Baby Boy K.

IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA  

DIVISION III  

IN THE MATTER OF THE ADOPTION OF            )
BABY BOY K., A MINOR CHILD,                       )
                                                               )
ERNEST BINDRUM, NATURAL FATHER,              )
                                                               )
              Petitioner/Appellant,                      )
                                                               )
vs.                                                           )           Case No. 103,465
                                                               )
                                                               )
P.A.T. and M.J.T., ADOPTIVE PARENTS and      )
|SANDRA KUJAWA, NATURAL MOTHER,            )
                                                               )
             Respondents/Appellees.                   )

APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY , OKLAHOMA  

HONORABLE BRIAN H. UPP, JUDGE  

REVERSED
 

Charles J. Kania,
James M. Wirth,
KANIA LAW OFFICE,
Tulsa , Oklahoma ,                                  For Petitioner/Appellant,
 

Tina Peot,
Julie A. Demastus,
DEMASTUS LAW OFFICE,                       For Respondents/Appellees,
Oklahoma City , Oklahoma ,                      P.A.T. and M.J.T., Adoptive Parents,
 

Paige Lee,
PAIGE LEE, ATTORNEY AT LAW,              For Respondent/Appellee,
Ponca City , Oklahoma ,                          Sandra Kujawa, Natural Mother.
 

OPINION BY BAY MITCHELL, VICE CHIEF JUDGE:
¶1        Natural Father Ernest Charles Bindrum II (Father) appeals from an order allowing Baby Boy K to be adopted without his consent and without further notice pursuant to 10 O.S. 2001 §7505-4.2(C)(l). The order expressly terminated Father's parental rights.
¶2        Baby Boy K was born on August 13, 2005 and Sandra Lynn Kujawa (Mother) consented to his adoption. Shortly thereafter, Mother and Adoptive Parents filed applications to terminate Father's parental rights. Father first received notice of this proceeding on or about August 23, 2005 . This was also Father's first notice of Baby Boy K's birth. Father requested a paternity test at the initial hearing, because paternity was in question during the pregnancy. When the paternity test confirmed he was the father in October, he filed with the Paternity Registry and also filed a motion admitting paternity and requesting custody. The case proceeded to a bench trial on April 7, 2006 to determine whether Father's consent was necessary for the adoption.
¶3        The Court applied 10 O.S. 2001 §7505-4.2(C)[1] and determined the financial support Father had provided during the couple's relationship complied with the statutory test. However, Father had provided no support after their relationship ended in April, 2005. The court noted Mother had not contacted Father or informed him of her adoption decision. However, the court held these actions did not change Father's obligation to continue to support Mother during the pregnancy. The court found Father knew where Mother was living even after she moved and knew where she worked until July. Further, the court found the question of paternity was present. Although Mother had refused Father's request to take a paternity test, Father had been on notice of the pregnancy since January. The court stated it was knowledge of the pregnancy that imposed the duty of support, not knowledge of the baby's paternity. The court held Father had failed to exercise his parental rights and duties by failing to continue his support of Mother during her term of pregnancy. Thus, it held Baby Boy K was eligible for adoption without Father's consent or further notice.
¶4        Father contends the evidence was insufficient to determine that he did not contribute to Mother's support during her pregnancy according to his financial ability. He also contends he presented sufficient evidence that Mother denied him an opportunity to exercise his parental rights and duties and to even determine whether he was the biological father. The standard of review for a trial court's decision regarding a child's eligibility for adoption without consent of a biological parent is "whether it is supported by the clear weight of the requisite clear and convincing evidence." In the Matter of Baby Boy L., 2004 OK 93, ¶28,103 P.3d 1099,1108; Matter of the Adoption of Baby Boy D., 2000 OK 44, ¶35,10 P.3d 212, 219. After reviewing the entire record, we find the trial court erred in failing to recognize Mother's actions which prevented Father from discovering whether he was the actual father of the child prior to receiving notice of the parental termination proceeding, and substantially thwarted his efforts to provide prenatal support to Mother.
