In the Matter of the Adoption of S.G.D., a minor child, JACK EDWARD ULMER and NICOLE CHRISTINE ULMER, Appellants,
v.
NOAH IAN DAY, Appellee.

APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA

HONORABLE KURT G. GLASSCO, TRIAL JUDGE

REVERSED AND REMANDED

Catherine Z. Welsh, Jim C. McGough, Daphne A. Burns, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, For Appellants,

Keith A. Jones, Anastasia Krich-Mahoney, KAJONESLAW, PLLC, Tulsa, Oklahoma, and,

Joel LaCourse, James A. Williamson, Ashley N. Ailey, Savannah J. Mendenhall, LACOURSE LAW, PLLC, Tulsa, Oklahoma, For Appellee.

OPINION BY ROBERT D. BELL, VICE-CHIEF JUDGE:

¶1 This is an appeal from an order denying an application for an order determining a minor child eligible for adoption without the consent of biological father, Respondent/Appellee, Noah Ian Day, (Father). Petitioners/Appellants, Jack Edward Ulmer and Nicole Christine Ulmer, are the maternal aunt and uncle and legal guardians of the child (Guardians). The child has been in Guardians' physical custody since she was nine (9) days old. Guardians obtained legal custody of the child when she was two (2) months old. Guardians filed the petition to adopt the child in the Tulsa County District Court, State of Oklahoma, on March 3, 2023. The child was eighteen (18) months old by the time of trial. Father has never met, telephoned, or had any contact whatsoever with the child. Father last saw the child, on a FaceTime video, when the child was nine (9) days old. Guardians alleged Father's consent was unnecessary because Father failed to establish or maintain a relationship with his child for twelve (12) out of the last fourteen (14) months prior to receiving notice of the petition for adoption. The trial court held Guardians failed to meet the required statutory burden and denied their application for adoption without consent. Considering Matter of Adoption of L.B.L., 2023 OK 48, 529 P.3d 175, we hold Guardians met their burden to show Father failed to establish and/or maintain a substantial positive relationship with the child. The clear and convincing evidence showed Father had no actual contact with the child for twelve (12) consecutive months out of the last fourteen (14) months prior to receiving notice of the petition for adoption. The clear and convincing evidence also showed that Guardians refused visitation because Father had not completed a mental health assessment - which was ordered by the guardianship court's standards of conduct -- prior to seeking visitation. Accordingly, we find the trial court's ruling was contrary to the clear and convincing evidence when it denied Guardians' application to proceed with the adoption without Father's consent. The trial court's order is reversed and this matter is remanded to the trial court to enter an order permitting Guardians to proceed with the adoption without Father's consent.

¶2 Minor Child, L.B.L., was born August 9, 2021, to Father and his Wife, Michelle Queena Day (Mother). Mother contracted Covid and died October 15, 2021. Father also contracted Covid. In August 2021, Father permitted Guardians to take physical custody of the infant child. Guardians were appointed as temporary guardians of the child October 2021, and obtained letters of general guardianship March 2022. ¹ Guardians are residents of the State of Washington. The guardianship court permitted Guardians to move the child from Oklahoma to Washington. The court ordered standards of conduct for Father on February 16, 2022. The standards of conduct held Father could not have visitation until further order of the court; Father must obtain a mental health assessment; and Father was to have no contact with Guardians until further order of the court. ²

¶3 In August 2022, Guardians filed a petition to adopt the child in the Spokane County Superior Court, State of Washington. On August 15, 2022, Father filed a motion to set visitation schedule in the Oklahoma guardianship proceeding. This motion was not set for hearing. On September 1, 2022, Father filed a petition for writ of habeas corpus in the guardianship proceeding citing the petition for adoption filed in Washington State. Guardians opposed Father's visitation motion on the basis that Father did not file the required proof that he complied with the conduct requirements imposed by the guardianship standards. The guardianship court denied the petition for writ of habeas corpus.

