Appellant: In the Matter of the Adoption of: A.B.B., A Minor Child, MARKITA ROCHELLE BARR
Appellee: Ashly Hale

( Goree )

( Tulsa County - Kurt G. Glassco )

UNPUBLISHED

AFFIRMED

Stephen E. Hale, Angela L. Smoot, RIGGS ABNEY NEAL TURPEN ORBISON & LEWIS, Tulsa, Oklahoma, For Appellant R'ec'd (date) (1' 113113

Catherine Z. Welsh, Jim C. McGough, J. Travis Barnett, Daphne A. Burns, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, For Appellee

Opinion

¶1 Petitioner, Markita Barr, wife of Father, Justin Barr, filed a Petition for Adoption and Application for Order Determining Child Eligible for Adoption without Consent of Biological Mother on the grounds that Mother, Ashly Hale, willfully failed, refused, or neglected to contribute to the support of A.B.B. [Child] for 12 consecutive months out of the preceding 14 months. 10 O.S. 7505-4.2(B). The trial court found clear and convincing evidence that Petitioner met her burden of proof that Mother willfully failed, refused, and neglected to provide support for Child during the relevant time period (February 27, 2021 to April 27, 2022), and held her consent to the adoption was not required pursuant to §7505-4.2(B).1 We affirm.

¶2 On June 21, 2012, Mother and Father were divorced by Agreed Decree of Dissolution of Marriage wherein the trial court ordered Father to pay Mother monthly child support in the amount of $62.62. On February 22, 2013, the parties entered into an Agreed Order to Modify Decree of Dissolution of Marriage. That order required Mother to pay child support pursuant to the attached Oklahoma Child Support Guidelines. However, the total obligation to be paid by Mother/Obligor pursuant to the calculation was $0.00. On January 22, 2018, the parties entered into an Amended Joint Child Custody Plan. The Plan stated, in part: "[t]he Respondent/Petitioner shall pay Petitioner/Respondent child support in the amount ordered in the Decree of Dissolution of Marriage." Neither party was circled and no computation was attached. The Plan referenced the Decree which required Father to pay support in the amount of $62.62.

On April 27, 2022, Petitioner filed the petition for adoption without consent alleging Mother had failed to support Child for at least 12 of the last 14 months immediately preceding the filing of the petition. In the alternative, the petition alleged that Mother failed to support Child within her means and ability. On August 10, 2022, in its Order Determining Child Eligible for Adoption without Consent of Biological Mother, the trial court found that Mother ". . . pursuant to Title 10 O.S. 7505-4.2(B)(1)(2), willfully failed, refused, and neglected to contribute to the support of the minor child for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of this Petition for Adoption in substantial compliance with an order entered by a Court which has jurisdiction and adjudicated the duty, amount, and manner of support biological mother had to pay; or according to such parent's financial ability to contribute to such minor's support if no provision for support has been ordered." It ordered that the consent of Mother was not necessary and that Child is eligible for adoption without Mother's consent for the reason it would be in the best interest of Child that adoption proceedings continue. Mother appeals.

¶4 This Court examines the trial court's conclusion - finding a minor child eligible for adoption without the biological parent's consent - to determine if that conclusion is supported by the clear weight of the requisite clear and convincing evidence. In re Adoption of R.W.S., 1997 OK 148, 10, 951 P.2d 83. The trial court's determination will not be disturbed unless it fails to rest on clear and convincing evidence. In re Adoption of C.D.M, 2001 OK 103, 13, 39 P.3d 802. Issues of statutory construction are reviewed de novo. Lang v. Erlanger Tubular Corp., 2009 OK 17, 5, 206 P.3d 589, 590.

I.

¶5 Mother contends there was no trial court order requiring her to pay child support; therefore, the trial court erred in allowing testimony regarding an alleged agreement which required her to pay child support. Mother urges the only child support ordered was from Father to Mother in the Decree itself.

6 On February 27, 2020, the trial court entered a minute order which stated:

"Hearing on Petitioner's Motion to Establish Child Support and Determine Arrearage is stricken as settled with Agreed Order to be submitted. * * * *"

¶7 At the hearing, Father's counsel explained to the trial court that:

"There is a minute order, but there was an agreement between the attorneys and the parties to commence child support as part of the docket sheet that we've asked you to take judicial notice of, Your Honor."

¶8 At the hearing, Mother was asked if she was aware she was going to have to start paying some child support.

She testified:

"A. Yes, and no.

"Q. Okay. As far as the yes goes, did you ever start making any child support payments?

"A. No.

Q. As far as the no goes, why not?

"A. There was not an order for me. I didn't know how much I would even have to pay. It was never court calculated."

¶9 The minute order did not order that Mother pay child support to Father; it only referenced an agreed order to be submitted sometime in the future. Moreover, Father provided no evidence of the existence of the agreement or its terms. There was no evidence of an order requiring Mother to pay a specified amount of child support or an agreement requiring her to pay child support.'

