D.D.F., Matter of

• Decision Date: 18 September 1990
• Docket Number: No. 70785,70785
• Citation: 801 P.2d 703,1990 OK 89
• Parties: IN the Matter of D.D.F. and S.D.F., Minor Children. MICHAEL F., Appellant, v. STATE of Oklahoma, ex rel, DEPARTMENT OF HUMAN SERVICES and D.D.F. and S.D.F., Minor Children, Appellees.
• Court: Oklahoma Supreme Court

Page 703

801 P.2d 703

1990 OK 89

IN the Matter of D.D.F. and S.D.F., Minor Children.

MICHAEL F., Appellant, v. STATE of Oklahoma, ex rel, DEPARTMENT OF HUMAN SERVICES and D.D.F. and S.D.F., Minor Children, Appellees.

No. 70785.

Supreme Court of Oklahoma.

Sept. 18, 1990.

Rehearing Denied Dec. 18, 1990.

Randal D. Morley, Tulsa, for appellant.

William D. LaFortune, Asst. Dist. Atty., Tulsa, for appellee, the State.

Renee Waisner, Asst. Public Defender, Tulsa, for appellees, minor children.

Michael F., pro se.

SUMMERS, Justice:

Three questions are presented on certiorari in this Juvenile proceeding to terminate a father's parental rights: (1) Did the father knowingly and voluntarily waive his right to a jury trial? (2) Was he afforded effective assistance of counsel? (3) Is the trial court's order terminating his parental rights supported by the evidence and the law? We answer all three in the affirmative, and affirm the lower court.

Michael F., a divorced and single man, adopted two children from an orphanage in Brazil. The two little girls, ages five and six, are sisters. Shortly after the adoption Mr. F. was convicted of six counts of Obtaining Money by False Pretenses and was sentenced to prison. The girls were placed in the protective custody of the Department of Human Services after having lived with Mr. F. some nine months. Once in DHS custody the DHS became aware of the possibility that the girls had been sexually abused by their adoptive father. After physical examination of the children, DHS reported the alleged abuse to the Tulsa authorities, and charges were filed against Mr. F. for Lewd Molestation. In 1987, Michael F. was convicted in the Tulsa County District Court of two counts of Lewd Molestation of his adoptive daughters, and was sentenced to ten years imprisonment on each count. These convictions are currently on appeal to the Court of Criminal Appeals, Appeal No. 88253.

The State of Oklahoma then brought this action to have the children declared deprived and to terminate the parental rights of Mr. F. By agreement of the parties, both actions were tried together in a non-jury trial. In light of the evidence of sexual abuse the judge determined that the children were deprived. After making this finding he terminated the father's parental rights under 10 O.S.Supp.1987, § 1130(A)(5) and (7). From this ruling, Michael F. appealed.

The Court of Appeals, in an unpublished opinion, upheld the trial judge's decision. Relying on Section 1130(A)(5) and (7), the appellate court agreed that the evidence supported the termination of parental rights. The court also determined that Mr. F.'s allegation that he was unconstitutionally deprived of a jury trial was unsupported by the record, insomuch as he had waived his right to trial by jury. Appellant petitioned for certiorari, which was granted by this Court on May 8, 1990. On certiorari, he raises three issues: (1) he was unconstitutionally deprived of a jury trial, (2) he was denied effective assistance of counsel, and (3) his parental rights were improperly terminated because 10 O.S.Supp.1987 §§ 1130(A)(5) and (7) requires a "final" conviction.

I. JURY TRIAL

Michael F. charges that he was deprived of his constitutional right to a trial by jury. He urges that A.E. v. State, 743 P.2d 1041 (Okla.1987) supports his contention that "parental rights are too precious to be terminated without the full panoply of protections afforded by the Oklahoma Constitution," id. at 1048, including the right to jury trial. There is no question but that a parent has such right. However, it is equally well established that this right can be surrendered by voluntary consent or waiver. Id.; Seymour v. Swart, 695 P.2d 509, 511 (Okla.1985).

On November 13, 1987, Mr. F. consented to a joint trial on the issues of whether the children were deprived and whether his parental rights should be terminated. The order, signed by both lawyers and the trial judge, stated that the "deprived action and termination action [would] be heard at one time before the same jury." O.R. 71. On January 19, 1988, he agreed to waive his right to jury trial in these matters. In this order the trial judge stated that "[t]he father through his attorney waives right to jury trial ..." The order continued by requiring the State to file the Motion for Termination of Parental Rights before February 17, 1988. On February 17, 1988, the Motion for Termination of Parental Rights was filed.

