Franklin v. State

• Decision Date: 05 December 2013
• Docket Number: No. 111,454.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,111,454.
• Parties: In the Matter of A.W. Danielle Franklin, Appellant, v. State of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

316 P.3d 243

In the Matter of A.W.

Danielle Franklin, Appellant,

v.State of Oklahoma, Appellee.

No. 111,454.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma,

Division No. 1.

Dec. 5, 2013.

Appeal from the District Court of Garfield County, Oklahoma; Honorable Tom L. Newby, Judge.

REVERSED AND REMANDED.

Joshua C. Davis, Enid, Oklahoma, for Appellant.

LARRY JOPLIN, Chief Judge.

¶ 1 Appellant, Danielle Whitesides Franklin (Mother), seeks review of the trial court's January 9, 2013 amended order terminating Mother's parental rights to A.W., born in 2002, and refusing to vacate the trial court's earlier consent order terminating Mother's parental rights, based upon her failure to appear at the termination proceeding for which she had been served notice. In this appeal, Mother alleges the trial court abused its discretion and violated her constitutional and statutory rights when it refused to vacate the default consent order terminating her parental rights. Mother alleges the trial court also failed to identify the statutory basis for termination, failed to make specific findings supporting termination, and failed to determine the child's best interests. Mother's third proposition of error alleges the trial court's amended order fails because the State presented no clear and convincing evidence in support of its petition and the trial court failed again to address the child's best interests.

¶ 2 This court will review the trial court's denial of a motion to vacate a judgment for abuse of the trial court's discretion. In re J.C., 2010 OK CIV APP 138, ¶ 7, 244 P.3d 793, 795, citing Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194. “Abuse occurs if the trial court exercises its discretion to an end or purpose not justified by, and clearly against, reason and evidence, or if it errs with respect to a pure, unmixed question of law.” In re J.C., 244 P.3d at 795 (citations omitted). Legal errors are reviewed under a de novo standard. In re W.A., 2004 OK CIV APP 50, ¶ 4, 91 P.3d 682, 683.

¶ 3 We note Appellee (State of Oklahoma) did not file a response brief in this appeal. Therefore, this appeal proceeds on Appellant's brief only. In the case proceeding on the appellant's brief only, this court is under no duty to search the record for a basis to affirm the judgment, and where the appellant's brief is “reasonably supportive of the allegations of error” this court will ordinarily grant the relief sought by the appellant. Sneed v. Sneed, 1978 OK 138, 585 P.2d 1363. However, “(r)eversal is never automatic [.] [The trial court's judgment] is presumed correct until the contrary has been shown by the record.” Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497 (citations omitted).

¶ 4 The initial hearing upon the State's application to terminate Mother's parental rights was held on October 25, 2012. The record indicates Mother was personally served by summons on October 10, 2012. The summons contained the following:

FAILURE TO PERSONALLY APPEAR AT THIS HEARING CONSTITUTES CONSENT TO THE TERMINATION OF YOUR PARENTAL RIGHTS TO THIS CHILD. IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD NAMED IN THE PETITION OR MOTION ATTACHED TO THIS NOTICE.

Thereafter, Mother failed to appear at the October 25th hearing.

¶ 5 At the hearing, the trial court noted Mother was served with a summons on October 10, 2012 and that the summons contained language informing her that her failure to appear would constitute consent to the termination of her parental rights. The trial court then noted the date and time, along with Mother's absence, and found Mother's parental rights should be terminated. The corresponding order was filed on November 19, 2012. The order noted Mother and Father had been properly served, neither attended the hearing and their parental rights were terminated.¹

¶ 6 Mother timely filed a motion to vacate the order terminating her parental rights on December 18, 2012. Mother's motion argued that despite her failure to appear, the State must still present clear and convincing evidence of the grounds for termination, because the heightened evidentiary standard demanded in termination cases still applies, regardless of statutory consent under 10A O.S. Supp.2009 § 1–4–905. See In the Matter of A.T., 2011 OK CIV APP 81, ¶ 11, 262 P.3d 386, 388.

¶ 7 The hearing on Mother's motion to vacate the order terminating her parental rights was set for January 3, 2013. Mother's counsel, who was present at the January 2013 hearing, argued that the original order terminating parental rights must be vacated, because it failed to make any findings other than the consent to termination due to her absence from the proceedings. The trial court reviewed the allegations of the petition, which included failure to correct the conditions leading to the child's deprived status, failure to provide a safe home, failure to complete in-home services, failure to seek mental health treatment, failure to complete a substance abuse assessment and failure to visit the child. According to the record of the January hearing, the trial court summarily declared Mother failed to correct the conditions as alleged in the petition and changed the motion to vacate into “an order nunc pro tunc terminating parental rights on proper grounds.” The trial court made these findings without taking testimony or evidence. The trial court's amended order was filed on January 9, 2013. Mother then filed this appeal.

¶ 8 Mother's parental rights were terminated at the October 25th proceeding, because after being properly served regarding the hearing to terminate her parental rights, she did not attend, and was deemed to have consented to the termination under the terms of 10A O.S. § 1–4–905(A)(5).²Section 1–4–905 also contains the procedure by which the parent should proceed, if the parent seeks to vacate the termination by consent for failure to appear. 10A O.S. § 1–4–905(B):

B. 1. The court shall have the power to vacate an order terminating parental rights if the parent whose parental rights were terminated pursuant to subsection A of this section files a motion to vacate the order within thirty (30) days after the order is filed with the court clerk.

2. Notice of the motion shall be given to all the parties and their attorneys and the court shall set the matter for hearing expeditiously.

3. The burden of proof is on the defaulting parent...