( ( Goree ) ( Tulsa County - Kurt G. Glassco )

AFFIRMED

Valerie J. Evans, LAW OFFICES OF VALERIE EVANS, Tulsa, Oklahoma, For Respondent/Appellant

Catherine Z. Welsh, Jim C. McGough, Daphne A. Burns, WELSH & McGOUGH, PLLC, Tulsa, Oklahoma, for Petitioner/Appellee

Opinion

¶1 In this appeal, we review the trial court's order determining a mother's children are eligible for adoption without her consent. ¶2 An adoption may not proceed unless the parent consents.' But consent is not required from a parent who has not maintained a substantial and positive relationship with their child.2 If the parent objects that the child's custodian has denied them the opportunity to maintain the required relationship, then they must show that they have taken sufficient remedial legal action.3

¶3 Miracle Thompson (Mother) asserts the evidence at trial, that she failed to maintain a substantial and positive relationship with her children, was not clear and convincing. Alternatively, she proposes Kelly Dawn Edwards (Adoptive Mother) hindered her visitation and the court denied her the opportunity to enforce that visitation through a pending guardianship action.

¶4 Adoptive Mother had the burden of proof to establish, by clear and convincing evidence, that D.S.J.H. and J.D.T. could be adopted without Mother's consent. Matter of MA.S., at 10. Clear and convincing evidence is the amount 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. Id. at 11.

On appeal, this court examines the court's conclusion to determine if it is supported by the clear weight of the requisite clear and convincing evidence. Id. at 12.

¶5 The phrase "fails to establish and/or maintain a substantial and positive relationship" is defined by statute. It means the parent (a) has not maintained frequent and regular contact with the minor through frequent and regular visitation or frequent and regular communication to or with the minor, or (b) has not exercised parental rights and responsibilities.4 And there is a focal time period in which this evaluation of the relationship is examined: "a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child."5 The statutory time period in this case is February 7, 2020 to April 7, 2021.

¶6 In 2016, Adoptive Mother (a family friend) volunteered to take temporary custody of J.D.T. and D.S.J.H., as a help to Mother who gratefully accepted the offer. ^¶7 There was testimony about Mother's communications with her children. She said she attempted to telephone them about 25 times during the relevant time period but actually spoke with them approximately four times. Adoptive Mother said Mother spoke to D.S.J.H. about once every three months, each phone call lasting about 5 minutes. J.D.T. refused to talk to her. Mother also said she talked to them every week because they regularly visited her father. But her father testified she only talked to them twice while they were in his care.

¶8 Adoptive Mother testified Mother bought each child a Christmas gift but gave them nothing on their birthdays and no other gifts. Mother testified she gave them clothing, shoes, video games, cologne, undershirts, and underwear. She said she gave J.D.T. a table-top hockey game for his birthday but she didn't give a gift to D. S .J.H.

¶9 After the evidence was received, the trial judge expressed surprise that Mother did not make more effort to check on D.S.J.H. after he was diagnosed with leukemia and spent nine weeks at St. Jude Hospital in Memphis.

¶10 We hold a visit at a family funeral plus a day-and-a-half at Christmas over the course of a year does not constitute frequent and regular visitation. Four phone calls in a year is not frequent and regular communication. No visitation or communication with a child sick with leukemia far from home is a failure of parental responsibility. The trial court's determination, that Mother failed to maintain a substantial and positive relationship with her children, was supported by the clear weight of the requisite clear and convincing evidence.

¶11 Mother asserts Adoptive Mother denied her the opportunity to maintain a substantial and positive relationship with her children. Mother testified that she contacted Adoptive Mother in August 2020, asked to have her children returned to her, and Adoptive Mother was unwilling.

According to Mother, Adoptive Mother "said that she had filed for guardianship, and that I couldn't see 'em." Adoptive Mother allegedly told her she would need to meet with the children's therapist before she could see them. Mother said she tried to contact the therapist directly, and then she asked Adoptive Mother to have the therapist call Mother. Mother also testified Adoptive Mother sometimes would not allow her to talk to her children on the telephone for various and inconsistent reasons including "their day was overwhelming that day," and there was "a lot going on" and they were "busy." Mother said there would be months where she was unable to talk to them but "I would still try."

¶12 Adoptive Mother denied she hindered Mother's relationship with her children during the relevant time period. However, she conceded that she informed Mother that the children's counselor recommended that phone contact between Mother and the children would be at the children's option, and that daily phone contact between Mother and children was not good for the children. Adoptive Mother also admitted that she told Mother that Mother would have to complete parenting classes and counseling, and she would have to go through the guardianship court to get her kids back.

¶13 A parent who claims the child's custodian denied them the opportunity to maintain a substantial and positive relationship with their child, "shall prove to the satisfaction of the court that he or she has taken sufficient legal action" to establish the relationship. 10 O.S. 7505-4.2(H)(2). Mother argues she telephoned the court clerk, who did not advise her to seek counsel from an attorney. We hold a telephone call to the office of the court clerk is not sufficient legal action within the meaning of 10 O.S. 7505-4.2(H)(2).

¶14 Before the trial of Adoptive Mother's application for an order determining eligibility for adoption without consent, Mother asked for a continuance. Her contention was that a guardianship had been filed, she had not been given proper notice of it, and the adoption should not proceed until she had opportunity to be heard in the guardianship. The court heard evidence and then denied the request for a continuance. Mother asserts this was error.

¶15 The trial court ruled that Mother had been properly served with the guardianship petition by mailing to her last known address. Mother claims service was improper because Adoptive Mother knew Mother's actual location and yet mailed the petition elsewhere.

Further, Mother claims she did not actually receive the guardianship papers and was not properly notified of a hearing on the petition.

¶16 We are persuaded that the adequacy of notice in the guardianship proceedings is not a material issue. The hearing on the guardianship was continued, and neither party appeared for the continued hearing. No proceedings were held and no permanent order was entered in the guardianship case. In fact, the guardianship was ultimately stayed on Adoptive Mother's motion. The important fact is that Mother testified she knew of the existence of the guardianship case in 2020 but took no legal action to enforce her visitation rights. It was not error for the court to deny Mother's request to continue the adoption proceedings.

¶17 The Order Determining Children Eligible for Adoption Without Consent of Biological Mother, filed December 30, 2021, is AFFIRMED.

BELL, P.J., and DOWNING, J., concur.

(FOOTNOTES):

A1 Matter of Adoption of MA.S., 2018 OK 1,1110, 419 P.3d 204, 208.

2 Title 10 O.S. 7505-4.2(H)(1) provides: "Consent to adoption is not required from a parent who fails 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 of the child."

3 Title 10 O.S. 7505-4.2(H)(2) provides: "In any case where a parent of a minor claims that prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, such parent had been denied the opportunity to establish and/or maintain a substantial and positive relationship with the minor by the custodian of the minor, such parent shall prove to the satisfaction of the court that he or she has taken sufficient legal action to establish and/or maintain a substantial and positive relationship with the minor prior to the receipt of such notice."

4 Title 10 O.S. 7505-4.2(H)(3).

5 Title 10 O.S. 7505-402(H).

Mother signed a temporary power of attorney in favor of Adoptive Mother. During the relevant time period, Mother saw her children on two occasions, during a funeral and afterward at a restaurant, in October 2020, and then on Christmas Day and part of the following day, 2020.