A.E. v. State

• Decision Date: 21 July 1987
• Docket Number: No. 64831,64831
• Citation: 743 P.2d 1041
• Parties: , 1987 OK 76 In the Matter of A.E., E.E., E.E., (Children under the age of eighteen (18) years), R.E., A.E., and E.E., Appellants, v. The STATE of Oklahoma, A.E. and E.E., Appellees.
• Court: Oklahoma Supreme Court

Page 1041

743 P.2d 1041

56 USLW 2147, 1987 OK 76

In the Matter of A.E., E.E., E.E., (Children under the age

of eighteen (18) years), R.E., A.E., and E.E., Appellants, v. The STATE of Oklahoma, A.E. and E.E., Appellees.

No. 64831.

Supreme Court of Oklahoma.

July 21, 1987.

As Corrected July 30, 1987.

Rehearing Denied Oct. 27, 1987.

Stanley D. Monroe, Tulsa, for R.E. and A.E., appellants.

Terry Bitting, Tulsa, for E.E., appellant.

J. Dennis Semler, Asst. Dist. Atty., for State of Okl., appellee.

Catherine O'Leary, Asst. Public Defender, for the Children, A.E., E.E., appellees.

KAUGER, Justice.

This is an appeal from the termination of parental rights. The father's parental rights were extinguished under the provisions of 10 O.S. 1981 § 1130(A)(2) for abandonment. The mother's parental rights were terminated pursuant to 10 O.S. 1981 § 1130(A)(3) for failure to follow a contractual agreement drafted by a social worker for the Department of Institutions, Social & Rehabilitative Services (DISRS).

The parents/appellants allege, among other assertions of error, violation of their constitutional rights and denial of due process of law in both the adjudicatory and dispositional stages of the proceedings leading to termination of parental rights. These allegations include: 1) termination based on less than clear and convincing evidence; 2) failure to attach a verified affidavit to the petition to terminate parental rights in accordance with the Uniform Child Custody Jurisdiction Act (UCCJA); 3) imposition of standards of parental conduct by Department of Institutions, Social & Rehabilitative Services (DISRS) without judicial approval in violation of extant Oklahoma law; 4) termination of the father's parental rights on the grounds of abandonment without a prior adjudication of the child's deprived status; 5) insufficient notice; and 6) denial of trial by jury in violation of the Okla. Const. art. 2, § 19.

I

TERMINATION MUST BE BASED ON CLEAR AND CONVINCING EVIDENCE.

ATTACHMENT OF A VERIFIED AFFIDAVIT TO THE PETITION TO

TERMINATE PARENTAL RIGHTS WAS NOT REQUIRED PRIOR TO THE

ADOPTION OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT.

The first two allegations of error are not well founded, and may be disposed of summarily. From an examination of the transcript, we discern that the trial court recognized the proper burden of proof, i.e., clear and convincing evidence. ¹ We also find that attachment of a verified affidavit was unnecessary because the UCCJA, which requires the attachment, was not adopted until the proceedings under attack were well underway. ²

II

IMPOSITION OF STANDARDS OF PARENTAL CONDUCT MUST BE APPROVED

JUDICIALLY AND COMMUNICATED TO AFFECTED PARENTS.

As to the third allegation of error, it is undisputed that the "contract" was not judicially sanctioned as required by our prior case law. In the Matter of C.G., 637 P.2d 66, 68 (Okla.1981). The Court said:

"Due process inexorably commands notice which reasonably informs a person that his legally-protected interest may be adversely affected. Any parent whose child is adjudged to occupy a legal status termed 'deprived' must be judicially advised of those parental conduct norms which he is expected to follow or eschew to recapture a legally unencumbered standing as a parent. The very purpose of these norms is to afford the parent an opportunity to ameliorate his condition and to effectively defend against termination efforts. Judicial notice cannot depend on inferences to be gathered from reports of social workers or of medical doctors. It can only be found in written judicially-prescribed norms of conduct to which the parent is expected to conform. Once these norms have been fashioned with clarity, the parent is entitled to the minimum statutory period of three months to conform."

The holding in C.G., that a social worker's "contract" is constitutionally infirm unless it bears a judicial imprimatur and is communicated to both affected parents, controls our resolution of this allegation of error. It is, therefore, unnecessary to test the constitutionality of the behavioral norms imposed by the DISRS "contract."

III

IN THE ABSENCE OF A PRIOR ADJUDICATION OF THE CHILD'S

DEPRIVED STATUS, PARENTAL RIGHTS CANNOT BE

TERMINATED FOR ABANDONMENT.

