In thе Matter of the ADOPTION OF C.D.M., a minor child, Kori Rene Wyman and David Lee Wyman, Petitioners/Appellees, v. Chad Louis MAXWELL, Respondent/Appellant.
No. 94,879.
Supreme Court of Oklahoma.
Dec. 4, 2001.
2001 OK 103
¶4 The majority‘s pronouncement creates uncertainty in other areas of social аnd civic activity between bench and bar. It opens the door for the creative lawyer to contribute to a judge‘s campaign knowing he can have the judge disqualified when convenient. This rule creates a new way to forum shop. I dissent.
WATT, V.C.J., concurs in part, dissents in part:
¶1 I concur in that portion of the majority opinion which clarifies the procedural issues under a Rule 15 disqualification.
¶2 I dissent to that portion of today‘s pronouncement (see ¶16) that would ipso facto disqualify a judge merely because one (or both) of the lawyers appearing before the court contributed to the judge‘s campaign.
¶3 This case presents a prime example of an inherent problem in the election process for our trial court judges who must stand for reelection on a non-partisan ballot and seek campaign contributions to remain on the bench.
¶4 As one who hаs in the past been involved in the reelection process, I feel sure that a large majority of the attorneys who practice in the 7th Judicial District (and all other districts across this State) will contribute to each candidate in any contested judicial race.
¶5 Today‘s pronouncement could have the practical effect of making every judge who stood for reelection in a contested race subject to automatic disqualification in a vast majority of the cases to come before that judge during his or her term of office.
¶6 This would create a log jam in an already crowded docket, delay adjudications, and indeed deny due process to the litigants. Had the trial judge in this case recused himself based on the contribution issue alone (which this opinion will mandate in the future)—astute lawyers would therеafter get copies of campaign contribution forms from the State Ethics Commission and stand ready to invoke Rule 15 in all future cases where opposing counsel was a campaign contributor and thereby create a “forum shopping process” which would only cause further delay and which makes the “cure” as bad as the “condition“, it is intended to treat.
¶7 Whether the current method of electing our trial court judges remains or is modified is up to the citizens of this State. The inherent problem of campaign contributions while not one which the candidate for judicial office has created but will remain as long as the current system exists and will be exacerbated by today‘s pronouncement.
¶8 Here, the trial judge felt that he could proceed and be impartial and the chief judge agreed.
¶9 Accordingly, I respectfully dissent from that part of today‘s holding which would require the trial court‘s disqualification.
Christopher A. Wood, Oklahoma City, OK, for Respondent/Appellant.
KAUGER, J.:
¶1 Two issues are presented: 1) whether a father who was denied visitation and who was incarcerated for stalking and assaulting the mother and violating a victim‘s protective order (VPO) which was entered to protect the child and its mother from the father‘s acts of violence may rely on court orders to excuse his lack of relationship with the child; and 2) whether sufficient evidence was presented to support a finding that the adoption is in the child‘s best interests. We hold that: 1) the father may not rely on the existence of court orders to excuse his lack of relationship with the child; and 2) the trial court‘s determination that the adоption was in the best interests of the child is supported by the evidence.
FACTS
¶2 On February 11, 2000, the appellees, Kori Rene Wyman and her husband, David Lee Wyman (collectively Wymans/respectively mother and stepfather), filed a petition for the stepfather to adopt the mother‘s child
A. Agreed Facts.
¶3 The parties jointly stipulated to several facts. On January 8, 1996, the mother gave birth to C.D.M. Maxwell is the biologicаl father of the child. Since July of 1996, Maxwell has had no relationship with C.D.M. On August 2, 1996, a permanent protective order was entered against Maxwell in favor of the mother and the child. The order prohibited any contact or communication between Maxwell and either the mother or the child, with the provision that the order could be modified by an assigned Judge in any domestic proceeding between the parties.2 Maxwell made no effort to contact the child. Maxwell wrote to the mother, but she took no steps to punish him for his violation of the protective order.
¶4 In March of 1997, Maxwell was arrested and charged with criminal trespass on the property of the mother, for felony stalking and repeatedly telephoning the mother, breaking into the mother‘s apartment and for hiding in her closet, and violating the permanent protеctive order. He pled guilty to the stalking charges and was sentenced to a five year suspended sentence except for the first three years. On June 4, 1997, Maxwell filed a petition to establish paternity and a request for visitation with the child. On October 29, 1997, a temporary order was entered which denied visitation and ordered child support in the amount of $141.80 per month.
