Sherol A. S., Matter of

• Decision Date: 18 July 1978
• Docket Number: No. 49558,49558
• Citation: 581 P.2d 884
• Parties: In the Matter of SHEROL A. S., Tammy W. S., and Chesley O. S., children under eighteen years of age. COLEMAN S. and Lucille S., Appellants, v. DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE SERVICES and the State of Oklahoma, Appellees.
• Court: Oklahoma Supreme Court

Page 884

581 P.2d 884

In the Matter of SHEROL A. S., Tammy W. S., and Chesley O.

S., children under eighteen years of age.

COLEMAN S. and Lucille S., Appellants, v. DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE

SERVICES and the State of Oklahoma, Appellees.

No. 49558.

Supreme Court of Oklahoma.

July 18, 1978.

Certiorari to the Court of Appeals, Division No. I.

The District Court of Grady County; Clarence Maher, District Judge, entered a judgment terminating appellants' parental rights in, and to, two of their children and removing custody of another child from them. The Court of Appeals, Division No. I, affirmed. CERTIORARI HERETOFORE GRANTED. COURT OF APPEALS DECISION VACATED; JUDGMENT OF TRIAL COURT REVERSED AND REMANDED WITH DIRECTIONS.

John C. Hudson, Chickasha, for appellants.

Melvin R. Singleterry, Dist. Atty., District No. 6, Chickasha, by Larry E. Baresel, Asst. Dist. Atty., Clyde E. Davis, II, Legal Intern, for appellees.

SIMMS, Justice.

Coleman and Lucille S. appeal from a judgment which terminated their parental rights in, and to, their daughter, Tammy, age 5, and their son, Chesley, age 2, and removed custody of their 15 year old daughter, Sherol, from them. We have granted Certiorari to the Court of Appeals, Division No. I from its opinion affirming the trial court.

Appellants present numerous assignments of error. They contend that the evidence was insufficient to support the court's order and that the trial court misconstrued and misapplied certain statutory provisions. Additionally, they enter procedural and substantive constitutional challenges to our termination statutes generally, and as applied in this action.

Appellants argue that the basis, if any, of the trial court's judgment was their poverty per se. They submit that the totality of the evidence "against" them in its strongest light showed only that:

(1) They are poor and uneducated people; and

(2) that their house was sometimes dirty; and

(3) that their social worker thought they were "lazy and lacked initiative"; and

(4) that their older daughter, Sherol, missed a lot of school.

Appellants admit that they are poor people with little formal education. Neither went beyond the seventh grade. Coleman has been totally disabled since 1964 when he was buried in a pipeline excavation and suffered permanent nerve and muscle damage from oxygen deprivation. Because of his physical condition he has been unable to hold a job for any substantial period of time and at the time of the termination hearing, he was receiving social security disability benefits. They admit that their house was, for a variety of reasons, dirty at times and that Sherol's school attendance was poor. They argue that these facts do not, however, either separately or collectively, constitute grounds for termination of parental rights under 10 O.S.1971, § 1130. They submit that neither their poverty, dirty house, lifestyle that is not illegal or immoral, or Sherol's poor school attendance justified the court's order and that the judge acted arbitrarily and outside the scope of his authority in entering this judgment.

Appellants argue there was no showing, and indeed no attempt to show, that they were "unfit" parents who neglected, abused or abandoned their children, or that their financial status, "lifestyle" or housekeeping standards had a substantial detrimental effect on the children such as disease, malnutrition or exposure. They contend that rather than showing that their children suffered harm from neglect or mistreatment, the evidence instead showed that they loved their children very much and that the children were well cared for and happy. They were, they assert, shown to be a close-knit, happy family with no problems other than those common to families of modest means.

We agree with appellants' summary of the evidence and we agree that the evidence was patently insufficient to support the judgment of the trial court. Inasmuch as the insufficiency of the evidence is dispositive of this appeal, we restrict our discussion and our holding to that issue.

It is impossible to discern from the record the exact event which precipitated this action, but it is clear that from beginning to end, its substance has revolved around appellant's housekeeping habits. Specifically, as to whether or not they were maintaining, in the words of the trial court, "minimum standards of cleanliness."

