C.A.R., Matter of

• Decision Date: 30 August 1994
• Docket Number: No. 1,No. 83267,83267,1
• Citation: 882 P.2d 582
• Parties: 1994 OK CIV APP 124 In the Matter of C.A.R., S.A.R., P.A.R. and C.A.R.: CARL R., Appellant, v. The STATE of Oklahoma, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 582

882 P.2d 582

1994 OK CIV APP 124

In the Matter of C.A.R., S.A.R., P.A.R. and C.A.R.:

CARL R., Appellant, v. The STATE of Oklahoma, Appellee.

No. 83267.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 1.

Court of Appeals of Oklahoma,

Division No. 1.

Aug. 30, 1994.

Appeal from the District Court of Tulsa County, Thomas S. Crewson, Judge.

AFFIRMED

Terry H. Bitting, Tulsa, for appellant.

Eric W. Stall, Julie McMahon, Tulsa, for appellee.

OPINION

HANSEN, Presiding Judge:

Appellant Carl R. (Father) seeks review of the trial court's order finding C.A.R., S.A.R., P.A.R. and C.A.R. (Children) were deprived children, making them wards of the court and continuing them in the legal custody of the Department of Human Services (DHS).

On May 27, 1993, Appellee State of Oklahoma (State) filed a Petition, in accordance with 10 O.S.Supp.1992 § 1103, alleging Children were deprived as defined by 10 O.S.Supp.1992 § 1101. The Petition further made general allegations in statutory language regarding both parents; and made specific allegations that both parents had used illicit drugs, that two Children had tested positive for cocaine at birth, and that Father had failed to provide for or protect Children.

Children were adjudicated deprived as to their mother (Mother) in July 1993, upon Mother's stipulation to the allegations in the Petition, and a Disposition Order was entered as to Mother in September 1993. She is not a party to this appeal.

Because Father was living apart from Mother, and because of difficulty in obtaining service on Father, the action as to Father was tried separately. Father waived jury trial. After a hearing on February 1, 1994, the trial court entered and filed the adjudication order on February 17, 1994.

In its order finding Children were deprived as to Father, the trial court specifically found Father "failed to provide [sic] or protect said children", "has physically abused the natural mother and ... the children", and "has had and currently still has a drug and alcohol problem". The trial court made Children wards of the court and continued them in legal custody of DHS. See, 10 O.S.Supp.1992 § 1114. Father brings this appeal from the trial court's adjudication order.

Father alleges trial court error in five appellate propositions. However, the alleged errors in propositions II and V--finding Father failed to support Children, and purported deficiencies in the adjudicatory order, respectively--were not presented in Father's Petition in Error. Failure to raise an issue of error in the petition in error is fatal to consideration of the alleged error on appeal. Kirschstein v. Haynes, 788 P.2d 941 (Okla.1990). We will not consider propositions II and V.

As to proposition I, Father contends the trial court improperly found he failed to protect Children when a protective order directing him not to go near Mother was in effect. The protective order was entered on August 19, 1991. Children were ordered into the temporary custody of DHS on May 27, 1993, at the time the Petition initiating this action was filed.

More specifically, Father argues that because he was not living with Mother, and had been ordered not to go near her, at the time Children were first committed into DHS custody, the issue at the time the Petition was filed was Mother's treatment of Children as custodian.

Father cites us to no authority to support a finding that he was divested of parental responsibility to protect Children. Father's assertion that only the actions of a custodial parent are relevant to a determination of whether a child is deprived is without merit. A deprived child is 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, or ...

10 O.S.Supp.1992 § 1101(4)(b).

Father erroneously suggests the last phrase, "in whose care the child may be", modifies the entire provision. We find the phrase pertains only to the precedent "other person", not to parents or legal guardians, and in any event, the criteria in the subsection are stated disjunctively. The first criteria, lack of proper parental care, is in essence the same as the trial court's finding that Father failed to provide for or protect Children.

Mother testified that notwithstanding the protective order, Father often visited her, sometimes on a daily basis, while Children were still living with her. Additionally, the eldest child, who was thirteen, testified Father would come to visit after he was no longer living with Mother, and that Father "was staying over my grandma's a little bit", which would have been after the protective order was issued. The child further testified he had seen Father and Mother smoke a "white rock" in a pipe, after which they would act "[a]ll crazy".

Father acknowledged he knew Mother had a drug problem when she was living with Children, and that Children were living with their grandmother, who Father contends also had a drug problem. Nevertheless, Father said, "I didn't snitch to nobody, I didn't turn nobody in. I feel the Lord will take care of it".

The evidence clearly supports a finding that Father was aware Mother had a drug problem while Children were still living with her, and that he chose not to take any action to protect Children. Even assuming he was not living in the same home with Children, neither that fact, nor the protective order, can excuse Father's failure to act. While it appears the issue has not been considered in Oklahoma, we concur in the rationale of our sister Court of Appeals in New Mexico when it held:

A father may not delegate parental obligations to the mother and be held harmless when she neglects these obligations.

Matter of C.P., 103 N.M. 617, 711 P.2d 894 (App.1985) (cert. denied ).

Father's failure to protect Children in turn supports a finding that Children "did not have proper parental care" on the part of Father, and that Father was in part responsible for Children's home being unfit "by reason of neglect". See, 10 O.S.Supp.1992 § 1101(4)(b). Children were deprived under the statutory definition.

Father next contends the trial court allowed State to present evidence, over his objection, of alleged physical abuse of Children and drug abuse on his part. Father argues allowing such...