In the Matter of The Adoption of G.D.J. v. Pearson

• Decision Date: 20 September 2011
• Docket Number: Nos. 108889,109018.,s. 108889
• Citation: 261 P.3d 1159,2011 OK 77
• Parties: In the Matter of the ADOPTION OF G.D.J., a minor child.Tessia Bre Stubbs, Appellant,v.Terry Pearson and Robert Pearson, Appellees.
• Court: Oklahoma Supreme Court

261 P.3d 1159

2011 OK 77

In the Matter of the ADOPTION OF G.D.J., a minor child.Tessia Bre Stubbs, Appellant,

v.Terry Pearson and Robert Pearson, Appellees.

Nos. 108889

109018.

Supreme Court of Oklahoma.

Sept. 20, 2011.

APPEAL FROM THE DISTRICT COURT OF JACKSON COUNTY, OKLAHOMA; HONORABLE CLARK E. HUEY¶ 0 The Petitioners/Appellees, petitioned to adopt grandson, G.D.J., by filing a Petition for Adoption and an Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother. The natural mother, Respondent/Appellant, contested the adoption. The trial court entered two orders on August 11, 2010, in favor of the Grandparents on the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother and one order on December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother. This is a consolidated appeal of those orders.JUDGMENT OF THE DISTRICT COURT AFFIRMED IN PART; REVERSED IN PART; THE ADOPTION PROCESS MAY PROCEEDRebecca N. Beason and Michael T. Beason, Altus, Oklahoma, for Appellant.Barry K. Roberts, Norman, Oklahoma, for Appellees.COMBS, J.

¶ 1 The Petitioners/Appellees, Teryl Pearson and Robert Pearson (Pearsons) petitioned to adopt Teryl Pearson's (Pearson) grandson, G.D.J. (FA 2008–24, Jackson County, Oklahoma) by filing a Petition for Adoption, and an Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother. The natural mother, Tessia Bre Stubbs (Stubbs), Respondent/Appellant, contested the adoption. The trial court entered two orders on August 11, 2010, in favor of the Pearsons on the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother and one order on December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother. This is a consolidated appeal of those orders. A final hearing on the Petition for Adoption has not occurred and is not the subject of this appeal.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On October 21, 2008, the Pearsons filed a Petition for Adoption and Application to Adjudicate Minor Eligible for Adoption Without the Consent of the Natural Mother (AWOC), in Jackson County, Oklahoma (FA 2008–24). The Pearsons seek to adopt Pearson's grandson, G.D.J., a child who is alleged to be of Native American descent (Seminole Nation). The grounds alleged for the Adoption Without Consent were based on the failure of Stubbs to contribute to the support of G.D.J., and failure to maintain a meaningful relationship with G.D.J.¹ As the petition asserted, G.D.J. was eligible for membership in the Seminole Nation. The Seminole Nation and Bureau of Indian Affairs were given notice of the proceedings.

¶ 3 On December 22, 2008, the Seminole Nation intervened and requested notification of all hearings, access to all documents submitted to the court, leave to submit its own reports and evidence, and leave to proceed further. On December 29, 2008, the Seminole Nation announced to the trial court that it would not seek to transfer the case to tribal court.² The Seminole Nation has been given notice of all pleadings and hearings throughout the case. On March 4, 2009, Stubbs filed her Answer to the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother, and contested the proceedings. Stubbs alleged that because G.D.J. is eligible for membership in the Seminole Nation, the state and federal Indian Child Welfare Acts apply.³

¶ 4 On February 3 and 24, 2009, an attorney and guardian ad litem respectively were appointed by the trial court for G.D.J. On November 19, 2009, Appellant filed a Motion to Dismiss the FA 2008–24 case on the grounds that another case before the same court (FA 2009–24) had already granted an order adjudicating G.D.J. to be eligible for an adoption without consent of the natural mother and was therefore res judicata.⁴ The trial court denied Appellants Motion to Dismiss on December 18, 2009.

