West v. State (In re H.M.W.), No. 110,066.

CourtSupreme Court of Oklahoma
Writing for the CourtREIF
PartiesIn the MATTER OF H.M.W. and K.D.W., Deprived Children, Adam West, Appellant, v. State of Oklahoma, Appellee.
Decision Date25 June 2013
Docket NumberNo. 110,066.

304 P.3d 738

In the MATTER OF H.M.W. and K.D.W., Deprived Children,
Adam West, Appellant,
v.
State of Oklahoma, Appellee.

No. 110,066.

Supreme Court of Oklahoma.

June 25, 2013.


[304 P.3d 739]


CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV, ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA; HONORABLE GREGORY J. RYAN, TRIAL JUDGE
¶ 0 Imprisoned Father refused a writ of habeas corpus to attend a jury trial on the issue of terminating his parental rights.
When the case was called for trial, Father's counsel requested jury trial in absentia. In response, the State requested termination by default. Without ruling on these requests, the trial court heard testimony without a jury concerning the best interests of the children and potential harm to the children from continuing Father's parental relationship. At the conclusion of the evidence, the trial court denied the request for jury trial in absentia and granted the State's request for default termination. The Court of Civil Appeals affirmed the termination, but ruled that Father's refusal to appear resulted in a consent termination under 10A O.S.2009, § 1–4–905(A)(5), rather than a default judgment. Father timely sought certiorari.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND THIS CASE IS REMANDED FOR NEW TRIAL.


Sherry J. Neal, Oklahoma City, Oklahoma, for Appellant.

Valerie L. Baker, Assistant District Attorney, Oklahoma County, Oklahoma City, Oklahoma, for Appellee.


REIF, V.C.J.:

¶ 1 This case concerns the termination of the parental rights of an imprisoned father without a jury trial. Adam West was in prison at the time his children, H.M.W. and K.D.W., were removed from their mother and adjudicated deprived. The case was subject to the Oklahoma and Federal Indian Child Welfare Acts based on the children's eligibility for membership in the Cherokee Nation. The Cherokee Nation entered an appearance and participated in the proceedings. After mother relinquished her rights,

[304 P.3d 740]

the State sought to terminate Mr. West's parental rights, contending that the length of time remaining on Mr. West's sentence was detrimental to continuing the parent/child relationship. When Mr. West refused a writ of habeas corpus to attend the jury trial set for June 7, 2011, the trial court proceeded to terminate Mr. West's parental rights without a jury trial. The trial court did so despite a request by Mr. West's counsel for a jury trial in absentia. The Cherokee Nation did not object to this action by the trial court.

¶ 2 The trial court concluded that Mr. West's failure to appear after the means to attend had been provided, supported termination by default without the need for a jury trial. The trial court did hear testimony from the Department of Human Services case worker and the Cherokee Nation representative, both of whom recommended termination. The Court of Civil Appeals upheld the termination without a jury trial, but ruled Mr. West's failure to appear constituted consent to termination as provided in 10A O.S.Supp.2009, § 1–4–905(A)(5) (now 10A O.S.2011, § 1–4–905(A)(5)). Upon review, we find that § 1–4–905(A)(5) does apply, but conclude that Mr. West was entitled to a jury trial in absentia as provided in this statute.

¶ 3 Prior to the date of trial, Mr. West was served with summons containing the notice prescribed by § 1–4–905(A)(2). This notice states that a parent's failure to appear at the proceeding set forth in the notice “constitutes consent to the termination of your parental rights.” However, this notice does not indicate that termination will automatically result in the event a parent fails to appear. The statutory notice simply advises that the parent who fails to appear “may lose all legal rights.” The “consent to termination” that arises from failure to appear is more like a stipulation that a ground exists to support termination, as opposed to being the complete relinquishment of...

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7 practice notes
  • Dougherty v. State (In re J.L.O.), No. 116,465
    • United States
    • Supreme Court of Oklahoma
    • September 25, 2018
    ...custody by the parent is likely to result in serious emotional or physical damage to the child. In re H.M.W. & K.D.W. , 2013 OK 44, ¶ 6, 304 P.3d 738, 740.3 A. All cases initiated by the filing of a petition alleging that a child is deprived shall be heard separately from the trial of other......
  • Hicks v. Cent. Okla. United Methodist Ret. Facility, Inc., Case Number: 113117
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • May 11, 2017
    ...was originally requested in Plaintiff's February 25, 2014 Motion for Sanctions. 11. Epworth Villa relied on In re H.M.W., 2013 OK 44, ¶13, 304 P.3d 738 to support this higher standard of review. In re H.M.W. dealt with a parent's right to a jury trial in a parental rights termination case. ......
  • Hicks v. Cent. Okla. United Methodist Ret. Facility, Inc., Case Number: 113117
    • United States
    • Court of Civil Appeals of Oklahoma
    • September 21, 2016
    ...was originally requested in Plaintiff's February 25, 2014 Motion for Sanctions.11 Epworth Villa relied on In re H.M.W. , 2013 OK 44, ¶ 13, 304 P.3d 738 to support this higher standard of review. In re H.M.W. dealt with a parent's right to a jury trial in a parental rights termination case.1......
  • Okla. Tpk. Auth. v. Siegfried Cos., 111,585.
    • United States
    • Court of Civil Appeals of Oklahoma
    • April 3, 2015
    ...only implicates due process, but presents a fundamental constitutional issue that is reviewable de novo. In re H.M.W., 2013 OK 44, ¶ 13, 304 P.3d 738, 741 (father's conduct in refusing writ of habeas corpus to attend jury trial in parental rights termination case neither constituted a waive......
  • Request a trial to view additional results
7 cases
  • Dougherty v. State (In re J.L.O.), No. 116,465
    • United States
    • Supreme Court of Oklahoma
    • September 25, 2018
    ...custody by the parent is likely to result in serious emotional or physical damage to the child. In re H.M.W. & K.D.W. , 2013 OK 44, ¶ 6, 304 P.3d 738, 740.3 A. All cases initiated by the filing of a petition alleging that a child is deprived shall be heard separately from the trial of other......
  • Hicks v. Cent. Okla. United Methodist Ret. Facility, Inc., Case Number: 113117
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • May 11, 2017
    ...was originally requested in Plaintiff's February 25, 2014 Motion for Sanctions. 11. Epworth Villa relied on In re H.M.W., 2013 OK 44, ¶13, 304 P.3d 738 to support this higher standard of review. In re H.M.W. dealt with a parent's right to a jury trial in a parental rights termination case. ......
  • Hicks v. Cent. Okla. United Methodist Ret. Facility, Inc., Case Number: 113117
    • United States
    • Court of Civil Appeals of Oklahoma
    • September 21, 2016
    ...was originally requested in Plaintiff's February 25, 2014 Motion for Sanctions.11 Epworth Villa relied on In re H.M.W. , 2013 OK 44, ¶ 13, 304 P.3d 738 to support this higher standard of review. In re H.M.W. dealt with a parent's right to a jury trial in a parental rights termination case.1......
  • Okla. Tpk. Auth. v. Siegfried Cos., 111,585.
    • United States
    • Court of Civil Appeals of Oklahoma
    • April 3, 2015
    ...only implicates due process, but presents a fundamental constitutional issue that is reviewable de novo. In re H.M.W., 2013 OK 44, ¶ 13, 304 P.3d 738, 741 (father's conduct in refusing writ of habeas corpus to attend jury trial in parental rights termination case neither constituted a waive......
  • Request a trial to view additional results

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