Delaney, Matter of, No. 52061

• Court: Supreme Court of Oklahoma
• Writing for the Court: Appeal from the District Court, Jefferson County, P. C. Largent, Jr.; OPALA; LAVENDER
• Citation: 617 P.2d 886
• Parties: In the Matter of Julia Kathleen DELANEY, Charles Delaney, Terrie Delaney, Rebecca Delaney, Susan Delaney and Mechell Delaney. Scharlene GAFFORD, Appellant, v. STATE of Oklahoma, Appellee.
• Docket Number: No. 52061
• Decision Date: 30 September 1980

Page 886

617 P.2d 886 1980 OK 140 In the Matter of Julia Kathleen DELANEY, Charles Delaney,
Terrie Delaney, Rebecca Delaney, Susan Delaney and
Mechell Delaney.
Scharlene GAFFORD, Appellant,
v.
STATE of Oklahoma, Appellee. No. 52061. Supreme Court of Oklahoma. Sept. 30, 1980.
As Corrected Oct. 8, 1980.

Page 888

Appeal from the District Court, Jefferson County, P. C. Largent, Jr., judge.

Acting upon a District Attorney's application for combined relief, the trial court determined in a consolidated proceeding that certain children of a legally incompetent mother stood in a "deprived" status and her rights to them were terminable instanter. On mother's motion, filed over two years after the order had been rendered, trial court refused to treat it as facially void and hence subject to vacation.

AFFIRMED IN PART AND REVERSED IN PART.

Sullivan, Steely & Ellis by Ellen Colclasure Steely, Duncan, for appellant.

Melvin R. Singleterry, Duncan, Stan McKay, Marietta, for appellee.

OPALA, Justice:

The question to be answered is whether the trial court erred when it refused to vacate as void its prior order by which the children of a legally incompetent mother were found to be "deprived" and her maternal rights came to be terminated. We hold that while the deprived-status adjudication of the order was impervious to the mother's attack on grounds of facial invalidity-launched two and a half years after the order had been made-the maternal rights' termination portion was void on the face of the judgment roll and hence subject to vacation.

A petition to adjudicate the deprived status of six children and to extinguish their mother's rights to them was brought by the District Attorney April 28, 1975. After several continuances, the cause was reached for hearing July 22, following which the court effected an adjudication of both the children's status and of the plea for termination of the maternal bond.

The scanty record before us reflects that at the time critical to this suit, mother-a mentally incompetent individual-had a

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guardian of her person and estate (paternal grandmother of children in suit). The guardian also served as a temporary custodian of one of the children. During the initial phase of the case the mother's guardian was represented by legal counsel. He withdrew from the case with leave of court a few days before the fateful July 22nd hearing. Both the mother and her guardian had been served with notice of the proceedings. The children were present in court by their guardian ad litem and were represented by court-appointed counsel. Mother did not make an appearance at the hearing, although she was present by her guardian. The hearing culminated in an order by which four of the six children sought to be affected were found to stand in a deprived status and mother's rights to all six of them came to be terminated. The record before us does not reveal why two of the children were omitted from the order here in question. ¹ Two and a half years later mother sought to vacate the entire decision. Her motion alleges she had been restored to competency some three months earlier. From the trial court's refusal to vacate the adverse order, mother brings this appeal. I DEPRIVED STATUS ADJUDICATION

A void judgment may be vacated at any time if some fatal defect does appear on the face of the judgment roll. 12 O.S.1971, § 1038. ² We find no such infirmity in the order under our scrutiny here with respect to the deprived-status adjudication. Mother's guardian, who had received due notice of the proceedings, was present in person at the hearing and, so far as the record discloses, had full opportunity to offer evidence. While the District Attorney's petition was not verified, it is well settled that want of verification does not constitute a jurisdictional flaw. ³ Although the grandmother was also awarded custody of one of her ward's children, ⁴ this did not make her per se an improper party to protect the interests of her ward. The record does not reflect that grandmother violated her fiduciary duty to the ward while serving as her guardian and as a custodian of her own grandchild. Mother has no constitutionally or legally recognized claim to a guardian ad litem when she is in court by and through a general guardian. Nor does want of a guardian ad litem constitute a jurisdictional defect. ⁵

In deprived-status proceedings, a parent has no constitutional right to a state-provided lawyer. When assistance of counsel is a constitutional requisite ⁶-as it is the case in felony prosecutions-the right to be furnished a lawyer "does not depend on a request." Carnley v. Cochran, 369 U.S.

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506, 513-516, 82 S.Ct. 884, 889-890, 8 L.Ed.2d 70, 75-79 (1962). In those situations "(p)resuming waiver from a silent record is impermissible. The record must show ... that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." ⁷

We are not dealing here with a constitutional right akin to that in criminal prosecutions. Rather, our concern is with the statutory command to provide counsel to a resourceless parent who "desires" or "requests" one. ⁸ The record indicates the mother's guardian had been served with written notice advising her that a person sued in that proceeding, if unable to hire counsel, could obtain one by appointment of the court. At all proceedings antecedent to the critical hearing of July 22nd, mother's guardian had been represented by what appears to have been a self-procured lawyer who was later granted leave to withdraw. While mother's guardian was unrepresented at the critical July 22nd hearing, we cannot presume...