¶5 On March 12, 1998, Maxwell plead guilty to additional charges of assault and battery and another violation of the VPO stemming from an incident in which he assaulted and battered the mother in a convenience store parking lot and attempted to take the child forcibly from the mother‘s car. He was sentenced to one year. He began serving his sentences for his convictions in November of 1998. A decree establishing Maxwell as the father, but denying visitation was filed on December 2, 1999, аnd child support was set at $125.00 per month. Although he receives between $8.00 and $11.00 a month in wages at the prison, Maxwell has never forwarded any portion of his earning to the mother for child support. However, Maxwell‘s mother sent a money order dated September 21, 1999, for $160.00, checks for $125.00 on December 13, 1999, and December 29, 1999, respectively which was apparently from the sale of Maxwell‘s personal property.
B. Facts Reflected in the Record.
¶6 In addition to the stipulated facts, the record reflects that the mother was fourteen when she met Maxwell, a twenty-five-year-old, father of four children. They began dating, and the mother gave birth to C.D.M. when she was seventeen. Maxwell stayed with the mother at her parents’ house for about ten days after the child‘s birth. Although he visited periodically, the parents never married and the mother and Maxwell never lived together after the child‘s birth.
¶7 According to the mother, rather than spending time developing a relationship with the child, Maxwell used any opportunity he could to pressure her to resume a relationship with him. After an incident in which Maxwell became intoxicated and threatened to keep the child in an effort to keep her from ending their relationship, she obtained the protective order because he was climbing on her roof, peeking in her windows and making harassing phone calls. He admitted that when he broke into the mother‘s apartment, he was not expecting to see or communicate with the child. Maxwell did not seek modification of the protective order to attempt to allow сommunication or any alternative contact with the child. In August of 1997, Maxwell followed the mother into a parking lot, opened her car door, pulled her from the car, threatened her and shoved her into a wall. He then got into the back seat of her car and attempted to remove the child from the car seat before leaving. Although Maxwell denies the mother‘s version of the events, he pled guilty to the charges stemming from the incident. The judgment and sentence regarding this incident specifically prohibited contact with the mother.
¶8 On October 30, 1997, Maxwell wrote a letter to the mother informing her that the child was covered by his medical insurance and requesting a photograph of the child. On December 15, 1997, he sent another letter inquiring about the child. The mother refused Maxwell‘s sister‘s request to take the child to visit Maxwell in jail, but she initially аllowed his mother limited visitation with the child. Later, however, Maxwell‘s mother was asked not to contact the mother or the child.
¶9 At the hearing on the adoption without the consent of the father, the trial judge, based on the stipulated facts and exhibits, ruled in favor of the Wymans on the issue of whether Maxwell had maintained a significant relationship with the child. As a result of the trial court‘s ruling, the Wymans subsequently withdrew and abandoned their argument regarding Maxwell‘s alleged failure to support the child. The trial court then heard evidence relating to whether the adoption was in the child‘s best interests.
¶10 On May 26, 2000, the trial court entered an order, determining that: 1) the child was eligible for adoption without the consent of the father; and 2) it was in the best interests of the child to permit the stepfather to adopt the child. The father appealed. The Court of Civil Appeals reversed and remanded, finding that the mother and stepfather failed to establish the element of wilful failure to maintain a significant relationship with the child. We granted certiorari on April 30, 2001.
I.
¶11 A FATHER WHO WAS DENIED VISITATION AND WHO WAS INCARCERATED FOR STALKING AND ASSAULTING THE MOTHER AND VIOLATING A PROTECTIVE ORDER WHICH WAS ENTERED TO PROTECT THE CHILD AND ITS MOTHER FROM THE FATHER‘S ACTS OF VIOLENCE MAY NOT RELY ON THE EXISTENCE OF COURT ORDERS TO EXCUSE HIS LACK OF RELATIONSHIP WITH THE CHILD.
