In re Adoption of M.J.S.

Decision Date22 May 2007
Docket NumberNo. 104,240.,104,240.
Citation162 P.3d 211,2007 OK 44
PartiesIn the Matter of the ADOPTION OF M.J.S., a minor child.
CourtOklahoma Supreme Court

Appeal from the District Court of Tulsa County.

¶ 0 The appellees, foster parents, filed an objection with the district court to the Department of Human Services' (Department/DHS) removal of M.J.S. (child) from their home. Three days later, the foster parents instituted adoption proceedings. The appellants, the child's relatives (relatives), and DHS intervened with the relatives filing a cross petition for adoption. Although DHS withheld its consent to M.J.S. being adopted by the foster parents and agreed to adoption by the relatives, the trial court allowed the foster parents to adopt M.J.S. based on the child's best interests. Following appeal of the adoption decision, the relatives filed a motion for new trial on grounds of newly discovered evidence. Although the trial court acknowledged that the evidence presented was material and of a character, if uncontroverted, that would have changed the placement decision, she denied the motion for new trial based on a determination that the new evidence could have been discovered prior to trial of the adoption matter. In a third proceeding, relying on the same evidence utilized by the relatives in their motion for new trial, the Department filed a petition to vacate based on allegations of fraud. Determining that the original judgment was procured by fraud, the trial court vacated the judgment in favor of the foster parents', dismissing their petition to adopt and left the child in the permanent custody of DHS with authority to seek other appropriate preadoptive placement for the child. The first two causes are consolidated and the third is treated as a companion case. We hold that: 1) in accord with State ex rel. Dept. of Institutions, Social & Rehabilitative Serv. v. Griffis, 1975 OK 164, ¶ 25, 545 P.2d 763, 83 A.L.R.3d 363, the grant of authority to the Department to consent to the adoption of a child pursuant to 10 O.S.2001 § 7003-5.5(H)(3) does not divest the trial court's duty to determine the best interests of the child in an adoption proceeding; and 2) Joliff v. Joliff, 1992 OK 38, 829 P.2d 34 teaches that the trial court erred in its refusal to grant the relatives a new trial when the new evidence produced concerned the material issue of the child's best interests and where the evidence, if uncontroverted, admittedly would change the original adoption determination. These determinations are dispositive or render moot the issues raised in the companion cause.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

A. Craig Abrahamson, Tulsa, Oklahoma, For Appellants.

Kirsten Ingrid Bernhardt, Tulsa, Oklahoma, Charles Kevin Morrison, Oklahoma City, Oklahoma, Mark A. Zanotti, Tulsa, Oklahoma, For Appellees.

Catherine Ann O'Leary, Tulsa, Oklahoma, Jonna Sue Geitgey, Oklahoma City, Oklahoma, Yvonne Fisher Glick, Tulsa, Oklahoma, For Department of Human Services.

Julie Kaye McMahon, Tulsa County Public Defender, Tulsa, Oklahoma, For Child.

WATT, J.

¶ 1 The retained appeal, consolidated matter and companion case all involve the same adoption proceeding and will be resolved by a single opinion in the instant appeal.1 The matters require resolution of two issues.2 First, whether the Department's authority to consent to the adoption of a child under 10 O.S.2001 § 7003-5.5(H)(3)3 overrides the trial court's duty to determine the best interests of the child in an adoption proceeding. Second, whether the trial court abused its discretion4 by refusing to grant a new trial based on the relatives'5 discovery of new evidence.

¶ 2 In accordance with State ex rel. Dept. of Institutions, Social & Rehabilitative Serv. v. Griffis, 1975 OK 164, ¶ 25, 545 P.2d 763, 83 A.L.R.3d 363, we determine that the refusal of the Department to consent to the adoption of a child under 10 O.S.2001 § 7003-5.5(H)(3) will not divest the district court of jurisdiction to hear and determine an adoption petition based on the child's best interests. The determination is supported by: 1) the expressed legislative purpose of the Oklahoma Adoption Code 10 O.S.2001 § 7501-1.1, et. seq, to "ensure and promote the best interests of the child in adoption;"6 2) the Legislature's directive that the court may enter a final decree of adoption if it is satisfied "that the adoption is in the child's best interests;"7 and 3) Oklahoma jurisprudence providing that the primary issue in adoption is the protection of the best interests of the child.8 Second, we hold that Joliff v. Joliff, 1992 OK 38, 829 P.2d 34 teaches that the trial court erred in its refusal to grant a new trial when the new evidence produced concerned the matter of the child's best interests and where the evidence, if uncontroverted, admittedly would change the original adoption determination.

