Merrell v. Merrell

• Decision Date: 24 December 1985
• Docket Number: No. 62737,62737
• Parties: , 1985 OK 107 John Ray MERRELL, Petitioner, v. Vickie Lynn MERRELL, now Watson, Respondent.
• Court: Oklahoma Supreme Court

Page 35

712 P.2d 35

54 USLW 2403, 1985 OK 107

John Ray MERRELL, Petitioner, v. Vickie Lynn MERRELL, now Watson, Respondent.

No. 62737.

Supreme Court of Oklahoma.

Dec. 24, 1985.

Butner & Butner, Inc. by George W. Butner, Wewoka, for petitioner.

Pryor & Pettis by Clay B. Pettis, Holdenville, for respondent.

LAVENDER, Justice:

We have previously granted certiorari in this case to review a properly certified interlocutory order ¹ by the trial court in a proceeding involving the child support provisions of a divorce decree entered between petitioner John Merrell and respondent Vickie Merrell in 1973. The order for review denied petitioner's motion to dismiss an application for contempt citation for failure to pay child support and an accompanying motion to modify the divorce decree to increase child support payments which had been filed by respondent. The basis for petitioner's motion to dismiss was his assertion that an unappealed, and now final, ² 1977 adjudication in a collateral adoption proceeding concerning the parties' minor child, which had declared the child eligible for adoption without petitioner's consent, had terminated petitioner's parental rights and obligations as to the child, including the obligation to pay support. As no final decree of adoption was ever entered in the collateral adoption proceedings, the question presented to this Court is the determination of the precise effect on the parent- /child status relationship of a decree holding the parent's consent not to be necessary in an adoption proceeding.

The trial court's ruling in this case implicitly finds that the mere determination of eligibility to adopt without consent does not sever the parent/child status between the child and the parent whose right to consent to an adoption has been adjudged forfeited. In support of the trial court's ruling respondent cites 10 O.S.1971 § 60.16(2): ³

After a final decree of adoption is entered, the natural parents of the adopted child, unless they are the adoptive parents or the spouse of an adoptive parent, shall be relieved of all parental responsibilities for said child and have no rights over such adopted child or to his property by descent and distribution.

Respondent goes on to argue that a determination by this Court that a decree of eligibility for adoption without parental consent entered prior to the final decree of adoption has the effect of terminating the parental rights and responsibilities as to the child would be inconsistent with section 60.16(2) and would amount to judicial legislation. Additionally, respondent points out that this Court in Wade v. Brown, ⁴ recognized that it was the effect of a final decree in an adoption proceeding under 10 O.S.1971 § 60.16 that deprived the affected parent of all rights to the adopted child.

Petitioner, however, argues that this Court has already determined that the effect of a determination of eligibility is to terminate the parent child/status. In support of this assertion petitioner cites the case of In re Adoption of Darren Todd H., ⁵ in which this Court made the following statement:

The fundamental nature of parental rights "requires that the full panoply of procedural safeguards must be applied" before a parent may be deprived of that right. Matter of Chad S., Okl., 580 P.2d 983, 985 (1978). Assessing this situation under the rationale of Addington, [v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ], we are convinced that because a declaration of a child's eligibility for adoption without parental consent effects a termination of parental rights, the magnitude of the rights involved requires proof which is clear and convincing.... (footnote omitted)

At issue in the case of Darren Todd H. was the standard of proof applicable in a hearing to determine a child eligible for adoption without the consent of a parent. We held that because of the nature of the rights involved the proof necessary to support the finding of eligibility must be clear and convincing. We do not recede from that conclusion. However, the statement that the declaration of eligibility itself effected a termination of parental rights relied on the case of Wade v. Brown. ⁶ Reassessing the authority cited, it is apparent that in Wade the question before this Court was whether a separate hearing was necessary to terminate a parent's rights to a child prior to the adoption of a child. We held that a separate hearing was not necessary, that an affected parent had the right to contest his right, or loss thereof, to consent to the adoption at the adoption hearing itself. Since the decree of adoption itself would terminate the parental rights, the hearing on eligibility coupled with the entry of the decree of adoption following the hearing would have the effect of terminating parental rights. Wade, however, does not stand for the proposition that a declaration of eligibility itself effects a termination of parental rights.

Following Wade, which was decided in 1973, the Oklahoma Legislature enacted 10 O.S.Supp.1975 § 60.7, ⁷ which clearly indicated the Legislature's intent that the hearing on eligibility be held prior to and separate from the adoption hearing provided for in 10 O.S.1981 § 60.15. ⁸

Having determined that it is necessary to recede from our pronouncement in Darren Todd H. that the parental rights are subject to termination in toto in a section 60.7 eligibility hearing, for the reasons that such pronouncement is in conflict with the specific wording of 10 O.S.Supp.1984 § 60.16(2), and that it is not supported by prior case law, there remains the question of the nature of the right adjudicated in a section 60.7 hearing. By the wording of 10 O.S.1981 § 60.6, it is clear that a parent has the right to consent or refuse to consent to the adoption of the parent's child. However, section 60.6 goes on to provide that a parent may lose that right under certain circumstances. Section 60.7 provides for a hearing to adjudicate whether those circumstances are present and whether, resultantly, the parent has forfeited the right to consent to the adoption of the child. It thus seems clear that the subject of a section 60.7 hearing is the right to consent itself.

The importance of the right to consent to an adoption has been recognized as an important right in and of itself both in jurisdictions, which, like Oklahoma, have adopted the Uniform Adoption Act, ⁹ and jurisdictions which have not adopted that Act. ¹⁰ This Court as well has tacitly recognized the existence of this right and its importance as illustrated from this statement from the case of In re Adoption of C.M.G.: ¹¹

When a parent--not under a support order--is alleged to have forfeited, by operation of § 60.6(3), his power to grant or withhold consent to adoption, the allegedly delinquent parent must be afforded full and fair opportunity to show any contributions made to the child for which--both at common law and under our statutes--a stranger would have an action for "necessaries." In short, the bond is not subject to a § 60.6(3) severance--without the natural parent's consent--when the parent claimed to be delinquent has, in fact, during the period in question contributed--in any form--toward his child's living expenses according to his ability. (footnotes omitted)

Having determined that it is the parental right of consent, rather than the absolute termination of all parental ties to the child, at issue in a section 60.7 hearing, we still, as previously stated, find the clear and convincing evidence standard imposed in Darren Todd H. to be proper. Because a declaration that a child is eligible for adoption without parental consent is itself a final and appealable order, ¹² and one which subjects the affected parent to the possibility of having all ties severed, we find the interest involved in such a hearing to rise to the magnitude requiring proof which is clear and convincing.

We find further support for our conclusion in this case from the practical considerations demonstrated from the facts before us. Where the eligibility hearing is held separately from the adoption hearing itself we have the possibility, as occurred here, that the adoption itself may fall through. If the section 60.7 hearing had been found to terminate all parental ties to the affected parent, the child would be deprived of the possibility of support from that parent even though an adoptive parent had not come forth to take up...