Barnes v. Barbee (In re A.J.B.)

• Docket Number: 120431
• Decision Date: 19 December 2023
• Parties: IN THE MATTER OF THE ADOPTION OF A.J.B., a minor child: v. ZACHARY WAYNE BARBEE, Appellee. WILLIAM E. BARNES and HANNAH A. BARNES, husband and wife, Appellants,
• Court: Oklahoma Supreme Court

2023 OK 122

IN THE MATTER OF THE ADOPTION OF A.J.B., a minor child:

WILLIAM E. BARNES and HANNAH A. BARNES, husband and wife, Appellants,
v.
ZACHARY WAYNE BARBEE, Appellee.

No. 120431

Supreme Court of Oklahoma

December 19, 2023

THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

Jeremy S. Elliot, Jeremy S. Elliot, Inc., Durant, Oklahoma for Appellants.

D. Michael Haggerty, II, Haggerty Law Office, Madill, Oklahoma for Appellee.

OPINION

COMBS, J.

¶0 This is an action by the mother of a child born out of wedlock and her husband to adopt the child without the consent of the natural father. The trial court denied the adoption without consent holding the petitioners' evidence was insufficient. The Oklahoma Court of Civil Appeals vacated the judgment but agreed with the trial court that there was no clear and convincing evidence father willfully failed to support the child. The matter was remanded for an evidentiary hearing on the father's defenses to allegations he failed to maintain a relationship with the child. The father petitioned this Court for certiorari which was previously granted.

¶1 The dispositive issue before us is whether the trial court abused its discretion in determining there was insufficient evidence to grant an adoption without consent of the natural father on the allegation he failed to establish or maintain a relationship with his child. We hold the trial court did not abuse its discretion.

I. BACKGROUND AND PROCEDURAL HISTORY

¶2 The appellant, Hannah A. Barnes (Barnes) and the appellee, Zachary Wayne Barbee (Barbee) produced a child out of wedlock (A.J.B.) who was born in September 2018 in the State of Texas. The couple split apart in May 2019 and Barnes moved to Durant, Oklahoma taking A.J.B. with her. In November 2019, Barnes brought A.J.B. to Texas to visit Barbee. The encounter ended with an argument, and it was the last time Barbee saw A.J.B. In February 2020, Barbee turned himself in to authorities on a controlled substance-related charge. He was incarcerated in Texas from February 14, 2020, to September 3, 2021.

¶3 In October 2020, Hannah married William E. Barnes (appellants). On February 8, 2021, while Barbee was incarcerated, the couple filed a Petition and an Application for Order Determining Child Eligible for Adoption Without Consent of Natural Father. The Application alleged Barbee had failed to contribute to the support of A.J.B. in excess of one year and maintain a substantial relationship with A.J.B. for at least 12 months and therefore his consent to their adoption of A.J.B. was unnecessary. Barbee received service on March 9, 2021, while incarcerated, and filed an answer/letter dated March 10, 2021, which was filed in the case on March 15, 2021. His answer/letter contested the proceedings and informed the court he would be released soon and upon his release he would be able to do all that was needed to support his daughter. On April 7, 2021, the trial court held that Barbee was indigent and appointed Michael Haggerty, II, to represent him in this matter.

¶4 On April 25, 2022, a hearing was held on the appellants' Application. The appellants' attorney called only two witnesses, Hannah A. Barnes and Zachary Wayne Barbee. Barbee's attorney called no witnesses but cross-examined appellants' witnesses. Barnes testified that she had notified Barbee by phone that she had moved to Durant, Oklahoma in October 2019 and the November 2019 meeting occurred after Barbee contacted her on social media. She testified that she had never given Barbee her home address and after the November 2019 meeting she blocked him on her phone as well as social media so he could not contact her. She further testified that Barbee had no other way to contact her. Her reasoning for blocking him was that she was afraid of Barbee. Barnes claimed to have sought child support from Barbee through the Oklahoma Child Support Enforcement Division and she claimed she informed Barbee of this in October 2019. However, no case number or documents were presented to support this allegation, and Barbee testified he had never been served with any child support papers. The only documents he was served concerned the present action while he was incarcerated and there was no difficulty quickly serving him those documents as seen by the record.

