IN RE ADOPTION OF K.P.M.A.

1 This cause concerns the termination of parental rights of Respondent/Appellant Billy McCall (Father) to the minor child KP.M.A. (Child). Child was born out-of-wedlock to T.Z. (Mother) on June 21, 2012. Prospective adoptive parents, Petitioners/Appellees Marshall Lee Andrews and Toni Michelle Andrews (Appellees), have had physical custody of the child since she was released from the hospital after birth. The questions presented are: 1) whether Father's due process rights were violated; 2) whether Father received ineffective assistance of counsel during the termination proceedings; and 3) whether the trial court's determination was supported by clear and convincing evidence.

I.

FACTS AND PROCEDURAL HISTORY

12 Appellees filed a Petition for Termination of Parental Rights of Natural Parents on June 27, 2012, and a Petition for Adoption on August 14, 2012. Mother voluntarily relinquished her parental rights on August 14, 2012, and is not a party to this appeal. Mother named Father as the putative father 1 of the child, and notice was sent to Father pursuant to 10 O.8.2011 § 7505-4.1(C). Father filed a Response to Petition for Adoption and Petition for Termination of Natural Father in which he: 1) claimed paternity of the child; 2) stated he first learned of Mother's pregnancy and the birth of the child when he was served a summons in a guardianship proceeding for the child in Rogers County, Oklahoma (PG-2012-51); and 3) claimed he visited the child for several months after birth and also contributed support money for the child to Appellants in the amount of $250.00 per month after the child's birth.

T3 The trial court held a hearing on the motion to terminate Father's parental rights on May 22, 2013. The record indicates that Mother and Father met on July 4, 2011, and engaged in sexual intercourse several times over the following months, beginning in August of 2011. Father testified that though they were friends, they were never in a romantic relationship. The record indicates that the last sexual encounter between Father and Mother occurred sometime in either September or October of 2011, and Father testified that he made no attempt to contact mother after that event.

{4 The only apparent meeting between Father and Mother between their last sexual encounter and the birth of the child occurred in December of 2011, when Mother allegedly came to Father's workplace to see him. Mother did not mention pregnancy or the possibility of pregnancy and Father also did not enquire as to whether Mother was or might be pregnant.

T5 It is evident from the record that at some point prior to the birth of the child Mother sent Father a message via Facebook informing him that she was pregnant and planning to give the child up for adoption. What is not clear from the record is exactly when Father received this message. Father testified that at some point in July of 2012 he attempted to contact Mother by Facebook, and in the process of doing so noticed for the first time the message Mother sent informing him of her pregnancy. Father testified he did not know how old the message was when he read it. Father later testified during cross examination that he first found out about the child's existence seven days after birth, June 21, 2012."

16 The trial court refused to allow any testimony from Father concerning his participation in guardianship proceedings concern*41ing the child. Relying in part on this Court's decision in Steltzlen v. Fritz, 2006 OK 20, 134 P.3d 141, the trial court determined that when Father actually found out about the pregnancy and birth of the child was irrelevant, as the burden was on Father to determine if he might have fathered a child and to exercise his parental rights pursuant to 10 ©.98.2011 § 7505-4.2(C). At the conclusion of Father's testimony, Mother moved for a directed verdict to terminate Father's parental rights. Father did not object or respond to the motion. The trial court sustained the motion for a directed verdict.

T7 Father retained new appellate counsel and filed a Petition in Error on June 24, 2018. Father included with his Petition in Error a signed and certified order of the trial court terminating his parental rights that was filed on June 21, 2018. This order does not appear elsewhere in the record and Ap-pellees assert the order was never sent to the parties and that proof of service was requested but never provided. Appellees assert that because Father's order was never provided to the other parties, a second order was drafted and cireulated among the parties that attended the termination hearing, was signed and then filed on August 5, 2013. This order is also not included anywhere in the record on appeal. Appellees further claim they received no notice of the appeal until January 13, 2014, after this Court issued an order determining that Appellees' answer brief had not been timely filed pursuant to Oklahoma Supreme Court Rule 1.10(c)@@8). Appellees filed their answer brief on January 21, 2014, but objected to their lack of notice.2

*4218 On appeal, Father asserted several errors including improper notice and ineffective assistance of counsel. Father also challenged the trial court's decision to limit his testimony concerning his attempts to exercise parental rights prior to service of the adoption proceedings. In an unpublished opinion filed on April 11, 2014, the Court of Civil Appeals affirmed the trial court's termination of Father's parental rights. The Court of Civil Appeals determined that Father waived his right to challenge the validity of service of process by reserving an additional twenty (20) days in which to answer pursuant to 12 O.S.2011 § 2012(A)(1)(b). The Court also determined that the application to terminate Father's parental rights was sufficient to put Father on notice of the grounds for termination.

