a part of the Orr family, and was accepted by the Orrs as a family member. The evidence presented at the best interests hearing was clear and convincing. The Orrs have provided for the child for her entire life. Baker had good intentions but never fulfilled her role as a parent to provide for the child. We find that evidence regarding the alleged deprived child action involving Mr. Baker was not unduly prejudicial to Baker. Accordingly, we hold that the adoption is in the best interests of the minor child and all Orders of the trial court are affirmed.

CONCLUSION

¶24 For the reasons stated, the Final Decree of Adoption filed on November 15, 2021, is affirmed.

MITCHELL, V.C.J., and SWINTON, J., concur.

(FOOTNOTES):

1 It is undisputed that Baker was never ordered to pay child support for the benefit of the minor child.

2 While she was employed with Crossmark, Baker earned income in the amount of $256.42 for the month of April, 2017; $449.53 for May, 2017; $191.38 for June, 2017; and $63.50 for July, 2017.

3 Baker received Social Security Income in the following amounts: April through October, 2017, $735.00 per month; November and December, 2017, $661.50 per month; and January through June, 2018, $675.00 per month.

4 A.L.G. also is an Indian Child and the Cherokee Nation was involved at all times in the adoption proceeding.

5 Baker's monthly budget included the following costs: Supervised visitation, $204.00; Rent (remaining cost after the Cherokee Nation paid $330.00 to the landlord) $220.00; Food and household supplies, $180.00; Utilities, $213.00; Clothing, $8.00; Auto expense and tolls, $70.00.

6 The witnesses included Baker, Barbara Robnett (maternal grandmother), Priscilla Chiquin (Baker's sister), Corwin Baker (Baker's husband), and Erik On (Co-Petitioner who is married to Baker's other sister, Laura On).

7 The evidence in the record is conflicting on the issue of assistance offered by the Orrs. Baker denied that the Orrs offered her any assistance with relocation, finding employment, or locating housing.

8 Natural Mother's Exhibit 4 is a copy of the Court Ordered Standards for the guardianship action. The standards required Baker to have adequate, stable, and independent housing with appropriate furnishings for the child for a period of six months; adequate, stable employment and income for six months; proof of valid driver's license and auto insurance for anyone in the home responsible for transporting the child; regular visitation with the child; completion of parenting skills class and complete a DVIS ("domestic violence") assessment, follow treatment recommendations, successfully complete all recommendations, and provide proof. Finally, Baker was ordered to participate in individual counseling to address proper safety and nutrition education for the child.

9 The Court notes that there is an apparent rift in Baker's family. The relationships between Baker and her mother on the one hand, and Baker's two sisters on the other hand, have deteriorated to the point where professionals are required to supervise Baker's visitation instead of family members.