In the Matter of JLM

• Decision Date: 08 March 2005
• Docket Number: No. 100111,100111
• Citation: 2005 OK 15,109 P.3d 336
• Parties: In the Matter of J.L.M., an alleged delinquent child. STANLEY MCGUFFIN, Appellant, v. STATE OF OKLAHOMA, Appellee.
• Court: Oklahoma Supreme Court

2005 OK 15

109 P.3d 336

In the Matter of J.L.M., an alleged delinquent child.

STANLEY MCGUFFIN, Appellant, v. STATE OF OKLAHOMA, Appellee.

No. 100111

Supreme Court of Oklahoma

March 8, 2005

Michael D. Tipps, Ardmore, Oklahoma, for Appellant.

Mitchell D. Sperry, District Attorney, and Gary Brown, Assistant District Attorney, Marietta, Oklahoma, for Appellee.

COLBERT, J.

¶1 The material facts are not disputed. J.L.M. was born March 3, 1989. When he was about three months old, his mother obtained a divorce from his father in Love County, Oklahoma. The divorce decree awarded custody to the mother and reasonable visitation to the father. J.L.M. has not lived with his father since the divorce and has seen his father only four times since 2000. In 2003, when J.L.M. was fourteen years old, he broke into the Marietta High School by removing a screen and entering through a window. While unlawfully using a mobile radio that was capable of receiving transmissions on frequencies used by law enforcement agencies, he vandalized several rooms in the school building and destroyed a server and other property belonging to the school. The cost to repair the damaged building and contents was $11,076.00.

¶2 On September 22, 2003, the trial court entered an order that adjudicated J.L.M. delinquent, made him a ward of the court, placed him in the custody of Oklahoma Juvenile Affairs and detained him pending placement. The trial court also set a hearing on the amount of restitution due and how it should be paid. On October 28, 2003, at the completion of the hearing, the trial court ordered restitution in the amount of $2,500, to be paid one half by the mother and one half by the father. The father appealed and we retained the appeal.

¶3 The applicable statute provides in part:

A. The following kinds of orders of disposition may be made in respect to children adjudicated in need of supervision or delinquent:

* * *

8. With respect to a child adjudicated a delinquent child, the court may:

* * *

c. . . . order the parents or custodial parent of any child living with the parents or custodial parent at the time of the criminal or delinquent act of the child to remit the amount of restitution ordered by the court. . . .

10 O.S.2001 § 7303-5.3.

ISSUE AND STANDARD OF REVIEW

¶4 The issue is whether subsection (A)(8)(c) authorizes a trial court to order a non-custodial parent to pay restitution for damage caused by a child who was not living in the non-custodial parent's home at the time of the delinquent act. Because this is an issue of statutory construction our standard of review is de novo. Fanning v. Brown, 2004 OK 7 ¶8, 85 P.3d 841, 845. Under this standard we have plenary, independent and non-deferential authority to determine whether the trial court erred in its legal ruling. Id.

ANALYSIS

¶5 The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of a statute. World Publishing Co. v. Miller, 2001 OK 4 ¶79, 32 P.3d 829, 832. When legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, we must apply rules of statutory construction. Id. The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation. See 2A Singer, Statutes and Statutory Construction §455.02 (6th ed 2000). Whether language is ambiguous is a question of law. American Economy Ins. Co. v. Bogdahn, 2004 OK 9 ¶11, 89 P.3d 1051, 1054. In construing ambiguous statutory language, we do not limit ourselves to the consideration of a single word or phrase. World Publishing Co. v. Miller, 32 P.3d at 832. Rather, we look to the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent and the public policy underlying that intent. Id.

¶6 We agree with the trial court that the language at issue is ambiguous. It could be read to authorize a trial court to order restitution from only the custodial parent with whom the child was living at the time of the delinquent act, or from both parents.¹

¶7 The ambiguous language is: "The court may order the parents or custodial parent of any child living with the parents or the custodial parent at the time of the criminal or delinquent act. . . to remit the amount of restitution ordered by the court." (emphasis added). The Legislature's use of the disjunctive word "or" indicates its intent that either the custodial parent alone (with whom the child was living), or both parents, may be ordered to pay restitution. The word "parents" stands by itself and is not modified by the phrase "custodial parent". The words "living with" modify both "parents" and "custodial parent." Further, the construction of the word "parents" to include a non-custodial parent with whom the child was not living is consistent with other language in subsection (A)(8)(c) which allows the court to "consider any hardship of such order on the parents or custodial parent." The subsection also provides that "if the court orders the parents or custodial parent to remit the amount of restitution," the court shall also order the child to perform community service to earn the amount paid by such child's "parents or custodial parent." Again, non-custodial parents are not excluded.

