*1 Davis,4 Davis found proceedings day. this
handed down termination re- court’s order The trial versed. LAVENDER, C.J.,
SIMMS,
HAR-
SUMMERS, JJ., concur.
GRAVE
HODGES,
V.C.J.,
DOOLIN,
WIL-
JJ.,
KAUGER,
dissent.
SON
Justice,
KAUGER,
dissenting.
opinion
portion of the
I dissent
day. V.C.J.,
DOOLIN, and HODGES and JJ., WILSON, join. ALMA DAVIS, Appellee, Ann Dean DAVIS, Billy Appellant. Joe No. 58468. Supreme Court Oklahoma. Oct. Corrected Oct. As 4. See supra. footnote *3 Briscoe, Luther, appellant.
James E. Erwin, Erwin, Dan A. Messrs. Butts & Lenora, Chandler, appellee. OPALA, Justice. on dispositive issue certiorari involuntary
is whether an termination of parental private in a be effected bond interparental upon proceeding based grounds in provided O.S. 1981 question 1130(A)(4).1 this We answer negative the trial and reverse court’s provided termination order.2 The remedies in the Juvenile Code3 are to so-called public-law viewed contests as restricted may rightly in which an the state assert patriae. purely interest qua parens order, 1130(A)(4) parent’s provide such with the means 1.The terms of 10 O.S.1981 consistent ” * * * pertinent part: earning capacity: during “A. The prive need of tribute to a decree of divorce or in some other court order 4. custody rights, A finding but a court to a child of the child supervision or finding parents preceding that a that a child of the child year following terminate the deprived willfully or, child as who does in the absence situations: delinquent, their failed to con- shall provided not have not de- * * * of a 2. The 3. 10 consider them raised issues are en low. Okl. O.S.1981 dispositive Special City none of involved, Indemnity Lawton, 1101 et issue—a this court theories not parties. seq. Okl., Fund v. public-law [1948] Where may, Reynolds, presented on issue—was public-law McCrack- review, be-
H05
spite the father’s belated efforts
to meet
proceeding either
interparental
or to
parent’s
delinquent
support obligation,
dominion
a termi-
free a child of
his
termination
effectuate
came
nation order
to be rendered on March
reme-
bond,
must resort
plaintiff
31, 1982.6
either
dies reversed, Appeals holding The Court of 60.6(3).5 94 or § judge mistakenly the trial believed ef- brought proceeding The mother 1130 left him choice in the legal father’s bond to severance of the fect matter of termination.7 daughter. parties minor When his divorced, custody daugh- minor were I placed in mother. ter contest father, to make who was ordered THE THE PURPOSE OF JUVENILE payments, was monthly *4 THE CODE IS TO AUTHORIZE by granted reasonable access visitation. INVOCATION OF SPECIAL STATE’S later remarried. She obtained The mother JUDICIAL PROCESS WHEN CHIU by a modifi- the child overseas leave to take ARE DREN DEEMED DEPRIVED the father’s provided for cation order DELINQUENT OR period year three-week each custody over a neglected return visit and de- during Legislative the mother’s concern for linquent United States. children first manifested itself power dealing with state 1905.8 Laws comply failed to The mother through judicial process adju- for intervene subsequent stay in the During her decree. delinquent or of a child to be either dication yield declined to com- United States she origin. entirely statutory deprived are period. plete custody for the court-ordered legal existed at com- None of these norms making support The father then ceased pertaining to delin- law.9 The statutes mon payments September, 1980. Febru- neglected children quent, dependent, and sought to terminate ary, the mother 10—the Chapter 51 of Title are found invoking grounds parental his bond For administra- 1130(A)(4). Juvenile Code.10 De- so-called provided in 10 O.S. terminated, accept I didn’t 4. 10 O.S.1981 so provides: want his 9§ money.” authority subject is the "The abuse of judicial cognjzance in a civil action in by order, judge rendering the trial stat- child, his 7. When brought its or district court ed: degree, by the offi- the third or relatives within resides; poor where the appears cers of reme- to be a rather harsh "The statute established, the child when the abuse is anything shouldn’t be dy, but I don’t see parent, and the the dominion of the very freed from or clear that father It’s followed. duty support and education enforced." to the fails to contribute who during year, period of over one child for 60.6 are: The relevant terms of O.S.1981 5. year, termi- preceding has their [sic] adopted legitimate child cannot be "A So, has that the Court nated. I don’t see living, parents, a child if nor the consent of its paren- but to terminate choice under the statute of its without the consent born out of wedlock rights.” tal mother, except living, that consent is not nec- if * * * essary or mother: from a father Territory Assembly Legislative 8. The (12) Who, period months for a of twelve Society Aid the Children’s Oklahoma created adop- filing petition preceding of a next depend- protecting prescribed methods for refused, failed, child, willfully tion of a neglected ent, neglected, within ill-treated children of such to contribute 14, p. 201. territory. Ch. Okla.Sess.L. child: sup- compliance awith a. in substantial Powell, Ex P. parte 6 Okl.Cr. port provision vorce, in a decree of di- contained 1027 [1912]. [Emphasis added.] ...” Code, Through of the Juvenile the enactment termi- with the motion to When he was served young power over law extended its rights, into "... the father tendered nate his $2,200. been be- people mostly had money lower class—who was the court the sum — law, stated, trial, prior who had com- yond the reach of At she "I the mother. refused child, legal body parental management new with the process under this tion law, “juve- special protect courts —the so-called nor was it able to a child who stood in 1909.11 Until nile courts” —were created accused of criminal misconduct from the county remained vested courts application process. criminal of adult falling within the jurisdiction over all cases (1) designed Code enable state that, cogni- terms of the Code.12 After by judicial proceedings to intercede when- reposed in the zance came to be district public protection underage ever for an citi- courts.13 (2) zen was deemed needed17 and to autho- special judicial process underage rize a dealing juvenile with the Statutes persons charged with criminal miscon- state, through appro process allow the short, duct.18 In the entire Juvenile Code organs, de priate to assume creating public/state must be viewed delinquent per children and prived and remedies to be administered the best surrogate parents.14 This form duties as interest of minors who fall within its con- government form of intervention is based templation.19 parens patriae (par principle country).15 ent of the The doctrine not legislature to enact laws allows II children, places
affecting
also
on it the
but
duty
Every
to do so.