9 The Court of Civil Appeals agreed with the trial court's reasoning that Father's actions after the birth of the child were irrelevant, as Father's testimony showed that mother informed him of the pregnancy and plans for adoption while she was still pregnant and Father did nothing. The Court of Civil Appeals apparently took for granted that Mother's attempt to contact Father via Facebook constituted informing Father, and appears to ignore the fact that Father had asserted since the start of these proceedings that he did not see the message and did not know he had fathered a child until after the birth. The Court of Civil Appeals determined:

Mother specifically informed Father she was pregnant at some point later during the course of her pregnancy, clearly triggering Father's obligation to provide support. Father simply failed to act on that information as the statute requires of a putative father intent on protecting his parental rights.

Unpublished Opinion of the Oklahoma Court of Civil Appeals, Division III, T 14 (April 11, 2014).

' 10 The Court of Civil Appeals also rejected Father's ineffective assistance of counsel argument. The Court of Civil Appeals determined that Father was required to show both the attorney's performance was deficient and that it prejudiced his case, and at the very least Father failed to meet the latter requirement, as Father's own testimony was that Mother informed him of the pregnancy while she was pregnant and his own testimony confirmed he failed to assert his parental rights by contributing to Mother's support as required by 10 0.8.2011 § 7505-4.2(C)(1).

11 Father filed a Petition for Certiorari on May 1, 2014, asserting that the Court of Civil Appeals erred by wrongly construing the evidence to read that Father knew of the pregnancy before birth, simply because Mother allegedly notified him of it by Face-book. Further, father also argues his procedural due process rights protected by U.S. Const. amend. XIV, § 1; Okla. Const., art. 2, § 7 have been violated because the statutes place the burden of discovering the pregnancy on Father, and he was not allowed the opportunity to present evidence regarding steps he took to protect his parental rights after he learned of the child's existence. Finally, Father reasserts that he received ineffective assistance of counsel. This Court granted Father's Petition for Certiorari on June 30, 2014, and the cause was assigned to this office on July 1, 2014.

IL

STANDARDS OF REVIEW

112 Whether an individual's procedural due process rights have been violated is a question of constitutional fact which this Court reviews de novo. Pierce v. State ex *43rel. Dept. of Public Safety, 2014 OK 37, ¶ 7, 327 P.3d 530; In re A.M. & R.W., 2000 OK 82, ¶ 6, 13 P.3d 484. De movo review requires an independent, non-deferential reexamination of another tribunal's legal rulings. Pierce, 2014 OK 37, ¶ 7, 327 P.3d 530; In re A.M., 2000 OK 82, ¶ 6 13 P.3d 484; Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, n. 1, 932 P.2d 1100.

118 In examining whether there is sufficient evidence to support an order terminating parental rights, this Court will review the record for clear and convincing evidence in support of the decision to terminate. In re C.D.P.F., 2010 OK 81, ¶ 6, 243 P.3d 21; In re S.B.C., 2002 OK 83, ¶¶ 5-7, 64 P.3d 1080. This Court must canvass the record to determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re C.D.P.F., 2010 OK 81, ¶ 6, 243 P.3d 21; In re S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080. Our appellate review does not require a re-weighing of the evidence presented at trial. In re C.D.P.F., 2010 OK 81, ¶ 6, 243 P.3d 21.

IIL.

ANALYSIS

114 Proceedings to terminate parental rights incident to adoption are governed by the Oklahoma Adoption Code, found within 10 O.8. § 7501-1.1 et seq. Title 10 0.8.2011 § 7508-2.1 governs who may consent to the adoption of a minor child and provides in pertinent part:

A. A minor may be adopted when there has been filed written consent to adoption or a permanent relinquishment for adoption executed by:

1. Both parents of the minor;

2. -One parent of the minor, alone, if:

a. the other parent is dead,

b. the parental rights of the other parent have been terminated, or

c. the consent of the other parent is otherwise not required pursuant to Section 7505-4.2 of this title;

The requirements for preadoption termination of the parental rights of a putative father or parent of a child are set out within 10 00.98.2011 § 7505-2.1. Title 10 O.8.2011 § 7505-2.1(A)(1) provides in pertinent part:

[plrior to the filing of a petition for adoption, a child-placing agency, attorney, or prospective adoptive parent to whom a parent having legal eustody has executed a consent to adoption or has permanently relinquished a minor born out of wedlock may file a petition for the termination of the parental rights of a putative father or a parent of the child.

