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In the Matter of the Adoption of E.C.I.W. and I.N.W, JASMINE MARIE CRAWFORD, Petitioner/Appellee,
v.
DESIREE DAWN GRAHAM, a/k/a DESIREE DAWN WOGU, Respondent/Appellant,

APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA

HONORABLE KURT G. GLASSCO, JUDGE

AFFIRMED

Catherine Z. Welsh, Jim C. McGough, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, For Petitioner/Appellee,

Jenny Proehl-Day, NEW DAY LEGAL, PLLC, Bixby, Oklahoma, For Respondent/Appellant.

OPINION BY BAY MITCHELL, PRESIDING JUDGE:

¶1 Appellant Desiree Dawn Graham (Mother) brings this appeal from an order determining her two children to be eligible for adoption without her consent. The action was brought by Petitioner/Appellee Jasmine Crawford with whom the children had been left in 2019. In 2020, Ms. Crawford became the legal guardian of the children. The Trial Court found the children eligible for adoption for the statutory reasons that Mother failed to establish and/or maintain a substantial positive relationship with the children¹ and willfully failed, refused, or neglected to contribute to the support of the children for twelve consecutive months. ²

¶2 According to Mother, she left the children with Guardian because in 2019 her husband at the time, also the children's father, tried to kill her multiple times. She signed a temporary custody agreement granting custody of her six-year-old and seven-year-old children to Guardian³ and then moved from Tulsa to a temporary housing shelter in Colorado to "rebuild her life." She has not seen the children since then.

¶3 In October 2020, Guardian filed a petition to be appointed the children's guardian. Because all the guardianship pleadings were sent to mother's Tulsa address she apparently never received copies of those filings. Guardian was appointed the temporary guardian of the children on December 18, 2020.

¶4 Mother, in a letter she sent to the court on March 10, 2022, stated she called Guardian from Colorado to discuss reunification with the children. Guardian asked Mother to allow the children to remain with her through the end of the 2019-2020 school-year, and Mother agreed. Mother testified that in May of 2020, while still living in Colorado, she advised Guardian over the phone that she was ready for the children to return to her care. Mother testified Guardian ceased communicating with her at that time.

¶5 In April 2021, after living in Colorado for two years, Mother moved to Norman where she resided in temporary housing shelters before moving in with her fiance. Mother testified that upon her return to Oklahoma, she tried to locate the children, but was unsuccessful. While Mother was living in Colorado, Guardian moved to a new home. However, Guardian's phone number and the children's school remained unchanged.

¶6 At some point Mother brought proceedings to terminate the guardianship and was unsuccessful. ⁴ Apparently, in the guardianship case the judge imposed standards for mother to meet before the guardianship would be terminated. Those standards are not in the record on appeal and no orders from the guardianship have been appealed.

¶7 The burden is on the party seeking to adopt without the parents' consent to prove such adoption is warranted by clear and convincing evidence. Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d 802, 807. Following the adoption without consent hearing, the court found Mother's testimony was not credible⁵ and found the children were eligible for adoption without her consent pursuant to the two statutory grounds identified in paragraph 1 above. The decision of the trial court will not be disturbed on appeal unless it fails to rest on clear and convincing evidence." Id.

¶8 It should be noted that Mother, like all parents, has "a fundamental, constitutionally-protected interest in the continuity of the legal bond with [her] children." See Matter of Delaney, 1980 OK 140, ¶9, 617 P.2d 886, 890. For this reason, she must ordinarily consent to her children's adoption. See Steltzlen v. Fritz, 2006 OK 20, ¶12, 134 P.3d 141, 144. However, the children may be adopted without her consent if at least one of the grounds in 10 O.S. 2021 §7505-4.2 is proven by the necessary clear and convincing evidence. See In re Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d at 807.

¶9 The statutory ground of failing to establish and/or maintain a substantial and positive relationship means:

[T]he parent has not maintained frequent and regular contact with the [children] through frequent and regular visitation or frequent and regular communication to or with the [children], or has not exercised parental rights and responsibilities. ⁶

10 O.S. 2021 §7505-4.2(H)(3)(a and b).

¶10 Mother claims she was denied the opportunity by Guardian to have contact with and reestablish a relationship with her children. In such case the law requires that Mother "prove to the satisfaction of the court that . . . 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." §7505-4.2(H)(2).

¶11 Beyond Mother's testimony that she tried, unsuccessfully, to contact Guardian, she offers little support for her argument that she was denied the opportunity to have a relationship with the children. Mother claims Guardian said she was instructed by her attorney not to facilitate visitation between Mother and the children. Guardian testified she either was not contacted by Mother or does not recall because Mother did not have a phone number she would have recognized had she tried to call.