The fourth allegation concerns the lack of the jurisdictional prerequisite to termination of the father's parental rights, i.e., a prior adjudication of the child's deprived status. At the time the trial court heard the appeal from the referee, two orders were presented which the court indicated "looked like an adjudication." Those orders referred to C. and E., who are now over eighteen and not part of this case. The state was willing to concede that, for purposes of the hearing, "there was no adjudication." Any termination of parental rights pursuant to 10 O.S. 1981 § 1130 requires either a prior or a simultaneous adjudication of a child's deprived status; ³ further, the prior adjudication must precede termination. ⁴ Because the father may not have received notice of the prior adjudications, and because there was no adjudication as to the father, even after the pleadings were amended, the trial court lacked the requisite foundation upon which to terminate the father's parental rights.

IV

DUE PROCESS REQUIRES NOTICE TO THE AFFECTED PARENTS.

The sufficiency of notice to the father, alleged as the fifth error of the trial court, is in dispute. In the Matter of C.G., this Court recognized that due process requires notice reasonably informing a parent that legally-protected interests may be affected adversely. We are unable to determine from either the record or the transcript whether the notice was in accord with procedural due process.

V

THE RIGHT TO JURY TRIAL IS CONSTITUTIONALLY MANDATED BY THE

OKLAHOMA CONSTITUTION AND THE OKLAHOMA JUVENILE CODE.

The mother waived her rights to a jury trial on the adjudicatory petition. ⁵ However before termination proceedings began, the father's application for jury trial was denied. The parents urge reexamination of the constitutional and statutory provisions relating to the right to jury trial at termination proceedings, arguing that adequate protection of the family unit and objective determination of whether standards have been judicially imposed require jury determination.

This case is fraught with infirmities, any one of which might require summary reversal. However, the prior divergence of opinion among members of this Court, as well as the expansion of other rights in the juvenile arena, ⁶ lead us to the conclusion that the time is ripe for a careful reconsideration of the right to a jury trial at termination proceedings. The need to protect parents' rights to the companionship, care, custody, and management of their children has been recognized by the courts under the United States and Oklahoma Constitutions. ⁷ It is in light of this axiom that the right to jury trial in termination proceedings must be scrutinized.

A detailed discussion of the parties' conduct, often obscures the implications and ramifications of the applicable constitutional guarantees and statutory protections at issue. A recitation of the underlying facts is unnecessary; because we are squarely presented with a pure question of law, and as a practical matter, our holding today will apply, not only to these parents, but also prospectively, after the mandate is issued in this case, ⁸ to every citizen.

In J.V. v. State Dep't of Insts., Social & Rehabilitative Servs., 572 P.2d 1283, 1285 (Okla.1977), a divided court held that juries were neither constitutionally nor statutorily required at termination proceedings, and that the right to a trial by jury need be afforded only at the dependency and neglect stages of the proceeding. Since J.V., the issue of jury trial at termination proceedings, when raised, has been summarily dismissed. ⁹ In each of those cases, there have been strong dissents pointing out errors in the Court's analysis of the requirements of the Okla. Const. art. 2, § 19 and of 10 O.S.1981 § 1130.

The majority in J.V., supra, when considering art. 2, § 19, rejecting the right to jury trial at termination proceedings, relied on the language in Keeter v. State ex rel. Saye, 82 Okl. 89, 198 P. 866, 17 A.L.R. 557 (1921):

"The right to trial by jury, declared inviolate by section 19, art. 2 of the Constitution of Oklahoma, except as modified by the Constitution itself, has reference to the right as it existed in the territories at the time of the adoption of this Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in territories at the time, but the right as guaranteed under the federal constitution and according to the course of the common law."

The United States Supreme Court recognized in McKeiver v. Pennsylvania, 403 U.S. 528, 548, 91 S.Ct. 1976, 1987, 29 L.Ed.2d 647, 662-63 (1971), that the question of trial by jury in juvenile proceedings was a question of state law. The pertinent Keeter language for our analysis is the phrase "except as modified by the Constitution. " An amendment supersedes law existing prior to its enactment. ¹⁰ Prior to 1969, art. 2, § 19 made no mention of the right to jury trial in juvenile proceedings; ¹¹ however, the 1969 amendment superseded the prior language, expressly providing for jury trial in juvenile proceedings. The language of art. 2, § 19 has done exactly what Keeter requires in order to enlarge the right to jury trial as it existed at common law. The amendment modified the Constitution enlarging the right.

Another case emphasized in J.V., supra, is Maryland Nat'l Ins. Co. v. Dist. Court, 455 P.2d 690, 695 (Okla.1969), in which the Court upheld the constitutionality of statutes providing for enforcement of liability in bail bond forfeiture proceedings by a non-jury trial. The issues involved in the Maryland case are distinguishable in one critical aspect from termination proceedings....