Title 10 0.8.2011 § 7505-2.1(D) further provides, in pertinent part:

D. At the hearing on the petition to terminate parental rights brought pursuant to this section, the court may, if it is in the best interest of the minor:

1. Accept a permanent relinquishment or consent to adoption executed by the putative father or parent of the minor pursuant to Sections 7508-2.1, 7503-2.3 and 7508-2.4 of this title; or

2. Terminate any parental rights which the putative father or parent may have upon any of the grounds provided in Section 7505-4.2 of this title for declaring a consent unnecessary.

{ 15 Title 10 0.98.2011 § 7505-4.2 sets out the possible exceptions to the requirement for parental consent. Specifically, 10 O.S. 2011 § 7505-4.2(C) & (D) provide:

C. Consent to adoption is not required from a father or putative father of a minor born out of wedlock if:

1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy; or

2. The minor is placed for adoption within fourteen (14) months of birth, and the father or putative father fails to show that he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the minor to *44the extent of his financial ability, which may include consideration of his failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. Failure to contribute to the support of the mother during her term of pregnancy shall not in and of itself be grounds for finding the minor eligible for adoption without such father's consent.

- The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent.

D. In any case where a father or putative father of a minor born out of wedlock claims that, prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, he had been specifically denied knowledge of the minor or denied the opportunity to exercise parental rights and duties toward the minor, such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights' and duties toward the minor prior to the receipt of notice. (Emphasis Added).

116 The burden rests on the party who seeks adoption without parental consent to show why consent may be dispensed with. Steltzlen v. Fritz, 2006 OK 20, ¶ 12, 134 P.3d 141; In re Adoption of C.M.G., 1982 OK 156, 656 P.2d 262. The standard of proof necessary to establish any of the grounds to permit adoption without consent, or for termination of parental rights is clear and convincing evidence. Steltzlen, 2006 OK 20, ¶ 12, 134 P.3d 141; In re Darren Todd. H., 1980 OK 119, ¶ 10, 615 P.2d 287.

A. Pursuant to U.S. Const. amend. XIV, § 1; Okla. Const., art. 2, § 7, Father possessed a constitutionally-protected opportunity interest in his ability to develop a relationship with his child that incorporated a right to notice of the child's existence.

117 Both the United States Constitution and the Oklahoma Constitution provide that no person shall be deprived of life, liberty or property without due process of law. U.S. Const. amend. XIV, § 1; Oka. Const., art. 2, § 7.3 In determining whether an individual has been denied procedural due process this Court engages in a two-step inquiry. First, this Court asks whether the individual possessed a protected interest to which due process protection applies and if so, whether the individual was afforded an appropriate level of process. Thompson v. State ex rel. Bd. of Trustees of Oklahoma Public Employees Retirement System, 2011 OK 89, ¶ 16, 264 P.3d 1251; In re A.M., 2000 OK 82, ¶ 7, 13 P.3d 484.

118 The first prong of this Court's inquiry must focus on the nature of Father's protected interest. Generally, parents have a fundamental right to raise their own children, and this right is protected by the United States and Oklahoma Constitutions. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258; Kelley v. *45Kelley, 2007 OK 100, ¶ 8, 175 P.3d 400. If, for whatever reason, a child's parents are unable to care for the child, adoption is a viable alternative. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258. The importance of the right to consent to an adoption has been recognized as an important right in and of itself. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258; Steltzlen v. Fritz, 2006 OK 20, ¶ 12, 134 P.3d 141; Merrell v. Merrell, 1985 OK 107, ¶ 7, 712 P.2d 35. The law presumes that consent of a child's natural parents is necessary before an adoption may be effected. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258; Steltzlen, 2006 OK 20, ¶ 12, 134 P.3d 141; In re Adoption of C.D.M., 2001 OK 103, ¶ 13, 39 P.3d 802, cert. denied 535 U.S. 1054, 122 S.Ct. 1911, 152 L.Ed.2d 821 (2002). However, the consent of only one natural parent and not the other is acceptable in certain situations. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258.

