Christopher H., Matter of, 49500

• Citation: 580 P.2d 143
• Decision Date: 11 April 1978
• Docket Number: No. 49500,49500
• Parties: In the Matter of CHRISTOPHER H., a/k/a C., a child under 18 years of age, to-wit: 2 years.
• Court: Supreme Court of Oklahoma

Page 143

580 P.2d 143

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.

Majority opinion 577 P.2d 1292.

SIMMS, Justice.

I agree with the result of the majority opinion because the evidence was patently insufficient to support the trial court's order. I must, however, take issue with the majority's interpretation of the law governing proceedings to involuntarily terminate parental rights and also comment upon unmentioned procedural deficiencies of this action so that this Court's silence will not be construed as implicit approval of the manner in which this action was commenced, prosecuted and determined.

First, there is nothing within the Juvenile Code which authorizes commencement of an action to terminate parental rights upon an unverified motion. 10 O.S.1971, § 1103 requires that an action to terminate parental rights be initiated upon a verified petition and that the prayer for termination be set forth in both the petition and summons. Our Juvenile court is one of very special and very limited jurisdiction and it has no procedure other than that of statute. We respectfully submit that a juvenile court does not acquire jurisdiction over parents, children and parental rights upon the filing of an unverified motion. See: dissenting opinions, J. V. v. State of Oklahoma, DISRS, Okl., 572 P.2d 1283, 1287 (1977); In the Matter of Keyes, Derrick, Okl., 574 P.2d 1026 (1977).

Second, Christopher's prior adjudication as a dependent and neglected child by reason of his mother's incapacity due to illness did not constitute a basis upon which this subsequent action for termination could rest. The allegations that he had been seen at a hospital for a cut on his head and a scratch on his body and that his mother was unemployed, were not elevated into the scope and intent of 10 O.S.1971, § 1130 by the additional allegation that his mother had failed to continue counseling for her emotional problems which had "originally caused" him to be dependent and neglected. Overlooking the obvious lack of substance of all these allegations, the termination proceeding depended upon the merits, if any, of those conditions currently existing. A cut and a scratch can not be bootstrapped into respectability as a statutory ground for termination of parental rights merely because they occur upon the head and body of a child previously adjudicated dependent and neglected because his mother, at that earlier time, could not care for him.

This construction of § 1130 creates the untenable, as well as unconstitutional, result that an adjudication from a dependency and neglect action which does not involve facts serious enough to seek termination, can be used in a subsequent proceeding as a statutory ground for termination although the facts provoking the second action may also be insufficient to constitute grounds for termination.

Among other problems, this anomaly occurs entirely without notice to a parent that the conditions which led to the dependency and neglect adjudication should be corrected and that if they are not corrected, then, at some point in the near or distant future, the failure to correct them may be the basis for termination of parental rights. If our statute may be construed in this manner then it is obviously unconstitutional and we should declare it so. See: dissenting opinions : J. V. v. State of Oklahoma, DISRS, supra ; In the Matter of Keyes, Derrick, supra ; In the Matter of Ruth P., 578 P.2d 350 (March, 1978); and Special Concurring Opinion, In The Matter of J. L. aka R., Okl., 578 P.2d 349 (1978).

Next, the burden of proof in a termination action is upon the petitioner, not the parent. This is true whether or not the child involved has previously been made a ward of the court by reason of dependency and neglect....