Andrews v. McCall, Case Number: 111905

CourtSupreme Court of Oklahoma
Writing for the CourtCOMBS, J
Citation2014 OK 85
PartiesIN RE ADOPTION OF K.P.M.A.: MARSHALL LEE ANDREWS and TONI MICHELLE ANDREWS, Petitioners/Appellees, v. BILLY McCALL, Respondent/Appellant.
Docket NumberCase Number: 111905
Decision Date14 October 2014

2014 OK 85

and TONI MICHELLE ANDREWS, Petitioners/Appellees,
BILLY McCALL, Respondent/Appellant.

Case Number: 111905


October 14, 2014


¶0 Natural father of minor child K.P.M.A. sought review of the trial court's termination of his parental rights on the grounds provided within 10 O.S. 2011 § 7505-4.2. The Court of Civil Appeals, Division III, affirmed. This Court granted certiorari and determines that termination of the natural father's parental rights was improper because the natural father's due process rights were violated and the termination of the natural father's parental rights was not supported by clear and convincing evidence.


Rebecca A. Murphy and David G. Francy, Patterson Law Firm, Tulsa, OK, for Petitioners/Appellees.
Gregory J. Denney, Gregory J. Denney & Associates, P.C., Tulsa, OK, for Respondent/Appellant.


¶1 This cause concerns the termination of parental rights of Respondent/Appellant Billy McCall (Father) to the minor child K.P.M.A. (Child). Child was born out-of-wedlock to T.Z. (Mother) on June 21, 2012. Prospective adoptive parents, Petitioners/Appellees Marshall Lee Andrews and Toni Michelle Andrews (Appellees), have had physical custody of the child since she was released from the hospital after birth. The questions presented are: 1) whether Father's due process rights were violated; 2) whether Father received ineffective assistance of counsel during the termination proceedings; and 3) whether the trial court's determination was supported by clear and convincing evidence.


¶2 Appellees filed a Petition for Termination of Parental Rights of Natural Parents on June 27, 2012, and a Petition for Adoption on August 14, 2012. Mother voluntarily relinquished her parental rights on August 14, 2012, and is not a party to this appeal. Mother named Father as the putative father1 of the child, and notice was sent to Father pursuant to 10 O.S. 2011 § 7505-4.1(C). Father filed a Response to Petition for Adoption and Petition for Termination of Natural Father in which he: 1) claimed paternity of the child; 2) stated he first learned of Mother's pregnancy and the birth of the child when he was served a summons in a guardianship proceeding for the child in Rogers County, Oklahoma (PG-2012-51); and 3) claimed he visited the child for several months after birth and also contributed support money for the child to Appellants in the amount of $250.00 per month after the child's birth.

¶3 The trial court held a hearing on the motion to terminate Father's parental rights on May 22, 2013. The record indicates that Mother and Father met on July 4, 2011, and engaged in sexual intercourse several times over the following months, beginning in August of 2011. Father testified that though they were friends, they were never in a romantic relationship. The record indicates that the last sexual encounter between Father and Mother occurred sometime in either September or October of 2011, and Father testified that he made no attempt to contact mother after that event.

¶4 The only apparent meeting between Father and Mother between their last sexual encounter and the birth of the child occurred in December of 2011, when Mother allegedly came to Father's workplace to see him. Mother did not mention pregnancy or the possibility of pregnancy and Father also did not enquire as to whether Mother was or might be pregnant.

¶5 It is evident from the record that at some point prior to the birth of the child Mother sent Father a message via Facebook informing him that she was pregnant and planning to give the child up for adoption. What is not clear from the record is exactly when Father received this message. Father testified that at some point in July of 2012 he attempted to contact Mother by Facebook, and in the process of doing so noticed for the first time the message Mother sent informing him of her pregnancy. Father testified he did not know how old the message was when he read it. Father later testified during cross examination that he first found out about the child's existence seven days after birth, June 21, 2012.

