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(Cite
as: 236 P.3d 116) |
Editor's
Note: Additions are indicated by Text
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Supreme
Court of Oklahoma.
In
the Matter of the ADOPTION OF BABY BOY A, a Minor Child.
No.
106,074.
May
4, 2010.
*118
ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I
?
0 In this private adoption proceeding, the presiding judge of the Oklahoma
County District Court, the Honorable Larry A. Jones, appointed the Oklahoma
County Public Defender to represent the minor child and to assist the court in
determining the reasonableness of the fees, costs, and expenses paid by the
prospective adoptive parents in connection with the adoption. The public
defender asked the district court to find the attorney fees were excessive and
the private investigation expenses were not authorized. The district court found
that the prospective adoptive parents had contracts with the attorneys and the
private investigator; that in the absence of objection by the people paying the
expenses, the contracts are reasonable; and that the public defender had the
burden to produce evidence showing the adoption-related expenditures to be
unreasonable. The district court approved the prospective *119
adoptive parents' expenditures. The Court of Civil Appeals affirmed. We
previously granted certiorari review.
OPINION
OF THE COURT OF CIVIL APPEALS VACATED; DISTRICT COURT ORDERS APPROVING
PROSPECTIVE ADOPTIVE PARENTS' EXPENDITURES REVERSED; CAUSE REMANDED TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.Christopher
W. Venters and Collin Robert Walke, Assistant Oklahoma County Public Defenders,
Oklahoma City, OK, for appellant.
M.
Eileen Echols and Amy L. Howe, Echols and Associates, Oklahoma City, OK, for
appellees.
TAYLOR,
V.C.J.
?
1 In this appeal, the appellant is the Oklahoma County Public Defender in his
capacity as the attorney for the minor child and the appellees are the adoptive
parents. The dispositive question is whether the district court abused its
discretion in approving the adoptive parents' expenditures for fees, costs, and
expenses in connection with the adoption. We answer in the affirmative and
remand this cause to the district court for further proceedings consistent with
this opinion.
I.
The Proceedings
?
2 In this private adoption, the adoptive parents paid a total of $147,289.42 for
fees, costs, and expenses. A review of the adoption proceedings is a necessary
step in our consideration of the trial court's approval of these
expenditures.
?
3 In September of 2005, the unwed prospective birth mother made arrangements
with a private attorney for the adoption of her unborn child. By the end of
September of 2005, the prospective adoptive parents began paying the prospective
birth mother's living expenses pursuant to an order of the district court. The
birth mother delivered Baby Boy A on April 11, 2006.
?
4 On April 17, 2006, the birth mother, her attorney, Paige Lee, Ponca City,
Oklahoma, and one of the attorneys who arranged the private adoption for the
prospective adoptive parents,FN1
Tina Peot, appeared before the district court. The birth mother executed her
permanent relinquishment of parental rights and her consent to the adoption of
Baby Boy A and gave testimony regarding her relinquishment and consent. The
birth mother also gave testimony regarding the putative father. She testified
that the putative father knew she was pregnant and should have known of the
birth of Baby Boy A, the putative father had not acknowledged paternity of Baby
Boy A, he did not provide any medical or financial support for her during the
pregnancy, he did not provide any medical or other financial support for Baby
Boy A, she did not refuse any support from the putative father, and the putative
father had not exercised any parental right. The district court questioned the
birth mother and executed the certification/
FN1.
For this adoption, the prospective adoptive parents engaged three different law
firms. They engaged their first law firm, Julie A. Demastus and Tina Peot, in
Oklahoma City, Oklahoma, to arrange the adoption. The first law firm initiated
the adoption proceedings in the Oklahoma County District Court. They engaged
their second law firm, Echols & Associates, in Oklahoma City, Oklahoma, when
the biological father contested the adoption. They also engaged a third law firm
in their home state. This opinion refers to the law firms in Oklahoma as the
first law firm and the second law firm and the home state law firm as the home
state law firm.
?
5 On April 25, 2006, the prospective adoptive parents filed a petition for
adoption in the district court in Oklahoma County, together with an application
to terminate the parental rights of the putative father, a voluntary placement
statement, an interstate disclosure statement, and other routine filings. Upon
the birth mother's consent, the prospective adoptive parents obtained physical
custody of Baby Boy A but did not remove him from the state of Oklahoma until
they obtained the requisite permission to return to their home state with Baby
Boy A.FN2
FN2.
Under the Interstate Compact for Placement of Children, 10 O.S.2001, ?? 571-576,
a compact adopted by all fifty states, the District of Columbia, and the Virgin
Islands, the receiving state must approve the placement of the child before the
sending state permits the out-of-state placement.
*120
? 6 On May 5, 2006, the district court set the application to terminate parental
rights of the putative father for a hearing. Upon notice of the hearing, the
putative father submitted to a paternity test which determined that he is the
biological father of Baby Boy A. On the scheduled hearing date, June 12, 2006,
the biological father filed a response, alleging that in August of 2005 he
became aware of the birth mother's claim that he was the father, he is the
biological father of Baby Boy A, he is a member of the Cherokee Nation, and his
consent to the adoption is necessary. The biological father expressly withheld
his consent to the adoption, and the district court appointed the Oklahoma
County Public Defender to serve as attorney for Baby Boy A.
?
7 On June 14, 2006, the Cherokee Nation and the Bureau of Indian Affairs were
served notice of the adoption proceeding. On June 26, 2006, to assure compliance
with the Federal Indian Child Welfare Act, 25 U.S.C. ?? 1901 et
seq.,
the birth mother with her attorney and the first law firm for the prospective
adoptive parents appeared before the district court, and the birth mother
reaffirmed her April 17, 2006 testimony and again relinquished her parental
rights and consented to the adoption of Baby Boy A. On June 28, 2006, the
Cherokee Nation filed notice of its right to intervene pursuant to 25 U.S.C. ?
1911 to insure placement of Baby Boy A in compliance with the federal Indian
child welfare statutes.
?
8 On July 7, 2006, the prospective adoptive parents changed attorneys, and
thereafter, they were represented by their second law firm. On August 2, 2006,
the prospective adoptive parents filed an objection to the Cherokee Nation's
intervention.
?
9 In an August 28, 2006 minute order, the district court, having considered
briefs submitted by the prospective adoptive parents and the Cherokee Nation,
found that the proceeding was one for adoption without consent of the putative
father and not for termination of parental rights of the putative father, and as
such, the Cherokee Nation had no standing to intervene in that aspect of the
adoption proceedings. On November 7, 2006, the journal entry of the August 28th
minute order was filed and a hearing was set for January 9, 2007, on the
Cherokee Nation's request to show good cause for deviation from the federal
Indian child welfare statutory preference requirements for placement of an
Indian child.
