419 P.3d 204
Okla.2018Background
- Child M.A.S. born 2007; Michael Cruce (Father) was adjudicated father (2008) with mother awarded custody and Father granted visitation; mother later married Stepfather Stephen Asbell.
- Court ordered Father to pay child support ($447.91/month) in 2011; Father made payments inconsistently—some months short, some larger lump sums; parties stipulated DHS payment records for Nov 2013–Jan 2015.
- January 2014: mother obtained an ex parte emergency order suspending Father's unsupervised visitation; five days later the court modified the order to allow conditional, supervised, non‑overnight visits contingent on drug testing.
- January 2015: Stepfather filed to adopt M.A.S. without Father's consent under Okla. Stat. tit. 10 § 7505‑4.2(B)(1) (failure to pay) and (H)(1) (failure to maintain substantial and positive relationship). Parties submitted briefs and stipulations only; no evidentiary hearing was held.
- Trial court (minute order) and later order (Aug 10, 2015) found Father failed to substantially comply with support and had not maintained a substantial relationship, declaring child eligible for adoption without consent; Court of Civil Appeals affirmed; Oklahoma Supreme Court granted certiorari.
Issues
| Issue | Cruce's Argument | Asbell's Argument | Held |
|---|---|---|---|
| Whether Father's willful failure to pay support for 12 consecutive months (out of last 14) was proved by clear and convincing evidence | Father argued payments and lump sums, and lack of proof of ability/inability to pay, preclude a finding of willful failure | Asbell relied on DHS payment record and timing of payments to show willful nonpayment during the statutory window | Trial court's finding of willful failure was not supported by clear and convincing evidence; reversed and remanded for evidentiary hearing |
| Whether Father failed to maintain a "substantial and positive relationship" for 12 consecutive months | Father conceded no contact after Jan 8, 2014 but argued emergency order and subsequent motions show he was denied opportunity and took sufficient legal action to preserve the relationship | Asbell argued the lack of contact during the period satisfied § 7505‑4.2(H)'s 12‑month requirement | Court found the record did not establish 12 consecutive months of no contact (two‑day gap) and that Father's motions to modify/enforce visitation constituted sufficient legal action; holding favors Father on this ground |
| Whether briefs and stipulations alone can substitute for an evidentiary hearing in adoption‑without‑consent proceedings | Cruce argued the record and stipulations were insufficient to terminate parental rights without live evidence | Asbell relied on stipulated DHS records and agreed procedure to have court decide on briefs | Court held an evidentiary hearing is mandatory before terminating parental rights or declaring a child eligible for adoption without consent; summary procedure was improper |
| Whether the trial court made a best‑interest finding adequate to support adoption without consent | Cruce argued no evidentiary support existed for a best‑interest determination | Asbell implied the adopted parent/child stability supported best interests in pleadings | Court found no record evidence or findings to support best‑interest conclusion; briefs insufficient to satisfy statute and constitutional protections |
Key Cases Cited
- In re Adoption of C.D.M., 39 P.3d 802 (2001 OK) (presumption both biological parents must consent to adoption; adoption statutes strictly construed)
- In re Adoption of K.P.M.A., 341 P.3d 38 (2014 OK) (burden on petitioner to prove grounds for adoption without consent by clear and convincing evidence)
- In re Adoption of J.L.H., 737 P.2d 915 (1987 OK) (parental ability to pay is relevant to willfulness in support‑based termination)
- In re Adoption of D.T.H., 615 P.2d 287 (1980 OK) (parental rights are fundamental; willfulness requirement prevents arbitrary application)
- Willis v. Sequoyah House, Inc., 194 P.3d 1285 (2008 OK) (briefs and references in them do not constitute evidence)
- In re Adoption of G.D.J., 261 P.3d 1159 (2011 OK) (statutory defense where parent proves custodian denial and that parent took sufficient legal action to maintain relationship)