¶4 The Superior Court of Spokane County, State of Washington, and the District Court of Tulsa County agreed Oklahoma had the continuing and exclusive jurisdiction to address the adoption matter. The Spokane County Superior Court dismissed the adoption March 1, 2023.

¶5 Guardians filed a petition for adoption in Tulsa County District Court on March 3, 2023. Guardian also filed an application for order determining child eligible for adoption without the consent of the biological father. Guardians alleged Father's consent to the adoption was unnecessary because he failed to establish and/or maintain a substantial and positive relationship with the child for twelve (12) consecutive months out of the fourteen (14) months preceding the filing of the petition for adoption. The application proceeded to trial on July 17, 2023.

¶6 At trial, the trial court found the relevant time-period for the adoption proceedings was from January 3, 2022, to March 3, 2023. Father testified that except for the FaceTime call, when the child was nine (9) days old, he has never seen, visited, or spoken to the child. Father admitted he has not telephoned the child because "they won't let me, and neither will the court. And, these things take time, I'm a busy man. I got work." Father also testified that he has not contacted the child because "the court wouldn't let me." Father admitted he was ordered not to contact Guardians because Father sent Guardians "some unflattering" and "inappropriate" text messages. Father testified he obtained a mental health assessment October 17, 2022. The mental health report was dated November 4, 2022. Father stated he did not file the report in either the guardianship or the adoption case. Father's counsel introduced the report, for the first time, at trial. Guardians' counsel objected to the admission of the contents of the report. The trial court obtained the parties' stipulation as to the dates of the evaluation and report.

¶7 At trial, Mrs. Ulmer testified that the child has been in her custody since the child was nine (9) days old. Mrs. Ulmer testified at one point she was willing to return the child to Father, but she thought Father's behavior was erratic and inconsistent, and it would not be safe to return the child to Father. She testified Father would ask for the child to be returned, and "then quickly after he would say, no, I'm sorry, I had a bad day." Mrs. Ulmer stated the times Father texted her during the relevant time-period, he did not discuss the child. Instead, Father discussed "how much money he was making" and "photos of his new girlfriend." She testified that during the relevant time-period, Father never sent a text requesting to see the child; he never asked to go to court to discuss the guardianship; Father's attorneys never sought Father's contact with the child; and she never received any evidence that Father had complied with the guardianship standards.

¶8 On July 18, 2023, the trial court entered an order denying the application for order determining child eligible for adoption without Father's consent. The order states the court reviewed Father's mental health evaluation and the potential impact of the Washington adoption proceedings. Based on the testimony and the record, the order held Guardians' application for adoption without consent is denied because they failed to meet their statutory burden. The trial court did not specify which statutory burden was unmet. Guardians now appeal.

¶9 The dispositive issue on appeal is whether Guardians satisfied their burden of showing that Father's consent to the adoption is unnecessary. Oklahoma law presumes both biological parents must consent before an adoption of their minor child may be effectuated. Matter of Adoption of M.A.S., 2018 OK 1, ¶10, 419 P.3d 204. Here, Guardians sought to dispense with Father's consent to the adoption pursuant to 10 O.S. §7505-4.2(H)(1). This section provides:

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.

* * *

3. For purposes of this subsection, "fails to establish and/or maintain a substantial and positive relationship" 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.

This court must construe §7505-4.2 strictly in Father's favor "because every biological parent has a fundamental liberty interest in the care, custody and management of their child, even if that relationship is strained or worse." Matter of Adoption of L.B.L, 2023 OK 48 at ¶11, citing Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). "A parent's rights must be strenuously protected, by providing the parent with fundamentally fair procedures before that familial bond, however weakened, may be destroyed by the State. Oklahoma has protected this fundamental liberty interest by enacting the strict due process requirements at [10 O.S. 2021 §7505-4.2]." Matter of Adoption of L.B.L., 2023 OK 48 at ¶11.

¶10 In the proceeding below, the trial court held Guardians failed to meet their statutory burden and it denied Guardians' application for adoption without consent. On appeal, Guardians assert the trial court erred to the extent it held Guardians failed to meet their burden of showing that Father failed to establish or maintain a substantial and positive relationship with the child because Father had no contact whatsoever with the minor child.