?
10 Also on November 7, 2006, the biological father, his wife, his attorney, and
the public defender appeared before the district court. The biological father
executed his permanent relinquishment of parental rights and consent to the
adoption of Baby Boy A and gave testimony concerning his relinquishment of
parental rights and consent to adoption. The district court questioned the
biological father and executed the certification/
?
11 Attorneys for the prospective adoptive parents, the birth mother, Baby Boy A,
and the Cherokee Nation appeared at the good cause hearing held on January 29,
2007. The district court ruled that the natural parents' unified voice
consenting to the adoption of Baby Boy A constituted good cause to deviate from
the federal statutory placement preferences. The Cherokee Nation filed a motion
to reconsider asserting that the hearing was not actually a good cause hearing.
In a supplemental ruling, the district court found that the Cherokee Nation had
the opportunity to produce evidence as to the lack of good cause, but did not do
so. The Cherokee Nation appealed. This Court dismissed the appeal for lack of an
appealable order.FN3
FN3.
In
the Matter
of B.B.A,
No. 104,730, was dismissed by unpublished order filed September 24, 2007. The
Cherokee Nation filed an appeal from the final decree of adoption, raising the
good cause question. In this second appeal by the Cherokee Nation, the Court of
Civil Appeals affirmed the district court ruling. In
the Matter of B.B.A., Minor Child,
2009 OK CIV APP 80, 224 P.3d 1285. The Cherokee Nation did not seek certiorari
review.
*121
? 12 Hearing on the final decree of adoption was set for May 16, 2007. The day
before the hearing, the biological father revoked his relinquishment of parental
rights and consent to adoption. The prospective adoptive parents objected to the
revocation and, on July 5, 2007, filed an application to terminate the
biological father's parental rights and to determine the child eligible for
adoption without his consent. The biological father changed attorneys, and on
July 9, 2007, the district court set dates for depositions of the biological
father and his wife, the pre-trial conference, and the trial.
?
13 On January 9, 2008, the biological father stipulated that he did not
contribute to the support of the birth mother during her pregnancy; he did not
pay any medical expenses for the birth of the minor child; he had not
contributed to the minor child's support; and based upon these facts, his
parental rights should be terminated and his consent to the adoption is not
required. The district court entered an order adjudicating Baby Boy A eligible
for adoption without consent of the biological father.
?
14 On January 30, 2008, the district court appointed the Oklahoma County Public
Defender to assist the court in reviewing the adoption-related expenses in
accordance with a local court administrative directive.FN4
In April of 2008, the prospective adoptive parents filed their affidavit,
amended affidavit, and addendum to affidavit disclosing a total of $98,161.71
expended for adoption-related fees, costs, and expenses: $3,536.70 for their
home state law firm, $65,189.51 for the second law firm, $13,362.50 for birth
mother's attorney, $13,000.00 for a private investigator, and $3,073.00 for a
home study and updates. The prospective adoptive parents' first law firm also
filed an affidavit disclosing a total of $36,068.86 adoption-related
expenditures, which included $20,000.00 for their attorney fees, $12,498.36 for
birth mother's living expenses, $917.50 for medical expenses, $153.00 for the
adoption filing fee, $2,500.00 for the Interstate Compact on Placement of
Children fee, and other miscellaneous expenses.
FN4.
The administrative directive is not in the record on appeal. However in the
hearing on June 10, 2008, the district court explained that it was in response
to a grand jury investigation, and it required the appointment of the public
defender to assist the court in reviewing adoption-related costs and expenses
and to advocate for strict compliance with the law. It is likely the district
court was referring to the administrative directive described in the concurring
opinion in Matter
of the Adoption of Baby G.,
2008 OK 92, ? 4, 195 P.3d 377, 380 (Kauger, J., concurring).
?
15 The public defender objected to the reasonableness of the expenditures,
urging the district court to reject the second law firm's minimum fifteen-minute
charge for a phone call, to reduce the second law firm's hourly rate charged for
traveling to and from the court house, to reduce the number of hours the second
law firm charged for a six-page brief, and to reject the first law firm's flat
fee that was not based on actual time worked. The public defender asked the
district court to determine a reasonable amount of attorney fees for each
attorney using the criteria set out in State
ex rel. Burk v. City of Oklahoma City,
1979 OK 115, 598 P.2d 659, and the Oklahoma Rules of Professional Conduct, Rule
1.5, 5 O.S.2001, ch.1, app.3-A. The public defender also objected to the private
investigator's fee, arguing that it is not an allowed expenditure under the
controlling statute.
?
16 On June 10, 2008, the district court heard testimony from an attorney with
the first law firm and arguments on the public defender's objections. The
district court acknowledged that the amount of expenses in this case gave him
pause, but he found that in the absence of objection by the people paying the
expenses, the contracts are reasonable, and he concluded that the public
defender had the burden to produce evidence showing the adoption-related
expenditures to be unreasonable. The district court approved the prospective
adoptive parents' expenditures in two separate orders: one order approved the
$36,068.86 disclosed by the first law firm, and the other approved the
$98,161.71 disclosed by the prospective adoptive parents' affidavit. The
Oklahoma County Public Defender appealed the two orders, contending that the
party seeking approval of fees, costs, and expenses has the burden to prove
reasonableness under the criteria set out in Burk
and Rule 1.5, and the trial court *122
has the duty to independently determine the reasonableness of adoption-related
expenditures.
?
17 On July 29, 2008, the district court entered the final decree of adoption,
and also entered an order approving the expenditure of $13,058.85 for additional
attorney fees and expenses for the second law firm. The Oklahoma County Public
Defender filed an amended petition in error for appellate review of the order
approving additional expenditures.FN5
The Court of Civil Appeals affirmed the district court orders. The public
defender petitioned for certiorari review.
FN5.
The final decree of adoption is not on appeal.
?
18 On certiorari, the public defender asserts that the term ?reasonable? as used
in the Section 7505-3.2 of Title 10 of the Oklahoma Statutes requires an
independent judicial examination of the fees, costs, and expenses and a
determination of reasonableness based upon the prospective adoptive parents'
proof. The public defender's certiorari arguments present the two first
impression questions raised in the petition in error: 1) Does ? 7505-3.2 impose
a duty upon the district court to inquire into the reasonableness of each and
every expense item for which the prospective adoptive parents expended money in
connection with the adoption? 2) Does ? 7505-3.2 require the prospective
adoptive parents to submit proof that all fees, costs, and expenses paid in
connection with the adoption are reasonable? We previously granted the petition
for certiorari review.
