Chad S., Matter of, Nos. 50581

• Court: Supreme Court of Oklahoma
• Writing for the Court: DOOLIN; HODGES; IRWIN
• Citation: 580 P.2d 983
• Parties: In the Matter of CHAD S., a child under eighteen years of age (two cases). LYNDA S., Appellant, v. The STATE of Oklahoma and Department of Institutions, Social and Rehabilitative Services, Appellees (two cases).
• Docket Number: 51146,Nos. 50581
• Decision Date: 27 June 1978

Page 983

580 P.2d 983 In the Matter of CHAD S., a child under eighteen years of
age (two cases).
LYNDA S., Appellant,
v.
The STATE of Oklahoma and Department of Institutions, Social
and Rehabilitative Services, Appellees (two cases). Nos. 50581, 51146. Supreme Court of Oklahoma. June 27, 1978.

Page 984

Appeal from District Court of Oklahoma County; Stewart M. Hunter, District Judge.

A consolidation of two appeals. No. 50,581 is an appeal from an order of juvenile court terminating mother's parental rights. Trial court, after that appeal was lodged, vacated the appealed order, had another hearing and again terminated mother's parental rights. No. 51,146 is appeal from second order.

REVERSED AND REMANDED.

Steven A. Novick, Stanley L. Foster, Legal Aid of Western Oklahoma, Inc., Oklahoma City, for appellant.

Andrew M. Coats, Dist. Atty., Roma McElwee, Asst. Dist. Atty., Oklahoma City, for appellees.

DOOLIN, Justice:

In the proceedings below, the trial court declared the child involved to be dependent and neglected and made her a ward of the court in June of 1976. In December of that year, a petition seeking termination of parental rights was filed.

On January 6, 1977, mother appeared for the hearing without counsel. She was not advised of any right to court-appointed counsel if she was indigent. The trial court terminated her parental rights. ¹ There was no record made of this hearing.

After termination, mother obtained counsel who timely filed a petition in error in this court (No. 50,581). As a basis for appeal, mother claims her right to due process was violated by the failure of the trial court to inform her of her right to court-appointed counsel if she so desired as she was unable to afford private counsel.

In April 1977, while the above appeal was pending (No. 50,581), the trial court, on motion of DISRS, vacated the appealed termination order. DISRS then filed a motion to dismiss appeal No. 50,581 on grounds it was moot. This court denied the motion.

On June 7, 1977, another hearing was held in which mother's rights were again terminated. Mother now appeals this termination order (No. 51,146), submitting trial court had no jurisdiction to vacate the first order of termination or to rehear the case on the same issue while first order was on appeal. The two appeals are consolidated for consideration by this court.

It is well settled in Oklahoma, that while an appeal is pending in the supreme court, the trial court is without jurisdiction to make any order materially affecting the rights of the parties to that appeal. Any such order is void. ² An exception to this rule arises if the appeal is filed and the trial court exercises its jurisdiction under 12 O.S.1971 § 1031.1 within 30 days. ³ Then the

Page 985

supreme court will stay the appeal pending final disposition of the case in the trial court. ⁴

Absent a compliance with § 1031.1, the trial court loses its jurisdiction to make any order that pertains to the same issues then on appeal. ⁵ The order vacating the original termination and the subsequent hearing and order of June 7, are void and of no force and effect being untimely; see 12 O.S.1971 § 1031.1. Trial court had no authority to make these orders. We therefore reverse and remand in appeal No. 51,146 with directions to vacate the order of June 7, terminating mother's parental rights.

We also reverse the termination order of January 6, 1977 in appeal No. 50,581 on grounds mother had no counsel and was not advised that court would appoint counsel if she was indigent. We are unable to determine on what basis mother's rights were terminated as there is no transcript of the testimony of the first hearing. Thus we express no opinion as to the fitness of the mother. It is unknown to us whether order was sustained by the evidence.

Oklahoma has statutory authority for counsel to be appointed for indigent parties to a termination proceeding. 10 O.S.1971 §§ 24(a) and 1109(b) provide this authority:

10 O.S.1971 § 24(a) provides:

"When it appears to the court that the minor or his parent or guardian desires counsel but is indigent and cannot for that reason employ counsel, the court shall appoint counsel. * * * " (Emphasis ours).

10 O.S.1971 § 1109(b) provides:

"If the child or his parents, guardian, or other legal custodian requests an attorney and is found to be without sufficient financial means, counsel shall be appointed by the court if the child is being proceeded against as a delinquent child, or a child in need of...