Adoption of R.R.R., Matter of, 66030

• Decision Date: 11 October 1988
• Docket Number: No. 66030,66030
• Citation: 763 P.2d 94,1988 OK 109
• Parties: In the Matter of the ADOPTION OF R.R.R. minor child. L.R.R., Appellant, v. R.D.R., Appellee.
• Court: Oklahoma Supreme Court

Page 94

763 P.2d 94

1988 OK 109

In the Matter of the ADOPTION OF R.R.R. minor child.

L.R.R., Appellant, v. R.D.R., Appellee.

No. 66030.

Supreme Court of Oklahoma.

Oct. 11, 1988.

As Corrected Oct. 17, 1988.

Certiorari to the Court of Appeals, Tulsa Division; Thomas C. Smith Jr., Trial Judge.

This appeal arises from the trial court's grant of a motion for summary judgment in opposition to a petition for adoption filed on the basis that the parents had wilfully failed to support their child. The trial court held that a nonconsensual adoption could not be granted where no judicially imposed obligation to support had been entered and the parents of the child remained married. The Court of Appeals affirmed. The appellant/grandmother asserts that the obligation to support exists independent of a court imposed duty and that the trial court erred in sustaining the father's motion for summary judgment. We find that a child whose parents are still married may be adopted without parental consent in absence of a judicially imposed obligation to support if the parent has wilfully failed, neglected or refused to contribute to the support of the child for a period in excess of twelve months prior to the filing of the petition for adoption.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED.

Annette H. Prince, Oklahoma City, for Appellant,

Terri Coulter, Oklahoma City, for appellee.

KAUGER, Justice.

The only issue presented is whether a child of married parents who are still married may be adopted without their consent because of their failure to support the child. We find that a child may be adopted without the consent of a married parent under 10 O.S.1981 § 60.6(3)(b), ¹ if the parent has wilfully failed, refused, or neglected to contribute to the support of the child for a period of twelve months preceding the filing of the petition for adoption.

FACTS

On September 12, 1985, the appellant/grandmother, L.R.R., filed a petition to adopt her Indian granddaughter, R.R.R., asserting that parental consent to the adoption was unnecessary because the child's natural parents had wilfully failed, refused, or neglected to contribute to the child's support for more than twelve months preceding the filing of the adoption petition. The grandmother also alleged that the child had been her charge since February 28, 1979, the date the child's parents filed for divorce. The divorce was not finalized and the petition was dismissed on October 29, 1981. However, the child continued to live with her grandmother.

Because the whereabouts of the mother were unknown, notice of the proposed adoption was given by publication--actual notice was given to the father. Although the mother did not respond, the father filed an answer objecting to the adoption and asserted that both he and his daughter had been living with his mother, and that he had supported his daughter in accordance with his means. The father filed a motion for summary judgment on January 9, 1986, alleging that his daughter was ineligible for adoption. The father argued that because he would not consent to the adoption and because he was not a divorced spouse, an adoption could not be obtained under 10 O.S. 1981 § 60.6(3)(b).

After making extensive findings of fact and conclusions of law, the trial court sustained the father's motion for summary judgment. The basis for the court's ruling was that a petition for adoption could not be granted without parental consent unless: (1) the parent's marriage had been judicially dissolved and one or both parents had failed to support the child in accordance with a decree of divorce or other order for support; or (2) there had been a failure to support within a divorced spouse's means even if the divorce decree contained no support provision. The trial court did not reach the questions of whether the father had actually contributed to the support of his child, or whether legal custody of the child was vested in the grandmother. The Court of Appeals affirmed the trial court on substantially the same basis. However, it also found that the grandmother lacked standing under 10 O.S.Supp.1983 § 60.7 ² to file a petition for adoption under § 60.6.

I.

