Hames v. Roberts

ALMA WILSON, Justice: ¶ 1 K.D.K. was born out of wedlock to Deanna Hames1 on December 11, 1987. On March 30, 1990, she married Jason N. Roberts. On December 27,1990, he was granted a default divorce from Hames. The divorce decree placed physical custody of K.D.K. with Wilma and Johnny Roberts (the Roberts), the parents of Jason Roberts, and ordered Hames and Jason Roberts to pay child support to the Roberts, the appellees, in the amount of $50.00 per month. Neither Hames nor Jason Roberts paid the child support. On April 13, 1992, the Roberts petitioned to adopt K.D.K., to which Hames objected. The trial court ruled that the adoption could proceed without Hames consent and entered an adoption decree, but also provided for visitation between K.D.K. and Hames. Finding that the Roberts failed to meet their evidentiary burden, the Court of Appeals2 reversed the adoption3 and we denied certiorari review. 112 On remand from the Court of Civil Appeals, the Roberts’ petition to adopt K.D.K. without Hames’ consent was scheduled for another hearing on March 7, 1996. At that hearing, Hames asked that an independent attorney be appointed to represent her minor child, K.D.K, arguing that it is fundamental error not to appoint independent counsel for a child at a hearing to determine the child’s eligibility to be adopted without the mother’s consent. The trial court refused to appoint counsel for the child and proceeded to retry the adoption petition. On April 15, 1996, the trial court entered its decree of adoption without parental consent. Hames timely filed a petition in error on May 8, 1996. She also filed a motion to stay the effectiveness of the adoption decree during the pendency of the appeal. On June 19, 1996, this Court denied the motion to stay, but ordered the appeal accelerated and retained the case.4 ¶ 3 This appeal presents a single issue: Whether the trial court committed fundamental error in refusing to appoint an independent counsel for K.D.K. at the hearing on the Roberts’ petition to adopt K.D.K. without Hames’ consent. We hold that the trial court’s failure to appoint independent counsel to represent the minor child, K.D.K., at the hearing to determine eligibility for adoption without the parental consent under 10 O.S. 1991, § 60.6(2), constitutes fundamental error and we therefore reverse the April 15, 1996, decree of adoption. ¶ 4 In Matter of T.M.H., 613 P.2d 468 (Okla.1980), this Court held that a child has a constitutional right to counsel in a proceeding initiated by the state for the termination of parental rights. Matter of the Guardianship of S.A.W., 856 P.2d 286 (Okla.1993), extended the teaching of Matter of T.M.H., 613 P.2d 468 (Okla.1980) to proceedings initiated by a private party for termination of 218 parental rights. A petition for adoption filed under 10 O.S.1991, §§ 60.1, et seq., which results in termination of parental rights when the petition is granted, is just such an occasion. ¶ 5 In S.A.W. we observed that if a child is not represented by independent counsel, the child is caught in the middle while attorneys for the parties argue from the viewpoints of their clients. In contrast, an attorney representing the child can present testimony and cross-examine as an independent advocate for the best interests of the child.5 S.A.W. is controlling. The trial court below should have appointed independent counsel to represent K.D.K. at the termination stage of the adoption proceedings.6 DISTRICT COURT DECREE OF ADOPTION REVERSED; AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. KAUGER, C.J., SUMMERS, V.C.J., LAVENDER, SIMMS, HARGRAVE, OPALA, WILSON, and WATT, JJ., concur. LAVENDER and OPALA, JJ., concur specially. HODGES, J., dissents. LAVENDER, Justice, Footnotes [1] The record includes several last names for Hames. The petition for adoption identifies the natural mother of K.D.K. as "Deanna Rae Roberts Kvetko.” The copy of the decree of divorce included in the record lists the natural mother’s name as "Deanna R. Roberts.” At the time of the first appeal, in case number 81,653, the style of the case listed her name as "Deanna Rae Roberts, now Welch.” Her amended petition in error sets out her name as "Deanna Hames.” [2] Now renamed the Court of Civil Appeals. 1996 Okla.Sess.Laws, ch. 97, § 2, amending 20 O.S.1991, § 30.1, effective November 1, 1996 (ch. 97, § 23). [3] Opinion by the Court of Civil Appeals (not for publication) in appeal number 81,653. The Court of Appeals noted that little traditional evidence had been submitted at trial. “The parties’ attorneys gave a run down of what various witnesses would testify if called as witnesses, and the parties so stipulated.” Page 3 of opinion, note 1. The parties stipulated that Hames had failed to support her child for more than twelve months; that Hames had been unable to work and unable to provide any type of income during the time in question; that the Roberts had both indicated to Hames that she should not be concerned about the child support since they were not holding their son to his obligation to pay support; and, that Hames was a fit and proper person to have the child. The Court of Appeals found the trial court’s grant of visitation to Hames to be inconsistent with termination of parental rights and concluded that the trial court made no determination that Hames had willfully failed, refused, or neglected to contribute to the support of such child under 10 O.S.1991, § 60.6(2). [4] Although Hames has been represented by three different lawyers during the course of the adoption proceedings, she is representing herself on this appeal. [5] S.A.W., 856 P.2d at 289. Title 10 O.S.Supp. 1995, § 7006-1.1(A), authorizing termination of parental rights for willful failure to contribute to the support of a child, is clearly permissive only. The statute does not require termination where the Court finds that termination is not in the best interests of the child. [6] Matter of the Adoption of B.R.B., 905 P.2d 807, 811 (Okla.1995), held that the county must pay for the services of an independent counsel appointed for a child in a termination of parental rights hearing. The Public defender will be appointed to represent the child, if the county has a public defender system. In all other counties, the independent counsel appointed to represent a child will be compensated out of the local court fund. Effective July 1, 1996, volunteer attorneys are to be appointed for indigent children who are entitled to representation. 10 O.S.Supp. 1996, § 24.1. The volunteer attorneys are to be paid from the local court fund pursuant to 22 O.S.Supp. 1996, § 1355.8QL).