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In re Adoption of L.F.

Court of Appeals of Oklahoma, Division IV

June 19, 2019

IN THE MATTER OF THE ADOPTION OF L.F. and B.F., minor children, MATTHEW DAVID SEAY and FARRAH EVENING SEAY, Appellants,
v.
STATE OF OKLAHOMA ex rel. DEPARTMENT OF HUMAN SERVICES, Appellee.

          Mandate Issued: 07/17/2019

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DORIS L. FRANSEIN, TRIAL JUDGE

          Catherine Z. Welsh, Jim C. McGough, Mark A. Zannotti, Matthew J. Hall, Rachel J. Ellsworth, WELSH & McGOUGH, PLLC, Tulsa, Oklahoma, for Appellants

          Bonnie Clift, DEPUTY GENERAL COUNSEL, OKLAHOMA DEPARTMENT OF HUMAN SERVICES, Oklahoma City, Oklahoma and Larisa Grecu-Radu, ASSISTANT GENERAL COUNSEL, OKLAHOMA DEPARTMENT OF HUMAN SERVICES, Tulsa, Oklahoma, for Appellee

          Adam Barnett, ASSISTANT TULSA COUNTY PUBLIC DEFENDER, Tulsa, Oklahoma, for the Minor Children

          JANE P. WISEMAN, VICE-CHIEF JUDGE

         ¶1 Appellants Matthew David Seay and Farrah Evening Seay appeal the juvenile court's dismissal of their application to set the matter for a best interests hearing and the dismissal of their petition for adoption of minor children. After review of the record and applicable law, we affirm the court's order.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 On December 12, 2016, DHS obtained emergency legal custody of the minor children as stated in an emergency order issued pursuant to 10A O.S § 1-4-201(D) by the Tulsa County District Court in Case No. JD-2016-594 (deprived case or court). On December 28, 2016, DHS filed a deprived petition requesting immediate termination of parental rights. On April 25, 2017, the parents stipulated to the allegations of the "State's offer of proof" and the minor children, LF and BF, were adjudicated deprived based on heinous and shocking neglect and placed in DHS's temporary legal custody. Both parents also waived jury trial. [1]

         ¶3 According to the "placement agreement for out-of-home care," on December 16, 2016, DHS placed LF and BF in the foster home of Matthew and Farrah Seay-- i.e., Appellants currently seeking the adoption of the children. On June 14, 2017, Appellants received a "Notice of Child's Removal from Out-of-Home Placement" stating the children would be removed from their foster care on June 22, 2017, to be placed in a kinship home. On June 20, 2017, Appellants filed an objection to the removal of the children from their foster home "pursuant to 10A O.S. § 1-4-805," and on June 21, 2017, Appellants filed an amended objection. After a hearing in July 2017, the trial court in the deprived case overruled Appellants' objection to removal by DHS finding "that the move by DHS was not arbitrary, contrary to the permanency plan of the children and is in the best interests of the children." Appellants did not appeal this ruling. DHS removed the children from Appellants' foster home and placed them with a relative where they, according to DHS's appellate brief, still remain.

         ¶4 On September 1, 2017, Appellants filed a petition to adopt the children in Tulsa County District Court Case No. FA-2017-338 (adoption case or court). That same day, Appellants filed in the deprived case an application for temporary injunction asking the deprived court to prohibit the removal of the children from Oklahoma because they had filed a petition for adoption in the adoption case and would "likely prevail in obtaining a Decree of Adoption" as the children's parents had agreed to the adoption. On September 6, 2017, the deprived court denied the application for temporary injunction stating:

Specifically, the children are still in the temporary custody of the Department of Human Services as the parental rights of the above-referenced children have not been terminated. The non-jury trial on the issue of immediate termination has not as yet been conducted. Therefore, any petition for adoption is premature and not before the court.
Further, whether the natural parents "agree to consent to the adoption by the Adoptive Parents" is irrelevant for the reason that if the rights of the natural parents are terminated pursuant to the non-jury trial, any ability for the natural parents to consent to the adoption by the Seays are [ sic ] extinguished as a matter of law. It is the consent from the Department of Human Services that is to be obtained and considered by the Court.
Lastly, the likelihood that the Seays will prevail in their Petition for Adoption is questionable considering that the Court approved the removal of the above-referenced children by DHS from the Seays' home for placement in the current foster home.

         In September 2017, the minor children's parents consented to the adoption by Appellants.

         ¶5 On October 17, 2017, DHS filed a "special limited appearance, advice of pending deprived action and automatic stay of action" in the adoption case advising the court of the pending deprived action, that the deprived court had not given consent for the adoption court to exercise jurisdiction over the children, and an automatic stay was therefore required pursuant to 10A O.S. § 1-4-101(A)(2).

         ¶6 On November 1, 2017, the adoption court entered a court minute finding "The hearing for final decree is stricken and stayed. The matter should be heard at juvenile."

         ¶7 In an order filed February 20, 2018, following a non-jury trial, the deprived court terminated the parents' rights to LF and BF and placed them in DHS's permanent custody "to make reasonable efforts to finalize the plan of adoption." The final order of judgment for approval as to form was filed March 29, 2018.

         ¶8 On February 27, 2018, Appellants filed their "application for setting of best interest." The trial court set the application for hearing, but only for purposes of determining "the legal issues of jurisdiction and [Appellants'] standing to adopt" and directing the parties to submit briefs. On March 13, 2018, DHS filed a "motion to intervene and to dismiss application for setting best interest" to which Appellants responded.

         ¶9 Following a hearing in May 2018, the deprived court granted DHS's motion and dismissed the adoption proceeding after determining Appellants lacked "standing to pursue adoption in a separate proceeding" without consent of the deprived court. If further concluded:

IT IS THEREFORE THE FINDINGS AND ORDER OF THE COURT that the [Appellants'] Application to set the above-entitled matter for a best interests hearing be dismissed. Further, because [Appellants] are found to lack standing to pursue adoption of the children in the above-entitled separate proceeding and have attempted to do so without the consent of this Court, who ...

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