In re Baby Girl L., 96,158.

• Citation: 51 P.3d 544,2002 OK 9
• Decision Date: 12 February 2002
• Docket Number: No. 96,158.,96,158.
• Parties: In the MATTER OF BABY GIRL L. S.C., Appellee, v. J.L., Defendant, and D.M. and B.M. Putative Adoptive Parents, Appellants.
• Court: Supreme Court of Oklahoma

51 P.3d 544

2002 OK 9

In the MATTER OF BABY GIRL L.

S.C., Appellee, v. J.L., Defendant, and D.M. and B.M. Putative Adoptive Parents, Appellants.

No. 96,158.

Supreme Court of Oklahoma.

February 12, 2002.

As Modified on Grant of Rehearing July 1, 2002.

John Terry Bado, Barbara K. Bado, Bado & Bado, Edmond, for Appellants.

Gary Taylor and Stan Foster, Oklahoma City, Richard C. Lerblance, Hartshorne, for Appellee.

SUMMERS, J.

¶ 1 This is a custody dispute between a married couple desiring to adopt, who have had custody of an infant child since a month after her birth, and the child's unmarried natural father, who has sought custody during that time. The adoption failed by reason of (1) the father's refusal to consent (the natural mother originally gave her consent) and (2) in an earlier appellate case relating to this child, the Court of Civil Appeals (COCA), Div 2, in In the Matter of Baby Girl L., Case No. 92003 (not for pub., 5-18-99), cert. denied (Okla. S. Ct., 9-20-99), ruled father's parental rights were improperly terminated by the Oklahoma County district court and his consent was necessary for the adoption.

¶ 2 At issue is whether the trial court should have, once the adoption failed, conducted a hearing to determine the child's "best interests" in placing custody. We conclude that a recently enacted statute requires such a hearing, and that the trial court erred in not allowing the putative adoptive parents to offer evidence showing the likelihood of severe psychological harm to the child in the event of a custody transfer to the natural father. We affirm that part of the trial court's order finding the father to be fit, but reverse and remand the custody order for failure to allow the adoptive parents to be heard on the statutorily-mandated best-interests standard.

¶ 3 On November 18, 1997, S. C., the biological father (or Father), of a child not yet born, filed a petition in the District Court of Pittsburg County, Oklahoma, to determine paternity of the child, and requested that he be determined to be the father, and be granted custody of the child. The child, Baby Girl L., was born on February 26, 1998, in Oklahoma City. In the District Court of Oklahoma County, on March 2, 1998, the biological mother gave her consent to the child's adoption by others.

¶ 4 On March 2, 1998, D.M. and B.M., putative adoptive parents,¹ residents of the State of Ohio, filed in the District Court of Oklahoma County an application for an order to terminate the parental rights of the biological father and to determine that the child was eligible for adoption without the consent of the biological father. That day they also filed a petition for adoption in the same court. The District Court of Oklahoma County entered an order in the adoption case awarding temporary custody of the baby girl to the adoptive parents.

¶ 5 An evidentiary hearing was held in the District Court of Oklahoma County, and an order was entered on September 4, 1998, for the adoption of the child without the consent of the father. That order was appealed, and on May 18, 1999, the Oklahoma Court of Civil Appeals reversed the trial court's order. In the Matter of Baby Girl L., No. 92,003.

¶ 6 The appellate court said that the father was not notified of the birth of the child until five days thereafter, and that he did not know the location of mother and child at the time of the birth, although he tried to maintain contact with the mother through her family. The appellate court also stated that he sought to establish his paternity and gain custody before the child was born, that he offered financial support to the biological mother during her pregnancy which she refused, that he mailed to her, on two separate occasions, information and an application relating to medical insurance to take effect when the child was born, that he filed with the Oklahoma Centralized Paternity Registry twelve days after the birth of the child, that he added the child as a beneficiary to his life insurance policy, that he refused to sign a prebirth relinquishment of parental rights when contacted by an employee of an adoption agency, and that upon learning of the child's birth he sent money orders to the mother for the purpose of child support. The appellate court concluded that the child could not be adopted without his consent, and that his parental rights could not be terminated.² The adoptive parents sought certiorari from this Court, and their petition was denied.