II.
Standard of Review
[1][2]
? 19 The standard of review of the reasonableness of the attorney fees is abuse
of discretion whether the appellate court is reviewing attorney fees awarded by
the court, Burk
v. Oklahoma City,
1979 OK 115 at ? 19, 598 P.2d at 663, or attorney fees charged pursuant to an
attorney/
[3][4]
? 20 The first impression questions argued on certiorari are questions of
statutory construction. Statutory construction is a question of law subject to
de
novo
review in the appellate court. St.
John Medical Center v. Bilby,
2007 OK 37, ? 2, 160 P.3d 978, 979. De
novo
review is plenary, independent, and non-deferential to the lower courts.
Id.
III.
Section 7505-3.2 of Title 10 of the Oklahoma Statutes imposes a duty upon the
district court to conduct a thorough inquiry into each and every expenditure
made in connection with the adoption and the supporting evidence and to
determine the legality and reasonableness of the expenditures.
?
21 Oklahoma has a strong public policy against buying or selling children for
adoption. The anti-trafficking in children statutes, 21 O.S.2001, ?? 865-869, as
amended, make it a crime to accept, solicit, offer, pay, or transfer anything of
value in connection with an adoption except as allowed in 10 O.S.2001, ?
7505-3.2, as amended.FN6
Section *123
7505-3.2(A) requires the prospective adoptive parents, prior to a final decree
of adoption, to disclose by affidavit all fees, costs, and expenses and all
funds or monies expended or expected to be expended in connection with the
adoption. 10 O.S. Supp.2009, ? 7505-3.2(A)(1). Subsection A requires the
district court to review the prospective adoptive parents' affidavit and decide
whether all costs and expenses have been disclosed, whether the fees, costs, and
expenses are reasonable, and whether any expenditure violates the
anti-trafficking in children statutes. Id.
? 7505-3.2(A)(2). The subsection also requires the district court to disapprove
in writing and order reimbursement of any expenditure by the prospective
adoptive parents that is determined to be unreasonable or in violation of the
anti-trafficking in children law. Id.
FN6.
In 1997, the Legislature enacted substantial changes to the Oklahoma Adoption
Act, renumbering, recodifying, and renaming it the Oklahoma Adoption Code.1997
Okla.Sess.Laws, ch. 366 (codified at 10 O.S.2001, ?? 7501-1.1-7510-3.3). Section
7505-3.2 was enacted as part of the Oklahoma Adoption Code. Id.
? 25. It authorized expenditures in connection with an adoption, required
prospective adoptive parents to disclose all expenditures in connection with the
adoption, and required court approval of all such expenditures. Prior to 1997,
disclosure of expenditures was required in 10 O.S.1991, ? 60.12, and
expenditures for medical, legal, child-placing, and investigation and counseling
services were exceptions to the crime of trafficking in children specified in 21
O.S.1991, ? 866(4).
In
2005, the Legislature amended ? 7505-3.2, adding language allowing the birth
mother's expenses for housing, food, clothing, utilities, and other necessities
to be paid in connection with an adoption. 2005 Okla.Sess.Laws, ch. 57, ? 2.
Before the 2005 amendment, living expenses for the birth mother were allowed
only in cases of extraordinary need.
In
2009, the Legislature amended ? 7505-3.2, adding language requiring disclosure
of adoption-related cost and expense statements from attorneys, child-placing
agencies, or persons facilitating in a direct-placement adoption. 2009
Okla.Sess.Laws, ch. 107, ? 2. The provisions of ? 7505-3.2 applicable here were
in the 2005 version and were not changed in the 2009 version. This opinion cites
the latest version of ? 7505-3.2, which is set out in full in the appendix to
this opinion.
?
22 The fees, costs, and expenses for which the prospective adoptive parents may
pay money, property, or other thing of value, are listed in ?
7505-3.2(B)(1)(a-h):
a.
reasonable attorney fees and court costs,
b.
reasonable medical expenses for birth mother and minor to be
adopted,
c.
reasonable adoption counseling expenses for birth parents before and after the
birth of the minor, not to exceed six (6) months from placement of the
minor,
d.
reasonable fees of a licensed child-placement agency,
e.
reasonable living expenses for housing, food, clothing, utilities, and other
necessities of the birth mother that are incurred during the adoption planning
process or during the pregnancy, not to exceed two (2) months after the birth of
the minor or after the consent or relinquishment of the birth
mother,
f.
reasonable costs for travel or transportation of the birth mother or minor as
same is incurred for medical or adoption placement needs,
g.
reasonable expenses for a home study, and
h.
reasonable expenses legally required by any governmental entity related to the
adoption of a minor.
Subsection
B also permits the court to approve other adoption-related costs and expenses
needed due to unusual circumstances. Id.
? 7505-3.2(B)(4). The Oklahoma Comments to ? 7505-3.2 indicate that the district
court may only
approve those adoption-related expenses listed in ? 7505-3.2 and those ordered
by the court due to unusual circumstances.
[5]
? 23 The district court's duties under ? 7505-3.2 are unmistakable. FN7
Section 7505-3.2 clearly mandates a thorough and rigorous inquiry into the
adoption-related expenditures by the district court as part of the adoption
proceedings. The obvious goal to be achieved by this mandated district court
inquiry of expenditures in connection with an adoption is to thwart the subtle
as well as the apparent buying and selling of children. FN8
FN7.
There is no need for statutory construction where the statute's language is
plain and unambiguous and the meaning is clear and unmistakable. Strong
v. State ex rel. The Oklahoma Police Pension,
2005 OK 45, ? 8, 115 P.3d 889, 893.
FN8.
Before the 1997 enactment of the Oklahoma Adoption Code, 21 O.S.1991, ? 866(4)
excluded from the crime of trafficking in children those payments that had been
approved
by the court
for hospital and medical costs, reasonable attorney fees, licensed
child-placement fees for investigation, and counseling. The 1997 amendment to ?
866 excluded the costs and expenses listed in ? 7505-3.2 from the crime of
trafficking as long as the petitioner or birth mother complies with ? 7505-3.2.
1997 Okla. Sess. Laws ch. 366, ? 57. Section 866 indicates that the buying and
selling of children is prevented by court approval of adoption-related
expenditures.