¶12 The Wymans assert that the adoption should proceed without the consent of the natural father because: 1) it is undisputed that Maxwell has had no relationship with the child since the child was six months old; 2) Maxwell wilfully and intentionally through illegal and threatening actions sought to control and intimidate the mother, rather than seek modification of the protective order in an attempt to establish a relationship with the child; 3) Maxwell‘s conduct was wilful and intentional and he took actions which he knew would have the result of preventing a relationship with his child; and 4) to allow Maxwell to rely on his own illegal and threatening acts toward the mother and the child as a grоunds to prevent adoption would violate public policy. Maxwell admits to the violations of the protective order, but characterizes his behavior as a misguided effort to see the child. He argues that his lack of relationship should be excused, not
¶13 The law presumes that consent of a child‘s natural parents is necessary before an adoption may be effected.3 The exceptions to this presumption are found in
¶14 At the outset, we note that the relevant statutory period is from December 11, 1998, to February 11, 2000. During the relevant period the father has been incarcerated, denied visitation by a paternity order, and prohibited from contacting the mother and/or the child by a protective order. Because Maxwell relies on his incarceration and the court orders to excuse his lack of relationship with the child and prevent the adoption without his consent, we must decide whether, under
¶15 We have not previously applied § 7505-4.2(H) in this context circumstances in which a natural father, through his own fault, has placed himself in a position where he is not permitted by court orders to visit or communicate with his child and maintain a satisfactory relationship. However, in the Matter of Adoption of V.A.J., 1983 OK 23, 660 P.2d 139, this Court addressed whether the life imprisonment of a natural father for murder was sufficient per se to establish the child‘s eligibility for adoption without parental consent on the grounds of wilful failure to contribute to the support of the minor child. The section of the statute at issue in V.A.J. related to the failure of a parent to contribute to the сhild‘s support as a means for adoption without consent. It required wilful failure, refusal, or neglect to contribute to the support of a child for a period of twelve months prior to the filing of the petition for
¶16 In V.A.J., the father‘s only source of income was a meager monthly stipend from his parents which would be granted or withdrawn at will. The Court held that incarceration alone is not enough to support termination of parental rights. This holding was consistent with the majority view from other jurisdictions.10 Regarding whether failure to support was wilful and his parental rights could be terminated, the V.A.J. court said:
“The statutory language of § 60.6(3) is clearly devoid of any explicit legislative intent that imprisonment for any crime or for any duration afford a ground for dispensing with a parents consent. The statute requires wilful failure or refusal to contribute. Imprisonment cannot be equatеd with wilful failure to contribute to the child‘s support. The natural father‘s conduct was not to be deemed wilful when, as here, incarceration prevents his making any contribution to the child‘s support. The proper inquiry to address in this case is whether the natural parent intentionally incapacitated himself for the purpose of avoiding the duty imposed by law; if so, then imprisonment may constitute justification for dispensing with his consent in the adoption proceeding. The evidence here does not support an inference that the father‘s commission of a felony, and subsequent incarceration therefore, was for the purpose of avoiding his support obligation. Thus his incapacity to earn income and pay support may not be deemed ‘wilful. ‘”
¶17 V.A.J. involved the failure of a parent to contribute to the child‘s support аs a means for adoption without consent. While incarceration of a parent during the relevant statutory period, standing alone, may not furnish a ground for automatic termination of parental rights, neither does incarceration insulate an inmate from the termination of parental rights if the record contains the clear and convincing evidence that would support the termination of the rights of any other parent. Nevertheless, although parental rights may not be terminated solely for a parent‘s incarceration, parental incarceration and the reason for the incarceration—i.e. the nature of the crime committed as well as the person against whom the criminal act was perpetrated are relevant to the issue of whether parental consent to an adoptiоn is necessary. The question of intent is to be determined in each case from all of the facts and circumstances.
¶18 Decisions of other states are of limited value because they are based largely on different factual circumstances or on the particular language of statutes.11 However, it is
Notes
“Consent to adoption is not required from a parent who willfully fails to maintain a significant relationship with a minor through visitation or communication for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child.” (Emphasis supplied).
“... The Defendant is Ordered NOT TO ABUSE, INJURE, ASSAULT, MOLEST, HARASS, THREATEN OR OTHERWISE INTERFERE with the victims.
The Defendant is Ordered NOT TO VISIT OR COMMUNICATE with the Victim.
The Defendant is Ordered TO LEAVE AND STAY AWAY FROM THE RESIDENCE located at where the Plaintiffs reside.