II.

¶10 Mother also contends there was no evidence she was required to support Child according to her means. Section 7505-4.2(B)(2) provides that consent for adoption is not required if for a period of 12 consecutive months out of the last 14 months immediately preceding the filing of a petition for adoption of a child, the parent has willfully failed, refused, or neglected to contribute to the support of the child according to the parent's financial ability if no provision for support is provided in an order. However, the contribution for support shall benefit the child by providing a necessity. A parent's financial ability to pay a support obligation is relevant in determining whether the parent "willfully" failed, refused, or neglected to pay child support. Willfulness is determined by the particular facts of the case. Matter of Adoption of MA.S., 2018 OK 1, 16, 419 P.3d 204.

¶11 In Matter of Adoption of.I.L.H., 1987 OK 25, 15, 737 P.2d 915, the Supreme Court held that "[a]n unadjudicated, status-based duty of support may be discharged in non-monetary form if the contribution made is used or usable for the child's necessary living expenses such as food, clothing, medical care or insurance." In that case, the trial court found the mother had willfully and intentionally failed to support the child within her means and granted the adoption without consent [AWOC]. On appeal, the Supreme Court reversed the trial court, finding that the mother's income was below the level of subsistence and that she purchased gifts for the child commensurate with her ability during the relevant time period. The Court found the record did not meet the standard of evidentiary support required for the judicial declaration sought by the father.

¶12 In this case, during the relevant time frame, Mother was married and worked part-time by choice as an aesthetician earning approximately $900.00 to $1,000.00 in net pay per month. She and her husband, her son, and two stepsons live in a seven-bedroom home. Her personal expenses for groceries, before she and her husband bought a new car, were approximately $350.00, leaving $650.00 in disposable income for the first five months of the relevant time frame. After she and her husband bought the new car, her disposable income decreased to $231.00 per month. Mother testified her husband paid all the household bills.

Also, during the relevant time frame, Mother received a $2,000.00 earned income tax credit for Child and claimed Child as a dependent on her income taxes.

¶13 Mother testified that during the relevant time frame she gave gifts to Child, but admitted she actually had not physically given Child any of those gifts even though she had visitation with her for the first six months of the relevant time frame.3 A "gift inter vivos" is complete where there is an intention to give, accompanied by a delivery of the thing given, and an acceptance by the donee. Fouts v. Nance, 1916 OK 162, 55 Okla. 266, 155 P. 610. Mother had at least $231.00 to $650.00 per month in disposable income during the relevant time frame. According to her testimony, the total value of the purported gifts was $450.00 for the entire relevant time frame, or approximately $32.00 per month. However, even if the purported gifts were actually delivered and accepted by Child, these items, or gifts, are not necessities which would benefit Child, regardless of their value and whether they actually were delivered to Child. The facts reveal that Mother willfully failed to contribute to the support of Child according to her financial ability. MA.S., 2018 OK 1, 16.

¶14 While Mother testified that Father provided Child's primary health insurance, she argued that she contributed to Child's support because during the relevant time period, her husband provided secondary health insurance through his employer for his children, including Child. She testified the cost was $100.00 per month for each child. However, a stepparent is not legally obligated to support a stepchild. 43 O.S. 12.4. Mother has not directed this Court to any authority to suggest that a purported expense by her husband should be imputed to her as a contribution in support of Child.

¶15 The trial court properly found clear and convincing evidence that Petitioner met her burden of proof that Mother willfully failed, refused, and neglected to contribute to Child's support according to her financial ability. As a result, it properly found the consent of Mother was not necessary and that Child is eligible for adoption without Mother's consent, and further for the reason it is in the best interest of Child that adoption proceedings continue.

AFFIRMED.

SWINTON, J., and DOWNING, J., concur.

(FOOTNOTES):

1 Section 1) O.S. 7505-4.2(B) provides:

"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 7505-2.1 of this title, 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. For the purposes of this section, support for the minor shall benefit the minor by providing a necessity. Payments that shall not be considered support shall include, but are not limited to:

a. genetic and drug testing,

b. supervised visitation,

c. counseling for any person other than the minor,

d. court fees and costs,

e. restitution payments, and

f. transportation costs for any person other than the minor, unless such transportation expenses are specifically ordered in lieu of support in a court order."

"The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent."

2 In her Brief in Chief, Mother argues the trial court erroneously admitted hearsay evidence regarding whether she knew there was an agreed order that required her to pay child support.

In light of this Court's determination that there was no order or agreement requiring Mother to pay child support, it is unnecessary to address the issue of alleged erroneous admission of hearsay evidence.

3 Mother testified the gifts to Child were items such as candy, nail polish, gift cards, and stuffed animals.