In
2006, the Legislature amended ? 866, clarifying the definition of the crime of
trafficking in children, including advertising within the crime, and declaring
the crime to be a felony. 2006 Okla. Sess. Laws, ch. 415, ? 41. Section 866 was
also amended in 2009 to include the receipt of money from more than one
prospective adoptive family for a minor child in the crime. 2009 Okla. Sess.
Laws, ch. 107, ? 4. This opinion cites the latest version of ? 866.
*124
? 24 Accordingly, we conclude that the district court, in its review of the
prospective adoptive parents' affidavit of expenditures, must thoroughly examine
each and every expenditure disclosed by the affidavit and the evidence offered
in support of the expenditure, and determine the legality and reasonableness of
each expenditure. Before approving the prospective adoptive parents'
expenditures, the district court must be satisfied that all expenditures have
been disclosed and that the expenditures are authorized by ? 7505-3.2. If an
expenditure is not specifically listed in ? 7505-3.2(B) or has not been
previously authorized based upon a finding of unusual circumstance by the court,
the district court must, in writing, disapprove the expenditure and order
reimbursement. If an expenditure is not reasonable, it is not in compliance with
? 7505-3.2(B), and the district court must, in writing, disapprove the
expenditure and order reimbursement.
IV.
Section 7505-3.2 of Title 10 of the Oklahoma Statutes requires that
adoption-related fees, costs, and expenses approved by the district court should
be commensurate with customary fees and expenses; and it leaves the district
court with the discretion to approve an amount of adoption-related attorney fees
determined under relevant Burk
criteria.
?
25 The public defender urges that the reasonableness of the attorney fees and
expenses charged the prospective adoptive parents should be determined using the
criteria in Rule 1.5, Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch.1,
app.3-A, and State
ex rel. Burk v. City of Oklahoma City,
1979 OK 115, 598 P.2d 659. Under Rule 1.5, attorneys have the professional
responsibility not to make an agreement for, charge, or collect unreasonable
fees or expenses. Rule 1.5 lists eight factors to be considered in determining
the reasonableness of the contract, charge, or fee. Burk
listed the same eight factors for determining the amount of an attorney fee to
be awarded by the court.FN9
FN9.
Generally referred to as the Burk
criteria, the eight factors are: 1) time and labor required, novelty and
difficulty of the questions involved, and skill requisite to properly perform
the legal services; 2) if apparent to the client, the likelihood the
representation will preclude other employment by the attorney; 3) customary
charge in the community for similar legal services; 4) amount involved and
results obtained; 5) time limitations imposed by the client or the
circumstances; 6) nature and length of the professional relationship with the
client; 7) the experience, reputation, and ability of the attorney performing
the legal service; and 8) whether the fee is fixed or contingent.
?
26 Burk
considered the reasonableness of an attorney fee award to be paid out of an
equitable fund. Burk
established a two-part reasonableness test: 1) a base fee calculated by
multiplying hours worked by an hourly rate, and 2) a bonus or incentive fee
calculated under the eight factors listed in Rule 1.5. This Court has used the
Burk
criteria in cases where there was no equitable fund and no incentive or bonus
fee. In Southwestern
Bell Telephone Co. v. Parker,
1987 OK 16, 737 P.2d 1186, the telephone company sued to collect $3,867.00 on a
yellow pages advertising contract, and before trial, it accepted Parker's offer
to a confessed judgment of $1,500.00. The plaintiff recovered a judgment by
confession under ? 1101 of Title 12 of the Oklahoma Statutes and was a
prevailing party for purposes of attorney fees under ? 936 of Title 12 of the
Oklahoma Statutes. In applying the Burk
criteria, Parker
relied on several cases that had applied the Burk
criteria in determining the reasonableness of attorney fee awards: Professional
Construction Consultants, Inc. v. State,
1982 OK 61, 646 P.2d 1262, involving a ? 936 attorney fee; Matter
of Estate of Bartlett,
1984 OK 9, 680 P.2d 369, involving an attorney fee for representation of the
administrator in probate in connection with the preservation of the estate; and
Briscoe
v. Harper Oil Co.,
1985 OK 43, 702 P.2d 33, involving an attorney fee for damages to real
property.
?
27 The Burk
criteria are the standard by which our courts test the reasonableness of
attorney fee contracts as well as attorney fee awards. We applied the
Burk
criteria to *125
determine the reasonableness of attorney fees charged pursuant to a contract to
defend against a mortgage foreclosure, Robert
L. Wheeler, Inc. v. Scott,
1989 OK 106, 777 P.2d 394, and to calculate a reasonable amount where there was
a contingent fee agreement. Oliver's
Sports Center, Inc. v. National Standard Insur. Co.,
1980 OK 120, 615 P.2d 291, 295; Morgan
v. Galilean Health Enterprises, Inc.,
1998 OK 130, ? 14, 977 P.2d 357. Morgan
made it clear that an attorney fee must be reasonable in every case whether the
fee is paid by the client or by the losing litigant. 1998 OK 130 at ? 14, 977
P.2d at 364.
[6]
? 28 Section 7505-3.2(B)(1)(a-h) expressly allows the prospective adoptive
parents to pay reasonable attorney fees, as well as reasonable charges for
medical services, counseling services, living and travel expenses,
child-placement fees, and home investigation expenses in connection with the
adoption. Section 7505-3.2(A)(2) expressly requires the district court to
determine that the fees, costs, and expenses paid in connection with an adoption
are reasonable. The statute does not permit a presumption that the
attorney/
[7]
? 29 Section 7505-3.2(B)(2) provides that ?(i)n addition, all expenses approved
by the court should be commensurate with other customary fees for similar
services by persons of equivalent experience and training where the services are
performed.? This language contemplates that the district court, in determining
reasonableness of the fees, costs, and expenses, will measure the fees, costs,
and expenses listed in ? 7505-3.2(B)(1)(a-h) or authorized by the district court
upon a finding of unusual circumstance by the customary fees and expenses in the
community. The district court must consider the customary fees and expenses in
the community.
?
30 Although ?customary fees? is one Burk
criterion, we glean no legislative intent in ? 7505-3.2 to exclude other
relevant Burk
criteria from the court's consideration of the attorney fees. Reading the
language in ? 7505-3.2(B)(2) in its ordinary sense,FN10
the word ?should? expresses an obligation rather than a strict command
FN11
and the words ?customary fees? indicate fees that are grounded in common
tradition and commonly charged as a matter of course.FN12
The Burk
criteria are deeply entrenched in the awarding of attorney fees and the testing
of reasonableness of attorney fee agreements. An attorney fee determined under
relevant Burk
criteria is within the ordinary meaning of ?customary fees? as used in ?