¶ 5 The trial on Appellees' Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother began on March 10, 2010. The testimony revealed Pearson provided all the support for G.D.J. since that child was born, including food and housing. Stubbs revealed to Pearson that she and G.D.J.'s father, Brantley Jones, had been using drugs and, on April 17, 2007, Appellees sought and obtained emergency temporary custody of G.D.J. because the mother was in jail on criminal charges.⁵ On October 6, 2008, an order was entered granting Pearson custody of G.D.J. This order also required Appellant to pay child support. Trial testimony demonstrated, during the relevant period, Appellant paid no money for G.D.J.'s support, and Appellant had been periodically employed and had income from other sources during the relevant period.⁶

¶ 6 Testimony was presented showing Stubbs had no meaningful or positive contact with G.D.J. Pearson kept records of Stubbs' visitations and phone calls. Contacts were sporadic, and there would be weeks at a time where no contact was made. Additional evidence indicated Stubbs had relationships with a convicted sex offender and another convicted felon, and G.D.J. was present during some of those contacts. The Pearsons presented evidence showing Stubbs had called to ask for visitation only five times in the fourteen months preceding the filing of the Petition for Adoption, and for seven of those fourteen months, she had no contact with G.D.J.⁷

¶ 7 At trial on March 11, 2010, Appellant's counsel demurred to the evidence. The grounds for the demurrer were that Pearson had gained possession of G.D.J. in the previous custody case (CV 2007–159) in contravention of Oklahoma law, and Stubbs had been ordered not to pay support in a previous paternity case (CV 2006–335).⁸ Briefs were submitted, and on March 26, 2010, the demurrer was denied.

¶ 8 Following the denial of Stubbs' demurrer, Stubbs presented no evidence to controvert her failure to pay support during the relevant period. Stubbs admitted she had paid no money to the Pearsons for G.D.J.'s support, or brought any other items of support to the Pearsons during the relevant period. ⁹ She did not dispute her violations of the law, drug use, or association with felons. Stubbs did not institute any court proceedings in regard to denial of visitation with G.D.J. during the relevant period.

¶ 9 The trial concluded on April 14, 2010. Appellant's counsel, having filed a Motion Requesting Findings of Fact and Conclusions of Law, chose to rely on the trial court to draft written findings of fact and conclusions of law, and did not submit proposed Findings of Fact and Conclusions of Law.

¶ 10 On August 11, 2010, the trial court made two orders: (1) Order Addressing Failure to Support, 10 O.S. Section 7505–4.2(B) and; (2) Order Addressing Failure to Maintain Relationship, 10 O.S. Section 7505–4.2(H). In the order addressing failure to support G.D.J., the court found Appellant paid no support between August 21, 2007, and October 21, 2008; the Appellees paid one hundred percent (100%) of the support for G.D.J.; the agreement to pay no child support between the parents to G.D.J., in case CV 2006–335, did not negate her duty of support; Appellant had the ability to obtain gainful employment; Appellant had income from other unidentified sources; and was aware she had an obligation to support G.D.J. The trial court found the Appellees had proven, by clear and convincing evidence, Appellant willfully failed and neglected to contribute to the support of G.D.J. according to her financial ability.

¶ 11 In the second order addressing failure to maintain relationship, the trial court found, between August 21, 2007, and October 21, 2008, Appellant had thirteen contacts with G.D.J., no more than three times in any month, and during seven of the fourteen months, she had no contact with G.D.J. The trial court determined during two of these visits, Appellant was in the company of convicted felons, one of whom was a registered sex offender. The trial court found the contacts were neither positive nor substantial and the Appellees met their burden of proof by clear and convincing evidence, and Appellant failed to establish and/or maintain a substantial and positive relationship with the minor child, pursuant to 10 O.S. Supp.2007, Section 7505–4.2(H).

¶ 12 On August 19, 2010, Appellant filed a motion for new trial on the grounds the two orders were not sustained by sufficient evidence and/or were contrary to law. A hearing was had on October 18, 2010, at which time Appellant raised the defense of lack of subject-matter jurisdiction. The trial court denied the motion for new trial on October 20, 2010.

¶ 13 On October 7, 2010, Appellees filed a Motion to Settle Journal Entry and submitted a proposed order adjudicating G.D.J. eligible for adoption without consent of the natural mother. The Appellant filed her Objections and a Response. On November 5, 2010, Appellant filed a Petition in error with this Court appealing the August 11, 2010 orders.¹⁰ On November 12, 2010, Appellees filed a Motion to Dismiss Appeal. On December 13, 2010, this Court denied the Motion to Dismiss.

¶ 14 A hearing was held on November 29, 2010, on the Motion to Settle Journal Entry, originally filed October 7, 2010. Appellees argued the August 11, 2010, orders were not final appealable orders. The Appellant argued the orders were appealable pursuant to Supreme Court Rule 1.20(b) and Title 12 O.S. §§ 681, 696.2 and 696.3. She also argued the trial court lacked subject-matter jurisdiction pursuant to Supreme Court Rule 1.37.

¶ 15 The trial court issued an Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother on December 2, 2010. The trial court also issued an order on the same day stating its findings as follows:

Section 611 of Title 12 states that upon the request of a party, findings shall be made “upon...