Cruce v. Asbell (In re M.A.S.)

• Decision Date: 17 January 2018
• Docket Number: No. 114,237,114,237
• Citation: 419 P.3d 204
• Parties: In the MATTER OF the ADOPTION OF: M.A.S., a minor child. Michael Cruce, Appellant, v. Stephen Cullen Asbell, Appellee.
• Court: Oklahoma Supreme Court

419 P.3d 204

In the MATTER OF the ADOPTION OF: M.A.S., a minor child.Michael Cruce, Appellant,

v.Stephen Cullen Asbell, Appellee.

No. 114,237

Supreme Court of Oklahoma.

FILED January 17, 2018

Rehearing Denied May 29, 2018

Carla R. Stinnett, G. Gene Thompson, Stinnett Law, Sapulpa, Oklahoma, for Appellant.

Ashley Jacobs, Bristow, Oklahoma, for Appellee.

China Matlock, Tulsa, Oklahoma, for the Minor Child.

Colbert, J.

¶ 1 The question presented for review is whether the trial court's order declaring M.A.S. eligible for adoption without the biological father's consent, pursuant to Okla. Stat. tit. 10, § 7505-4.2(B)(1) and (H)(2011),¹ was supported by clear and convincing evidence. We find that it was not.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Bristow Division

¶ 2 M.A.S. was born on September 27, 2007, to Michael Cruse (Father) and Whitney Asbell (Mother). The couple never married. By an Agreed Decree of Paternity, Father was declared to be M.A.S.'s natural father on October 31, 2008. The order awarded mother sole custody of M.A.S. and Father unsupervised visitation which Father exercised. Mother later married Stephen Asbell (Stepfather) on May 2, 2009.

¶ 3 On April 8, 2011, a court ordered Father to pay monthly child support in the amount of $447.91. The court also determined that Father did not owe any past-due child support for the time period of November, 2008 through and including April, 2011. Thereafter, Father tendered monthly payments. But, at times, Father paid less than the full amount owed. Father, however, paid larger sums in the subsequent months.

¶ 4 On January 8, 2014, Mother sought and obtained an ex parte emergency order that prohibited unsupervised visitation between M.A.S. and Father. On January 13, 2014, the court modified its emergency order to permit Father weekend supervised visitation with M.A.S. upon successfully passing a drug test. However, no overnight visitation would be permitted. Specifically, the order stated:

[I]f the Petitioner test positive for illegal substances then he shall reimburse the Respondent for the cost of the test within five (5) days ... The results of the drug test shall be faxed to Petitioner's ... and Respondent's lawyer ... Petitioner shall submit to the test within 24 hours from this order ...If Petitioner passes his drug test then to have nonovernight visitation to be monitored ... at the Respondent's expense ... [T]ime with the child shall be on Saturdays from 8am to 8pm and Sundays from 8am to 8pm.

¶ 5 Father filed a motion to modify custody on January 16, 2014. In it, Father disputed the allegations that gave rise to the court's emergency order. Father also asserted that a material change in circumstances had occurred that adversely affected M.A.S.'s best interests. Father sought full custody subject to the granting of "reasonable visitation to the [Mother]." The record is silent regarding the disposition of Father's motion. On March 6, 2014, Father filed a subsequent motion to enforce visitation and requested a hearing. In it, Father alleged full compliance with the court's order; that he successfully passed the drug test; yet, Mother continued to deny Father any contact or visitation with the minor child. The record is also silent concerning the disposition of that motion.

¶ 6 On April 21, 2014, Mother filed an application for a contempt citation against Father, contending that he failed to pay child support from January through April of 2014. The record is silent concerning the disposition of Mother's application. On April 22, 2014, the proceeding was reassigned to the Honorable Richard Woolery, Creek County Division, "for all further proceedings in this cause."²

B. Adoption Proceeding—Present Appeal

¶ 7 On January 6, 2015, Stepfather filed an application to adopt M.A.S. without Father's consent in the Sapulpa Division of the Creek County District Court.³ Stepfather alleged that Father had not substantially complied with the court's child-support order and that Father had failed to maintain a substantial and positive relationship with M.A.S. Because of this, Stepfather asserted, Father's consent is not required in accordance with the terms of Okla. Stat. tit. 10 § 7505-4.2(B)(1) and (H)(2011). Stepfather alleged further that M.A.S. is eligible for adoption without Father's consent and, that it is in M.A.S.'s best interests if Father's rights are terminated. Father denied all allegations contained in the application for adoption without consent.

