Burk v. State (In re A.T.)
| Decision Date | 23 March 2022 |
| Docket Number | Case No. 119,403 |
| Parties | In the MATTER OF A.T., E.T., J.T., Alleged Deprived Children: Marcella Burk, Appellant, v. State of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Phillip P. Owens, II, OWENS LAW OFFICE, PC, Oklahoma City, Oklahoma, For Appellant
Janet Brown, ASSISTANT DISTRICT ATTORNEY, Oklahoma City, Oklahoma, For Appellee
OPINION BY GREGORY C. BLACKWELL, JUDGE:
¶1 Marcella Burk, the mother of the children at issue here, appeals the trial court's denial of her petition to vacate an order terminating her parental rights. On review, we affirm the court's decision, finding that the court's refusal to vacate on the grounds of unavoidable casualty was within its discretion, clear and convincing evidence supported termination, and that the proceedings were conducted within constitutional parameters.
BACKGROUND
¶2 These proceedings began when the state took emergency custody of two of the three children at issue in a prior deprived case. That case was closed in January 2020. The father of the two children was given custody and the mother, Ms. Burk, was given supervised visitation only. This case began in April 2020 when a third child was born. Ms. Burk tested positive for methamphetamines at the birth of the child, and it was revealed that the father was allowing Ms. Burk unsupervised visitation with the older children. All three children were brought into state custody and placed in foster care with two different paternal aunts.
¶3 In May 2020, the state filed a petition seeking to terminate Ms. Burk's parental rights on the grounds of failure to correct the conditions leading to the prior deprived adjudication, a failure to provide proper parental care and guardianship, substance abuse, mental health problems, and threat of harm. Ms. Burk failed to appear at her next scheduled hearing. DHS reported that Ms. Burk had been referred to service providers but had not engaged in any services and had inconsistent contact with DHS.
¶4 An individualized service plan was entered and the court conducted several review hearings with no apparent progress towards reunification. Ms. Burk appeared for some, but not all, of these hearings, sometimes in person and sometimes remotely. On August 13, 2020, Ms. Burk appeared in person with her court-appointed attorney, who had been present at all prior hearings. The court set pretrial and trial dates on the petition for termination on November 12th and 16th, respectively. The court's order from the August hearing contains the statutorily required language warning that failure to appear may result in termination.
¶5 Ms. Burk failed to appear at the pretrial hearing on November 12th, though her counsel was present. Ms. Burk's DHS permanency worker testified that Ms. Burk had failed to correct the conditions of the prior adjudication and that she believed it was in the children's best interest for the court to terminate Ms. Burk's parental rights. Ms. Burk's attorney did not cross-examine this witness, and, although she entered an objection as to the termination, she did not offer any witnesses. In the review order entered November 12th, the trial court struck the jury trial set for the 16th; however, a final order terminating Ms. Burk's rights was held in abeyance to ensure Ms. Burk, who had yet to contact the court, DHS, or her counsel, did not appear for trial on the 16th. When Ms. Burk failed to appear on the 16th, the final order terminating her rights was entered the following day.
¶6 Sixty-four days later, Ms. Burk, who had obtained new counsel, filed a petition to vacate pursuant to 12 O.S. § 1031, claiming unavoidable casualty. She alleged that she had been aware of the pretrial hearing, had attempted to attend remotely, but had been unable to do so due to technological impediments.
¶7 The court conducted a hearing on the petition, at which Ms. Burk testified. She testified that she was unaware of the November 12th pretrial hearing until she received a text reminder from her DHS contact the previous day. Ms. Burk testified that she had attempted to attend the hearing virtually, using the "Bluejeans" app,1 but had been unable to connect on the morning of pretrial, a fact that she attributed to an inoperable internet connection, both at home and at the city library. She testified that she had received a text message from her DHS contact the day of the hearing or the day after, asking her to "follow up" regarding her non-attendance at the hearing, but that she "didn't see any reason to communicate with him further." On cross-examination, the state elicited that Ms. Burk had not attempted to call her counsel, DHS, or the court regarding her inability to appear on the day of the pretrial or at any time before the upcoming trial date. Ms. Burk also testified that she was not aware of the trial date and could not recall the court telling her any dates at the last hearing she had attended.