1 19 In the seminal case of Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the United States Supreme Court considered the floor of due process protection afforded by the United States Constitution to natural fathers seeking to exercise or protect their parental rights. The Court noted that there is a significant difference between a developed parent-child relationship, and a potential relationship such as the one a natural father might develop with a child born out of wedlock. Lehr, 463 U.S. at 261, 103 S.Ct. 2985. The Court stated:

[when an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com{[ing} forward to participate in the rearing of his child," Caban [v. Mohammed ], 441 U.S. [380], at 392, 99 S.Ct. [1760], at 1768 [60 L.Ed.2d 297 (1979) ], his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he "act[s] as a father toward his children." Id., at 389, n. 7, 99 S.Ct., at 1766, n. 7. But the mere existence of a biological link does not merit equivalent constitutional protection.

Lehr, 463 U.S. at 261, 103 S.Ct. 2985.

The Court went on to characterize the nature of the natural father's interest as an opportunity interest: °

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child's best interests lie.

Lehr, 463 U.S. at 261, 103 S.Ct. 2985 (footnote omitted).

The Court in Lehr was therefore concerned with whether the statutory scheme at issue in that cause, New York's, adequately protected the father's opportunity to form such a relationship.

120 This Court's decision In re Termination of Parental Rights of Biological Parents of Baby Boy W., 1999 OK 74, 988 P.2d 1270, applied the logic of Lehr to a cause involving the termination of a natural father's parental rights under Oklahoma's statutory scheme. In Baby Boy W., the natural father and mother went their separate ways after a relationship they had as university students. The natural father never inquired as to whether he had fathered a child, and neither party contacted the other despite knowledge of how to do so and knowledge of each other's whereabouts. Baby Boy W., 1999 OK 74, ¶ 4, 988 P.2d 1270. When the mother found out she was pregnant she contacted an adoption ageney and told them natural father was someone she met at a college party and she did not know his last name. Baby Boy W., 1999 OK 74, ¶ 5, 988 P.2d 1270. A few days before the child's birth, the mother informed the ageney of the natural father's full name and the ageney advised the natural father of the hearing to terminate his parental rights. Baby Boy W., 1999 OK 74, ¶ 7, 988 P.2d 1270. This was the first time the natural father knew he had fathered a child. The trial court granted the natural father's *46request for summary judgment and determined his consent was required for the adoption, and the agency appealed. Baby Boy W., 1999 OK 74, ¶ 8, 988 P.2d 1270.

This Court agreed, holding that the natural father was denied the chance to grasp his paternal opportunity interest in contravention of due process. Baby Boy W., 1999 OK 74, ¶ 2, 988 P.2d 1270. This Court stated:

[father's] conduct was sufficient considering that Natural Mother failed to provide any information to him concerning her pregnancy. After Natural Mother ended the relationship with Natural Father in January, 1997, she knew how to make contact with him, but she never informed him that he was a father.

Baby Boy W., 1999 OK 74, ¶ 15, 988 P.2d 1270.

This Court unambiguously determined that the initial duty to inform the natural father of the pregnancy rested with the mother:

[uJnder the Due Process Clause, Natural Father had a right to notice of the fact that Natural Mother was pregnant and had given birth to his child. The duty to inform him rested initially with Natural Mother and later with the Agency. Both failed to inform him despite the relative ease with which this could have been accomplished. In this regard, the Agency was no less to blame than Natural Mother in denying Natural Father notice of the child's existence.

Baby Boy W., 1999 OK 74, ¶ 16, 988 P.2d 1270 (emphasis added).

Finally, this Court declared:

[njotice and opportunity lie at the heart of due process. Natural Father was deprived of notice of the pregnancy and the birth of his child and thus the chance to grasp his parental opportunity interest in his child. Under these circumstances, his parental rights cannot be terminated and his consent is necessary for adoption.

Baby Boy W., 1999 OK 74, ¶ 19, 988 P.2d 1270.