7505-3.2(B)(2).
FN10.
?Words used in any statute are to be understood in their ordinary sense, except
when a contrary intention plainly appears,....? 25 O.S.2001, ? 1.
FN11.
The ordinary meaning of ?should,? the past tense of ?shall,? expresses a
condition or obligation from a point of view in the past. Webster's
Third International Dictionary of the English Language Unabridged
2104 (2002).
FN12.
Id.
at 559.
?
31 In addition to being satisfied that the prospective adoptive parents'
expenditures are reasonable in amount, the district court must be satisfied that
the expenditures are reasonably related to or connected with the adoption.
Section 7505-3.2 repeatedly utilizes ?adoption-related? and ?in connection with
the adoption? to modify expenses and expenditures, for instance ?in connection
with the adoption of a minor? in ? 7505-3.2(A)(1), ?adoption-related costs and
expenses? and ?pay in connection with an adoption? in ? 7505-3.2(B)(1),
?additional costs and expenses in connection with an adoption? in ?
7505-3.2(B)(4), and ?payment of adoption-related expenses? in ?
7505-3.2(D)(2).
[8]
? 32 Accordingly, we conclude that under 10 O.S.Supp.2009, ? 7505-3.2, in
approving the prospective adoptive parents' expenditures in connection with the
adoption, the district court must determine whether the expenses and services
were reasonably related to the adoption and the amounts paid for the expenses
and services were commensurate with the customary fees and costs for
*126
similar services by persons of equivalent experience and training where the
services are performed. We further conclude that the district court has the
discretion to approve an amount of adoption-related attorney fees determined
under relevant Burk
criteria.FN13
FN13.
In adoption proceedings, consideration of relevant Burk
criteria to determine reasonableness of the adoption-related attorney fees is
discretionary. The district court's decision not to consider other Burk
criteria to test the reasonableness of adoption-related attorney fee
expenditures would not, without more, constitute an abuse of discretion under
Spencer
v. Oklahoma Gas & Electric Co.,
2007 OK 76, ? 11, 171 P.3d 890, 895 (ruling that the failure to follow the
Burk
directives in awarding an attorney fee constitutes an abuse of
discretion).
V.
The prospective adoptive parents have the burden to prove to the district court
that all monies they paid or expect to pay in connection with the adoption were
for reasonable fees, costs, and expenses listed in 10 O.S. Supp.2009, ? 7505-3.2
or were authorized by the court upon a finding of unusual
circumstance.
[9][10]
? 33 By filing their affidavit disclosing adoption-related expenditures, the
prospective adoptive parents moved the district court to find that the
expenditures are reasonable and to approve the expenditures. Generally, a moving
party has the burden to provide the court with both the legal and evidentiary
support for the relief sought. Sloan
v. Owen,
1977 OK 239, ? 9, 579 P.2d 812, 814 (burden of proof of witness fees on moving
party). Regarding attorney fees, we have long held the party moving for an
attorney fee to the duty of demonstrating the reasonableness of the fee to the
trial court. Prager's
Paris Fashion v. Seidenbach,
1925 OK 761, 242 P. 260, 263, concluded that plaintiffs' cause of action was
predicated on an obligation providing for the recovery of reasonable attorney
fees, plaintiffs had the duty to show that the amount of attorney fee they paid
or became liable to pay was the usual customary fee paid for such services and
the amount was reasonable, and the burden did not shift to the opposing party to
show that such fee was unreasonable. Security
Nat. Bank of Enid v. Bonnett,
1980 OK CIV APP 63, ? 9, 623 P.2d 1061, 1064 (approved for publication by the
Supreme Court), explained that parties are free to contract for a reasonable
attorney fee, but if the fee is challenged as excessive or exorbitant, the trial
court must take evidence as to the reasonableness of the fee and fix an attorney
fee that is reasonable and commensurate with the work performed by the
attorney.
?
34 Burk's
guidance to the members of the bar squarely placed the duty on the attorney
seeking an attorney fee award to produce detailed time records and evidence of
reasonableness not only in equitable fund cases, but in every case:
Hereafter,
attorneys in this state should be required to present to the trial court
detailed time records showing the work performed and offer evidence as to the
reasonable value for the services performed for different types of legal work.
Reasonable value of services should be predicated on the standards within the
local legal community. This will enable trial courts to remove the fixing of
attorney fees, not only in this type of action, but in every case, from the
realm of speculation and guesswork into the area of simple mathematical
computation. The trial court may then, with certainty, determine the
compensatory fees.
Burk,
598 P.2d at 663.
?
35 Following the Burk
decision, Oliver's
Sports Center, Inc.,
1980 OK 120, at ? 8, 615 P.2d at 295, reiterated that an attorney seeking an
attorney fee has the burden to present to the court detailed time records of the
work performed and evidence of the reasonable value for the services performed
for different types of legal work. Oliver's
Sports Center
reasoned:
The
general agreement in all jurisdictions is that the time and labor spent by the
attorney in performing services for which compensation is sought is an important
factor to be considered in setting a reasonable fee. However, it is also
commonly agreed that the time element must be considered in connection with
other factors. Fees cannot fairly be awarded on the *127
basis of time alone. The use of time as the sole criterion is of dubious value
because economy of time could cease to be a virtue; and inexperience,
inefficiency, and incompetence may be rewarded to the detriment of expeditious
disposition of litigation....
1980
OK 120 at ? 6, 615 P.2d at 295. Following this reasoning, Sneed
v. Sneed,
1984 OK 22, 681 P.2d 754, 756, and Adams
v. Unterkircher,
1985 OK 96, 714 P.2d 193, 197, rejected a simple mathematical formula of hours
multiplied by hourly rate that might reward inexperience and inefficiency and
penalize experience and efficiency.
[11][12][13]
? 36 The reasonableness of attorney fees and expenses is a question for the
trier of fact, Arkoma
Gas Co. v. Otis Engineering Corp.,
1993 OK 27, ? 8, 849 P.2d 392, 394, and the fees and expenses must be supported
by evidence and reason. Finnell
v. Seismic,
2003 OK 35, ? 18, 67 P.3d 339, 346-347. Like attorney fees, the reasonableness
of other fees, costs, and expenses in connection with an adoption presents a
question of fact that must be supported by evidence and reason. See
Pierce
Couch Hendrickson Baysinger & Green v. Freede,
1997 OK 33, at ?? 30-32, 936 P.2d at 913. Accordingly, we conclude that the
prospective adoptive parents have the burden to present sufficient evidence to
the district court proving that all monies they paid or expect to pay in
connection with the adoption were for reasonable fees, costs, and expenses
listed in 10 O.S. Supp.2009, ? 7505-3.2, or expenses authorized by the court
upon a finding of unusual circumstance.