¶8 The court subsequently issued a detailed order denying the request to vacate. The court found that, under 10A O.S. § 1-4-905, the request to vacate was not timely. The court also concluded that the claimed casualty was "preventable."
¶9 From this order, Ms. Burk timely appealed. The state filed a response to Ms. Burk's petition in error but did not file an answer brief.
STANDARD OF REVIEW
¶10 This appeal concerns the trial court's denial of Ms. Burk's motion to vacate. "We review ‘a trial court's ruling either vacating or refusing to vacate a judgment [for] abuse of discretion.’ " In re H.R.T ., 2013 OK CIV APP 114, ¶ 14, 362 P.3d 666 (quoting Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482 ). "An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Fent v. Okla. Natural Gas Co ., 2001 OK 35, ¶ 12, 27 P.3d 477 (citation omitted). However, in passing upon a claim that the procedure used in a proceeding to terminate parental rights resulted in a denial of procedural due process, we review the issue de novo. In the Matter of A.M ., 2000 OK 82, ¶ 6, 13 P.3d 484.
ANALYSIS
10A O.S. § 1-4-905 v. 12 O.S. § 1031
¶11 We first address the trial court's determination that Ms. Burk's petition to vacate was untimely. For the following reasons, we find that the petition was timely filed and the trial court's finding to the contrary was erroneous.
¶12 Section 1-4-905 of Title 10A concerns the notice that must be given to parents in a termination proceeding and the consequences that may flow from a parent's failure to appear after notice is provided. Subsection A of the provision notes that failure to appear after proper notice "shall constitute consent to the termination of parental rights by the parent given notice." 10A O.S.Supp.2014, § 1-4-905.
¶13 Subsection B concerns a parent's ability to vacate an order of termination "made pursuant to subsection A." Subsection B states: "The court shall have the power to vacate an order terminating parental rights if the parent whose parental rights were terminated pursuant to subsection A of this section files a motion to vacate the order within thirty (30) days after the order is filed with the court clerk." Because this provision was statutorily unavailable to the mother at the time she filed her motion to vacate, she filed not under this section, but under 12 O.S. § 1031, which provides reasons that trial courts may vacate orders in all civil cases. Subsection (7), which the mother proceeded under here and which allows vacation "[f]or unavoidable casualty or misfortune, preventing the party from prosecuting or defending," allows a litigant to file a petition to vacate for up to two years after the entry of judgment. 12 O.S.2011, § 1038.
¶14 The first question we face is whether, in termination cases, Title 10A's provisions concerning vacatur supplement or fully supplant those found in Title 12. We hold that Title 10A's provisions are supplementary and do not override the vacatur provisions allowed by Title 12. Although a specific law will generally apply over more general provisions, the maxim does not apply in situations where the laws are not in direct conflict. Assessments for Tax Year 2012 of Certain Properties Owned by Throneberry v. Wright , 2021 OK 7, ¶ 16, 481 P.3d 883, 893. Here, although the provision of Title 10A allowing a motion to vacate within thirty days duplicates a portion of the vacatur provisions of Title 12, it does not directly conflict with them. Each allows a motion seeking vacatur to be filed within thirty days of the judgment, and one allows a petition to be filed within two years. Allowing the former does not directly conflict with permitting the latter. Each provision can exist without doing violence to the other, and we will not therefore read one to nullify the other.
¶15 Nor do we find the sort of "irreconcilable conflict" required to "accomplish[ ] a repeal by implication." City of Sand Springs v. Dep't of Pub. Welfare , 1980 OK 36, 608 P.2d 1139, 1151. Given the weighty nature of the fundamental rights involved, we require a clearer statement of legislative intent if that intent was to bar all attempts to vacate a termination of parental rights on the ground of unavoidable casualty after thirty days. Prior cases examining the intersection of particular provisions of the children's code with the general pleading code are in accord. Matter of Meekins , 1976 OK CIV APP 32, 554 P.2d 872, 876 (). Cf. In re H.R.T. , 2013 OK CIV APP 114, n.2, 362 P.3d 666, 669 ().
The Unavoidability of the Casualty
¶16 The conclusion of the prior section does not end our...
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