Wadkins v. Holcom

MEANS, Judge,

dissenting.

I respectfully dissent.

Natural father, Bobbie L. Holcom, appeals from the order of the trial court terminating his parental rights and permit*388ting the adoption of the minor child, B.R.H., by his stepfather, Chris C. Wad-kins, to proceed without natural father’s consent. Having reviewed the record and applicable law, I would modify that portion of the trial court’s order terminating natural father’s parental rights, and affirm that portion of the trial court’s order depriving natural father of his power to withhold consent to the adoption of B.R.H.

On June 7, 1988, Stepfather filed a petition for adoption of the minor child and sought an order, pursuant to 10 O.S.Supp. 1990 § 60.6, determining B.R.H. to be eligible for adoption without natural father’s consent. The petition stated that Stepfather and Janice Wadkins, the natural mother of the child, were married on February 28, 1986; that the child had been in Mother’s custody since his birth on February 9, 1983; that she consented to the adoption; and that the natural father “has failed to contribute to the support of the child for a period of twelve (12) months immediately preceding the filing of this Petition.”

After several continuances, the case was heard on its merits on May 15,1989. Natural father was represented by counsel, but he did not personally appear at the hearing. His testimony was submitted by deposition previously taken in the matter.

The evidence and testimony presented revealed that the natural parents of the child were married only a short time, from March 12, 1982, until September 9, 1982, when they were divorced. At the time of the divorce, Mother was pregnant with B.R.H. The divorce decree granted custody of the child to Mother and required natural father to “pay reasonable child support for the care and maintenance of said child” after his birth.

Mother testified that after the birth of B.R.H. she appeared before the court and an ex parte order requiring natural father to pay support in the amount of $200 per month was entered. She further testified that natural father never contacted her after B.R.H.’s birth, never attempted to see the child, and never made any child support payments or provided any other financial assistance. In 1986 she began receiving $126 per month in social security disability benefits.

Natural father’s deposition testimony revealed that he had not completed high school or had any vocational training. Following the divorce, he moved to Colorado. He was unemployed from 1983-1985 while he was hospitalized and treated for a manic-depressive condition. In 1986 he was again hospitalized for three months as a result of problems with his prescribed medication.

At the time of his deposition in October 1988, he was still unemployed but he had made attempts to secure employment. His sole means of support was $374 per month in disability benefits he received from social security. He testified that when he first sought disability benefits in 1984-85, he advised the Social Security Administration that B.R.H. was his dependent. He testified that he had never seen the child, but following the child’s birth he once attempted to send $250 to Mother for the child and the envelope was returned unopened.

The trial court ordered “that the parental rights of the natural father ... be terminated and that the petitioners [sic ] herein proceed with the adoption of the minor child without the consent of any other person.” It is from this order that natural father appeals.

In addressing the allegations of error raised by natural father on appeal it should be first noted that the only issue of which he had notice and the only issue properly before the trial court was his right to consent to the adoption of B.R.H. The petition filed by Stepfather made no mention of termination of natural father’s parental rights, but merely sought a declaration that B.R.H. was eligible for a consentless adoption by virtue of section 60.6.

A declaration that a child is eligible for adoption without the consent of natural parents does not effect a termination of all parental rights. Merrell v. Merrell, 712 P.2d 35 (Okla.1985). Until there is a final decree of adoption, the relationship of parent and child still exists. Section 60.6 addresses only the parent’s right to consent. *389Merrell, 712 P.2d at 38. For example, although a decree of adoption may be entered without the parent’s consent, the parent may still contest the propriety of the adoption and present evidence that may be relevant to the trial court’s inquiry into whether the adoption will promote the best interests of the child. Davis v. Neely, 387 P.2d 494 (Okla.1963).4 I would modify that portion of the trial court’s order terminating natural father’s parental rights, as that issue was not raised by the parties.

The next issue to be addressed concerns that portion of the trial court’s order determining B.R.H. to be eligible for adoption without consent of natural father. In “Proposition I” of his brief in chief, natural father contends that the trial court erred in admitting, over his objection, Mother’s testimony concerning a document which purportedly modified the original divorce decree and required him to pay the sum of $200 per month in child support. He maintains that because the document was not a certified copy and was not file-stamped, it was error to permit the use of the document to establish nonpayment of ordered support under section 60.6.

