C. G., Matter of

Citation637 P.2d 66
Decision Date10 November 1981
Docket NumberNo. 53281,53281
PartiesIn the Matter of C. G., An Alleged Dependent and Neglected Child.
CourtSupreme Court of Oklahoma

Appeal from District Court, Cleveland County; Alan J. Couch, Judge.

In a status termination proceeding under 10 O.S.Supp.1977 § 1130 the trial court severed a father's parental bond to his minor son.


Tom A. Lucas, Norman, for appellant.

Kay E. Huff, Dist. Atty., Ross N. Lillard, III, Asst. Dist. Atty., Norman, for appellee State.

David K. McCurdy, Norman, for appellee Child.

OPALA, Justice.

The issue dispositive of this appeal is whether the order terminating a parental bond must be reversed because of antecedent failure to prescribe some norms of conduct to which the parent was expected to conform. We answer in the affirmative.

The order under review terminates the father's status vis-a-vis his son Chris. The mother of Chris-then divorced from his father-petitioned to determine her son to stand in a deprived status. Chris, as well as his father, was then living in the home of his maternal grandparents. The petition alleged that the father was unable "to provide proper care and supervision and protection necessary to the physical and mental health" of the child.

Following two different hearings the child was placed with the Department of Institutions, Social and Rehabilitative Services (Department). 1 The father willingly underwent extensive treatment to determine the cause of his substandard behavior. His condition was diagnosed as schizophrenia which was thought to be controllable by a combination of diet, medication and psychotherapy. Before the cause was reached for trial, the mother was killed in an automobile accident.

The father waived legal counsel and jury trial. The cause, submitted on a stipulation of facts, culminated in a decision adjudicating the status of Chris as that of a deprived child. Three months later Chris was placed with his maternal grandparents, but custody remained in the Department. The father enjoyed access for visitation which was suspended when reports from the social worker and the child's psychologist indicated the contact had some detrimental effect on the child.

In March 1978 the Department recommended to the court that permanent custody be given to the maternal grandparents and that the Department be relieved of custody. A request for parental bond termination was first raised by petition filed shortly thereafter. The court sustained a demurrer to that petition. An amended petition that followed was dismissed.

The next proceeding was on a motion to terminate the parental bond. It took place in October 1978, fourteen months after the deprived-status adjudication, and was continued until December to enable the father to undergo further psychological treatment. 2 The motion alleged the father failed to correct the conditions which caused the child's status to be termed deprived. In that proceeding separate legal counsel represented the father and child. On two earlier occasions the father had been directed by the court to submit to a psychological evaluation. When he failed to do so, the court set the October hearing date at which testimony was taken from the father and a letter from his psychiatrist was admitted in evidence. The December hearing resulted in the decision under review.

Our review is limited to the errors raised in the new trial motion which related to the status termination phase of the case. Errors affecting the deprived-status proceedings are clearly beyond our reach in this appeal. That decision stands unchallenged and is now final.

The father contends the court erred in failing to determine the nature and extent of his emotional or mental disabilities-the basis of the deprived-status litigation-before terminating the parental bond. He urges that, although he was not under legal disability, he was nonetheless incapable of aiding in his defense by the nature and the severity of his mental health problems. This issue need not be reached. We find that the trial court's decision must be reversed for its antecedent failure to prescribe norms of parental conduct for the father.




Due process inexorably commands notice which reasonably informs a person that his legally-protected interest may be adversely affected. 3 Any parent whose child is adjudged to occupy a legal status termed "deprived" must be judicially advised of those parental conduct norms which he is expected to follow or eschew to recapture a legally unencumbered standing as a parent. 4 The very purpose of these norms is to afford the parent an opportunity to ameliorate his condition and to effectively defend against termination efforts. Judicial notice cannot depend on inferences to be gathered from reports of social workers or of medical doctors. It can only be found in written judicially-prescribed norms of conduct to which the parent is expected to conform. Once these norms have been fashioned with clarity, the parent is entitled to the minimum statutory period of three months to conform. 5

Judicial clarity in the prescribed norms of parental conduct is essential to the preservation of the procedural safeguards mandated by state and federal due process. A "fair warning" requirement breathes life into these fundamental-law guarantees, while lack of specificity makes them meaningless.

The record here is utterly devoid of any judicially-prescribed norms of conduct to which the father was required to conform in order to avoid a loss of further impairment of his status. The proceedings challenged here simply fail to give a person of ordinary intelligence-and particularly someone with the father's psychological impediments-a reasonable opportunity to know what was expected of him. The record in suit reveals no more than a stipulation that the child stood in a deprived status.

Norms for parental conduct are designed to advise parents of what is expected of them qua parents and to guide them in avoiding patterns or a level of behavior that may trigger official intervention. Without knowledge of the expected norms of conduct-as balanced by community norms and by the socio-economic milieu of the parent-a parent would be unable to set in motion an effort of compliance with society's expectations, i. e., to rectify the problems which caused the child to become the subject of a public-law proceeding and to remove all residue of a clouded status. This approach is clearly consistent with the general policy of the law against needless family disruption.

Notice which may be implicit in the adjudication-that one's general substandard parental behavior brought about the loss of the custodial rights-is not enough because it is of little utility in guiding a parent toward the expected conduct. A broad, amorphous concept of parental unfitness cannot be said to put one on notice of those conditions in one's present lifestyle in which the law requires one to make a change, nor does it give one a factual basis for an earnest effort at conduct modification.

By not being adequately apprised of the parental conduct expected of him the father was denied the opportunity of correcting the conditions that led to his child's deprived-status adjudication.




IN § 1130



Since the order in suit cannot stand and new proceedings may follow on remand, we must reach the father's other contention that status-termination decisions under § 1130 6 should rest on clear-and-convincing evidence. The burden of persuasion and standard of review used in extant case law of this state has followed that which is traditional in equity-the clear weight of the evidence. 7 We note considerable diversity in the approach used in litigation over parental rights. 8

The clear-and-convincing standard is traditionally applied in equity for allocation of the risk of error when important interests are at stake. We recently adopted this standard in a private-law contest for a judicial declaration that a child could be adopted without his father's consent. In the Matter of Todd, H. 9 Todd followed closely the rationale of Addington v. Texas. 10 There the U. S. Supreme Court held that in a mental health commitment proceeding due process required a higher standard than preponderance of the evidence but one that is less demanding than that beyond a reasonable doubt.

Although the precise issue before us remains unsettled by federal case law, 11 we believe that a § 1130 parental-status termination calls for such an extreme public-law redress that due process under Art. 2 § 7, Okl.Const. requires of the state proof more substantial than that afforded by the standard of the clear weight of the evidence. The law's policy must demonstrate the very same solicitude in guarding against a mistaken parental-bond severance as it does in its vigilant protection against wrongful mental health commitments. The clear-and-convincing standard balances the parents' fundamental freedom from family disruption with the state's duty to protect children within its borders. It places an appropriately heavy burden upon the § 1130 petitioner (termination-seeking party) to overcome the law's policy which identifies the child's best interest with that of its natural parents. We hence hold that in § 1130 litigation the termination-seeking claimant must prove by clear-and-convincing evidence parental potential for harm to the child by abuse or neglect. 12

Whenever a parent may properly be called upon to bear the burden of showing compliance with the previously prescribed norms of parental conduct, 13 he/she need not be held to the same standard as the termination-seeking claimant. Public policy mandates as much concern in...

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