VI.
The district court abused its discretion in approving the adoption-related
expenditures without a thorough inquiry into the fees, costs, and expenses and
without sufficient evidence establishing the reasonableness of the fees, costs,
and expenses.
?
37 The evidence before the district court supporting the $147,289.42 paid in
connection with this adoption included: 1) the prospective adoptive parents'
affidavit with an attached contract with the second law firm and the time
records from those attorneys; 2) prospective adoptive parents' amended affidavit
disclosing a private investigator's fee of $13,000.00 without any contract or
time records attached thereto; 3) the prospective adoptive parents' addendum
summarizing the private investigator's services; 4) the first law firm's
affidavit disclosing fees, costs, and expenses, without any contracts, time
records, receipts, or other proof of payments attached thereto; and 5) testimony
from an attorney with the first law firm admitting that she did not bring her
contract with the prospective adoptive parents to the hearing, that the
$20,000.00 flat fee is her standard fee for an adoption, whether contested or
not, and that the prospective adoptive parents did not ask for a refund when
they hired the second law firm and she did not offer to refund any of the
$20,000.00 fee. The record on appeal contains the summaries of the second law
firm's time records which the public defender prepared to demonstrate the
excessive charges. But, as detailed below, the evidence in the record on appeal
is insufficient support for the district court's finding of reasonableness of
the expenditures for fees, costs, and expenses, and this case must be
remanded.
a.
The fees, costs, and expenses listed in ? 7505-3.2(B)(1)(a-h) other than
attorney fees
[14]
? 38 The first law firm's affidavit disclosed medical-related expenses in the
amount of $865.49, although the prospective adoptive parents indicated that all
medical expenses were paid by an insurer, and there are no billings or receipts
for payment of medical expenses. The first law firm's affidavit disclosed
$389.25 for transportation expenses, but there was no showing that it was for
the birth mother or the minor child for medical or adoption placement. The first
law firm's affidavit disclosed $11,498.36 for living expenses of the birth
mother, but presented no receipts for the expenditures. The first law firm's
affidavit also disclosed expenditures in the amount of $153.00 for court filing
fees, $828.00 for transcripts, process service, fingerprint search, etc., and
$2,500.00 for the Interstate Compact on Placement of Children (ICPC) fee, but
offered no evidence thereof. Finally, the prospective adoptive *128
parents' affidavit disclosed a $500.00 application fee paid to the first law
firm without any explanation, and it disclosed either $1,300.00 or $1,800.00 for
the home study and $1,673.00 for three post-placement reviews without any
evidence regarding the customary fee in Oklahoma for these
services.
?
39 Although the above expenses, other than the ICPC fee and the application fee,
appear to be reasonably related to the adoption and reasonable in amount, a
finding of reasonableness must be grounded in evidence. On remand, the adoptive
parents and attorneys must offer their documentation for these expenditures and
any customary fees and expenses as evidence for the district court's
consideration and determination of reasonableness.
?
40 As to the $2,500.00 ICPC fee, the Oklahoma Department of Human Services
contracts for the administration of ICPC adoption services, and there is a
$250.00 fee for processing independent and private agency adoptions paid
directly to the contractor. Oklahoma Administrative Code, 340:75-15-61. On
remand the first law firm must prove that the $2,500.00 is a legally required
governmental fee. If not, the district court must order the first law firm to
reimburse the adoptive parents in accordance with ? 7505-3.2(A)(1). The first
law firm must also prove that the $500.00 application fee is a legally required
governmental fee, and if not, the district court must order the first law firm
to reimburse the adoptive parents in accordance with ?
7505-3.2(A)(1).
b.
The private investigator's fee
[15]
? 41 In regards to the $13,000.00 fee for the private investigator, ? 7505-3.2
does not list fees for a private investigator as a permissible expenditure in
connection with an adoption, and the district court did not determine that this
adoption involved unusual circumstances necessitating the services of a private
investigator. According to the April 23, 2008 affidavit of the prospective
adoptive parents, they had an agreement with the private
investigator,FN14
but they did not submit the agreement as evidence nor did they set forth the
unusual circumstances that necessitated the private investigator's
services.
FN14.
Apparently the agreement with the private investigator was arranged by the
second law firm. What appears to be an initial retainer in the amount of
$2,500.00 and an initial consultation with the private investigator are
documented in the billing hours of the second law firm. Also, the second law
firm billed the prospective adoptive parents for preparing the private
investigator's written justification for his fee. At the fee hearing, the lead
attorney for the second law firm announced to the district court that she
represented both the prospective adoptive parents and the private
investigator.
?
42 According to his affidavit and a letter detailing his work in the case, the
private investigator investigated the biological father for seventeen months,
from July of 2006 through November of 2007, and tracked the whereabouts of the
birth mother for six months from July through December of 2006. These purported
adoption-related investigations were conducted even though the prospective
adoptive parents had custody of Baby Boy A in another state, the birth mother
had already twice consented to the adoption of her minor child and twice
relinquished her parental rights before the district court, the birth mother
and/
?
43 The statute, ? 7505-3.2, does not specifically authorize the payment of costs
and expenses of a private investigator, and the appellate record does not reveal
that the *129
district court determined there was a need for a private investigator due to
unusual circumstances in this adoption in accordance with ? 7505-3.2(B)(4). The
$13,000.00 expenditure for a private investigator does not appear to have any
genuine connection to the adoption. These are facts, however, that should have
been determined by the trial court as the finder of facts. In the absence of an
order of the district court authorizing the private investigation of the
biological mother and father of the minor child in this adoption case based upon
a finding of unusual circumstances, on remand, the district court must
disapprove the $13,000.00 expenditure and order reimbursement to the adoptive
parents FN15
in accordance with ? 7505-3.2(A)(1).
FN15.
If the private investigator's $13,000.00 fee is disapproved, reimbursement
should be accomplished through the law firm that arranged for the private
investigation. The district court should order the second law firm to reimburse
the $13,000.00 to the adoptive parents and authorize the second law firm to
recoup the $13,000.00 from the private investigator.
c.
