In the Matter of Adoption of Baby Boy A, 2010 OK 39 (Okla. 5/4/2010)

• Decision Date: 04 May 2010
• Docket Number: No. 106074.,106074.
• Citation: 2010 OK 39
• Parties: IN THE MATTER OF THE ADOPTION OF BABY BOY A, A MINOR CHILD.
• Court: Oklahoma Supreme Court

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2010 OK 39

IN THE MATTER OF THE ADOPTION OF BABY BOY A, A MINOR CHILD.

No. 106074.

Supreme Court of Oklahoma.

May 4, 2010.

ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I.

¶ 0 In this private adoption proceeding, the presiding judge of the Oklahoma County District Court, the Honorable Larry A. Jones, appointed the Oklahoma County Public Defender to represent the minor child and to assist the court in determining the reasonableness of the fees, costs, and expenses paid by the prospective adoptive parents in connection with the adoption. The public defender asked the district court to find the attorney fees were excessive and the private investigation expenses were not authorized. The district court found that the prospective adoptive parents had contracts with the attorneys and the private investigator; that in the absence of objection by the people paying the expenses, the contracts are reasonable; and that the public defender had the burden to produce evidence showing the adoption-related expenditures to be unreasonable. The district court approved the prospective adoptive parents' expenditures. The Court of Civil Appeals affirmed. We previously granted certiorari review.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; DISTRICT COURT ORDERS APPROVING PROSPECTIVE ADOPTIVE PARENTS' EXPENDITURES REVERSED; CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Christopher W. Venters and Collin Robert Walke, Assistant Oklahoma County Public Defenders, Oklahoma City, Oklahoma, for appellant.

M. Eileen Echols and Amy L. Howe, Echols and Associates, Oklahoma City, Oklahoma, for appellees.

TAYLOR, V.C.J.

¶ 1 In this appeal, the appellant is the Oklahoma County Public Defender in his capacity as the attorney for the minor child and the appellees are the adoptive parents. The dispositive question is whether the district court abused its discretion in approving the adoptive parents' expenditures for fees, costs, and expenses in connection with the adoption. We answer in the affirmative and remand this cause to the district court for further proceedings consistent with this opinion.

I. The Proceedings

¶ 2 In this private adoption, the adoptive parents paid a total of $147,289.42 for fees, costs, and expenses. A review of the adoption proceedings is a necessary step in our consideration of the trial court's approval of these expenditures.

¶ 3 In September of 2005, the unwed prospective birth mother made arrangements with a private attorney for the adoption of her unborn child. By the end of September of 2005, the prospective adoptive parents began paying the prospective birth mother's living expenses pursuant to an order of the district court. The birth mother delivered Baby Boy A on April 11, 2006.

¶ 4 On April 17, 2006, the birth mother, her attorney, Paige Lee, Ponca City, Oklahoma, and one of the attorneys who arranged the private adoption for the prospective adoptive parents,¹ Tina Peot, appeared before the district court. The birth mother executed her permanent relinquishment of parental rights and her consent to the adoption of Baby Boy A and gave testimony regarding her relinquishment and consent. The birth mother also gave testimony regarding the putative father. She testified that the putative father knew she was pregnant and should have known of the birth of Baby Boy A, the putative father had not acknowledged paternity of Baby Boy A, he did not provide any medical or financial support for her during the pregnancy, he did not provide any medical or other financial support for Baby Boy A, she did not refuse any support from the putative father, and the putative father had not exercised any parental right. The district court questioned the birth mother and executed the certification/verification as required by the Oklahoma Adoption Code, 10 O.S.2001, §§ 7503-2.3 and 7503-2.4.

¶ 5 On April 25, 2006, the prospective adoptive parents filed a petition for adoption in the district court in Oklahoma County, together with an application to terminate the parental rights of the putative father, a voluntary placement statement, an interstate disclosure statement, and other routine filings. Upon the birth mother's consent, the prospective adoptive parents obtained physical custody of Baby Boy A but did not remove him from the state of Oklahoma until they obtained the requisite permission to return to their home state with Baby Boy A.²

¶ 6 On May 5, 2006, the district court set the application to terminate parental rights of the putative father for a hearing. Upon notice of the hearing, the putative father submitted to a paternity test which determined that he is the biological father of Baby Boy A. On the scheduled hearing date, June 12, 2006, the biological father filed a response, alleging that in August of 2005 he became aware of the birth mother's claim that he was the father, he is the biological father of Baby Boy A, he is a member of the Cherokee Nation, and his consent to the adoption is necessary. The biological father expressly withheld his consent to the adoption, and the district court appointed the Oklahoma County Public Defender to serve as attorney for Baby Boy A.

