Staton v. Shuler

SUPPLEMENTAL OPINION ON REHEARING

{1 Rehearing in this matter is denied. Procedural irregularities in the trial court have occurred during the time this matter was on appeal, however, which require further direction from this Court. This supplemental opinion describes those irregularities and their effect, if any, on the opinion previously issued in this matter. See In re L.D.S., 2006 OK 80, 155 P.3d 1, 2006 WL 3008471 (Oct. 24, 2006).

[2 While an appeal was pending from the determination that the child was eligible for adoption without the consent of the natural parents and the matter stood assigned to Division III of the Court of Civil Appeals, the trial court entered a final decree of adoption. No notice of this significant event was provided to the Court of Civil Appeals or to this Court. The court file in the adoption proceeding indicates that counsel for the natural parents was present at the proceeding but there is no record that any objection was raised. Twenty days after the final decree had been entered, a divided Court of Civil Appeals affirmed the trial court's determination that the child was available for adoption without the consent of the natural parents based on willful nonsupport.

13 The natural parents timely brought a petition for certiorari review. A response was filed on behalf of the minor child and a response was filed by the adoptive parents who are the natural father's sister and brother-in-law. Not one word in any of the certio-rari filings gave this Court any indication that a final decree of adoption had been entered. Ultimately, this Court reversed the trial court's determination and held that willful nonsupport had not been demonstrated by clear and convincing evidence.

T4 The first mention by anyone to this Court that the adoption had been finalized came in the petition for rehearing filed on behalf of the minor child. Even then, it was mentioned in passing and no legal effect was ascribed to the adoption decree. The petition for rehearing filed by the adoptive parents made no mention of the final decree and no response to the petitions for rehearing was filed by the natural parents. This Court directed the parties to brief the issue of the trial court's jurisdiction to issue a final decree of adoption and directed the trial judge to show cause why the final decree should not be vacated based on the appeal of the trial court's decision on the "Motion to Adopt without the Consent of Natural Parents." The briefs and show cause response were filed and a hearing was held before a Supreme Court Referee. This Court holds that the trial court lacked the authority to enter a final decree of adoption while the issue of the child's eligibility for adoption was on appeal. Thus, the adoption decree is void.

T5 "When a petition in error is timely filed, the Supreme Court shall have jurisdiction of the entire action that is the subject of the appeal." Okla. Stat. tit. 12, § 990.1 (2001). Jurisdiction remains in the trial court only for the limited purposes enumerated in Rule 1.37 of the Oklahoma Supreme Court Rules, Okla. Stat. tit. 12, app. 1 (2001). Those purposes include "grant[ing] or modify[ing] orders in regard to custody, guardian*7ship, support, and maintenance" and "deter-min[ing] any issue whose resolution pending appeal is explicitly authorized by law." Id. at Rule 1.37(@)(@) & (9). The trial court asserts that specific authorization to act was found in section 7505-2.1(J) of title 10 which provides:

The pendency of an appeal shall not suspend the order of the district court regarding a minor, nor shall it remove the minor from the custody of that court or of the person, institution, or ageney to whose care such minor has been committed, unless the Supreme Court shall so order.

With this provision as the perceived authority to act, the trial court reasoned that a final decree of adoption could be entered because the natural parents had not sought to stay the adoption proceeding. That court asserts that "[wlith no such stay order before the trial court and no objection having been made, either orally or in writing, and due notice having been given to the biological parents, the trial court believed it had jurisdiction."

'I 6 The trial court believed that adoption is a modification of custody over which jurisdiction was retained while the issue of the need for the natural parent's consent to adoption was on appeal. That belief was mistaken. Although a final decree of adoption does change custody, it is much more than a custody determination. It supplants the rights of the natural parents with those of the adoptive parents to effect a permanent change in legal custody which permanently deprives the natural parents of their parental rights.

T7 Under Supreme Court Rule 1.37(a)(2), an appeal does not divest the trial court of the authority "to grant or modify orders in regard to custody, guardianship, support, and maintenance." However, the authority to issue a final decree of adoption while the appeal was pending was not within the trial court's retained jurisdiction. "It is well settled in Oklahoma, that while an appeal is pending in the Supreme Court, the trial court is without jurisdiction to make an order materially affecting the rights of the parties to that appeal." In re Chad S., 1978 OK 94, ¶6, 580 P.2d 983, 984. Thus, "[alb-sent a compliance with § 1081.1 [by which a court may correct, open, modify or vacate its own judgment, decree, or appealable order within thirty days] the trial court loses its jurisdiction to make any order that pertains to the same issues then on appeal." Id. at T7, 580 P.2d at 985. Therefore, the trial court had no authority to issue a final decree of adoption until the issue of the child's eligibility for adoption had been finally resolved on appeal.

