427 P.3d 1078
Okla. Civ. App.2018Background
- Minor child adjudicated deprived July 23, 2014 after emergency DHS custody June 11, 2014; parents Stephen Shaw and Robyn Dickens stipulated to neglect-based adjudication.
- Individualized Service Plans ordered September 10, 2014; child remained in foster care thereafter.
- State moved to terminate parental rights in December 2015 (relying on former 15-of-22-months provision) and again in September 2016 (relying on amended 6-of-12-months provision for children under four and the child-cannot-be-safely-returned requirement).
- Trial (bench) held September 7–8, 2017; court found child had been in foster care long enough and could not be safely returned, and terminated parents’ rights under 10A O.S. § 1-4-904(B)(17).
- Parents appealed, arguing the court committed fundamental (retroactivity) error by applying the post-adjudication amended statute rather than the statute in effect when the adjudication petition was filed.
- Court of Civil Appeals considered whether the amendment was substantive (requiring prospective application) and whether “proceedings begun” for Art. 5 § 54 purposes was the adjudication filing or the termination-motion filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1-4-904(B)(17) (amended time-in-care ground) may be applied to these proceedings or whether applying it was retroactive/fundamental error | Parents: amendment created a new, substantive ground (shorter time window), so retroactive application would impair rights; the governing statute is the one in effect when the deprived petition was filed | State: amendment conferred additional protections and was in effect before State filed the termination motion; statute governing termination is the law when State began its "quest" to terminate | Court: § 1-4-904(B)(17) is substantive and prospective, but no fundamental error because the amended statute was in effect when State filed the termination motion (State began its quest after the amendment) |
Key Cases Cited
- In re L.M., 276 P.3d 1088 (Okla. Civ. App. 2012) (analyzing whether amended termination grounds are substantive and whether Art. 5 § 54 preserves prior protections)
- In re P.W.W., 273 P.3d 83 (Okla. Civ. App. 2012) (holding the critical date for Art. 5 § 54 is the filing of the termination motion where time-in-care ground had not been asserted earlier)
- In re M.C., 993 P.2d 137 (Okla. Civ. App. 1999) (addressing retroactive application of amended time-in-foster-care statute and ex post facto concerns)
- Cole v. Silverado Foods, Inc., 78 P.3d 542 (Okla. 2003) (framework for when statutory amendments affect substantive rights and must be applied prospectively)
- American Airlines, Inc. v. Crabb, 221 P.3d 1289 (Okla. 2009) (added-element test: amendment adding new statutory element is substantive)
- Sullivan v. Forty-Second West Corp., 961 P.2d 801 (Okla. 1998) (courts may review for fundamental error sua sponte)