In re Adoption of CDM, 94,879.

• Decision Date: 04 December 2001
• Docket Number: No. 94,879.,94,879.
• Citation: 39 P.3d 802,2001 OK 103
• Parties: In the Matter of the ADOPTION OF C.D.M., a minor child, Kori Rene Wyman and David Lee Wyman, Petitioners/Appellees, v. Chad Louis MAXWELL, Respondent/Appellant.
• Court: Oklahoma Supreme Court

39 P.3d 802

2001 OK 103

In the Matter of the ADOPTION OF C.D.M., a minor child, Kori Rene Wyman and David Lee Wyman, Petitioners/Appellees, v. Chad Louis MAXWELL, Respondent/Appellant.

No. 94,879.

Supreme Court of Oklahoma.

December 4, 2001.

Laura Haag McConnell, Oklahoma City, OK, for Petitioners/Appellees.

Christopher A. Wood, Oklahoma City, OK, for Respondent/Appellant.

KAUGER, J.:

¶ 1 Two issues are presented: 1) whether a father who was denied visitation and who was incarcerated for stalking and assaulting the mother and violating a victim's protective order (VPO) which was entered to protect the child and its mother from the father's acts of violence may rely on court orders to excuse his lack of relationship with the child; and 2) whether sufficient evidence was presented to support a finding that the adoption is in the child's best interests. We hold that: 1) the father may not rely on the existence of court orders to excuse his lack of relationship with the child; and 2) the trial court's determination that the adoption was in the best interests of the child is supported by the evidence.

FACTS

¶ 2 On February 11, 2000, the appellees, Kori Rene Wyman and her husband, David Lee Wyman (collectively Wymans/respectively mother and stepfather), filed a petition for the stepfather to adopt the mother's child (C.D.M./child) without the consent of the appellant, Chad Louis Maxwell (Maxwell/father).¹ In their petition, the Wymans asserted that the father's consent was unnecessary because he had for twelve months of the fourteen months immediately preceding the filing of the petition: 1) wilfully failed to maintain a significant relationship with the child; and 2) wilfully failed, refused, or neglected to contribute to the support of the child in substantial compliance with a court order.

A. Agreed Facts.

¶ 3 The parties jointly stipulated to several facts. On January 8, 1996, the mother gave birth to C.D.M. Maxwell is the biological father of the child. Since July of 1996, Maxwell has had no relationship with C.D.M. On August 2, 1996, a permanent protective order was entered against Maxwell in favor of the mother and the child. The order prohibited any contact or communication between Maxwell and either the mother or the child, with the provision that the order could be modified by an assigned Judge in any domestic proceeding between the parties.² Maxwell made no effort to contact the child. Maxwell wrote to the mother, but she took no steps to punish him for his violation of the protective order.

¶ 4 In March of 1997, Maxwell was arrested and charged with criminal trespass on the property of the mother, for felony stalking and repeatedly telephoning the mother, breaking into the mother's apartment and for hiding in her closet, and violating the permanent protective order. He pled guilty to the stalking charges and was sentenced to a five year suspended sentence except for the first three years. On June 4, 1997, Maxwell filed a petition to establish paternity and a request for visitation with the child. On October 29, 1997, a temporary order was entered which denied visitation and ordered child support in the amount of $141.80 per month.

¶ 5 On March 12, 1998, Maxwell plead guilty to additional charges of assault and battery and another violation of the VPO stemming from an incident in which he assaulted and battered the mother in a convenience store parking lot and attempted to take the child forcibly from the mother's car. He was sentenced to one year. He began serving his sentences for his convictions in November of 1998. A decree establishing Maxwell as the father, but denying visitation was filed on December 2, 1999, and child support was set at $125.00 per month. Although he receives between $8.00 and $11.00 a month in wages at the prison, Maxwell has never forwarded any portion of his earning to the mother for child support. However, Maxwell's mother sent a money order dated September 21, 1999, for $160.00, checks for $125.00 on December 13, 1999, and December 29, 1999, respectively which was apparently from the sale of Maxwell's personal property.

B. Facts Reflected in the Record.

¶ 6 In addition to the stipulated facts, the record reflects that the mother was fourteen when she met Maxwell, a twenty-five-year-old, father of four children. They began dating, and the mother gave birth to C.D.M when she was seventeen. Maxwell stayed with the mother at her parents' house for about ten days after the child's birth. Although he visited periodically, the parents never married and the mother and Maxwell never lived together after the child's birth. When C.D.M. was six months old, the mother met and began dating the stepfather. They were married on May 7, 1998, and had a child together on December 14, 1998.

