427 P.3d 1078
Okla. Civ. App.2018Background
- Child was taken into DHS emergency custody June 11, 2014; adjudicated deprived July 23, 2014 based on neglect and related issues. Individualized service plans were ordered for the parents.
- State filed motions to terminate parental rights: first in December 2015 citing the older fifteen-month time-in-care ground, and again in September 2016 adding the newer six-of-twelve-month ground enacted in 2014/2015 (10A O.S. § 1-4-904(B)(17)).
- Parents waived a jury; non-jury trial occurred September 7–8, 2017. Trial court found the child had been in foster care long enough and could not be safely returned, and terminated parents’ rights under § 1-4-904(B)(17).
- Parents appealed, arguing the trial court committed fundamental error by applying the § 1-4-904(B)(17) ground retroactively because the deprived petition was filed before that statutory ground existed.
- The court analyzed (1) whether § 1-4-904(B)(17) is substantive or remedial (prospective vs retroactive application), and (2) whether "proceedings begun" under Art. 5 § 54 meant the original deprived petition date or the later termination-motion date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1-4-904(B)(17) may be applied to terminate rights where deprived petition was filed before that provision existed | Parents: The 2014 amendment created a new, substantive ground (shorter time-in-care), so it cannot be applied retroactively; the statute in effect when the deprived petition was filed (the fifteen-of-twenty-two rule) should control under Art. 5 § 54 | State: The amended provision affords additional protections and was in effect before the State filed its later termination motion; the termination motion date is the operative date | Court: § 1-4-904(B)(17) is a substantive change and applies prospectively, but the operative "proceedings begun" date is the filing of the termination motion; here the State filed its termination motion after the amendment, so no fundamental error |
Key Cases Cited
- In re L.M., 276 P.3d 1088 (Okla. Civ. App. 2012) (framework for determining whether amended termination grounds are substantive versus remedial and effect on Art. 5 § 54)
- In re P.W.W., 273 P.3d 83 (Okla. Civ. App. 2012) (held critical date for Art. 5 § 54 analysis can be filing of the termination motion)
- In re M.C., 993 P.2d 137 (Okla. Civ. App. 1999) (recognized retroactive application where Legislature expressly provided for it; discussed ex post facto concerns)
- Cole v. Silverado Foods, Inc., 78 P.3d 542 (Okla. 2003) (defining "proceedings begun" and explaining effects of statutory amendments on substantive rights)
- American Airlines, Inc. v. Crabb, 221 P.3d 1289 (Okla. 2009) (amendments that add new elements alter substantive rights and generally cannot be applied retroactively)