¶5 Barbee testified he did not know of any child support proceedings in Oklahoma and was never served any documents related to such proceedings. He first testified that he only learned Barnes had moved to Oklahoma when he was served the documents related to the present case. However, his testimony later changed:

Q: Did you try to contact Ms. Barnes between November [2019] and February [2020]

Q: Okay. So you knew she was in Oklahoma, at that time?

A: At that time, yes.

Q: Okay. Did you know she was in Durant?

A: I didn't know that -- yes, sir, I knew. I knew -- I wasn't aware that she'd fully moved, until.

Q: But you were aware she was in Durant?

A: Yes, sir.

(April 25, 2022 hearing: Tr. 28, 1-2; Tr. 29, 4-10).

Barbee was asked if he had tried to provide child support to A.J.B. either through Texas or Oklahoma. He claimed he had contacted the Henderson County, Texas court clerk but he didn't have necessary information, such as a social security number, and never filed anything formally. He did testify that following his incarceration he has been employed as an iron worker and more than willing to begin paying child support. His testimony reflects he had not seen A.J. B. since the November 2019 meeting and had not provided support; he did not know an address where to send any payments for support and did not have a way to contact A.J.B. He further testified that even if he had a phone number he would not have been able to call A.J.B. while incarcerated.

¶6 After appellants rested their case, Barbee's attorney offered a demurrer to the evidence arguing the evidence presented was insufficient to support an adoption without the consent of the natural father. Barbee's attorney did not present any additional evidence or a case in chief and after all closing arguments and all evidence had been presented the trial court ruled on the demurrer. The trial court sustained the demurrer and denied the adoption without the consent of the natural father. A Journal Entry of Judgment was filed on April 28, 2022. The judgment provided the "Petitioner's evidence is insufficient to sustain their Application for adoption without consent" and was therefore denied. The Petition for adoption was also denied.

¶7 The appellants filed a Petition in Error on May 18, 2022. The Oklahoma Court of Civil Appeals (COCA) issued an unpublished opinion on June 2, 2023. It agreed with the trial court's ruling that there was insufficient evidence that Barbee "willfully" failed to support A.J.B. during the requisite period. However, the court found the appellants had established a prima facie case that Barbee did not maintain a substantial and positive relationship with A.J.B. during such period. It vacated the judgment and remanded the matter to the trial court to allow Barbee an opportunity to "put on any evidence he may have in defense" on this issue. Judge Wiseman concurred in part and dissented in part. She found the majority's position was too stringent, "particularly when a parent's constitutional rights are at stake." She believed Barnes had "undercut" Barbee's relationship with A.J.B. while he was incarcerated and the trial court's decision was not contrary to the clear weight of the evidence. On June 22, 2023, Barbee filed a Petition for Certiorari with this Court which was granted on October 9, 2023. Barbee challenges the court's holding that the appellants had established a prima facie case he did not maintain a substantial and positive relationship with A.J.B. and the holding departed from existing precedent of this Court.

II. STANDARD OF REVIEW

¶8 This Court has repeatedly recognized the right of a parent to the care, custody, companionship and management of his or her child is a fundamental right protected by the state and federal constitutions. Matter of Adoption of M.A.S., 2018 OK 1, ¶10, 419 P.3d 204, 208; In re Adoption of D.T.H., 1980 OK 119, ¶18, 615 P.2d 287, 290 (overruled on other grounds). The law presumes that 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, 208. Adoption statutes in derogation of a biological parent's rights must be strictly construed in favor of the biological parent. Id. ¶11, at 208; Matter of Adoption of C.M.G., 1982 OK 156, ¶9, 656 P.2d 262, 265 ("Adoption statutes are in derogation of the natural rights of parents. They must be strictly construed."). The termination of such fundamental right calls for an application of the full panoply of procedural safeguards. Matter of Adoption of C.M.G., 1982 OK 156, ¶9, 656 P.2d at 265. The burden rests on the party seeking to destroy the parental bond to show why consent may be dispensed with. Id.

¶9 The standard of proof necessary to establish any of the grounds to permit adoption...