¶ 7 According to the mother, rather than spending time developing a relationship with the child, Maxwell used any opportunity he could to pressure her to resume a relationship with him. After an incident in which Maxwell became intoxicated and threatened to keep the child in an effort to keep her from ending their relationship, she obtained the protective order because he was climbing on her roof, peeking in her windows and making harassing phone calls. He admitted that when he broke into the mother's apartment, he was not expecting to see or communicate with the child. Maxwell did not seek modification of the protective order to attempt to allow communication or any alternative contact with the child. In August of 1997, Maxwell followed the mother into a parking lot, opened her car door, pulled her from the car, threatened her and shoved her into a wall. He then got into the back seat of her car and attempted to remove the child from the car seat before leaving. Although Maxwell denies the mother's version of the events, he pled guilty to the charges stemming from the incident. The judgment and sentence regarding this incident specifically prohibited contact with the mother.

¶ 8 On October 30, 1997, Maxwell wrote a letter to the mother informing her that the child was covered by his medical insurance and requesting a photograph of the child. On December 15, 1997, he sent another letter inquiring about the child. The mother refused Maxwell's sister's request to take the child to visit Maxwell in jail, but she initially allowed his mother limited visitation with the child. Later, however, Maxwell's mother was asked not to contact the mother or the child.

¶ 9 At the hearing on the adoption without the consent of the father, the trial judge, based on the stipulated facts and exhibits, ruled in favor of the Wymans on the issue of whether Maxwell had maintained a significant relationship with the child. As a result of the trial court's ruling, the Wymans subsequently withdrew and abandoned their argument regarding Maxwell's alleged failure to support the child. The trial court then heard evidence relating to whether the adoption was in the child's best interests.

¶ 10 On May 26, 2000, the trial court entered an order, determining that: 1) the child was eligible for adoption without the consent of the father; and 2) it was in the best interests of the child to permit the stepfather to adopt the child. The father appealed. The Court of Civil Appeals reversed and remanded, finding that the mother and stepfather failed to establish the element of wilful failure to maintain a significant relationship with the child. We granted certiorari on April 30, 2001.

I.

¶ 11 A FATHER WHO WAS DENIED VISITATION AND WHO WAS INCARCERATED FOR STALKING AND ASSAULTING THE MOTHER AND VIOLATING A PROTECTIVE ORDER WHICH WAS ENTERED TO PROTECT THE CHILD AND ITS MOTHER FROM THE FATHER'S ACTS OF VIOLENCE MAY NOT RELY ON THE EXISTENCE OF COURT ORDERS TO EXCUSE HIS LACK OF RELATIONSHIP WITH THE CHILD.

¶ 12 The Wymans assert that the adoption should proceed without the consent of the natural father because: 1) it is undisputed that Maxwell has had no relationship with the child since the child was six months old; 2) Maxwell wilfully and intentionally through illegal and threatening actions sought to control and intimidate the mother, rather than seek modification of the protective order in an attempt to establish a relationship with the child; 3) Maxwell's conduct was wilful and intentional and he took actions which he knew would have the result of preventing a relationship with his child; and 4) to allow Maxwell to rely on his own illegal and threatening acts toward the mother and the child as a grounds to prevent adoption would violate public policy. Maxwell admits to the violations of the protective order, but characterizes his behavior as a misguided effort to see the child. He argues that his lack of relationship should be excused, not only by the fact that he was involuntarily incarcerated but also by the fact that court orders prohibited him from having any contact with the child.

¶ 13 The law presumes that consent of a child's natural parents is necessary before an adoption may be effected.³ The exceptions to this presumption are found in 10 O.S. Supp.1998 § 7505-4.2.⁴ Section 7505-4.2 provides the avenue by which adoptions may be obtained without prior consent of the parents which effectively terminates that parent's rights. One of the situations in which a nonconsensual adoption may be obtained under § 7505-4.2(H)⁵ is if a parent wilfully fails to maintain a significant relationship with the child through visitation or communication for a period of twelve months out of fourteen months immediately preceding the filing of the petition for adoption. The burden is on the party seeking to adopt without consent to prove such adoption is warranted by clear and convincing evidence.⁶ Accordingly, the decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence.⁷

¶ 14 At the outset, we note that the relevant statutory period is from December 11, 1998, to February 11,...