¶12 The Supreme Court recently held a custodian's refusal to allow visitation to a parent is not sufficient to find the parent was denied the opportunity for a substantial and positive relationship. Matter of Adoption of L.B.L., 2023 OK 48, ¶24, 529 P.3d 175, 183. The substantial and positive relationship requirement of the statute may be met in other ways. Id., ¶23, 182. The requirement may be met through a myriad of communications, including sending letters, cards, books, or toys to the children. Id⁷

¶13 Mother could have explored other avenues to remain in the children's lives, but she did not. She had Guardian's new address at least several months prior to Guardian's petition to adopt the children. Without corroborating evidence, she claims she made one attempt to send a gift to the children. She claims the gift was returned. Guardian denies receiving the gift. The court found Mother's testimony was not credible.

¶14 The evidence does not show Mother was prevented from having a relationship with the children by Guardian. But even if it did, to prevail on this defense, Mother must prove to the satisfaction of the court that she took sufficient legal action in response to Guardian's actions prior to receiving notice of the hearing for adoption without consent. See §7505-4.2(H)(2). Mother claims she took sufficient legal action by filing a letter with the court seeking to terminate the temporary custody agreement and by filing a motion to terminate the guardianship. The trial court implicitly found this step was not "sufficient legal action." Mother did not take steps to be in the children's lives, and she failed to show she took sufficient legal action. No error is shown here.

¶15 The trial court also determined the children were eligible for adoption without Mother's consent because she willfully failed, refused, or neglected to contribute to the support of the children according to Mother's financial ability for twelve consecutive months out of the last fourteen months immediately preceding the filing of the petition for adoption. §7505-4.2(B)(2). The relevant period is from July 16, 2021 through September 16, 2022.

¶16 Mother concedes she did not provide support for the children. Instead, she argues that her failure was not willful. She claims when she moved back to Oklahoma from Colorado she was living in homeless shelters and getting food from food banks. She claims she did not know of the guardianship case until March 2022. It is not in the appellate record, but the guardianship case apparently included court-ordered standards for Mother to meet, including a child support obligation. In April 2022, Mother filed a Motion to Terminate Guardianship⁸ which states inter alia, "I have maintained adequate stable employment for one year." Undoubtedly, Mother knew of a child-support obligation imposed in the guardianship case. With knowledge of her

obligation to provide child support and claiming to have had "stable employment for one year" Mother had plenty of time to start providing support before her time ran out in September. Finding Mother's failure to support is supported by the necessary clear and convincing evidence.

¶17 Mother's final proposition on appeal is that the trial court erred in not allowing Mother to designate for inclusion in the appellate record the entire guardianship file. Supreme Court Rule 1.37 provides the proper procedure to address this issue on appeal. In relevant part the rule provides:

(a) Trial Court Jurisdiction. After a petition-in-error has been filed, the trial court retains jurisdiction in the case for the following purposes:

(1) To facilitate the completion of the record and allocate the costs of its preparation.

. . . .

(b) Review of the Trial Court's rulings Pending appeal. [R]eview of the trial court's ruling upon any of the matters set forth in part (a) of this rule shall be made by motion filed in the Supreme Court which shall be entertained in the principal appeal. . . . When review of a trial court's ruling is sought by motion, it must be filed in the Supreme Court within thirty (30) days of the date the trial court's ruling is filed in the trial court."

¶18 The trial court's order striking Mother's Amended Designation of Record to include the entire guardianship file was filed on June 30, 2024. Per Rule 1.37, review of that order should have been achieved by filing a motion in the Supreme Court within thirty days from June 30, 2024. That was not done and that decision is therefore not subject to appellate review.

¶19 AFFIRMED.

GOREE, J., and DOWNING, J., concur.

FOOTNOTES

¹ "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." 10 O.S. 2021 §7505-4.2(H)(1).

² "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." 10 O.S. 2021 §7505-4.2(B).

³ Jasmine Crawford is the mother of the children's half-siblings through their father.

⁴ The majority of the guardianship proceedings are not part of the appellate record.

⁵ The trial court has the benefit of observing the parties, the witnesses, and their demeanor at trial. Hoedebeck v. Hoedebeck, 1997 OK CIV APP 69, ¶10, 948 P.2d 1240, 1243 (citation omitted). It is in a better position to weigh controversial evidence and determine credibility than the appellate court which is limited to the dry printed words of the record. Perry v. Perry, 1965 OK 160, ¶5, 408 P.2d 285, 287.

⁶ The relevant period for failing to establish and/or maintain a substantial and positive relationship with the children for twelve consecutive months out of the last fourteen months immediately preceding the filing of the petition for adoption was from July 16, 2021 through September 16, 2022.

⁷ Parental obligations entail minimal attributes such as: 1) expression of love and affection for the child; 2) expression of personal concern over the health, education, and general well-being of the child; 3) the duty to supply necessary food, clothing, and medical care; 4) the duty to provide adequate domicile; and 5) the duty to furnish social and religious guidance. In re Adoption of C.D.M., 2001 OK 103, ¶19, 39 P.3d 802, 809--10.

⁸ The Motion to Terminate guardianship is in the appellate record.