On March 11, 1974, a verified petition was filed alleging that Sherol, Tammy and Chesley ¹ were dependent and neglected children within the purview of the juvenile code. The sole basis alleged in support of the petition was that:

"(s)aid children have not had the proper parental care or guardianship and whose home, by reason of neglect and depravity on the part of their parents is an unfit place for said children."

On that date, the court, pursuant to the petition and upon his belief that an emergency existed, issued an order placing immediate temporary custody of the children with the Department of Institutions, Social and Rehabilitative Services (Department), appellee herein.

Two days later an amended petition was filed, the exact allegations were reasserted but the relief sought was changed to pray for termination of appellants' parental rights.

Adjudicatory hearing was set for March 27, 1974. At that time appellants' court appointed attorney moved the court to continue the matter of the adjudication for three months. The reason for the requested continuance clearly appears from the reported dialogue between counsel and the court: it would afford appellants an opportunity to remedy those conditions in their home which the Department found objectionable. In that way the deficiencies which resulted in the action could be corrected before hearing on the petition was held.

In retrospect, statements of appellants' counsel show a gross misunderstanding between appellants and the Department as to the seriousness of the consequences that would follow the adjudication of the children as dependent and neglected:

"At the present time the children are outside the home and the (appellants) have been assured repeatedly this is a temporary thing to give them an opportunity to straighten this household around to meet standards that are apparently being set by the Welfare Department."

Pursuant to the request, hearing was continued until June, 1976, at which time another attorney appointed to represent appellants appeared and stipulated to the allegations of the petition. Inasmuch as the petition contained only the broad conclusory language of the statute ² without any factual allegations in support thereof ³ and testimony by Mrs. S., theoretically offered in support of the stipulation, showed instead that the conditions which led to the initiation of the action had been corrected ⁴ the legal basis for this stipulation is unclear. (We recognize that the attorney prosecuting the appeal was not the attorney who entered the stipulation.)

The motivation behind the stipulation, however, is obvious: in exchange for stipulating to the adjudication, the appellants were to be restored the custody of their children.

The court accepted the stipulation, adjudicated the children dependent and neglected and returned their custody to appellants under supervision of the Department. The matter of termination of parental rights was set off until December 6, 1974, and the judge advised appellants the issue would be heard earlier if they failed to maintain an "acceptable standard of living", mentioning specifically bathroom facilities and clean clothes, and further advised appellants that the Department would be checking on them unannounced periodically to see if they were maintaining this standard.

Hearing on the issue of termination was again set off. On December 12, 1974, a hearing to review custody was held, however, and the court ordered custody to remain with appellants. The children were at all times in appellants' custody until the termination hearing was eventually held on March 5, 1976.

At that hearing, the State called three witnesses: Bob Holman and R. Z. Howell, attendance officer and visiting counsellor, respectively, of the Chickasha Schools; and Don Ulrich, Grady County Juvenile Officer. A summary of their testimony showed the following. Sherol had missed 64% of the current school year at Chickasha but the records did not reflect the reasons for her absences, and she had recently transferred to the Amber-Pocasset District. Mr. Howell and Mr. Ulrich had each made one visit to appellants' home. Mr. Howell, at the request of Mrs. S., went to the home on January 23, 1976, to counsel with Sherol about school; because he knew she had been ill and hospitalized, he took the school nurse with him; Tammy and Chesley were not in the home, but Sherol was, and appeared to be ill; the appellants expressed their desire for her to regularly attend school and Mrs. S. said she thought Sherol had "some block" about school. Mr. Howell declined to comment on appellants' home situation as he had been in the home just once and then to visit Sherol; asked about the condition of the home that day, he stated that "the sheets and things on the bed were dirty and the home was generally dirty." He agreed with Mrs. S. that Sherol had a "block" about school but he didn't know the basis of it.

Mr. Ulrich testified that at the request of the Department he went to appellants' home on July 7, 1975, to take photographs; that he took three photographs of the interior of their home (State's Exhibit 2) and, as they reflected, there were several boxes of clothes on the floor and the kitchen was dirty; that Tammy and Chesley were in the home but he didn't recall observing the condition of the youngsters; the house, on the day of his visit, "looked like some improvement could be made"; when asked by the district attorney if it was a "proper place and suitable for rearing children", he responded, "not in the condition...