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Thomas v. Cash

Court of Appeals of Oklahoma, Division II

August 25, 2016

DAMIAN CHARLES THOMAS and SHELENA MARIE THOMAS, individually and on behalf of W. T., their minor child, Plaintiffs/Appellees,
v.
TERRI CASH, TINA CASH, and DORTHY LEE CHILDERS, Defendants/Appellants.

          Mandate Issued: 02/23/2017

         APPEAL FROM THE DISTRICT COURT OF JOHNSTON COUNTY, OKLAHOMA HONORABLE WALLACE COPPEDGE, TRIAL JUDGE

          Jeremy S. Elliot, JEREMY S. ELLIOTT, P.C., Durant, Oklahoma, for Defendants/Appellants

          THOMAS THORNBRUGH, PRESIDING JUDGE

         ¶1 Defendants/Appellants, Terri Cash, Tina Cash, and Dorthy Childers, [1] appeal from the trial court's denial of their motions to vacate or for new trial following the entry of a protective order, in a consolidated proceeding, that, inter alia, prohibited Defendants from contacting Plaintiffs or posting photographs of, or making comments about, Plaintiffs on their social media websites. Plaintiffs did not respond to Defendants' petition in error, and they have not filed an answer brief. After review, we find a lack of evidence in the record on essential issues to support the trial court's decision. We reverse and remand with instructions to grant Defendants' motions to vacate.

         BACKGROUND

         ¶2 Adult Plaintiffs Damian and Shelena Thomas are the adoptive parents of minor child W.T. (Child), whom they adopted in what they characterize as a "closed adoption" that was finalized in August 2006. Defendant Terri Cash is Child's birth mother, and it is not disputed that she relinquished her parental rights in January 2006, when Child was two years old. [2] It also is not disputed that Plaintiff Damian Thomas is Child's biological uncle; he is the brother of Child's birth father, who is not a party to this case. Defendant Tina Cash is Terri Cash's sister/Child's biological aunt; and Defendant Dorthy Childers is Terri Cash's mother/Child's biological grandmother.

         ¶3 On September 26, 2014, Plaintiffs, on behalf of Child and themselves individually, filed petitions seeking protective orders against each Defendant, making substantially the same allegations against each. Plaintiffs alleged that, even though Child knows she is adopted, she does not know the identity of her biological parents, nor have Plaintiffs revealed that information to anyone else.

         Plaintiffs accused Defendants of "stalking" based on allegations substantially as follows:

-- Terri Cash and Dorthy Childers each sent Shelena Thomas "friend" requests on Facebook on or about September 17, 2014.
-- Shelena Thomas learned from her college-age daughter that Terri Cash had posted a picture of Child on Terri Cash's "Facebook" page, calling Child "mini-me" and her "baby girl." When Shelena Thomas "look[ed] around" Defendants' Facebook pages, she discovered Defendants had each posted pictures of Child that they had copied from Shelena Thomas's Facebook page "without my permission & saying how they miss their beautiful daughter/niece." Plaintiffs also alleged Defendants had posted one photo, taken several years in the past, of Child as she sat in the back seat of Plaintiffs' car at a Walmart parking lot.
-- Defendants refused Shelena Thomas's request via a Facebook message to remove Child's pictures. Tina Cash replied that Defendants were Child's "family" and that "as soon as [Child] finds out the truth about [Plaintiffs] taking her away from them that she would hate us." Terri Cash commented that Plaintiffs "could kiss her white butt." Dorthy Childers and Terri Cash each made Child's picture their Facebook "profile picture, " so that when either of them "makes a post, " Child's picture appears. Dorthy Childers also posted a Facebook comment agreeing with another friend's Facebook comment that Dorthy "would see [Child] again someday, " and commented, "Yep, as soon as she turns 16, " to which Terri Cash responded with the comment, "wrong it's 11."
-- Plaintiffs claimed that Child is "not mature or mentally stable enough" to know the identity of her birth parents, and accused Defendants' family of being "combative" in the past. They attached printed copies purporting to be from Defendants' Facebook pages showing various photos of Child. Defendants at trial confirmed the photos were copied from Plaintiffs' Facebook pages, which Plaintiffs admitted were not "restricted" at that time. Defendants' pages contain comments of a similar nature as described above concerning Child and Defendants' hopes to see her, as well as innuendo that Plaintiffs have been unfair to Terri Cash.

