Yancey v. Timothy (In re Adoption of Boy L), 110,775.
| Citation | 306 P.3d 580 |
| Decision Date | 11 June 2013 |
| Docket Number | Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,No. 110,775.,110,775. |
| Parties | In the Matter of the ADOPTION OF BABY BOY L, a minor child: Chris Yancey, Appellant, v. Timothy and Tammy Thomas, Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Cleveland County, Oklahoma; Honorable Stephen Bonner, Judge.
AFFIRMED.
Jerry L. Colclazier, Seminole, Oklahoma, Barbara Anne Smith, Norman, Oklahoma, for Appellant.
Noel K. Tucker, Phillip J. Tucker, Amber M. Godfrey, Edmond, Oklahoma, for Appellees.
¶ 1 Appellant, Chris Yancey, natural father of Baby Boy L., seeks review of the trial court's order denying his request for attorney fees and costs. Yancey asserts in this appeal that he is entitled to representation and that the adoptive parents should pay for that representation, due to his status as both a prevailing party and an indigent natural father who sought to maintain a bond with his biological child.
¶ 2 Baby Boy L was born out of wedlock on October 4, 2002. The baby's mother voluntarily surrendered him for adoption six days after birth. Yancey commenced a custody action in November 2002, when the child was one month old. The biological mother filed an application to terminate Yancey's parental rights so that an adoption could proceed without his consent. The trial court granted biological mother's request and allowed the termination of Yancey's parental rights, over his objections, based upon application of the “existing Indian family exception” and the trial court's determination that it need not comply with the Indian Child Welfare Act, despite the fact Yancey is Native American. The Supreme Court reversed the trial court's decision and the case was remanded with instructions directing the trial court to apply the Indian Child Welfare Act and a “determin[ation] that the ‘existing Indian family exception’ is no longer pertinent to Indian child custody proceedings in Oklahoma and even if it were, the evidence is insufficient to support a finding that the child was eligible for adoption without the consent of the father.” In the Matter of Baby Boy L., 2004 OK 93, ¶ 2, 103 P.3d 1099, 1101.1
¶ 3 After two more appeals, the trial court conducted a best interests analysis, examining transcripts from two hearings, done in 2006 and 2008, as well as a guardian ad litem report and mandates from the two later appeals. After reviewing these materials, the trial court issued an order on May 18, 2010 terminating Yancey's parental rights, finding it was in the child's best interests to remain with the adoptive parents, whom the child had known since birth. The record does not reveal Yancey was ever determined to be an unfit parent.
¶ 4 On June 21, 2010, thirty-four days after the trial court's termination of parental rights order, Yancey filed an application for attorney fees and costs, asking for prevailing party attorney fees in the amount of $136,472.47, pursuant to 12 O.S. §§ 929 and 936. In Yancey's reply to the adoptive parents' objection to his application for fees and costs, Yancey added that he was also entitled to attorney fees and costs under the terms of 10 O.S. § 7505–3.2. Yancey did not appeal the May 18, 2010 termination of his parental rights and only the May 17, 2012 denial of his requested attorney fees and costs are at issue in this appeal.
¶ 5 While consideration of the reasonableness of an attorney fee is a question of fact, subject to an abuse of discretion review on appeal, whether the statute itself actually provides for payment of attorney fees and costs is a question of law, reviewed under a de novo standard by the appellate court. In the Matter of the Adoption of Baby Boy A., 2010 OK 39, ¶¶ 19–20, 236 P.3d 116, 122.
¶ 6 Yancey first claimed attorney fees should be paid as a prevailing party under 12 O.S. § 929 or § 936. While the record indicates Yancey prevailed in his initial appeal, in which the Oklahoma Supreme Court determined the “existing Indian family exception” could not be applied against him and the Indian Child Welfare Act must be applied in this case, these adoption proceedings ultimately resulted in the termination of Yancey's parental rights to Baby Boy L. Therefore, Yancey is not a prevailing party. Cleveland v. Dyn–A–Mite Pest Control, Inc., 2002 OK CIV APP 95, ¶ 55, 57 P.3d 119, 131.
¶ 7 In addition, neither § 936 or § 929 is intended to support the award of attorney fees or costs in the context of an adoption. Section 936 specifically applies to actions for labor or services rendered or for negotiable instruments:
A. In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.
12 O.S. Supp.2002 § 936(A). Section 929 is similarly inapplicable to adoption cases. Section 928 provides for costs to the successful plaintiff and § 929 provides for costs to the successful defendant “in actions for the recovery of money only, or for the recovery of specific, real or personal property.” 12 O.S.2001 § 928.2 These statutes provide no basis for the payment of Yancey's attorney fees and costs by the adoptive parents.
¶ 8 In Yancey's reply to the adoptive parent's objection to his request for attorney fees and also in his appeal, he asserts 10 O.S.2001 § 7505–3.2(B)(1)(a) allows for the payment of “reasonable attorney fees and court costs” as part of the authorized adoption-related costs and expenses:
B. 1. Except as otherwise specifically provided by law, the following list of adoption-related costs and expenses specified in this paragraph may be deemed proper items for a person to pay in connection with an adoption:
a. reasonable attorney fees and court costs[.]
However, we can find no previous Oklahoma authority that has sanctioned payment of attorney fees and court costs of a parent opposing the subject adoption under this provision. In fact, the statute's primary purpose appears to be the protection of prospective adoptive parents, with a goal of holding excessive adoption charges at bay:
The district court's duties under § 7505–3.2 are unmistakable. Section 7505–3.2 clearly mandates a thorough and rigorous inquiry into the adoption-related expenditures by the district court as part of the adoption proceedings. The obvious goal to be achieved by this mandated district court inquiry of expenditures in connection with an adoption is to thwart the subtle as well as the apparent buying and selling of children.
...
Under the governing statute, 10 O.S.Supp.2009, § 7505–3.2, the district court, in approving adoption-related expenditures, must be free from doubt that the prospective adoptive parents' expenditures are reasonable and not in violation of the anti-trafficking in children statutes. Under the statute, the district court is the gatekeeper protecting the vulnerable prospective adoptive parents from excessive charges for the adoption and preventing prospective adoptive parents from making excessive payments for the adoption.
In re Adoption of Baby Boy A, 236 P.3d at 123 and 130.
¶ 9 The enactment of § 7505–3.2 and its development, particularly in 1997, 2005 and 2009, speak entirely to the purpose of preventing child-trafficking by restricting payments and expenditures to and on behalf of a birth parent who has consented to an adoption, making it so that an adoptive parent does not, in effect, purchase a child from the birth mother. In re Adoption of Baby Boy A, 236 P.3d at 122–23. Because § 7505–3.2 does not address the issue of attorney fees and costs for a party opposing adoption, it does not support Yancey's request for fees in this instance.
¶ 10 In his brief on appeal, Yancey argues that 10 O.S.2001 § 7003–3.7 provides authority for the payment of his attorney fees by the adoptive parents. Section 7003–3.7 states in relevant part:
A. 1. a. If the parents, legal guardian or custodian of the child requests an attorney and is found to be without sufficient financial means, counsel shall be appointed by the court if a petition has been filed alleging that the child is a deprived child or if termination of parental rights is a possible remedy; provided that the court may appoint counsel without such request, if it deems representation by counsel necessary to protect...
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