122 The action in Baby Boy W. was brought a few days before significant changes made by the Legislature to the Oklahoma Adoption Code became effective. Baby Boy W., 1999 OK 74, n. 2, 988 P.2d 1270.4 Appellees assert that these changes collectively emphasize the duty of any natural father to attempt to discover if he has fathered a child. Amongst these changes, specific purposes for the Oklahoma Adoption Code were added and codified at 10 O.S. Supp.1998 § 7501-1.2. In pertinent part, 10 ©.8.2011 $ 7501-1.2(A) provides:

[tlhe purpose of the Oklahoma Adoption Code is to:

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5. Affirm the duty of a male person who has sexual relations with a female person outside of marriage to be aware that a pregnancy might occur;

6. Affirm the duty of the biological father of a child who is to be born or who is born outside of marriage to exercise his parental responsibilities for the child. This includes the duty to inform himself about the existence and needs of any such child and to exercise parental responsibilities toward that child even before birth;

1 23 Since Baby Boy W. was decided, the Legislature has also changed the statutory requirements for determining whether a natural father's consent is required for adoption of a child born out of wedlock. At the time the underlying action of Baby Boy W. was commenced, the relevant provision was 10 O.S. Supp.1996 $ 60.6 which provided in pertinent part:

[al child under eighteen (18) years of age cannot be adopted without the consent of its parents, if living, except that consent is not required from:

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3. The father or putative father of a child born out of wedlock if:

a. prior to the hearing provided for in Section 29.1 of this title, and having actual knowledge of the birth or im*47pending birth of the child believed to be his child, he fails to acknowledge paternity of the child or to take any action to legally establish his claim to paternity of the child or to exercise parental rights or duties over the child, including failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy, or

b. at the hearing provided for in Seetion 29.1 of this title:

(1) he fails to prove that he is the father of the child, or

(2) having established paternity, he fails to prove that he has exercised parental rights and duties toward the child unless he proves that prior to the receipt of notice he had been specifically denied knowledge of the child or denied the opportunity to exercise parental rights and duties toward the child. As used in this subparagraph, specific denial of knowledge of the child or denial of the opportunity to exercise parental rights and duties toward the child shall not include those instances where the father or putative father fails to prove to the satisfaction of the court that he made a sufficient attempt to discover if he had fathered the child or to exercise parental rights and duties toward the child prior to the receipt of notice, or

c. he waives in writing his right to notice of the hearing provided for in Section 29.1 of this title, or

d. he fails to appear at the hearing provided for in Section 29.1 of this title if all notice requirements continued in or pursuant to Section 1131 of this title have been met.

The current relevant provision, found at 10 0.S.2011 § 7505-4.2, provides in pertinent part:

C. Consent to adoption is not required from a father or putative father of a minor born out of wedlock if:

1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy; or

2. The minor is placed for adoption within fourteen (14) months of birth, and the father or putative father fails to show that he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the minor to the extent of his financial ability, which may include consideration of his failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. Failure to contribute to the support of the mother during her term of pregnancy shall not in and of itself be grounds for finding the minor eligible for adoption without such father's consent.

The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent.

1 24 Importantly, however, the defense Father asserted at the hearing to terminate his parental rights, based on specific denial of knowledge of the child and currently located at 10 0.8.2011 § 7505-4.2(D), already existed in the statutes when Baby Boy W. was decided. At the time the cause of action in Baby Boy W. was commenced, the relevant provision was 10 O.S. Supp.1996 § 60.6(3)b)(2). This provision provided that consent to adoption from the father of a child born out of wedlock was not needed if, at the hearing:

having established paternity, he fails to prove that he has exercised parental rights and duties toward the child unless he proves that prior to the receipt of notice he had been specifically denied knowledge of the child or denied the opportunity to exercise parental rights and duties toward the child. As used in this subparagraph, specific denial of knowledge of the child or denial of the opportunity to exercise parental rights and duties toward the child shall not include those instances where the father or putative father fails to prove to the satisfaction of the court that he made a *48sufficient attempt to discover if he had fathered the child or to exercise parental rights and duties toward the child prior to the receipt of notice.

10 O.S. Supp.1996 § 60.6(3)(b)(2); Baby Boy W., 1999 OK 74, ¶ 14, 988 P.2d 1270.

1 25 In Baby Boy W., this Court noted that when the Oklahoma Adoption Code was cere-ated, this provision was recodified in 10 O.S. § 7505-4.2. Baby Boy W., 1999 OK 74, ¶ 14, 988 P.2d 1270. In its current incarnation, 10 ©.8.2011 $ 7505-4.2(D) provides:

[in any case where a father or putative father of a minor born out of wedlock claims that, prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, he had been specifically denied knowledge of the minor or denied the opportunity to exercise parental rights and duties toward the minor, such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights and duties toward the minor prior to the receipt of notice.

An examination of the language of this provision indicates that it has remained substantially the same.

