Tosto v. State (In re H.R.T.)

• Decision Date: 18 November 2013
• Docket Number: No. 111,680.,111,680.
• Citation: 362 P.3d 666
• Parties: In the Matter of H.R.T., Alleged Deprived Child. Rhiannon Tosto and Randy Tosto, Appellants, v. State of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

362 P.3d 666

In the Matter of H.R.T., Alleged Deprived Child.

Rhiannon Tosto and Randy Tosto, Appellants,

v.State of Oklahoma, Appellee.

No. 111,680.

Court of Civil Appeals of Oklahoma, Division No. 2.

Nov. 18, 2013.

Julie M. Fulton, Oklahoma City, OK, for Appellants.

David W. Prater, District Attorney, Jane A. Brown, Assistant District Attorney, Oklahoma City, OK, for Appellee.

JANE P. WISEMAN, Judge.

¶ 1 Rhiannon Tosto (Mother) and Randy Tosto (Father) appeal from an order of the trial court denying their motion to vacate a judgment in connection with the termination of their parental rights entered after they failed to appear at a pretrial hearing. The issue on appeal is whether the trial court abused its discretion when it refused to vacate the default termination of their parental rights. After review of the record and applicable law, we reverse the trial court's order and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On April 19, 2011, the trial court issued an order to take HRT, born in August 2006, into emergency custody based on allegations that HRT was found knocking on the door of a home at 3:30 a.m., after her parents left her alone in their truck. The State of Oklahoma filed a petition to adjudicate HRT deprived and to terminate Mother's parental rights because (1) Mother has failed to provide the proper parental care and guardianship for HRT; (2) Mother's home is unfit due to prior child welfare history, neglect, and lack of supervision; (3) "Mother left the child in the back of their truck at 3:30 am while she and Father went into a person's home to purchase a jukebox;" (4) Mother did not realize HRT was missing until later that morning; (5) HRT knocked on the door of the person's home whom Mother had been visiting saying she was scared and could not find her parents; and (6) Mother's parental rights to another child had been terminated in 2003 after he had been discovered playing in a busy intersection when he was four years old. State asked the court to adjudicate HRT deprived and to terminate Mother's parental rights "pursuant to 10A O.S. 1–4–904(B)(14) for failure to correct conditions of a previous deprived adjudication" and "pursuant to 10A O.S. 1–4–904(B)(6) for failure to correct conditions of a previous termination." State also sought to terminate Father's parental rights on these same statutory grounds.

¶ 3 State sent Mother and Father each a summons and notice to appear stating that the matter would be heard on May 23, 2011. Both notices included the following in capital letters and bold face type: "Failure to respond to this summons or to appear at this hearing constitutes consent to the adjudication of these children as deprived children and may ultimately result in loss of custody of these children or the termination of parental rights to these children."

¶ 4 State filed an amended petition on June 29, 2011, to correct what it later characterized in its brief on appeal as "a scriven[e]r's error." The docket sheet shows that the case was set for pretrial on the following dates and then reset for hearing: June 27, 2011, September 9, 2011, October 20, 2011, December 8, 2011, and March 15, 2012.

¶ 5 In an individualized service pre-adjudication report filed December 8, 2011, State asked the trial court to find that reasonable efforts to reunite the family were not required. State filed a third amended petition on March 1, 2012, to include as another basis for termination of Mother's and Father's parental rights HRT's disclosure of sexual abuse by Father and Mother's failure to protect HRT.

¶ 6 The March 15, 2012, Permanency/Review Order indicates that Mother and Father were served with the third amended petition. The March 15 order sets a pretrial hearing for July 23, 2012, and jury trial for August 27, 2012. On the form used for the Permanency/Review Order was the following: "Mother Father are advised that failure to comply with any requirements of the treatment plan or any requirements of the Court including failing to appear at any court hearing may result in the loss of custody of the child(ren) or the termination of parental rights to the child(ren)." Neither checkbox was marked.

¶ 7 The transcript of the proceeding from July 23, 2012, states the following:

The parents do not appear. They were ordered to be here at 9:00 this morning. It is now 4:00 in the afternoon. They have not been here all day. The case is set for pretrial this morning. [Mother's and Father's attorney] Mr. Box was here at 9:00. I advised him that his clients needed to be here by 1:30. They have not been here and have not arrived.