Natural father did not preserve this allegation of error in his petition in error. Generally, allegations of error that are not raised in the petition in error will not be reviewed. Greene v. Circle Ins. Co., 557 P.2d 422, 423 (Okla.1976). In his answer brief, Stepfather objected to our consideration of the alleged evidentiary error. As a result, natural father has in his reply brief requested leave to amend the petition in error pursuant to Civil Appellate Procedure Rule 1.17(a), 12 O.S.1981 ch. 15, app. 2.

The dispositive issue is whether natural father’s failure to pay child support was willful. 10 O.S.Supp.1990 § 60.6(2). The source of the duty to pay child support, the divorce decree or a modification of that decree, is immaterial. The issue of whether natural father was under a decretal obligation to provide support or under an obligation to contribute to the support of the child in a manner commensurate with his financial ability, is also not dispositive of this appeal. It is my opinion that his request for leave to amend the petition in error should be denied, and that we do not consider his challenge to the trial court’s evidentiary ruling.

Natural father contends that the trial court’s determination that the child was eligible for adoption without his consent was in error because there was “no clear showing that [he] is within the class of persons whose power to consent to adoption may be judicially extinguished.” He submits that he is subsisting entirely upon monthly social security disability payments in the amount of $374 and, therefore, the monthly social security disability payments made on behalf of the child for the three years preceding the filing of the case should be deemed to satisfy his support obligation. I do not agree.

Natural father cites no supreme court decision directly addressing the issue of whether social security payments should displace child support obligations as a matter of law. He does identify the case of Nibs v. Nibs, 625 P.2d 1256 (Okla.1981), as having an analogous fact situation, and requests that the dissenting opinion in that case “be viewed favorably.”

In an action arising out of an application for a contempt citation, the supreme court in Nibs considered whether social security disability payments should be credited against a father’s decretal child support obligation. The social security award in Nibs was in existence when the decree of divorce was granted, and the decree made no mention of allowing the social security payments to substitute for that obligation.

After reviewing cases from other jurisdictions holding that credit should be allowed, cases refusing to permit the credit, and the record on review, the Nibs court determined that the trial court hearing the contempt citation erred in granting father the credit. It concluded that the decision of whether to credit social security pay*390ments against the child support obligation was within the sound discretion of the trial court which granted the divorce decree. Id. at 1258.

Under extenuating circumstances some courts have found it equitable to treat social security disability and like benefits as a substitute for child support payments. See, e.g., Potts v. Potts, 240 N.W.2d 680 (Iowa 1976). Other courts have reached a contrary result. See, e.g., Fowler v. Fowler, 156 Conn. 569, 244 A.2d 375 (1968); Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145 (1968). If such benefits were simply equivalent to a contribution to child support, the lengthy discussions of equity in which these courts engage would not be necessary.

Although we find the factual situation in Nibs to be quite different from the instant case, Nibs does indicate that our determination of the issue herein should rest upon whether the trial court abused its discretion in declining to credit natural father with the social security payments. After reviewing the record, I find no such abuse of discretion occurred.

Although natural father was in the Colorado State Hospital from 1983-1985, and received follow-up treatment for three months in 1986, that time period is not relevant for purposes of our review. The critical time period for examination herein is from June 1987 through June 1988 — the statutory period of twelve months immediately preceding the filing of the adoption petition.

Natural father admits that during the critical time period he neither made, nor attempted to make, any payment on behalf of the child from his personal funds, and that the child received nothing from him during that time period except the social security payments. Admittedly, natural father’s resources were limited, but he had, according to his deposition testimony, approximately $125 remaining each month after payment of his basic living expenses. When questioned regarding how he spent this remaining money, he responded that he spent it on “chew,” “pop” and “odds and ends.”

The clear and convincing evidence offered by Stepfather that natural father willfully failed to contribute to the support of B.R.H. for the year last preceding the filing of the petition for adoption was not controverted by natural father. Inasmuch as the portion of the trial court’s order declaring B.R.H. eligible for a eonsentless adoption is supported by clear and convincing evidence, it should be affirmed. In the Matter of Adoption of J.L.H., 737 P.2d 915, 920 (Okla.1987); In the Matter of Adoption of V.A.J., 660 P.2d 139, 141 (Okla.1983).

. Davis v. Neely has been overruled only to the extent that it held a determination of eligibility is not a final, appealable order. See Matter of Adoption of E.S.P., 584 P.2d 209, 210 (Okla.1978).