26 This Court's holding in Baby Boy W. indicates that because of due process concerns and the importance of Father being given a chance to exercise his opportunity interest, the requirements of 10 O0.S8.2011 § 7505-4.2(D) are met if the mother fails to inform a natural father of her pregnancy. That duty initially rests on her shoulders. This Court stated of the defense now found at 10 0.8. § 7505-4.2(D):

This is the standard by which Natural Father's actions must be measured and that standard has been met ... His conduct was sufficient considering that Natural Mother failed to provide any information to him concerning her pregnancy.

Baby Boy W., 1999 OK 74, ¶ 15, 988 P.2d 1270.

127 In Steltzlen v. Fritz, 2006 OK 20, 134 P.3d 141, this Court revisited whether a natural father's consent was necessary for a child's adoption. In Steltzlen, this Court determined that the trial court did not abuse its discretion when it ruled that a child born out of wedlock was not eligible for adoption without the natural father's consent. 2006 OK 20, ¶ 1, 134 P.3d 141. The natural father and mother in Steltzlen had a brief sexual relationship while they worked together. 2006 OK 20, ¶ 3, 134 P.3d 141. Shortly after their last sexual contact, they ceased working together, and the natural father's next contact with the mother was when they ran into each other by chance when she was seven months pregnant. Steltzlen, 2006 OK 20, ¶ 4, 134 P.3d 141. The mother indicated it was possible that he might be the father, and the natural father offered to take a DNA test, which the mother declined. Steltzlen, 2006 OK 20, ¶ 4, 134 P.3d 141. Because of this and because he had no further contact from mother, the natural father believed he was not the father of the child. Steltzlen, 2006 OK 20, ¶ 4, 134 P.3d 141.

128 The natural father in Steltzlen only discovered he was the father a couple of years after the birth, when, similar to this cause, he received notice of guardianship proceedings. 2006 OK 20, ¶ 7, 134 P.3d 141. The natural father immediately became involved, paternity was established by DNA testing, and he contested the petition for adoption of the child without his consent. Steltzlen, 2006 OK 20, ¶ 10, 134 P.3d 141. The trial court denied the adoption petition and the prospective adoptive parents appealed.

129 This Court reiterated its decision in Baby Boy W., and stressed the importance of the natural father receiving notification. Steltzlen, 2006 OK 20, ¶ 10, 134 P.3d 141. Specifically, this Court stated:

[ilt is not disputed that after the chance meeting at the thrift store, mother did nothing further to contact the father, to let him know that the child had been born or that he was the father of the child. Mother essentially turned the custody and care of [the child] over to the petitioner and her daughter. It is not disputed that neither the petitioner nor [mother's roommate], though they had assumed the care and responsibility for raising the child, at*49tempted to contact the father until they sought to become [the child's] guardians. In In re Biological Parents of Baby Boy W, 1999 OK 74, 988 P.2d 1270, we said that under the due process clause, the father had a right to notice of the fact that the mother was pregnant and had given birth to his child. The duty to inform the father rests initially with the mother, and later with the adoption ageney, but both failed to inform him, despite the relative ease with which this could have been accomplished. 988 P.2d at 1274. We said that the adoption ageney in that case was no less to blame than the mother in denying the father notice of the child's existence. Id. We affirmed the trial court's determination that the natural father did everything he reasonably could have done under the cireumstances and that his conduct was sufficient considering that the natural mother failed to provide any information to him concerning her pregnancy. We held that the natural Mother's actions constituted specific denial of knowledge of the child and offered a complete defense to the termination of father's parental rights.

Steltzlen, 2006 OK 20, ¶ 16, 134 P.3d 141.

130 A core element to this Court's decisions in both Steltzlen and Baby Boy W. is that a distinction exists between: 1) causes where the natural fathers of children born out of wedlock failed to seize their parental opportunity interest when the opportunity was presented to do so5; and 2) causes involving a father's allegation that he was denied the chance to seize that opportunity interest because he never knew about the child. Steltzlen, 2006 OK 20, ¶ 17, 134 P.3d 141. Stated another way, Lehr held that natural fathers possess a constitutionally protected opportunity interest in the ability to develop a relationship with their children born out of wedlock that they must choose to pursue if they desire legal protection of that interest. Lehr, 463 U.S. at 262, 103 S.Ct. 2985. Pursuant to Buby Boy W. and Stelt-glen, this Court has determined that natural fathers in Oklahoma are denied due process when their parental rights are terminated despite them never being given a chance to pursue their opportunity interest because they were never given notice of the child's existence. See Steltzlen, 2006 OK 20, ¶ 16-17, 134 P.3d 141; Baby Boy W., 1999 OK 74, ¶ 2, 988 P.2d 1270.