¶ 7 Two days after this Court denied certiorari the adoptive parents requested a hearing on the adoption in the District Court of Oklahoma County, and they requested that the best interests of the child be determined. The District Court held a status conference and entered an order transferring the adoption case to the District Court of Pittsburg County. The Oklahoma County court determined that the child was born in Oklahoma County, the adoptive parents had never been residents of Oklahoma, the biological mother was a resident of Bryan County, and the biological Father was a resident of Pittsburg County where he filed his application for determination of paternity and child custody. The court determined that judicial economy required the transfer of the cause to Pittsburg County where it could be consolidated with the biological father's proceeding. The parties agreed that the order in the adoption case granting temporary custody would remain in effect until a new custody order was entered by the Pittsburg County court.

¶ 8 Then on October 14, 1999, the adoptive parents filed a proceeding in this Court requesting that we assume original jurisdiction and prevent the transfer of the proceedings to Pittsburg County. Prospective Adoptive Parents of Baby Girl L. v. Hubbard, No. 93,740. The adoptive parents then commenced adoption proceedings in the State of Ohio, and alleged that consent of the father was not necessary. While that proceeding was pending the father filed a petition for writ of habeas corpus in the District Court of Pittsburg County, and requested immediate custody of the child. The trial court declined to issue the writ at that time due to the proceeding then pending in the Supreme Court. On December 1, 1999 this Court declined to assume original jurisdiction on the adoptive parents' request for prohibition. A trial was scheduled in the District Court of Pittsburg County to determine the custody of the child.

¶ 9 Prior to trial the District Court determined that in order for the adoptive parents to retain custody of the child they would need to show that the father was affirmatively unfit as a parent. After some additional proceedings in this Court (Okla.Sup.Ct. Causes No. 94,898 and 94,943) the details of which we need not relate as they do not bear upon the issues pending before us, the District Court of Pittsburg County held a hearing on the consolidated proceedings. The trial court took judicial notice of the previous proceedings in Oklahoma County, including a partial transcript of those proceedings where all parties stipulated that S.C. is the biological father of the child. The biological mother argued that the child should stay with the adoptive parents, or in the alternative, be awarded to her. The trial court concluded that the adoptive parents failed to prove that the father was an unfit parent.

¶ 10 The trial court made a finding that the father "is a fit and proper person to have care and custody and control of" the child. The court ordered temporary custody of the child to be placed jointly with the biological mother and biological father, with a later determination to be made if one or the other should be granted sole custody. The court further ordered that the change in custody would not be immediately enforced, and that the transition in child custody would be pursuant to a plan of the court. The court set a hearing on the plan, to include expert testimony on that subject. The trial court ordered that the biological mother and biological father would be granted unsupervised visitation with the child.

¶ 11 The adoptive parents appealed, and this Court granted a motion to retain the appeal. They assert that they have a constitutional right to custody of the child. Adoptive parents also assert that custody of the child after a failed adoption may be awarded to them according to a statutorily-mandated "best interests" standard, even though the father is not adjudicated as an unfit parent. They also challenge the trial court's ruling on the father's fitness, its failure to change the venue, and the appointment of and representation of, counsel for the child. These latter claims must be addressed since they are independent of whether a best-interests hearing must be held. Father also asserts a constitutional right to custody, and that this right may be lost only upon a showing that he is unfit.³.

I. The Adoptive Parents' Constitution Based Claim

¶ 12 The adoptive parents argue that both a child and the child's adoptive parents possess constitutionally protected interests in maintaining the parent-child adoptive family relationship after a failed adoption. They rely upon Smith v. Organization of Foster Families For Equality & Reform (O.F.F.E.R.), 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), and opinions from courts in states other than Oklahoma.

¶ 13 The U.S. Supreme Court has stated that: "This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to `the companionship, care, custody and management of his or her children' is an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.'" Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), quoting, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)

. We are thus faced with the question whether the...