Mr. F. now argues that he did not intend to waive his right to jury trial with regard to the termination proceedings, but only as to the deprivation hearing. The record does not support this assertion. He consented to the joint trial of these issues long before he waived his right to jury trial. When he waived this right, he knew that both issues were set to be tried simultaneously. This is reflected by the comments of the parties and the trial judge at the commencement of the trial. Mr. F.'s attorney asked that the proceedings be bifurcated, that the deprivation be tried first and the termination thereafter. The attorneys for the State and the children argued that bifurcation would be a waste of time, especially in light of the fact that "[t]his is not being tried in front of a jury but it's in front of a judge." Tr. 4. In his ruling on these arguments, the trial judge noted out loud that he would be "more inclined to agree if we had a jury" (Tr. 5) but that since it was a non-jury trial, bifurcation was unnecessary. Appellant did not question the fact that both matters were being tried to a judge rather than a jury, although he had ample opportunity to do so. The trial proceeded with no request to withdraw his previously made waiver of jury trial. It is clear from the record that the orders of November 13, 1987 and January 19, 1988 evidenced F.'s intent to waive jury trial in both actions.

He also asserts that his waiver was not voluntary because he was coerced by his lawyer to waive this right. Mr. F. claims he was informed by his lawyer that unless he agreed to a non-jury trial, the court would force him to go to trial before the lawyer had time to prepare. We have searched the record and find no evidentiary support for this claim. We agree with the Court of Appeals that Mr. F. voluntarily and knowingly waived his right to a jury trial on both issues.

II. ASSISTANCE OF COUNSEL

Appellant, relying on In re Chad S., 580 P.2d 983, 985 (Okla.1978), next argues that it was error to refuse to appoint counsel to represent him on appeal. This point is moot; the Court of Appeals directed that appellate counsel be appointed on November 2, 1989. The Tulsa County District Court promptly appointed counsel to represent Mr. F. during his appeal, and counsel has complied with the briefing rules.

He also asserts that he was denied effective assistance of counsel at trial because his court appointed attorney was inexperienced (it was said to be his first trial), and made several errors. The Court of Appeals failed to address the issue. The question is one of first impression in an Oklahoma proceeding wherein parental rights are sought to be terminated.

In In re Chad S., 580 P.2d at 985, we discussed the nature of a termination proceeding, comparing it to a criminal trial and quoted the following language:

While a dependency proceeding is not a criminal proceeding, it is substantially similar. The state is the initiating party, the proceeding is formal, and the potential loss is quite substantial. Since the state is threatening the deprivation of a fundamental interest, it must provide counsel to indigent parents unless it can demonstrate a compelling state interest in not providing counsel. Since the state has no compelling interest in not providing counsel, the equal protection clause of the Fourteenth Amendment requires the provision of counsel to indigent parents in dependency proceedings. Id. at 985-86, quoting Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977).

We concluded that under the Fourteenth Amendment and the statutes of Oklahoma, the fundamental nature of parental rights requires that the right to counsel must be observed in proceedings that may lead to the termination of parental rights. Id.; see also In re F.K.C., 609 P.2d 774, 776 (Okla.1980). ¹

More recently, in Lassiter v. Dept. of Social Serv., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Supreme Court addressed this question, holding that the Fourteenth Amendment does not always require that counsel be appointed in termination proceedings. In reaching this result, the Court reasoned that while in some termination proceedings, counsel is required to ensure that the judicial proceedings are fundamentally fair, the standard of "due process is not so rigid as to require that the significant interests in informality, flexibility and economy must always be sacrificed." Id. at 31-32, 101 S.Ct. at 2162, quoting Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656 (1973). The Court recognized that many states had held that the appointment of counsel was always necessary, and encouraged that the higher standard imposed by states, such as that adopted in Oklahoma, be upheld:

A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution ... The Court's opinion today in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise. Id. 452 U.S. at 31-32, 101 S.Ct. at 2161-2162, quoting Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656 (1973)

We continue to adhere to the philosophy enunciated in Chad S. Although the federal constitution does not require that counsel be appointed in all termination proceedings, we believe that the rights at issue are those which are fundamental to the family unit and are protected by the due process clause of the Oklahoma...