¶ 7 On June 14, 2006, the Cherokee Nation and the Bureau of Indian Affairs were served notice of the adoption proceeding. On June 26, 2006, to assure compliance with the Federal Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., the birth mother with her attorney and the first law firm for the prospective adoptive parents appeared before the district court, and the birth mother reaffirmed her April 17, 2006 testimony and again relinquished her parental rights and consented to the adoption of Baby Boy A. On June 28, 2006, the Cherokee Nation filed notice of its right to intervene pursuant to 25 U.S.C. § 1911 to insure placement of Baby Boy A in compliance with the federal Indian child welfare statutes.

¶ 8 On July 7, 2006, the prospective adoptive parents changed attorneys, and thereafter, they were represented by their second law firm. On August 2, 2006, the prospective adoptive parents filed an objection to the Cherokee Nation's intervention.

¶ 9 In an August 28, 2006 minute order, the district court, having considered briefs submitted by the prospective adoptive parents and the Cherokee Nation, found that the proceeding was one for adoption without consent of the putative father and not for termination of parental rights of the putative father, and as such, the Cherokee Nation had no standing to intervene in that aspect of the adoption proceedings. On November 7, 2006, the journal entry of the August 28th minute order was filed and a hearing was set for January 9, 2007, on the Cherokee Nation's request to show good cause for deviation from the federal Indian child welfare statutory preference requirements for placement of an Indian child.

¶ 10 Also on November 7, 2006, the biological father, his wife, his attorney, and the public defender appeared before the district court. The biological father executed his permanent relinquishment of parental rights and consent to the adoption of Baby Boy A and gave testimony concerning his relinquishment of parental rights and consent to adoption. The district court questioned the biological father and executed the certification/verification as required by the Oklahoma Adoption Code, 10 O.S.2001, §§ 7503-2.3 and 7503-2.4.

¶ 11 Attorneys for the prospective adoptive parents, the birth mother, Baby Boy A, and the Cherokee Nation appeared at the good cause hearing held on January 29, 2007. The district court ruled that the natural parents' unified voice consenting to the adoption of Baby Boy A constituted good cause to deviate from the federal statutory placement preferences. The Cherokee Nation filed a motion to reconsider asserting that the hearing was not actually a good cause hearing. In a supplemental ruling, the district court found that the Cherokee Nation had the opportunity to produce evidence as to the lack of good cause, but did not do so. The Cherokee Nation appealed. This Court dismissed the appeal for lack of an appealable order.³

¶ 12 Hearing on the final decree of adoption was set for May 16, 2007. The day before the hearing, the biological father revoked his relinquishment of parental rights and consent to adoption. The prospective adoptive parents objected to the revocation and, on July 5, 2007, filed an application to terminate the biological father's parental rights and to determine the child eligible for adoption without his consent. The biological father changed attorneys, and on July 9, 2007, the district court set dates for depositions of the biological father and his wife, the pre-trial conference, and the trial.

¶ 13 On January 9, 2008, the biological father stipulated that he did not contribute to the support of the birth mother during her pregnancy; he did not pay any medical expenses for the birth of the minor child; he had not contributed to the minor child's support; and based upon these facts, his parental rights should be terminated and his consent to the adoption is not required. The district court entered an order adjudicating Baby Boy A eligible for adoption without consent of the biological father.

¶ 14 On January 30, 2008, the district court appointed the Oklahoma County Public Defender to assist the court in reviewing the adoption-related expenses in accordance with a local court administrative directive.⁴ In April of 2008, the prospective adoptive parents filed their affidavit, amended affidavit, and addendum to affidavit disclosing a total of $98,161.71 expended for adoption-related fees, costs, and expenses: $3,536.70 for their home state law firm, $65,189.51 for the second law firm, $13,362.50 for birth mother's attorney, $13,000.00 for a private investigator, and $3,073.00 for a home study and updates. The prospective adoptive parents' first law firm also filed an affidavit disclosing...