DIVORCE AND JUDICIAL IMPOSITION OF SUPPORT OBLIGATIONS ARE

NOT PREREQUISITES TO ADOPTION WITHOUT PARENTAL

CONSENT UNDER 10 O.S.1981 § 60.6(3)(b)

The novel question presented is whether a child whose parents are married may be adopted without their consent based on their wilful failure, refusal, or neglect in contributing to the support of their minor child in absence of a divorce decree or judicially imposed obligation for support. Although we have not addressed this issue, we have determined that if the parents' marriage has been dissolved and the custody of the child is placed with a single parent, the noncustodial parent is obligated even in absence of court order to provide support. ³ Failure to meet that obligation may result in adoption without the consent of the offending parent. ⁴

Here, the grandmother sought to adopt her granddaughter under § 60.6(3)(b), alleging that the father had failed to contribute to the support of the child over a year prior to the filing of the petition for adoption. The father contends that subsection (3)(b) is applicable only where the parents of the child sought to be adopted have been divorced and support has not been ordered by judicial decree. Whether the same rules apply to parents who remain married turns upon a matter of statutory construction and a determination of legislative intent. ⁵ In order to protect the integrity of the home and the natural bond between parent and child, ⁶ a strict construction of adoption statutes is required. ⁷ The law presumes that consent of a child's natural parents is necessary before an adoption may be effected. ⁸

The exceptions to this presumption are found in 10 O.S.1981 § 60.6. Section 60.6 is the only avenue by which adoptions may be obtained without prior consent of the parents where the parental bond has not been previously severed. ⁹ A nonconsensual adoption may be obtained under § 60.6 in four situations. Subsections (1) and (2) provide that an adoption may be had without parental consent: (1) where the parent has been adjudged a habitual drunkard; or (2) where the parent has been deprived of custody for cruelty or neglect.

The final two situations where parental consent will not be required prior to adoption are found in subsections (3)(a) and (3)(b). Under each of these provisions, parental consent is not necessary prior to entering an adoption decree if the parent has wilfully failed, refused or neglected to contribute to the support of the child for a period of twelve months preceding the filing of the petition for adoption. Under subsection (a), a child may be adopted without parental consent if the parent fails to support the child in substantial compliance with judicially imposed standards. To avoid a nonconsensual adoption under subsection (b), support must be rendered in accordance with the parent's financial ability where the obligation has not been imposed by a divorce decree or a subsequent court-ordered modification.

In the Matter of the Adoption of C.M.G., 656 P.2d 262, 265 (Okla.1982), this Court addressed the obligation of parents to support their children in absence of a divorce decree or other order affirmatively imposing such obligation. In C.M.G., the Court found that a natural parent's support obligation stood imposed by law and was recognized in absence of any court order. In construing § 60.6(3), the Court found its object was to permit adoption without the consent of a parent who wilfully failed to discharge the duty to contribute to the child's support.

The mother who faced the possibility of a nonconsensual adoption in C.M.G. was a divorced parent. The father seeks to distinguish the case on that basis contending that because the parents are not divorced, neither C.M.G. nor § 60.6(3)(b) are applicable. The argument is based on the fact that § 60.6(3)(b) mentions parents who fail to provide the requisite support where no decree of divorce or modification exists affirmatively imposing the duty. From this language, the father argues that only divorced parents may face the possibility of having their children adopted without prior consent under § 60.6(3).

Nothing in the language in C.M.G., indicates that the Court intended to limit the duty of a noncustodial parent's support of a child to a situation where the natural parents are no longer married. Section 60.6(3)(b) speaks only of the duty to support where the obligation has not been set forth in a decree of divorce, it does not limit application of the section to divorced spouses. In the Matter of the Adoption of J.L.H., 737 P.2d 915, 920 (Okla.1987), we found that 10 O.S.1981 § 60.6(3) required a noncustodial parent to provide support in two situations: (1) according to the terms of a court order or (2) where no order existed, in a manner commensurate with the parent's financial ability. J.L.H., like C.M.G., involved divorced parents; but, neither case indicates that the Court intended that the duty to support shall fall only upon divorced parents.

Section 60.6(3) is not alone in emphasizing the importance of parental support for offspring. The duty to support one's child exists absent a judicial decree affirmatively imposing the obligation. ¹⁰ Although the Legislature has codified the duty in 10 O.S.1981 § 4, ¹¹ the statute is merely a pronouncement of the legal duty of parents to support and educate their children which applies to both custodial and noncustodial parents.

The duty to support one's minor child is a continuing obligation. ¹² Wilfull failure to provide the necessary support can result in the offending parent being subjected to criminal charges. According to 21 O.S.1981 § 852, ¹³ "every parent" who wilfully neglects to provide the requisite support is criminally...