The Defendant is Ordered to CEASE HARASSING the Victims.
The Defendant is Ordered to CEASE STALKING the Victims.
...
This Order specifically applies to the minor ... and is subject to any appropriate modification, in writing, which may be made by the assigned judge in any domestic action between the parties.” (Emphasis in original.). The terms of
“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”
A ruling barring one from the access to court which is essential to the relief sought is violative of
“No person shall be deprived of life, liberty, or property without due process of law.”
The pertinent provision of
“[N]or shall any state deprive any person of life, liberty, or property, without due process of law; ...”
Depriving a child-support or alimony obligor from participation in judicial proceedings for failure to pay support constitutes a denial of due process. Carter, supra note 2, at ¶12, at 970 (citing Bishop v. Bishop, 1958 OK 16, ¶18, 321 P.2d 416, 417 and Hovey v. Elliott, 167 U.S. 409, 444, 17 S.Ct. 841, 854, 42 L.Ed. 215 (1897)). Eаrly jurisprudence recognized that due process signifies, at minimum, one‘s right to participate in judicial proceedings and to be given a meaningful opportunity to be heard. Hovey, supra, 167 U.S. at 417, 17 S.Ct at 844.
“Consent to adoption is not rеquired from a parent who willfully fails to maintain a significant relationship with a minor through visitation or communication for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child.”
The statute was renumbered from 10 O.S. Supp. 1993 § 60.6, and amended by Laws 1997, c. 366, § 27, eff. November 1, 1997.
See also,
“If consent to adoption or permanent relinquishment for adoption has not been obtained from both parents of a minor who is the subject of a petition for adoption, and the rights of the nonconsenting parent or parents have not previously been terminated, the petitioner for adoption, a consenting parent, or a legal guardian or legal custodian of the minor may file an application to terminate the parental rights of the putative father. Thе grounds for terminating a putative father pursuant to this section shall be identical to the grounds for permitting an adoption without the consent of a parent pursuant to Section 7505-4.2 of this title.” The range of critical defense evidence cannot be restricted without offending traditional and fundamental standards of due process. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.E.2d 297 (1973); Davis v. Alaska, 415 U.S. 308, 319-20, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974).
“A legitimate child cannot be adopted without the consent of its parents, if living, nor a child born out of wedlock without the consent of it mother, if living, except that consent is not necessary from a father or mother:
(3) Who, for a period of twelve (12) months next preceding the filing of a petition for adoption of a child, has willfully failed, refused or neglected to contribute to the support of such child....” Id.
“The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice.”
Liberal construction of a statute is not a device for extending the ambit of an enactment beyond its intended scope. Davis, at ¶20, at 1111.
¶19 Parental obligations entail minimal attributes such as: 1) expression of love and affection for the child; 2) expression of personal concern over the health, education and general well-being of the child; 3) the duty to supply necessary food, clothing, and medical care; 4) the duty to provide adequate domicile; and 5) the duty to furnish
¶20 Considering all aspects of the father‘s intentional conduct, the evidence clearly and convincingly establishes that the father wilfully failed to maintain a significant relationshiр with the child through visitation or communication for a period of twelve consecutive months out of the last fourteen months immediately preceding the filing of the petition for adoption. This situation is obviously within the intention of
II.
¶21 THE TRIAL COURT‘S DETERMINATION THAT THE ADOPTION WAS IN THE BEST INTERESTS OF THE CHILD IS SUPPORTED BY THE EVIDENCE.
¶22 In addition to the statutory requirements, this Court has also required that the adoption and termination of parental rights be in the best interests of the child.19 Maxwell argues that there was insufficient evidence to support the trial court‘s determination that the adoption was in the best interests of the child.20 The Wyman‘s insist
¶23 The primary issue in adoption is whether the adoption will promote the best interests of the child.21 It is the duty of the trial court in adoption matters to determine whether the adoption would be in the child‘s best interests.22 In an adoption proceeding, the decision of the trial court need not rest on uncontradicted evidence.23 The trial court is in the best position to evaluate credibility of witnesses,24 and is therefore entitled to deference on issues of fact.25
¶24 The record reflects that the stepfather has been an active part in the child‘s life since the child was an infant. The stepfather and child have a strong bond and a close relationship. The child has been a member of the Wyman family since 1998, and he calls his stepfather “Daddy” and considers him to be his father. The Wymans had a daughter and the child considers her his sister and he refers to himself with the last name “Wyman.” The child does not know Maxwell at all or recognize Maxwell‘s family members as relatives. It appears that the love and consideration and the responsibility of a parent for a child has been given by the mother and stepfather and that the stepfather provides all of the child‘s financial support.
