Davis v. Davis (In re S.L.D.)

• Decision Date: 27 March 2019
• Docket Number: Case Number: 116550
• Citation: 2019 OK CIV APP 19
• Parties: IN THE MATTER OF THE ADOPTION OF: S.L.D., Minor Child. JESSICA DAVIS, Appellant, v. MARCY DAVIS, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2019 OK CIV APP 19

IN THE MATTER OF THE ADOPTION OF: S.L.D., Minor Child.
JESSICA DAVIS, Appellant,
v.
MARCY DAVIS, Appellee.

Case Number: 116550

COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

Decided: July 31, 2018
Mandate Issued: March 27, 2019

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA
HONORABLE KURT GLASSCO, TRIAL JUDGE
REVERSED

Becki A. Murphy, Megan D. Martin, MURPHY FRANCY PLLC, Tulsa, Oklahoma, for Appellant

Christopher Brecht, PERRINE, REDEMANN, BERRY, TAYLOR & SLOAN, Tulsa, Oklahoma, Guardian Ad Litem for Natural Mother

Catherine Z. Welsh, Jim C. McGough, Rachel J. Ellsworth, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, for Appellee

Angela Monroe, ASSISTANT PUBLIC DEFENDER, TULSA COUNTY PUBLIC DEFENDER'S OFFICE, Tulsa, Oklahoma, for Minor Child

P. THOMAS THORNBRUGH, CHIEF JUDGE:

¶1 In this appeal, Jessica Davis (Mother), the natural mother of S.L.D. (Child), seeks review of a trial court order declaring Child eligible for adoption without Mother's consent pursuant to 10 O.S.2011 § 7505-4.2(H) on grounds that Mother failed to maintain a substantial and positive relationship with Child. Based on our review of the record, the parties' briefs, and the applicable law, we find that the judgment that Mother's consent is unnecessary pursuant to subsection (H) is not supported by clear and convincing evidence under the facts presented. We reverse the order below.

BACKGROUND

¶2 Many of the underlying facts are not disputed. Child's father, Bo Ryan Davis (Father), and Mother were married when Child was born but have been divorced since February 2010, when Child was about two years-old. The consent decree of divorce granted Father sole custody of Child, and allowed supervised visitation by Mother during the initial months following the decree; however, it contemplated that the parties might eventually enter into a joint child custody plan if certain conditions were met. Appellee, Marcy Davis (Stepmother), has been married to Father since July 2011.

¶3 On October 4, 2016, Stepmother filed a petition to adopt Child. She simultaneously filed an application to determine Child eligible for adoption without Mother's consent (AWOC), alleging that "for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing" of the petition for adoption, Mother had failed to establish and/or maintain a substantial and positive relationship with Child. See 10 O.S.2011 § 7505-4.2(H)(1). The parties agree that the 14-month relevant time period, pursuant to this provision, is August 4, 2015, through October 4, 2016 (relevant time period).

¶4 It is undisputed that notice of Stepmother's adoption proceeding was not served on Mother until November 11, 2016, but that Mother had filed, on October 25, 2016, a motion to enforce visitation in the divorce case. For approximately two years prior to Stepmother's filing of the adoption petition, Mother had been barred by a protective order, obtained by Father in September 2014, from contacting Child in any manner.

¶5 Though Father challenges the relevance of Mother's mental condition to this appeal, the record also shows as undisputed that from February 29, 2016, through August 11, 2016, Mother was involuntarily committed to a federal prison hospital undergoing treatment for mental illness. The commitment came after she was deemed incompetent for trial on federal charges related to violating the terms of her probation following her conviction in federal court of conspiracy to manufacture and pass counterfeit obligations.¹

¶6 In April 2017, the district court appointed a guardian ad litem (GAL) for Mother at the request of Mother's counsel, who expressed concerns as to Mother's competency and ability to communicate. Stepmother then amended her AWOC application, adding grounds pursuant to § 7505-4.2(B)(2), that Mother had "willfully failed, refused and neglected" to contribute to Child's support during the relevant time period "according to [Mother's] financial ability" to do so; and pursuant to § 7505-4.2(L), that Mother has "a mental illness or mental deficiency" rendering her unable to properly exercise her parental responsibilities.

¶7 Trial occurred in October 2017. The trial court took judicial notice of the parties' consolidated divorce and protective order case. The docket sheet in that matter reveals considerable post-decree activity by both the parties and the district court, including an order granting Father's motion to modify visitation to require that Mother's visitation be supervised by a licensed professional at Mother's expense; two motions by Mother seeking to enforce visitation (the latest being her October 25, 2016 motion); a September 2014 motion by Father to require Mother to have a mental health evaluation; and a court minute indicating Mother's agreement to have the evaluation performed at her own expense. The current status of Mother's motions to enforce in the divorce case is not clear. Though not entirely clear from the record, Mother apparently has not had the mental evaluation requested by Father that is the subject of the court minute.

¶8 Mother admitted she had not had any contact with Child during the relevant time period. She stated she had had a mental "breakdown" in September 2014 and was hospitalized for her mental condition by the federal court for six months, beginning sometime in February 2016 until August 2016. She was eventually tried in federal court on the charges related to violating probation and was released with an ankle monitor. She recognized that the 2014 protective order obtained by Father remained in effect during the same time period. She stated she knew it could be modified, however, and as a result, in October 2016 she filed, on her own behalf, a motion seeking to enforce her visitation rights.

¶9 Neither party offered expert testimony. During Mother's cross-examination in Stepmother's case in chief, however, Mother presented copies of two forensic mental health evaluations from federally-employed forensic psychologists to support her testimony that she had been hospitalized by the U.S. Department of Justice's Federal Bureau of Prisons due to her incompetency to stand trial in the federal case. The forensic evaluations reflect she was detained for six months during the 12 months period immediately preceding the adoption petition's filing. The trial court initially admitted the reports "under advisement," over Stepmother's objection that the reports were inadmissible hearsay. The court ultimately denied admission of the evaluations, however, after denying Mother's demurrer to the evidence,² and later refused Mother's GAL's request to reconsider the exclusion. At that time, the trial judge also recognized as "uncontroverted" that Mother had "various mental health diagnosis [sic]" and that she was both incompetent and competent during portions of the relevant time period.³ During closing arguments, Stepmother withdrew §...