¶11 The standard of proof necessary to establish any of the grounds to permit adoption without the biological parent's consent is clear and convincing evidence. Matter of Adoption of M.A.S., 2018 OK 1, ¶11, 419 P.3d 204. "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." Id. This Court examines the trial court's determination of fact under a clear and convincing standard and reviews the trial court's statutory construction de novo. Id. at ¶12.

¶12 After reviewing the record, we hold clear and convincing evidence, including Father's own admissions, support a finding that Father failed to establish or maintain a substantial and positive relationship with the child. A "substantial and positive relationship" is defined at §7505-4.2(H)(3) as either "frequent and regular visitation or frequent and regular communication" between a parent and child, or some other exercise of "parental rights and responsibilities." A substantial and positive relationship with the child is "not limited to visitation; visitation and communication are different things." Matter of Adoption of L.B.L., 2023 OK 48 at ¶23. Father "could have sent letters, cards, books, or toys to foster a positive relationship with the child." Id. at ¶23. However, Father presented no evidence that he took such action. Father has never had any actual contact, visitation, or communication with the child. And, other than a making three child support payments, Father has not exercised any parental rights and responsibilities with respect to the child. As explained in Matter of Adoption of L.B.L, 2023 OK 48 at ¶24, "if a parent's intentional actions contradict or disregard [his] basic parental obligations, this may show []he didn't intend to have a significant relationship with the child." Based on the record, Father failed to maintain a substantial and positive relationship with the child from January 3, 2022, to March 3, 2023.

¶13 However, our analysis does not end here. At trial, Father argued he was prevented from establishing a relationship with the child due to Guardians' actions. Thus, Father relied upon §7505-4.2(H)(2) as a defense to "establishing and/or maintaining a substantial and positive relationship" with the child. See Matter of Adoption of M.A.S., 2018 OK 1, ¶26, 419 P.3d 204. Section 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.

The trial court's order did not specifically find Guardians interfered with Father's attempts to establish or maintain a relationship with the child. ³ However, to the extent the trial court made such a finding, we hold this finding is not supported by the weight of the evidence.

¶14 The evidence clearly shows that Father was precluded, by a guardianship court order (and not the Guardians) from contacting Guardians. The order did not prohibit all contact. Father could have sought other avenues of contact and/or communication with the child but did not do so. The guardianship court order also ordered Father to obtain a mental health assessment and denied him visitation until further order of the court. Presumably, the mental health assessment was a condition precedent to the guardianship court's consideration of visitation. Father acknowledged this standard of conduct and that he could have filed the mental health assessment in the guardianship proceeding to establish visitation. Yet, at trial, Father admitted he did not obtain the mental health assessment until after he filed a motion to set visitation and a petition for writ of habeas corpus. The evidence likewise shows Father did not obtain the mental health assessment until after the Washington adoption petition was filed. Father also admitted he still had not filed the mental health assessment with the guardianship court and that he never informed Guardians he completed the mental health assessment.

¶15 Additionally, even though Father's "legal actions," i.e. the August 15, 2022, motion to set visitation; the September 1, 2022, petition for writ of habeas corpus, and the November 4, 2022, mental health assessment were technically filed/obtained before Guardians filed the petition for adoption in Oklahoma, we stress Father took no legal action to exercise his parental rights until he learned Guardians filed a proceeding in Washington to adopt the child. Had the adoption proceeded in Washington, applying Oklahoma law, undoubtedly the adoption court would have found Father failed to take "legal action" to establish a relationship with the child before receipt of notice of the Washington adoption proceeding. However, because the Washington proceeding was dismissed March 1, 2023, and the adoption was refiled in Oklahoma on March 3, 2023, Father gained a strategically legal advantage/loophole and was able to show he filed such "legal action" before receipt of the notice of the Oklahoma adoption proceeding.