131 Though in Steltzlen this Court noted the purposes added to the Oklahoma Adoption Code at 10 O.8.2011 § T501-1.2, this Court did not deviate from its determination in Baby Boy W. that the initial burden to notify the natural father rested with the mother because of due process concerns. Under the specific facts of Steltzlen, the natural father discovered the pregnancy when he ran into the mother at a thrift store while she was seven months pregnant. She told him at that time the child might be the product of their sexual relationship, and he offered to take a DNA test, which she refused. Steltzlen, 2006 OK 20, ¶ 4, 134 P.3d 141. The Court reiterated its holding in Baby Boy W., that under the due process clause, father had a right to notice of the fact that the mother was pregnant and had given birth to his child. Steltzlen, 2006 OK 20, ¶ 16, 134 P.3d 141 (citing Baby Boy W., 1999 OK 74, 988 P.2d 1270).

132 More recently, in In re Adoption of Baby Boy K.B., 2011 OK 94, 264 P.3d 1258, this Court once again referenced its decision in Baby Boy W. and specifically stressed the importance of a natural father being given the chance to seize his opportunity interest by being notified of the existence of the child. Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258. These decisions are all in accord that, in Oklahoma, the natural father of a child born out of wedlock is entitled to notice of the existence of the child so that the natural father has a chance to exercise his opportunity interest in developing a relationship with the child.6

*50B. Notice provided only via Facebook does not satisfy the notice requirements of U.S. Const. amend. XIV, § 1 and Okla,. Const., art. 2, § 7.

133 Having established that Father was constitutionally entitled to notice of the existence of the child before his rights could be terminated for failure to exercise his opportunity interest, this Court must now determine whether Father received that notice. In other words, was Father afforded appropriate due process. In re A.M. & R.W., 2000 OK 82, ¶ 7, 13 P.3d 484.7 Notice and opportunity lie at the heart of due process. Baby Boy W., 1999 OK 74, ¶ 19, 988 P.2d 1270. See Shamblin v. Beasley, 1998 OK 88, n. 32, 967 P.2d 1200; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Ap-pellees assert that Father was provided notice of the pregnancy by Mother via Face-book, though Father claims he did not see the message until after the child's birth.

T34 The classic statement of constitutionally adequate notice is that which is reasonably calculated, under the cireumstances, to inform interested persons of the pending litigation and to afford them an opportunity to advocate their interest in the cause. Booth v. McKnight, 2003 OK 49, ¶ 20, 70 P.3d 855. This statement has its origin in the United States Supreme Court Case Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Mullane, the Court determined that when notice is a person's due, process which is a mere gesture is not due process. 339 U.S. at 315, 70 S.Ct. 652. The Court further stated:

The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 [(1927) ], with Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R, 1230 [ (1928) ], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.

Mullane, 339 U.S. at 315, 70 S.Ct. 652.

1 85 This Court does not believe that attempts to provide notice via Facebook comport with the requirements of due process. While the adequacy of Facebook as a means of providing notice in a due process context is an issue of first impression in Oklahoma, to date only one federal court-of at least three that have considered the issue-has allowed service of process via Facebook and even then only as a supplementary means of providing notice.8

*51136 Nothing in the record of this cause indicates that more direct contact with Father was impossible so that Mother was required to rely upon an indirect method such as Facebook to notify him of her pregnancy. Indeed, the record indicates she came to Father's workplace to see him roughly six weeks after their last sexual encounter. There is no indication in the record she knew she was pregnant at the time, and it is quite possible that she did not know, however it does demonstrate she knew where to find Father to talk to him in person and had no qualms about doing so. The record does not indicate she made any effort to visit Father again after this date, while he was still employed, to tell him of the pregnancy. The record also does not indicate Mother made any other reasonable effort to contact Father directly and notify him. Mother was present at the hearing due to Father's subpoena, and might have been able to provide further detail regarding her efforts to contact father, were it not for the trial court's erroneous decision to grant Appellees' motion for a directed verdict.

