L.C.P. v. State
| Decision Date | 29 May 2019 |
| Docket Number | Case No. 117,375 |
| Citation | 456 P.3d 1142 |
| Parties | In the MATTER OF L.C.P., an Alleged Deprived Child, Demecos Tijuan Dorsey, Appellant, v. State of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
C. Scott Loftis, LOFTIS LAW FIRM, Ponca City, Oklahoma, for Appellant
Linque Hilton Gillett, LINQUE HILTON GILLETT, LAW OFFICE, P.L.L.C., Oklahoma City, Oklahoma, for Dierdre Michelle Carter
OPINION BY JERRY L. GOODMAN, JUDGE:
¶1 Demecos Tijuan Dorsey (Father) appeals from an August 22, 2018, order of the trial court denying his motion to vacate a judgment terminating his parental rights entered after he failed to appear at a termination hearing. The issue on appeal is whether the trial court abused its discretion when it refused to vacate the order terminating his parental rights. After review of the record and applicable law, we find the trial court should have granted the motion to vacate the termination order. We therefore reverse the order under review.
BACKGROUND
¶2 On May 23, 2016, the State of Oklahoma filed a petition to adjudicate the minor child, LP, deprived upon allegations of lack of proper parental care or guardianship. The petition provided LP was not residing with Father and that Father failed to provide LP with appropriate caregivers, in that the caregivers did not provide a safe and sanitary home and were using illegal drugs.1 In addition, Father had been abusing drugs and had a history of domestic violence. Father stipulated to the deprived petition on June 2, 2016, and an Individualized Service Plan (ISP) was adopted.
¶3 Father made great progress in completing the ISP and trial reunification was implemented. However, on November 10, 2016, the Department of Human Services (DHS) filed a request for termination of trial reunification, asserting Father had been arrested during a drug bust at his home.
¶4 On July 6, 2017, State filed a petition to terminate Father's parental rights pursuant to 10A O.S.2011 and Supp. 2015, § 1-4-904(B)(5) (). Father was personally served with Summons and Notice on July 7, 2017, while in state custody. The notice advised Father that failure to appear could result in termination of his parental rights. Father and his counsel appeared before the trial court on July 27, 2017, to answer State's petition. Father requested a jury trial. The trial court ordered the parties to mediation, continued the hearing to September 7, 2017, and advised Father that failure to appear could result in termination of his parental rights.
¶5 On September 7, 2017, Father appeared with counsel before the trial court and advised that mediation had not occurred. Father requested a continuance which the court granted until October 26, 2017. Father was again advised that failure to appear could result in termination of his parental rights by default.
¶6 On October 26, 2017, Father's counsel informed the trial judge prior to the hearing that Father was in the Department of Corrections (DOC) custody. At the hearing, a motion to vacate the order for mediation was filed, which the court took under advisement. The hearing was ultimately continued until December 7, 2017. Neither Father nor his attorney appeared at the December 7, 2017, hearing. The trial court deemed the failure to appear to be a waiver of the jury trial and further vacated the order for mediation. The court scheduled a bench trial on the petition to terminate for February 8, 2018. A review hearing was set for February 1, 2018, wherein the parties would exchange witness and exhibit lists. The court directed the court clerk to send a copy of the court minute to Father's counsel. The docket sheet does not indicate that this was done.
¶7 Father did not appear in person or through counsel at the February 1, 2018, hearing. The trial court found Father's failure to provide a list of witnesses and exhibits to be a waiver of presentation of evidence at the previously set bench trial. The court directed the court clerk to mail a copy of the court minute to Father's counsel. The docket sheet provides that on February 6, 2018, the clerk mailed Father's counsel a copy of the court minute and put a copy of the court minute in his court box.
¶8 A bench trial was held on February 8, 2018. Father did not appear in person or through counsel. The trial court proceeded with trial and heard testimony from Karol Daniel with DHS. The court ultimately found it to be in the best interest of the minor child to terminate Father's parental rights.
¶9 On February 15, 2018, the copy of the February 1, 2018, court minute mailed to Father's counsel was returned to the court clerk as undeliverable.
¶10 On May 25, 2018, the trial court entered a Non-ICWA Journal Entry of Termination of Parental Rights of Demecos Dorsey, terminating Father's parental rights to LP based on 10A O.S.2011 and Supp. 2015, §§ 1-4-904(B)(5) (), 1-4-904(B)(12) (incarceration), and 1-4-904(B)(16) ().2 On May 30, 2018, Father's counsel filed a motion to reconsider/motion for new trial and to vacate order for default judgment, asserting he did not receive notice of any court dates following the October 26, 2017, hearing. A hearing was held on Father's motion on August 17, 2018. Father's counsel stated the last notice he had regarding Father's case was the October 26, 2017, hearing when he spoke to the judge prior to the hearing regarding Father being in DOC custody. Counsel further stated he does not recall actually attending the October 26 hearing and that the court minute does not provide that he did. Finally, counsel noted the docket sheet did not reflect certified mailing of any subsequent hearing date to his office.
¶11 The trial court denied Father's motion by order entered on August 22, 2018. Father appeals.
STANDARD OF REVIEW
¶12 This appeal involves the trial court's denial of Father's motion to vacate. "We review ‘a trial court's ruling either vacating or refusing to vacate a judgment [for] abuse of discretion.’ " In re H.R.T. , 2013 OK CIV APP 114, ¶ 14, 362 P.3d 666, 670 (quoting Ferguson Enters., Inc. v. H Webb Enters., Inc. , 2000 OK 78, ¶ 5, 13 P.3d 480, 482 ). The court's disposition of a motion to vacate "will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion." Hassell v. Texaco, Inc. , 1962 OK 136, ¶ 0, 372 P.2d 233 (Syllabus by the Court). "[A] clear abuse-of-discretion standard includes appellate review of both fact and law issues[.]" Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591, 608. "An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Fent v. Okla. Natural Gas Co. , 2001 OK 35, ¶ 12, 27 P.3d 477, 481 (citation omitted).
ANALYSIS
¶13 Title 10A O.S.2011, § 1-4-905 permits a consent judgment to be entered in a termination case for a parent's failure to appear. Section 1-4-905(A) provides, in relevant part:
¶14 Section 1-4-905(B) sets forth the procedure and burden of proof required to vacate an order terminating parental rights based on statutory consent. Section 1-4-905(B) provides, in relevant part:
¶15 Accordingly, the purpose of the August 17, 2018, hearing on the motion to vacate was for the trial court to evaluate its order under the terms of § 1-4-905(B) allowing Father the opportunity "to show that [he] had no actual notice of the hearing, or due to unavoidable casualty or misfortune [he] was prevented from either contacting [his] attorney, if any, or from attending the hearing or trial."
¶16 On appeal, Father contends the trial court erred by denying his motion to vacate the order terminating his parental rights because he did not have actual notice of the...
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