¶16 Even if we defer to the trial court's implicit finding that Guardians denied Father the opportunity for a substantial, positive relationship with the child, we hold the trial court should have denied Father the "sufficient legal action" defense at §7505-4.2(H)(2) for the reasons set forth in Matter of Adoption of L.B.L., 2023 OK 48 at ¶24. ⁴

To give effect to both the letter and spirit of the statute, we inquire into more than whether a custodian has denied a parent the opportunity for a substantial, positive relationship-we ask why. A parent may be prevented from raising this defense to an adoption without consent if her actions or choices harm the child, resulting in an official recommendation or even prohibition against contact. This is determined case by case, reviewing the entire record. If, as happened here, the actual contacts between a [father] and child are neither substantial nor positive, we will not find that a custodian's refusal of visitation denied the [father] the opportunity for a substantial and positive relationship.

Matter of Adoption of L.B.L., 2023 OK 48 at ¶24 (citations omitted).

¶17 The evidence clearly shows Guardians opposed Father's visitation because he had not complied with the standards of conduct. Furthermore, other than making three child support payments, Father has not exercised any parental rights or responsibilities regarding the child nor has Father had any actual contact with the child since her birth. Guardians are the only parents the child has ever known. "The primary issue in adoption is whether the adoption will promote the best interests of the child." Matter of Adoption of L.B.L., 2023 OK 48 at ¶10, quoting C.D.M., 2001 OK 103, ¶23, 39 P.3d at 811. "When determining which outcome is in a child's best interests, we may look at the evidence of the child's bond and relationship with the guardians seeking adoption." Matter of Adoption of L.B.L., 2023 OK 48 at ¶14. Based on Matter of Adoption of L.B.L., we hold Guardians showed, with clear and convincing evidence, that Father failed to establish and/or maintain a substantial, positive relationship with the child. We therefore reverse the trial court's order. This matter is remanded to the trial court to enter an order holding Guardians may proceed with the adoption without Father's consent.

¶18 REVERSED AND REMANDNED

SWINTON, P.J., concurs.

PRINCE, J., dissents.

PRINCE, J., dissenting:

¶1 I respectfully dissent. My view is that the trial court's on the record findings of July 18, 2023, clearly outline the factual basis upon which it was determined that the Petitioners had failed to present clear and convincing evidence in support of the petition to adopt without consent. ⁵ I conclude that the evidentiary record supports the trial court's determination. Only two witnesses testified during the trial on July 17, 2023. At the conclusion of the trial, the trial court took the matter under advisement and summoned the parties back to court the next day -- July 18, 2023, for an open court announcement of the decision. The transcript from July 18, 2023, includes a detailed description by the trial court of the procedural history of the case and two key factual determinations with respect to the witnesses' testimony. Touching on the issue of whether the Father had failed to establish or maintain a significant relationship with the child, the trial court made the following finding: "[t]he father states that throughout the past year he has been forced to -- after surviving COVID -- . . . litigate in both Washington [State] and in Tulsa, trying to see his child." The trial court also found the testimony of the Petitioner to be "somewhat evasive and inconsistent." See Tr., July 17, 2023, at 40-41. Based on the evidentiary record, I would affirm.

FOOTNOTES

¹ The adoption court took judicial notice of the guardianship proceeding.

² Father plead guilty to domestic violence against Mother, including great bodily injury and aggravated battery and served three (3) months in jail in Torrance County, New Mexico, from February 1, 2023 - May 2, 2023.

³ At trial, Mrs. Ulmer testified she would return the child to Father. The trial court announced on the record that this testimony was "somewhat evasive and inconsistent." The trial court also announced Father "has been forced to have to litigate in both Washington and in Tulsa, trying to see his child." Based on these announcements, we discern the trial court found Guardians interfered with Father's attempts to establish a relationship with the child.

⁴ This Oklahoma Supreme Court case was filed more than two (2) months prior to the merits trial in this proceeding.

⁵ See In re Adoption of C.R.B., 1999 OK CIV APP 104, ¶ 5, 990 P.2d 316, 318 ("[b]ecause adoption without parental consent effects a termination of parental rights, the magnitude of the rights involved requires proof that is clear and convincing.").