FACTS

¶ 3 In August of 2004, DHS was notified that the child, a newborn, tested positive for cocaine. M.J.S. was placed in protective custody and adjudicated as deprived on September 22, 2004, after the mother stipulated to the allegations of drug use. Thereafter, the father also stipulated to the allegations and a treatment plan was approved.

¶ 4 The child was hospitalized until September 1, 2004, when she was discharged into emergency foster care. The foster parents obtained custody on September 7th, dealing with the child's major medical problems associated with her prenatal history of drug exposure, including suffering from drug withdrawal. Currently, M.J.S. is developmentally delayed, has continued problems with asthma and ear infections and is at a high risk for respiratory problems. It is undisputed that: the child has had expert care during her placement with the foster parents; the foster parents have provided a loving and nurturing home environment; and the child and the foster parents are emotionally bonded.

¶ 5 On November 12, 2004, the father notified the social worker that he wanted the child placed with the relatives in Texas until he had the opportunity to "get on his feet." Later in the month, the social worker spoke with the relatives who expressed an interest in adopting the child. However, the social worker rejected the relatives as a placement because of concerns that the child might be returned to the father. In February of the following year, the father advised the social worker that he might be willing to relinquish his parental rights if the relatives were allowed to adopt M.J.S.

¶ 6 The father relinquished his parental rights on March 11, 2005, again requesting that the relatives be allowed to adopt M.J.S. The social worker did not hear from the relatives between November of 2004 and March 30, 2005, when the relatives began receiving reports of progress made towards adoption proceedings involving the child. On April 4, 2005, the mother's parental rights were terminated and the child was placed in the Department's permanent custody affording DHS the statutory authority to consent to the child's adoption.9 In July, the mother gave birth to a son, D.D., who was also born addicted to drugs and whose father differs from that of M.J.S., making M.J.S. and D.D. half siblings. D.D., like M.J.S., was placed with the foster parents.

¶ 7 The cause was transferred to the Adoption Transition Unit and a new social worker was assigned to M.J.S. The foster parents' home study was completed on September 20, 2005. The relatives contacted the new social worker who determined that the original worker had not adequately researched her concerns regarding placement with the relatives. The new social worker requested a home study for relatives, which was initiated in May and completed in November of 2005. Both home studies were approved. Between November and January, there were four congenial visitations between the child and the relatives.10

¶ 8 On December 7, 2005, DHS served the foster parents with a 5-day notice to remove M.J.S., to which they objected. The foster parents filed a petition for adoption on December 15, 2005. The trial court stayed the removal and entered an order on December 30, 2005, indicating that the petition for adoption would be heard in lieu of the objection to removal. The relatives intervened in the adoption proceeding filing a cross petition for adoption.

¶ 9 In reviewing the evidence from the adoption proceeding, the trial court recognized that the home studies indicated both homes and families were equally qualified as adoptive families. While both the relatives and the foster parents had the flexibility in employment to meet the needs of the child when demands arose, each of the two families had other advantages. The relatives were supporting two children, living in a larger home with more amenities, had a higher income and were younger and healthier. The foster parents were supporting one child, had plans to relocate to a larger house and were debt free. While the relatives were familiar with some of the child's health issues and had made contacts in the medical community regarding her needs, the foster parents had cared successfully not only for M.J.S. and D.D., as drug-addicted infants, but other foster children as well. Although the relatives were ambivalent concerning their willingness to adopt D.D. because of his apparent lack of blood relationship with them, the foster parents expressed a desire to adopt D.D. if parental rights were terminated and to raise M.J.S. and D.D. together.11 The relatives' visits with M.J.S. were helping to develop an affectionate relationship. Nevertheless, the child and foster parents shared a loving bond and attachment not present between M.J.S. and the relatives.

¶ 10 On November 14, 2005, DHS recommended that the relatives be authorized to adopt the child. The trial court heard evidence on two days in January, allowed the submission of briefs in lieu of closing arguments and took the cause under advisement. On March 22, 2006, the trial...

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