Christopher H., Matter of, 49500

• Decision Date: 11 April 1978
• Docket Number: No. 49500,49500
• Citation: 577 P.2d 1292,1978 OK 50
• Parties: In the Matter of CHRISTOPHER H. a/k/a C., a child under 18 years of age, to- wit: 2 years.
• Court: Oklahoma Supreme Court

Page 1292

577 P.2d 1292

In the Matter of CHRISTOPHER H. a/k/a C., a child under 18 years of age, to- wit: 2 years.

No. 49500.

Supreme Court of Oklahoma.

April 11, 1978.

Special Concurring Opinion April 11, 1978.

See 580 P.2d 143.

Appeal from District Court of Tulsa County; Joe Jennings, Trial Judge.

Appeal from order confirming findings of referee and terminating parental rights. REVERSED AND REMANDED WITH DIRECTIONS.

Charles R. Hogshead, Tulsa, for appellant.

Donald Lee Ritter, Oklahoma City, for appellee.

BERRY, Justice:

This is an appeal from an order of trial court terminating parental rights. Appellant is the natural mother of named child. Appellee is State of Oklahoma ex rel. Department of Institutions, Social and Rehabilitative Services.

The necessary facts commence with the child's first contact with the court. Christopher was declared dependent and neglected at the age of ten months.

The record reveals that in July 1974, a petition was filed alleging the child was dependent and neglected by reason of failure of father to provide support and mental illness of mother. At that time mother was a patient at a mental institution and was alleged to be "emotionally incapable of providing proper care and supervision for said child . . ." An order sustaining the petition was rendered September 11, 1974.

On May 6, 1975, a motion seeking termination of parental rights was filed. The motion alleged non-support on the part of father. It also alleged the child had been seen at a hospital for a cut on the head; had been seen at the hospital for scratches on the body; and that the mother was unemployed and had no suitable residence for the child. The motion also alleged the mother failed to continue psychological counseling ". . . for her emotional problems which originally caused said child to be dependent-neglected . . ."

On June 19, 1975, a hearing was held to determine whether to terminate parental rights. The referee who conducted the hearing recommended parental rights of both parents be terminated. On February 20, 1976, the court confirmed referee's findings over objection of appellant. From order terminating her rights appellant appeals. The natural father does not appeal.

Appellant relies upon several propositions of error. We find it necessary to consider only the proposition that trial court erred in confirming the "decision" of the referee in that the "decision" of the referee was not supported by the weight of the evidence and was contrary to law.

Termination of parental rights is purely a creature of statute. The statute which applies in this case is 10 O.S.1971 § 1130. In pertinent part the statute says:

". . . ((A)) court may terminate the rights of a parent to a child in the following situations:

"(c) A finding that a parent who is entitled to custody of the child:

"(1) has failed to give the child the parental care or protection necessary for his physical or mental health, or

"(2) although financially able, has willfully neglected to provide the child with the necessary support or education, or

"(3) is unfit by reason of debauchery, intoxication, or habitual use of narcotic drugs, or repeated lewd or lascivious behavior or other conduct that is detrimental to the physical or mental health or morals of the child, and the parent has failed to show that the conditions have been corrected within a period of six (6) months after the child, or children, were adjudged dependent or neglected and a permanent termination of parental custody of the child, or children, is necessary to protect its physical or mental health or morals . . ."

We have acknowledged, although the State has the burden of proof on issues dealing with the liberty of its citizens, after a child is adjudicated within the purview of the juvenile statutes and conditions are proven to be serious enough to warrant § 1130 sanctions, the parent has the burden of coming forward with evidence to show conditions have been changed.

In this case it appears the matters adjudicated when the child was declared dependent and neglected were that appellant was confined in a mental hospital, and she was emotionally incapable of providing proper care and supervision for the child.

As we have said (Matter of Moore, Okl., 558 P.2d 371) "The hearing provided by § 1130, supra, is merely a continuation of the hearing in which it has already been determined that Appellant has neglected her children, but it affords her the opportunity to show that she has corrected the conditions previously adjudicated . . .

"We agree with Appellee that when the hearing (on termination) reconvened . . . the State was not required to show cause again. The Appellee was only required, as the moving party with the ongoing burden of proof, to overcome Appellant's burden of evidence or persuasion on the issue of a change of condition."

The fact that appellant had been confined in a mental hospital and subsequently released has not been presented nor considered in this appeal.

All of the testimony at the hearing on motion to terminate parental rights tends to prove the conditions no longer exist. Obviously, appellant is no longer confined to a mental institution. Testimony of appellant and her witnesses indicates appellant is able to care...