¶25 Even though the guardian ad litem recognized that the mother was not free from fault in alienating the child from his father, he nevertheless expressed concern that the father‘s reaction to the mother‘s efforts to alienate the child was extreme, to the extent of having a Victim Protective Order еntered against him which he knowingly, wilfully, wantonly violated not once, but twice resulting in four criminal charges being filed. Although he also expressed concern that the stepfather had a child with whom he voluntarily chose not to pursue a relationship, the guardian ultimately recommended that it was in the child‘s best interests to allow the adoption to proceed.
¶26 In contrast, the father presented evidence that he was a good father to his other four children because he spent some time with them and that he loved this child too. Although Maxwell insists that before his relationship with the mother ended, he at least provided some emotional support for the mother before and shortly after the child‘s birth and cared for the child occasionally, it appears that rather than demonstrating a full commitment to the responsibilities of parenthood by participating in the rearing of the child,26 he instead chose to spend any oppor-
CONCLUSION
¶27 Nonconsensual adoption may be obtained under
¶28 When a parent is incarcerated during the relevant statutory period, the question of intent is to be determined in each case from all of the facts and circumstances including the nature of the crime committed as well as the person against whom the criminal act was perpetrated. A father who was denied visitation and who was incarcerated for stalking and assaulting the mother and violating a protective order which was entered to protect the child and its mother from the father‘s acts of violence may not rely on the existence of court orders to excuse his lack of relationship with the child. The trial court‘s determination that the best interests of the child would be served by approving the adoption and maintaining the child‘s current family unit is supported by the evidence.
¶29 WATT, V.C.J., HODGES, KAUGER, SUMMERS, WINCHESTER, JJ. concur.
¶30 HARGRAVE, V.C.J., LAVENDER, OPALA, BOUDREAU, JJ. dissent.
OPALA, J., with whom HARGRAVE, C.J. and LAVENDER, J., join, dissenting.
¶1 The court holds today that neither a father‘s incarceration nor his previous court-ordered bar of visitation will provide a defense against a mother‘s complaint of his willful failure to maintain a relationship with his child, a ruling which, pursuant to the terms of
¶2 The common law knows not of judicial severance of a parental tie.8 Parental relationship is viewed as eternal, indestructible and hence incapable of dissolution.9 Because the common law does not allow the parent-child bond to be severed, courts cannot alter this status-based relationship without a faithful obedience of the statutory terms.10 Today we are creating a termination neither sanctioned by legislation nor cognizable at common law.
¶3 Proceedings to terminate one‘s recognized family status present matters of grave consequence. Constitutional law surrounds both the marital as well as the parental status with a panoply of protections. Consistently with the obligations imposed by the due process clause, indigent individuals seeking dissolution of a marital bond are entitled to court access at the expense of the govern-
¶4 Parental terminations are, perhaps, the most serious of all status-based bond severance proceedings. Federal due process and equal protection afford safeguards protecting familial associations. Oklahoma also surrounds all access to courts with constitutional shelter.15 Yet, today‘s pronouncement severеly abridges this father‘s recognized federal- and state-law shields by fashioning a short-cut to termination that is neither legislatively sanctioned nor cognizable at common law. I hence recede from today‘s pronouncement because it (a) severely abridges this litigant‘s statute-based opportunity to defend against the mother‘s severance quest by demonstrating that one indispensable probative element is absent from the evidence she adduced in the proceeding—that of willful failure “to maintain a significant relationship with a minor through visitation or communication ...” and (2) invites as well as licenses the use of public law‘s quasi-criminal process regime (victim protection orders) as a designing custodial parent‘s collateral weapon for orchestrating the destruction of the noncustodial sire‘s legal status.
Boddie v. Connecticut, 401 U.S. 371, 374, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (1971).“[N]or shall any state ... deny to any person within its jurisdiction the equal protection of the laws.”