¶6 The trial court refused to allow any testimony from Father concerning his participation in guardianship proceedings concerning the child. Relying in part on this Court's decision in Steltzlen v. Fritz, 2006 OK 20, 134 P.3d 141, the trial court determined that when Father actually found out about the pregnancy and birth of the child was irrelevant, as the burden was on Father to determine if he might have fathered a child and to exercise his parental rights pursuant to 10 O.S. 2011 § 7505-4.2(C). At the conclusion of Father's testimony, Mother moved for a directed verdict to terminate Father's parental rights. Father did not object or respond to the motion. The trial court sustained the motion for a directed verdict.

¶7 Father retained new appellate counsel and filed a Petition in Error on June 24, 2013. Father included with his Petition in Error a signed and certified order of the trial court terminating his parental rights that was filed on June 21, 2013. This order does not appear elsewhere in the record and Appellees assert the order was never sent to the parties and that proof of service was requested but never provided. Appellees assert that because Father's order was never provided to the other parties, a second order was drafted and circulated among the parties that attended the termination hearing, was signed and then filed on August 5, 2013. This order is also not included anywhere in the record on appeal. Appellees further claim they received no notice of the appeal until January 13, 2014, after this Court issued an order determining that Appellees' answer brief had not been timely filed pursuant to Oklahoma Supreme Court Rule 1.10(c)(3). Appellees filed their answer brief on January 21, 2014, but objected to their lack of notice.2

¶8 On appeal, Father asserted several errors including improper notice and ineffective assistance of counsel. Father also challenged the trial court's decision to limit his testimony concerning his attempts to exercise parental rights prior to service of the adoption proceedings. In an unpublished opinion filed on April 11, 2014, the Court of Civil Appeals affirmed the trial court's termination of Father's parental rights. The Court of Civil Appeals determined that Father waived his right to challenge the validity of service of process by reserving an additional twenty (20) days in which to answer pursuant to 12 O.S. 2011 §2012(A)(1)(b). The Court also determined that the application to terminate Father's parental rights was sufficient to put Father on notice of the grounds for termination.

¶9 The Court of Civil Appeals agreed with the trial court's reasoning that Father's actions after the birth of the child were irrelevant, as Father's testimony showed that mother informed him of the pregnancy and plans for adoption while she was still pregnant and Father did nothing. The Court of Civil Appeals apparently took for granted that Mother's attempt to contact Father via Facebook constituted informing Father, and appears to ignore the fact that Father had asserted since the start of these proceedings that he did not see the message and did not know he had fathered a child until after the birth. The Court of Civil Appeals determined:

Mother specifically informed Father she was pregnant at some point later during the course of her pregnancy, clearly triggering Father's obligation to provide support. Father simply failed to act on that information as the statute requires of a putative father intent on protecting his parental rights.

Unpublished Opinion of the Oklahoma Court of Civil Appeals, Division III, ¶14 (April 11, 2014).

¶10 The Court of Civil Appeals also rejected Father's ineffective assistance of counsel argument. The Court of Civil Appeals determined that Father was required to show both the attorney's performance was deficient and that it prejudiced his case, and at the very least Father failed to meet the latter requirement, as Father's own testimony was that Mother informed him of the pregnancy while she was pregnant and his own testimony confirmed he failed to assert his parental rights by contributing to Mother's support as required by 10 O.S. 2011 § 7505-4.2(C)(1).

¶11 Father filed a Petition for Certiorari on May 1, 2014, asserting that the Court of Civil Appeals erred by wrongly construing the evidence to read that Father knew of the pregnancy before birth, simply because Mother allegedly notified him of it by Facebook. Further, father also argues his procedural due process rights protected by U.S. Const. amend. XIV, § 1; Okla. Const., art. 2, §7 have been violated because the statutes place the burden of discovering the pregnancy on Father, and he was not allowed the opportunity to present evidence regarding steps he took to protect his parental rights after he learned of the child's existence. Finally, Father reasserts that he received ineffective assistance of counsel. This Court granted Father's...

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