¶8 In interpreting similar language, the Court of Civil Appeals in In re C.A.R., 1994 OK CIV APP 124, 882 P.2d 582, found that the word "parents" as used with respect to a deprived child under 10 O.S. § 1101(4)(b) was not modified by the phrase "in whose care the child may be." Section 1101(4)(b) defines a deprived child as one who, among other things, "does not have the proper parental care or guardianship or whose home is an unfit place for the child by reason of neglect, cruelty, or depravity on the part of his parents, legal guardian or other person in whose care the child may be." (emphasis added). After interpreting the statutory language, the court affirmed the trial court's finding that the children were deprived as to the father even though he did not have custody of the children and a protective order prevented him from going near the mother. The court said: "A father may not delegate parental obligations to the mother and be held harmless when she neglects these obligations." Id. at ¶13, 882 P.2d at 585. Similarly, in In re C.T., 1999 OK CIV APP 55, 983 P.2d 523, a non-custodial father who did not live with his children challenged the trial court's finding that he had neglected them. He argued he could not do anything to help the children since he was not the custodial parent. The Court of Civil Appeals rejected his argument, saying: "Father, though he did not have physical custody of the children, was not divested of his parental responsibility to provide for and protect his children." Id. at 526.

¶9 Other jurisdictions have used virtually identical language in holding that a parent cannot avoid responsibility by delegating parental responsibilities to others. See, e.g., In re Adoption of Doe, 676 P.2d 1329, 1333 (N.M. 1984) (adoption case — divorced father had been awarded reasonable visitation and ordered to pay child support, wife had been awarded custody; wife later obtained protective order against ex-husband; despite absence of custody and protective order, father is not entitled to disregard the child's welfare); In re Kimsey, 302 N.W.2d 707, 711 (Neb. 1981) (termination of parental rights — both parents have duties inherent in the parent-child relationship; father cannot avoid responsibility by blaming mother's failure as a housekeeper and mother); In re O'Donnell, 299 N.W.2d 428, 431 (Neb. 1980) (termination of parental rights — court rejected father's argument that mother was responsible for children's poor sanitary conditions and poor physical hygiene); Johnson v. Varney, 207 N.E.2d 558, 561 (Ohio 1965) (adoption case — natural mother who did not have custody of child or pay child support nevertheless had duty to give personal care and attention to her child); In re C.P., 711 P.2d 894, 899 (N.M. App. 1985) (termination of parental rights — although evidence was directed primarily at the mother's neglect, it is also evidence of father's past neglect; father may not delegate parental obligations to the mother and then be held harmless when she neglects those obligations).

¶10 We believe the public policy enunciated in these decisions is consistent with the Legislature's intent in enacting § 7303-5.3(A)(8)(c). Accordingly, we hold that § 7303-5.3(A)(8)(c) authorizes a trial court to order a non-custodial parent to pay restitution for damage caused by a child who was not living in the non-custodial parent's home at the time of the delinquent act.²

TRIAL COURT ORDER OF RESTITUTION AFFIRMED.

WINCHESTER, V.C.J., LAVENDER, HARGRAVE, EDMONDSON, TAYLOR and COLBERT, JJ., concur.

WATT, C.J., OPALA and KAUGER, JJ., dissent.

OPALA, J., dissenting.

¶1 The court holds today that the terms of 10 O.S.2001 §7303-5.3 (A)(8)(c)³ authorize the imposition of liability upon a parent for harm occasioned by the crime or delinquency of a child not living with that parent at the time of the harm-dealing event. I recede from the court's pronouncement. I would pronounce that the provisions of §7303-5.3(A)(8)(c),⁴ construed together with those of 23 O.S.2001 §10(A),⁵ restrict vicarious status-based parental tort liability to custodial parents with whom the offending child was living at the time of the injurious event.

I

THE IN PARI MATERIA LIABILITY PROVISIONS OF 10 O.S.2001 §7303-5.3 (A)(8)(c) AND THOSE OF 23 O.S.2001 §10 (A) MUST BE CONSTRUED TOGETHER SO THAT THE SAME LIABILITY PARAMETERS WILL APPLY WHETHER THE SUIT IS PROSECUTED IN THE JUVENILE-LAW DIVISION OR UPON THE GENERAL CIVIL (OR SMALL CLAIMS) DOCKET OF THE DISTRICT COURT.

¶2 Statutes dealing with the same subject matter are generally viewed as in pari materia and must be construed...