In Re Pww
273 P.3d 83
Okla. Civ. App.2012Background
- Mother appeals a jury termination of parental rights to four children.
- State sought termination on a 15-month foster-care-in-22-months ground that existed under repealed statute.
- Adjudication in 2007 found the children deprived due to sexual abuse; DHS custody followed; Mother agreed to a treatment plan.
- State filed termination motion in 2009; trial occurred March 8, 2010; jury instructed on the 15/22-month ground only.
- Legislature repealed the ground for termination in 2009; the 2011 statute and retroactivity issues were central; court reverses and remands.
- Court notes the deprivation remedy is statutory and the trial court cannot rely on repealed authority; remand allows State to reassert if appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the jury instruction on the 15 of 22 months ground constitute fundamental error after repeal? | State contends the ground was valid when pursued. | Wigington argues the ground was repealed and instruction incorrect. | Yes; fundamental error; reversal. |
| What statute governed termination at the time of the motion to terminate, and did repeal affect authority to terminate on that ground? | State argues statutory ground remained valid through the termination process. | Wigington argues repeal vitiated the basis for termination. | Ground relied on was repealed; instruction improper; remand allowed potential reassertion. |
| Should the result be remanded without prejudice to State's ability to reassert grounds on remand? | State may reassert valid grounds on remand. | N/A. | Remanded without prejudice to State. |
Key Cases Cited
- In re M.C., 993 P.2d 137 (Okla. Civ. App. 1999) (amendment timing and ex post facto considerations in termination cases)
- In re A.G., 996 P.2d 494 (Okla. Civ. App. 2000) (amendments when filed before termination petition may apply)
- In re T.M., 6 P.3d 1087 (Okla. Civ. App. 2000) (amendments timing and applicability to termination petitions)
- In re J.C., 244 P.3d 793 (Okla. Civ. App. 2010) (statutory framework applied post-amendment when appropriate)
- Sullivan v. Forty-Second West Corp., 961 P.2d 801 (Okla. 1998) (fundamental error doctrine and abuse of trial court instructions)
- Sellars v. McCullough, 784 P.2d 1060 (Okla. 1989) (trial court duty to give correct law instructions; fundamental error pronouncement)
- Gillette v. Gillette, 57 P.3d 888 (Okla. Civ. App. 2002) (constitutional protections in termination of parental rights)
- In re Adoption of Blevins, 695 P.2d 556 (Okla. Civ. App. 1984) (fundamental rights in parental custody decisions)