         ¶4 In November 2014, by agreement of the parties, the three petitions were considered collectively in a single trial, effectively consolidating the actions. The adult Plaintiffs appeared pro se; Child did not appear.

         ¶5 Damian Thomas testified that he sought out Defendants' Facebook pages after he received information that Child's pictures were posted, and saw pictures of Child along with comments as described in Plaintiffs' petitions. The photos included some of Child running track, in church, and in his car, including one taken several years earlier of Child sitting in the car in a store parking lot. He said Defendants did not have his permission to place Child's photos on their pages; however, he admitted that almost all of the photos on Defendants' pages appeared to have been copied from his own or Shelena Thomas's unrestricted Facebook pages, and that "anyone could go and look at" the pictures on his page. He admitted he had never been contacted by any Defendant, and he became aware of the photos only after he "was notified" that the pictures were on Defendants' pages. He also said he did not "as a father live in fear" for Child, and that he allowed other people to take and post pictures of Child on Facebook because he wanted to "give her a normal life" and did not "want to try to shelter" Child. [3]

         ¶6 Shelena Thomas also testified that she had "never had a problem" with Child's pictures being seen on Facebook generally, but that her "problem is the contact [by Defendants] and also the violation of our privacy." She testified that because "this was a closed adoption, " Defendants had no right "to disclose (a) that [Child] is adopted or (b) that they are the maternal lineage whatsoever." She did not know, however, whether a court order had been entered within the adoption proceeding that prohibited Terri Cash or other biological family members from having contact with Child. [4] She also admitted that she did not feel "threatened" by a message from Tina Cash arguing that Child should be allowed to visit her biological family. She stated that the only contact she had had with Dorthy Childers was by going to Childers' Facebook page and seeing pictures of Child; and that she had received only one Facebook message from Terri Cash, in which Terri asked about "how [Child] was doing, something along those lines." Shelena Thomas denied feeling threatened by any of the messages, "other than not supposed to be having contact with us with a closed adoption or not family members."

         ¶7 Each Defendant testified. Each denied malicious intent, denied intentional direct physical contact with Child, and denied allowing Plaintiffs to access their Facebook pages. They also admitted they obtained most of Child's pictures from Shelena Thomas's unrestricted Facebook page, and that they made comments on their own Facebook pages about Child and Child's pictures. They denied directing any comments to Plaintiffs, although each Defendant admitted sending at least one message to Shelena Thomas asking about Child's welfare and/or asking to be allowed to see Child. Terri Cash and Tina Cash also admitted to having taken Child's photo five or six years earlier in a Walmart parking lot.

         ¶8 Terri Cash stated that she believed Child's biological father was permitted to see and visit with Child, and although Plaintiffs objected to the testimony, they did not deny it. In addition, although she stipulated that Child was legally adopted by the adult Plaintiffs, Terri Cash said the adoption included provisions allowing her to have continued contact with Child. She said she had not attempted to contact Child previously because she did not want to confuse her, but denied that her current Facebook postings were intended to harm Child or the adult Plaintiffs. Each Defendant's testimony indicates that they want to publicly recognize Child as their biological kin.

         ¶9 As noted above, Child did not testify, and was not present for the proceedings. It is undisputed that none of the Defendants had sent messages via social media directly to Child.

         ¶10 At the close of the evidence, the trial court entered a protective order, effective for a period of five years (until November 18, 2019) against each Defendant on grounds of harassment. The trial judge made verbal findings that he saw "no valid purpose" for Defendants to "post [Child's] photos on social media other than for the purpose of harassment, " that "all three Defendants are harassing by doing that as to the Plaintiff parents, " and that Defendants' conduct "seriously alarms the Petitioners and it serves no legitimate purposes." The court also entered a standardized "Order of Protection" against each Defendant, finding that each Defendant "represents a credible threat to the physical safety of an intimate partner or child, " and prohibiting Defendants from "attempting or having any contact" with Plaintiffs, including Child, by any means. Each order also contained a checkmark next to standardized language stating:

There is an existing visitation order, and in order to protect from threats of abuse or physical violence by the Defendant or a threat to violate a custody order, the Court suspends or modifies child visitation as follows:
...
[The following language is written by hand]
d. The Defendant is not to post or display any photograph of the minor child or the child's parents, Charles Damian Thomas or Shelena Thomas or make any comments about any of them on any social media ...

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