¶ 8 The parties stipulate the relevant period for review to be January 6, 2014 to January 6, 2015—the twelve consecutive months of the last fourteen months prior to filing the petition for adoption. The stipulated fourteen-month window was November 6, 2013 to January 6, 2015. According to the Department of Human Services (DHS) record of payments and litigation time line—to which the parties stipulated—Father paid the following amounts during the fourteen month relevant window: November 2013, $440; December 2013, $440; August 2014, $103.36; September 2014, $310.08; and January 2015, $517. In February of 2015, Father made an additional payment of $4,144.44. In all, Father tendered $5,954.88 in support payments.

¶ 9 The parties appeared before the trial court and submitted their respective briefs on April 6, 2015. By agreement of the parties and in lieu of a hearing, the trial court stated it would rule upon the issues by minute order, which the trial court entered on April 20, 2015. In it, the trial court stated that,

[The Court] has reviewed the briefs and case law submitted by the parties, the agreed upon litigation time line submitted to aid the court, as well as the applicable statutes. The court finds that the Respondent/Natural Father has not substantially complied with a valid child support order within the statutorily contemplated time frame; and the Respondent/Natural Father has not maintained a significant relationship with the child within the statutorily contemplated time frame. The court acknowledges that there may have been some obstacles interposed to make maintaining such a relationship difficult but this court established parameters whereby visitation could occur and the Respondent/Natural Father has not taken advantage of those opportunities, which conduct this court finds to be wilful. Therefore, the Petitioner's application for an order declaring this child to be eligible for adoption without the consent of the Natural Father is sustained.

A subsequent order was issued on August 10, 2015, declaring M.A.S. eligible for adoption without Father's consent. Father appealed and the Court of Civil Appeals, Division II, (COCA) affirmed. Father sought certiorari review which this Court granted.

II. STANDARD OF REVIEW

¶ 10 A parent's fundamental right to the care, custody, companionship and management of his or her child is a right protected by the United States and Oklahoma Constitutions. 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. In re Adoption of C.D.M., 2001 OK 103, ¶ 13, 39 P.3d 802, 807, cert. den. 535 U.S. 1054, 122 S.Ct. 1911, 152 L.Ed.2d 821. But, if both parents fail to consent to the adoption of a child, the petitioner must file an application to the court stating the reason that the consent or relinquishment of a parental right is unnecessary. Okla. Stat. tit. 10, § 7505-4.1. The Oklahoma Legislature has prescribed certain adoption situations, found at Okla. Stat. tit. 10, § 7505-4.2, where prior parental consent is unnecessary, "which effectively terminates that parent's rights." In re Adoption of C.D.M., ¶ 13, 39 P.3d at 807.

¶ 11 Adoption statutes in derogation of a biological parent's rights must be strictly construed in favor of the biological parent. In re Adoption of C.M.G., 1982 OK 156, ¶ 9, 656 P.2d 262, 265. The burden rests on the party who seeks to destroy the parent-child bond to establish, by clear and convincing evidence, that an adoption without consent or termination of parental rights is warranted. In re Adoption of V.A.J., 1983 OK 23, ¶ 6, 660 P.2d 139, 141. The requisite "[c]lear 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." In re C.G., 1981 OK 131, ¶ 17 n. 12, 637 P.2d 66, 71 n. 12.

¶ 12 This Court examines the trial court's conclusion—finding a minor child eligible for adoption without the biological parent's consent—to determine if that conclusion is supported by the clear weight of the requisite clear and convincing evidence. In re Adoption of R.W.S., 1997 OK 148, ¶ 10, 951 P.2d 83, 86 ; In re Adoption of J.L.H., 1987 OK 25, ¶ 12, 737 P.2d 915, 918 ; In re Adoption of K.P.M.A., 2014 OK 85, ¶ 13, 341 P.3d 38, 43. So, unless the trial court's determination rests on clear and convincing evidence, that determination will be reversed. In re Adoption of C.D.M., ¶ 13, 39 P.3d at 807. This Court examines issues of fact under a "clear and convincing" standard and reviews issues of statutory construction, a matter of law, de novo. Lang v. Erlanger Tubular Corp., 2009 OK 17, ¶ 5, 206 P.3d 589, 590.

III. DISCUSSION

¶ 13 We note first that the proceedings below were extremely unusual. No evidentiary hearing was held concerning the application for adoption without consent or the child's best interests; and thus, no evidentiary testimony was gathered concerning Father's ability or inability to comply with the court-ordered support obligation during the relevant period. Rather, the parties agreed that the trial judge's ruling would be based solely on the parties' stipulations and briefs. That, it cannot do. Briefs and the references to the proof contained therein do not constitute evidence. See Willis v. Sequoyah House, Inc., 2008 OK 87, ¶ 12, 194 P.3d 1285, 1290, fn. 14.⁴ As...