I gave them a tentative date of November 5th for jury trial if the parents appear. However, I told him that if they do not appear, I would take the State's request for default termination at that time.

The court stated that it "has been very specific with the parents repeatedly that they had to be here for pretrial hearings and they were not here today." The trial court stated:

I am going to go ahead and grant termination by default at this time, based upon what I advised Mr. Box of this morning. I think he was on notice of my intention. I think there's more than enough in the record to justify termination of parental rights and I'll make it part of the record at this time.

(Emphasis added.)

¶ 8 A journal entry of judgment terminating Mother's and Father's parental rights was filed August 7, 2012, citing their failure to appear at the pretrial hearing. The court found that termination was just and proper pursuant to 10A O.S. 1–4–904(B)(4), (14) and that the termination of parental rights was in HRT's best interest. The court stated, "[H]aving examined the document and records admitted into evidence and having heard the testimony of witnesses sworn and examined in open court, and having heard the statements of counsel, ... finds that the parental rights of the [M]other and [F]ather ... should be terminated." However, there is nothing in the record to show that the trial court heard testimony or considered any exhibits admitted into evidence on July 23, 2012, or on May 23, 2012, the date listed on the journal entry of judgment as the day of the hearing.¹ The transcript of the July 23 hearing is represented as a complete transcript of the proceeding at which the trial court terminated the parents' parental rights. The two and a half page transcript contains argument of counsel and the court's ruling, but contains no testimony or admission of exhibits. There is no indication of what current evidence the trial court relied on, if any, except for its statement that, "I think there's more than enough evidence in the record to justify termination of parental rights and I'll make it a part of the record at this time."

¶ 9 On August 31, 2012, Mother and Father filed a motion to vacate the journal entry of judgment on the ground that they were not aware of the pretrial date on July 23, 2012.² They asserted the journal entry of judgment was entered without notice to them and asked for a hearing on the termination of their parental rights.

¶ 10 A hearing was held on March 7, 2013, for what the court stated was a hearing "on a motion to set aside a finding of termination by default." Parents' counsel, Mr. Box, told the court that at the March 15, 2012, hearing, he wrote down for Mother and Father the date of August 27 as the date of the hearing. Box stated that the parents appeared every single time for two years in this case on approximately 12 separate occasions, that it "is an aberration that they did not appear," and their failure to appear was not deliberate. Box stated, "[T]hey were given, by me, the next court date to appear when they appeared the time before this default was taken. And they were given the date that I gave them, and wrote down for them, of August 27th, 2012." The court stated, "I take it, from their failure to appear in my court, from my case, that they're not interested in proceeding." The court also noted that there were two other times that Mother and Father were not present for court.

¶ 11 Father testified that he was unaware of the July 23, 2012, pretrial date because he had written down at the March hearing that the next court date was August 27, 2012. Father asserted he did not deliberately miss the court date.

¶ 12 On cross-examination, Father was asked about several dates that he missed after the motion to vacate was filed. Box later explained that he came to court without Mother and Father on those dates "to reset these dates simply because the trial dates get put over." Box stated, "It wasn't anything that required them to appear in court, but I came out and reset."

¶ 13 After the hearing on the motion to vacate, the trial court took the matter under advisement. On March 21, 2013, the trial court denied the motion to vacate finding that the initial notice and summons, served on the parents in April 2011, notified them of the consequences of the failure to appear as required by statute and that the notice was given 15 days prior to the initial hearing in May 2011, "and well in advance of the hearing date July 23, 2012." The order states that the parents failed to appear at the July 23, 2012, hearing at 9:00 a.m. and the court told their attorney he had until 1:30 p.m. to have the parents present in court, or the court would hear evidence on whether their parental rights should be terminated. The order states that Mother and Father failed to appear on July 23, "[t]he court received evidence, which included testimony from DHS, as well as all of the records from this proceeding as well as the proceedings from Oklahoma County Case # JD–2003–655, which served as a basis for the termination of parental rights in the Petition. The Court sustained the state's petition." The court considered the motion to vacate and found "[n]o evidence was presented that the parents failed to attend the hearing or contact their attorney due to unavoidable casualty or misfortune." The...