18 The adoptive parents and counsel for the child assert that, notwithstanding a void adoption decree, this matter is controlled by section 7505-7.2 of title 10 which provides:

A. Except as otherwise provided by paragraph 8 of subsection B of Section 7508-2.7 of this title:
1. When an interlocutory or final decree of adoption has been rendered, a decree terminating parental rights cannot be challenged on any ground, either by a direct or a collateral attack, more than three (8) months after its rendition. The minority of the natural parent shall not operate to prevent this time limit from running; and 2. No adoption may be challenged on any ground either by direct or collateral attack more than three (8) months after the entry of the final adoption decree regardless of whether the decree is void or voidable, and the minority or incompetence of the natural parent shall not operate to prevent this time limit from running.
B. In any challenge on any ground either by a direct or collateral attack, the court shall not enter a decision which is contrary to the best interests of the adopted minor.

It is maintained that because there was no challenge to the final decree of adoption by appeal or otherwise within three months, the decree is unassailable and this Court's determination that the child was not eligible for adoption without parental consent is of no effect and moot. The cited provision, however, does not apply to this matter.

T9 Under the view of section 7505-7.2 asserted, a decision regarding a child's eligibility for adoption without parental consent could be rendered incapable of review. A trial court could enter a final decree of adoption while the eligibility issue is on appeal and so long as the appellate process, *8potentially including certiorari review, took an additional three months to conclude, the appellate decision would become irrelevant because section 7505-7.2 would make the adoption unassailable.

110 The Adoption Code provides that "lain appeal from an order determining a child eligible for adoption which does not terminate parental rights may be taken in the same manner provided for appeals from the court as provided in this subsection." Okla. Stat. tit. 10, § 7505-4.1(D)(b) (2001). The Legislature would not have provided for a right of appeal only to have the issue irrevocably predetermined by the trial court through the operation of section 7505-7.2. That provision was not intended to apply where to do so would subvert appellate review of a decision that a child is eligible for adoption without the consent of the natural parents.

11 In this matter, no one brought a challenge to the decree of adoption. The jurisdictional issue was raised sua sponte by this Court. Thus, the statute is inapplicable. Even if the statute applied, it cannot operate to deprive the natural parents of due process of law by negating this Court's determination that their child was not eligible for adoption. As a statute of limitation, section 7505-7.2 "is subject to the constitutional limitations of the United States» and Oklahoma Constitutions and must not be interpreted so as to bar proceedings beyond the [limitation] period where the question of due process of law is timely presented even though more than [the time period] has expired after the adoption decree was entered." In re Lori Gay W., 1978 OK 140, ¶ 14, 589 P.2d 217, 220.

T12 "[The relationship of parents to their children [is] a fundamental constitutionally protected right." In re Chad S., 1978 OK 40, ¶12, 580 P.2d at 985 (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The determination that a child is eligible for adoption without parental consent does not merely infringe that fundamental liberty interest, it is a significant step in destroying it. For this reason, the result achieved in an adoption proceeding is not the only consideration even if the result is perceived to further the best interests of the child. Parents must be provided the opportunity to fully and finally litigate the issue of their child's eligibility for adoption, including an appeal, before an adoption can be finalized and the child is permanently removed from the family.

1 13 The interests of all parties to an adoption are furthered by speedy and efficient proceedings. "But the Constitution recognizes higher values than speed and efficiency." Stanley, 455 U.S. at 656. Until the issue of a child's eligibility for adoption has been finally determined, the child and the natural parents "share a vital interest in preventing erroneous termination of their natural relationship." Santosky, 455 U.S. at 760. Thus, the best interests of the child are not furthered by judicial shortcuts, intention al or unintentional, which reach an expeditious result but fail to recognize the fundamental nature of the right of parents to the care, custody, and management of their child. In fact, the best interests of the child can be served in no legitimate manner except in obedience to the policies and procedures mandated by law.

T14 No one's interests have been served ultimately by the manner in which this matter has been litigated and adjudicated. As the opinion explains, the child was declared to be eligible for adoption despite the fact that willful nonsupport had not been demonstrated by the requisite clear and convincing evidence. But to. compound that error by entering a final decree of adoption while the erroneous decision was on appeal is astonishing. Just as disturbing is the fact that counsel for the natural parents took no action to forestall the adoption through an original proceeding in this Court. The failure of all parties to mention the final decree of adoption in the certiorari filings remains unexplained and it cannot be excused.

15 The final decree of adoption granted on October 21, 2005, is null and void and it is hereby vacated. Also vacated are any administrative actions taken by the adoptive parents or the court to finalize the adoption. *9Because the final decree of adoption entered in this matter has no legal effect, the parental rights of the natural parents remain intact by virtue of this Court's opinion of October 24, 2006. On remand, the trial court is directed to return the parties to the legal status they held before the erroneous declaration that the child was available for adoption without parental consent. Further proceedings must comply with the Oklahoma Adoption Code.

4 16 The lesson of this matter is that the interests of the child and ultimately all concerned in matters regarding parental rights can be adequately served only through seru-pulous adherence to the statutory scheme found in the Adoption Code. This Court expects that the unprecedented errors committed by the trial court and by counsel in this matter will not be repeated.

CONCUR: WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, JJ. CONCUR IN PART DISSENT IN PART: LAVENDER, TAYLOR, JJ.