The attorney fees and expenses
?
44 As to the attorney fees and expenses, the affidavits disclose the following
expenditures: $13,362.50 for representation of the birth mother, $20,000.00 for
representation of prospective adoptive parents by the first law firm, $3,536.70
for prospective adoptive parents' attorney in their home state, and $65,189.51
for representation of the prospective adoptive parents by the second law firm
and an additional $13,058.85 for the second law firm subsequent to the filing of
the affidavit. Regarding the more than $100,000.00 in attorney fees, the
district court announced from the bench:
I
find the attorney fees that are cited by [first law firm], the attorney fees
that are cited by [second law firm] are reasonable and I do base that primarily
on the fact that it's consistent with the contracts that were entered in this
case by the petitioners, and my opinion that there is no evidence to suggest
that those contracts were entered into blindly or entered inappropriately or
with any intent to take advantage of the petitioners or that they aren't
justified by the amount of work effort that took place in the various stages of
this case. The demurrer of [second law firm] is sustained.
[16]
? 45 The district court presumed that the attorney fee agreements in this case
were reasonable and that all the charges were consistent with the contracts.
There is only one contract in the record on appeal, the second law firm's
contract. The second law firm's billing statements reveal numerous charges for
attorney fees and expenses that are contrary to the contract, not included in
the contract, or facially unreasonable. Charging fifteen cents per copy for
thousands of copies is inconsistent with the ten-cent copy charge specified in
the contract.FN16
Charging $275.00 an hour to prepare a document justifying the private
investigator's fee is outside the contract. Charging a nearly $800.00 expense
for the private investigator to deliver a proposed journal entry to the birth
mother's attorney and to the Cherokee Nation's attorney is facially
unreasonable. Stacking a $200.00 an hour fee for a second attorney to attend a
hearing, apparently as an observer, when the contract does not specify a $200.00
hourly rate, is outside the contract. Double charging $825.00 for the hours
worked in December of 2007 is facially unreasonable.
FN16.
Even though some copies were charged at seven cents per page and others at
fifteen cents per page, the total expenditure for copies was more than the
contracted charge of ten cents per copy.
?
46 It is obvious that the district court did not examine the second law firm's
billing statements for reasonableness. Even if the hourly rates were reasonable
and the legal issues were complex, the more than seventy thousand dollars in
fees and expenses for the second law firm has obvious excess. On remand, the
district court must cull through the charges for legal services and reject 1)
any unreasonable number of hours for the legal service performed, 2) any
duplicate billings, 3) any stacking of hours for two or three attorneys to
perform the same legal service, 4) the fifteen-cent copy charge, 5) the
*130
private investigator's delivery charge, and 6) any other charges the district
court deems inconsistent with ? 7505-3.2. As to the fifteen-minute minimum
charge for a phone call and the hourly rate for travel time, the district court
must determine reasonable amounts of time and reasonable rates for the type of
service performed.
?
47 As to the first law firm's flat fee of $20,000.00, it appears to be an
unreasonable charge for the routine legal services performed. The contract is
not in the record, and there is no proof to show the reasonableness of the more
than $36,000.00 of expenditures set out in the first law firm's affidavit. On
remand, the first law firm must provide the contract and proof of the legality
and reasonableness of every item charged the prospective adoptive parents so the
district court can determine the reasonableness of the charges.
?
48 As to the birth mother's attorney, she charged some $13,000.00 for her
services and expenses. The record indicates the attorney consulted with the
birth mother, made two routine appearances in court for the birth mother to
relinquish her parental rights and to consent to the adoption, appeared at the
good cause hearing, and reported her fees to the public defender. The record on
appeal indicates that this attorney was involved in the routine adoption
proceedings but did not brief or argue the more complex legal issues. On remand,
the birth mother's attorney must provide the district court with sufficient
evidence for a determination of the reasonableness of the attorney
fees.
?
49 In approving the attorney fee expenditures by the prospective adoptive
parents, the district court began with a statement that ?you would be inclined
automatically to say that [the $100,000.00] is outrageous, that is certainly
unreasonable.? The district court then said that ?this case is not like any
other? and ?it has generated a lot of attorney fees.? Apparently, the district
court viewed this adoption as a highly complex case. We do not agree. The record
before us demonstrates that this case was closer to a routine adoption than a
complex legal contest. On remand, the district court must focus upon whether the
attorney fees were necessary and reasonable rather than the fees that were
?generated.? In summary, the district court must determine, as to all attorneys
whose fees and expenses were paid by the prospective adoptive parents, the
necessary legal services, a reasonable number of hours needed to perform the
legal services, and a fair hourly rate, or rates if different levels of skill
are involved, for the legal services based on the customary charge in this state
for the services and any other Burk
criteria the court deems relevant. If the amount charged in accordance with the
contract is greater than the reasonable amount, the court may approve only the
reasonable fee and expenses and must order reimbursement of any excess amount in
accordance with ? 7505-3.2(A)(1).
VII.
Conclusion
[17][18]
? 50 Under the governing statute, 10 O.S.Supp.2009, ? 7505-3.2, the district
court, in approving adoption-related expenditures, must be free from doubt that
the prospective adoptive parents' expenditures are reasonable and not in
violation of the anti-trafficking in children statutes. Under the statute, the
district court is the gatekeeper protecting the vulnerable prospective adoptive
parents from excessive charges for the adoption and preventing prospective
adoptive parents from making excessive payments for the adoption.
?
51 In this adoption proceeding, neither the prospective adoptive parents nor the
several attorneys presented the district court with sufficient evidence to prove
the reasonableness of the expenditures and the district court did not inquire
into the reasonableness of the fees, costs, and expenses paid by the prospective
adoptive parents. The district court's approval of the expenditures in this
adoption proceeding is based on an erroneous legal presumption of reasonableness
and it is not supported by sufficient evidence of reasonableness. Accordingly,
we hold the district court abused its discretion when it approved the
prospective adoptive parents' expenditures in connection with the adoption. We
reverse the district court orders filed on June 10, 2008, and on July 29, 2008,
and remand this cause to the district court for *131
further proceedings consistent with this opinion.
OPINION
OF THE COURT OF CIVIL APPEALS VACATED; DISTRICT COURT ORDERS APPROVING
PROSPECTIVE ADOPTIVE PARENTS' FEES, COSTS, AND EXPENSES REVERSED; CAUSE REMANDED
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.
EDMONDSON,
C.J., TAYLOR, V.C.J., and OPALA, KAUGER, WATT, WINCHESTER, COLBERT, and REIF,
JJ., concur.