137 Instead of contacting Father directly, Mother left him a message on Facebook, which is an unreliable method of communication if the accountholder does not check it regularly or have it configured in such a way as to provide notification of unread messages by some other means. This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected. Booth, 2003 OK 49, ¶ 20, 70 P.3d 855; Mullane, 339 U.S. at 315, 70 S.Ct. 652. It is, rather, a mere gesture. Mullane, 339 U.S. at 315, 70 S.Ct. 652.

C. Termination of Father's parental rights was not supported by clear and convincing evidence.

138 Because of the truncated hearing on Appellee's petition to terminate Father's parental rights, there is a dearth of evidence in the record. It cannot be ascertained with certainty when Father actually learned he had fathered a child. It cannot be fully ascertained what actions Father may have taken to exercise his opportunity interest to develop a relationship with the child and exercise his parental rights after he knew of the child's existence. Pursuant to 10 ©.8.2011 $ 7505-2.1(D), in order to terminate Father's parental rights the trial court was required to determine that clear and convine-ing evidence indicated: 1) that termination of Father's parental rights was in the best interests of the child; and 2) termination under one of the grounds provided in 10 0.8.2011 § 7505-4.2 was appropriate.

139 There is nothing in the record before this Court to indicate the trial court ever made a determination that termination of Father's parental rights was in the best interest of the child, pursuant to 10 0.8.2011 § 7505-2.1(D). Further, the record contains essentially no information concerning Fa*52ther's attempts to exercise parental rights and duties towards the child after he received the constitutionally-required notice of the child's existence. The grounds for termination provided for in 10 $ 7505-4.2(C) require consideration of more factors than just the extent of Father's support of the mother during pregnancy. See In re Adoption of Baby Boy K.B., 2011 OK 94, ¶ 13, 264 P.3d 1258. Because of the dearth of evidence in the record, this Court cannot say that clear and convincing evidence is present in the record such that a trier of fact could reasonably form a firm belief or convietion that the grounds for termination were proven. In re C.D.P.F., 2010 OK 81, ¶ 6, 243 P.3d 21; In re S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080. Rather, because it made an erroneous legal conclusion regarding Father's due process rights, the trial court prematurely cut off the gathering of evidence.

IV.

CONCLUSION

140 Pursuant to this Court's decision in Baby Boy W. and its progeny, Father had a right, under the Due Process Clause, to notice of the fact that Mother was pregnant with his child. 1999 OK 74, ¶ 16 & ¶ 19, 988 P.2d 1270. See Steltzlen, 2006 OK 20, ¶ 16, 134 P.3d 141; Baby Boy K.B., 2011 OK 94, ¶ 8, 264 P.3d 1258. Mother allegedly informing Father of her pregnancy via a Facebook message was insufficient to satisfy the notice requirement of due process. Booth, 2003 OK 49, ¶ 20, 70 P.3d 855; Mullane, 339 U.S. at 315, 70 S.Ct. 652.

{41 The trial court erred as a matter of law by incorrectly determining that it made no difference when and if Father received notice of the pregnancy because the obligation to discover if he fathered a child was placed squarely on his shoulders. That determination was not in keeping with prior controlling decisions of this Court. Mother's failure to properly notify father of the pregnancy at any point constituted specific denial of knowledge of the child within the meaning of the language of 10 0.8.2011 $ 7505-4.2(D). Father was deprived of notice of the pregnancy and the birth of his child and thus the chanee to grasp his parental opportunity interest in his child. Baby Boy W., 1999 OK 74, ¶ 19, 988 P.2d 1270. Under these cireum-stances, the termination of Father's parental rights pursuant to 10 0.8.2011 § 7505-4.2(C), based on his conduct when there is no clear and convincing evidence he had knowledge of the pregnancy or birth of the child, violated Father's right to due process under the Oklahoma and United States Constitutions.

42 Given the state of the record, there is not clear and convincing evidence to support a determination that termination of Father's parental rights was in the best interests of the child 'and that termination of those rights was appropriate pursuant to 10 O.S8.2011 § 7505-4.2, in light of actions taken by Father after he learned of Mother's pregnancy and the child's existence. The trial court ruled on the termination of Father's parental rights prematurely by granting Appellees Motion for a Directed Verdict, a ruling which was based upon an erroneous legal conclusion regarding Father's due process rights and the nature of his opportunity interest. This cause is hereby remanded to the trial court for proceedings consistent with this opinion. Given the state of the record and the fact that this cause is being remanded to the trial court, the Court does not address Father's claim of ineffective assistance of counsel.

COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.