DAMIAN CHARLES THOMAS and SHELENA MARIE THOMAS, individually and on behalf of W. T., their minor child, Plaintiffs/Appellees,
TERRI CASH, TINA CASH, and DORTHY LEE CHILDERS, Defendants/Appellants.
Mandate Issued: 02/23/2017
FROM THE DISTRICT COURT OF JOHNSTON COUNTY, OKLAHOMA
HONORABLE WALLACE COPPEDGE, TRIAL JUDGE
S. Elliot, JEREMY S. ELLIOTT, P.C., Durant, Oklahoma, for
THORNBRUGH, PRESIDING JUDGE
Defendants/Appellants, Terri Cash, Tina Cash, and Dorthy
Childers,  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.
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.  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
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.
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
-- 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
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.
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"
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.  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."
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
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.
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
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 ...