HARGRAVE,
J., dissents.
APPENDIX
Section
7505-3.2 of Title 10 of the Oklahoma Statutes, with 2009 amendments shown by
strikeout and underline, 2009 Okla.Sess.Laws, ch. 107, ? 3, effective November
1, 2009, reads:
A.
1. An affidavit shall be attached to the petition for adoption, or may be filed
after the filing of the petition for adoption, but prior to the final decree of
adoption, which discloses to the court all of the costs, funds, or monies
expended by the adoptive family or expected to be expended in connection with
the adoption of a minor.
2.
No final decree of adoption shall be entered until the court is satisfied that
all costs and expenses have been disclosed, are reasonable, and that the costs
and expenses do not violate the provisions of subsection B of this section. Upon
its review of the affidavit of monies expended, the court shall in writing
disapprove any expenditure that the court deems unreasonable or in violation of
Sections 865 through 869 of Title 21 of the Oklahoma Statutes and, to the extent
necessary to comply with Oklahoma law, shall order reimbursement of any
consideration given in violation of Sections 865 through 869 of Title 21 of the
Oklahoma Statutes. Payments made pursuant to this section shall not be a
violation of Sections 865 through 869 of Title 21 of the Oklahoma
Statutes.
B.
1. Except as otherwise specifically provided by law, the following list of
adoption-related costs and expenses specified in this paragraph may be deemed
proper items for a person to pay in connection with an adoption:
a.
reasonable attorney fees and court costs,
b.
reasonable medical expenses for birth mother and minor to be
adopted,
c.
reasonable adoption counseling expenses for birth parents before and after the
birth of the minor, not to exceed six (6) months from placement of the
minor,
d.
reasonable fees of a licensed child-placement agency,
e.
reasonable living expenses for housing, food, clothing, utilities, and other
necessities of the birth mother that are incurred during the adoption planning
process or during the pregnancy, not to exceed two (2) months after the birth of
the minor or after the consent or relinquishment of the birth
mother,
f.
reasonable costs for travel or transportation of the birth mother or minor as
same is incurred for medical or adoption placement needs,
g.
reasonable expenses for a home study, and
h.
reasonable expenses legally required by any governmental entity related to the
adoption of a minor.
2.
In addition, all expenses approved by the court should be commensurate with
other customary fees for similar services by persons of equivalent experience
and training where the services are performed. Any services provided outside
this state shall be allowed in an amount as if the services had been performed
within the State of Oklahoma.
3.
The provisions of this subsection shall apply to living and transportation
expenses incurred after the biological mother of the minor contacts the
child-placing agency or attorney for adoption services.
4.
The provisions of this subsection shall not prohibit a court from extending any
time period, or including any additional costs and expenses in connection with
an adoption other*132
than those specified in this subsection based on unusual circumstances or
need.
5.
Except as otherwise ordered by the court except for good cause shown, all
payments made pursuant to this section shall be paid directly to the third-party
provider of services or goods.
C.
Any person desiring to pay living and transportation expenses to or on behalf of
a birth parent is authorized to expend an initial amount not to exceed Five
Hundred Dollars ($500.00) for such costs and expenses without first obtaining
court approval as required by paragraph 1 of subsection D of this section. Any
such costs and expenses shall be disclosed as is otherwise required by the
Oklahoma Adoption Code.
D.
1. Except for the amount authorized by subsection C of this section, the payment
of any living or transportation expenses for benefit of the birth mother as
authorized in subparagraphs e and f of paragraph 1 of subsection B of this title
shall be approved in advance by the court.
2.
The person, attorney, or licensed child-placing agency desiring to pay living or
transportation expenses on behalf of a birth mother which exceed the amount in
subsection C of this section shall file a petition for an order approving
payment of adoption-related expenses.
3.
The petition for an order approving payment of adoption-related expenses
may
shall
be filed in the district court where the birth
mother resides, in the county where the
petitioner, attorney, or child-placing agency is located, or in the county where
the adoption petition is to be filed,
as provided in Section 7502-1.2 of this title.
4.
The petition shall be captioned: ?In the matter of Baby (name).? The petition
shall include a listing of all anticipated living or transportation expenses to
be paid on behalf of the birth mother for which court approval is being sought.
If additional expenditures not previously authorized by the court are needed on
behalf of the birth mother, an amended petition may be filed with the
court.
5.
The petition shall be heard by the court within ten (10) days of filing. The
court clerk shall charge the same cost for a petition for payment of expenses as
is charged for the filing of an adoption petition. In the event an adoption
petition is later filed in the same county, the adoption petition shall be filed
as an amended petition within the same case in which payment for expenses was
approved and no additional court costs shall be required. In the event a
petition for preadoption termination of parental rights is later filed in the
same county, the court clerk shall not assess an additional filing fee and may
use the same case number as for the petition for adoption.
6.
Any order authorizing payment shall be attached to a petition for adoption. If
no adoption petition is filed, the court shall retain jurisdiction to enter any
orders deemed appropriate regarding the reimbursement of costs and expenses
paid. If the child is placed for adoption outside the State of Oklahoma, any
such order shall be submitted to the Interstate Compact of the Placement of
Children and to the court in the other state where the petition for adoption is
to be filed.
E.
1. In addition to the adoptive family affidavit requirement of subsection A of
this section, a Disclosure Statement of Adoption-related Costs and Expenditures
shall be prepared in writing by the attorney, child-placing agency, or person
facilitating in a direct-placement adoption. The Disclosure Statement of
Adoption-related Costs and Expenditures shall include a declaration of all fees,
expenses, and costs charged or expected to be charged for the adoption
including, but not limited to, the following:
a.
retainer fees, the hourly rate, and the number of hours billed for the
adoption,
b.
any fee charged for preplacement or other home studies of any prospective birth
parents, regardless of whether the home study was performed by an outside
agency,
c.
any costs, fees or expenses or any other thing of value paid to or on behalf of
the birth parents related to the adoption of a minor by any party other than the
adoptive parents, and
*133
d.
any other fees and expenses related to the adoption not otherwise specifically
listed in this section.
2.
The Disclosure Statement of Adoption-related Costs and Expenditures containing
true and accurate information shall be filed before the final decree of adoption
is ordered in each adoption of a minor in this state. The statement shall be a
public record; provided, that any information identifying the attorney,
child-placing agency, or person facilitating in the direct adoption shall not be
made public. In addition, the identity of the child, the adoptive parents, and
the birth parents shall not be made public.