¶5        Mother and Father were in an on-and-off relationship from September 2004 to April 2005. They both learned Mother was pregnant on January 6, 2005 . Father testified he was happy about the pregnancy, and he began making plans to get a bigger house and put the baby on his insurance plan. Father had previously asked Mother to marry him, and he once again asked her to marry him after they learned of the pregnancy. Mother accepted this time and they became engaged.
¶6        Mother, however, also informed Father that her ex-boyfriend, Michael, could also be the father of the baby, because she had been with him around the time of conception. Father then asked Mother for a paternity test, but she refused. Mother stated there was no need to do one during pregnancy because of the medical risk to the baby.  Significantly, though, Mother admitted that she told Father they would have a paternity test after the baby was born. Father believed they had an agreement to have the test performed, and testified that he relied on this agreement.
¶7        Father and Mother provided detailed testimony about the amount of support Father provided to Mother during the pregnancy. Because Mother did not have a vehicle, Father drove her to work and to her GED classes. Father also helped Mother obtain a job at his mother's restaurant. Mother testified that her expenses were rent, electricity, cell phone, water, and food. Father paid most of those expenses one or two times during their relationship. Father also bought Christmas presents for Mother's other children, and did small things like renting movies and buying pizza. Mother broke off their relationship permanently in late April or early May. The evidence is undisputed that Father did not provide any support after this time.
¶8        Mother then moved in with ex-boyfriend, Michael, and had her telephone disconnected and also changed her cell phone number. Mother's best friend, Lisa, testified that Mother told her not to give Father her contact information, because she did not want Father to be able to contact her. Father testified that he could not contact Mother by telephone. He also went to Mother's apartment, but her neighbors told him Mother had moved. Lisa also told him Mother had moved in with Michael, but did not give him the address.[2]  Father saw Mother twice after their breakup. He saw Mother once when he was on patrol in late May or early June and asked why he was unable to contact her by phone. However, Mother would not tell him anything about her phones or provide any details about the pregnancy. In May, Father saw Mother driving by and followed her to Michael's home in Broken Arrow . They spoke briefly by the curb, but Mother told him to leave before Michael returned. Father stated it was clear Mother did not want any contact from him. Father testified that he could not find the house again because he did not write down Mother's address.[3]
¶9        Mother testified that she began to think about adoption in April and had made her decision to place the baby for adoption by June, but never told Father. The adoptive parents filed an order authorizing their payment of expenses as early as June 7, 2005 . Baby Boy K was born in August almost four weeks premature, but Mother did not tell Father that the baby had been born. Father, however, heard rumors that the baby was born premature. At that point, he and his mother contacted the hospital, but they could not get any information from the hospital. Father tried to find Mother's phone numbers but could not locate her. He also spoke to the father of one of Mother's children, who told him that he did not think the baby had been born yet. Despite these efforts, Father did not learn for certain of Baby Boy K's birth until he was served with the application to terminate his rights. This date was still 17 days before the baby's September 9 due date.
¶10     The law presumes consent of both of a child's natural parents is necessary before an adoption may proceed. In the Matter of the Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d 802, 807. No consent is required from a father or putative father of a minor born out of wedlock if:

1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy;...  

10 O.S. 2001 §7505-4.2(0). Adoption statutes, including §7505-4.2 must be strictly construed. In the Matter of the Adoption of C.D.M., 2001 OK 103, ¶20, 39 P.3d 802, 810. The party trying to establish that consent of the other parent is not necessary has the burden of proof by clear and convincing evidence. Steltzlen v. Fritz, 2006 OK 20, ¶12,134 P.3d 141,144-45. Clear and convincing evidence "is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." In re C.G., 1981 OK 131, ¶17, 637 P.2d 66, 71 n.12.
¶11     Paragraph D of §7505-4.2 provides a defense to termination of parental rights on the grounds of non-support where the father or putative father claims that prior to receiving notice of the proceeding:

[H]e had been specifically denied knowledge of the minor or denied the opportunity to exercise parental rights and duties toward the minor, such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights and duties toward the minor prior to the receipt of notice.  

10 O.S. 2001 §7505-4.2(D) (emphasis added).
¶12     The Oklahoma Supreme Court recently determined what evidence is sufficient to support the defense of denial of knowledge of the minor pursuant to §7505-4.2(D). Steltzlen v. Fritz, 2006 OK 20,134 P.3d 141. In Steltzlen, the parents dated briefly and then broke up, but the putative father was on notice that he was a putative father because he saw the mother when she was about seven months pregnant. Steltzlen, ¶4, 134 P.3d at 142. As in the instant case, the putative father asked for a paternity test, but the mother refused. Id. The natural mother then gave the baby to two other women. Steltzlen, ¶5, 134 P.3d at 142. The putative father did not receive any further notice regarding the baby until three years later when these women petitioned for guardianship. Steltzlen, ¶7,134 P.3d at 143. The Supreme Court affirmed the trial court's finding that the father had made sufficient attempts to discover if he had fathered a child "bv inquiring of the mother and asking her to cooperate in DNA testing, which mother declined." Steltzlen, ¶19,134 P.3d at 146 (emphasis added). The Court also noted that the lack of diligence alleged on the part of the father for not supporting the mother during the pregnancy and for not supporting the child for three years could also be ascribed to the mother who had never sought to contact the father and had concealed the child from the father. Id. The Court affirmed the trial court's determination that the women's application to adopt the child without the consent of the natural father failed to reach the level of clear and convincing evidence. Steltzlen, ¶21,134 P.3d at 147.
¶13     Here, the court found (and Mother admitted) paternity was at issue before Father took the paternity test after Baby Boy K's birth. Mother admitted she had a sexual encounter with ex-boyfriend, Michael, around the time of conception, and had told both Father and Michael that they were potential fathers. The court also found that when Father asked to have a paternity test during the pregnancy, Mother refused due to "medical risk." Significantly, Mother admitted that she agreed to obtain a paternity test after the baby was born. Father relied on her promise, and was never informed of Mother's decision to place the baby for adoption, or even that the baby had been born until he received the notice to terminate his rights. Mother knew Father's telephone number and knew where he lived and worked but did not contact him when Baby Boy K was born. Although Mother admitted she had told Father that she would allow a paternity test after the birth, she instead had already planned the adoption and allowed the application to terminate his parental rights to serve as his notice that the baby had been born prematurely. Mother even stated on the adoption social history that she had not told Father about the adoption "for good reason."
¶14     As in Steltzlen, Father provided sufficient evidence that he was specifically denied knowledge of the baby, and that he had tried to determine whether he was the father by offering to take a paternity test. But his efforts were thwarted by Mother. Mother's actions include: 1) acknowledging that there was more than one possible biological father, yet refusing putative father's request to have a paternity test during the pregnancy; 2) changing all contact information and not providing it to Father; 3) failing to contact Father when Baby Boy K was born and not having the agreed-upon paternity test; and 4) failing to inform Father of her adoption decision until he received notice of the application to terminate his parental rights. The trial court erred when it failed to recognize Mother's actions in keeping knowledge of the baby from Father and how her actions impeded or blocked Father's efforts to support Mother during the pregnancy. As the Supreme Court emphasized in Steltzlen, the lack of diligence on the part of Father in not paying support during the remainder of the pregnancy can also be ascribed to Mother, because the combined affect of her actions was to deny Father knowledge of her whereabouts and how to contact her, as well as knowledge of the minor. We find the trial court applied an incorrect legal standard by requiring Father to pay support without regard to the fact that he had been denied knowledge of the minor and denied the opportunity to exercise parental rights. See 10 O.S. 2001 §7505-4.2(D).
¶l5       Appellees, Mother and the Adoptive Parents, contend the trial court correctly found father had to support mother during the pregnancy as long as he had knowledge of the pregnancy, and that knowledge of definite paternity is irrelevant. Appellees rely on the following language in In re Adoption of G.E.E., 1998 OK CIV APP 33, ¶9, 956 P.2d 942, 945: "The 'knowledge' required is the knowledge of the child's conception, not knowledge of definitive paternity." However, as stated by the Oklahoma Supreme Court in Steltzlen when distinguishing this case, Adoption of G.E.E. did not involve a father's allegation that he had been denied knowledge of the child or denied the opportunity to exercise his parental rights and duties. Steltzlen, ¶17, 134 P.3d at 146; (citing Adoption of G.E.E., ¶9, 956 P.2d at 945 (finding father failed to support or take any action to acknowledge or establish paternity of a child he believed to be his)). Further, the quoted language from Adoption of G.E.E. was based on the court's interpretation of a prior statute, which had significantly different language than the current provision.[4] The language requiring a putative father to take legal action to establish his claim to paternity or to acknowledge paternity of the child has been removed from §7505-4.2. We therefore find Adoption of G.E.E. is not controlling, and instead apply Steltzlen.
¶16     A full review of the record shows Father made sufficient attempts to discover if he was the biological father and made sufficient efforts to exercise parental rights and duties. Mother's deception and non-cooperation made it virtually impossible for Father to do what the trial court and Appellees would punish him for not doing. The record lacks the necessary clear and convincing evidence upon which to terminate Father's parental rights and permit the adoption of his child without his consent.
¶17     REVERSED.
ADAMS, J., concurs, and JOPLIN , P.J., dissents.