from the mo THE
INTENDED THAT
LEGISLATURE
birth,
allegiance
ment of its
owes
ONLY THE STATE MAY INITIATE
and,
government
country
conversely,
of his
*5
AND PROSECUTE PROCEEDINGS
protection
govern
is entitled to the
of that
AUTHORIZED BY THE CODE
ment,
person
propert
both
his
as well as
legislature
The
laid
down a line of
y.16
proceedings in
demarcation between the
conformity
“juvenile process”
Before
enactment
and
the Code’s
actions,
by public
plain objective
state
could not interfere
action
13. Okla.Sess.L.
14. 10 O.S.1981
12. Okla.Sess.L.
11.
juvenile
Hunter v.
The
Okl.Cr.
State Intervention on Behalf of
Stan.L.R. 985 [1975].
928
[1967].
ry
linquency
The
nois. Laws of
depth study
Children: A Search for Realistic
Invention of
note
[1967];
ry
O.S.1981
mitted no crimes."
1981 §
1961
Okla.Sess.L., 1909,
became
[1967]
so-called
first
Carignan
omitted.]
American
273,
1102(A).
102;
State ex rel. Cox
courts,
juvenile
Duncan, Okl.,
[1959];
and In re
1101(4).
200 P.
Powell v.
"dependent
1968,
1909,
Delinquency
"deprived”
Lawrence M.
Law,
see
Ill.,
State, Okl.,
court act
Platt,
1129;
456,
Glueck,
Ch. 14
history
Ch. 282
[Emphasis
1899,
at
Harris, Okl.,
Ch.
Lohah, Okl.,
458
520
The Child Savers—The
and
Ex
14, p.
class of children. 10
Lohah, Okl.,
p.
P.2d
The Problem of De-
[1921];
[1973].
and
[1969]
Friedman,
parte
2,
neglected" catego-
131. For an in-
102
added and foot-
p.
passed
philosophy
Standards,
H07 standing summons need not be served wow- conferring on the alone state proceed- parent. custodial petition prosecute file a provisions of the Juvenile ing under the presents Section 1102.1 another clear Code. manifestation commitment to separating private-law from state-action is- terms 10 O.S.1981 litigation sues which affects filing 1102(A) “[u]pon the provide that underage persons. Through and status of jur- petition, district court shall have legislature that section the directs that is- alleged isdiction of ... [to be] interparental disputes, sues raised county; deprived, who is found within appropriate are for resolution within the parent, guardian legal cus- juvenile-docket framework of the so-called child_” [Emphasis add- todian said proceedings, must isolated and transfer- be par- a wow-custodial Jurisdiction over ed.] litigation red for in the context those necessary deemed state's ent disputes proceedings.22 private-law in- child, although its interest pursuit of volving parental rights, state-action issues would, course, cognizance essen- that be triggered when evidence shows interparental any private contest. tial i.e., neglected deprived, that child is 1103(B)20 petition directs Section dependent. Status-related issues must of_, “In the matter an entitled interparental detached from the then be child_” [deprived] alleged Lawsuits ... juve- private-law claim and removed to parties cap- are involving private typically disposition nile docket for under the Code. i.e., alignment, tioned in the adversarial 1109(C) Finally, O.S.Supp.1982 plaintiff private-suit v. defendant. foreign expressly provides district attor procedurally to contests style “[t]he ney prepare prosecute any In- case under the Juvenile Code. shall authorized deed, proceeding purview proceedings under the Code no or within [Emphasis Chapter of this title.” add pleadings necessary.21 Sec- defensive language mandates that requires that This tion 1104 of the Code ed.] *6 standing bring to public prosecutor has person served who has summons be on child, of the Juvenile eases under terms custody and on the actual of child, years age. A if it is over twelve of Code.23 1103(B). Og- public ex rel. O.S.Supp.1982 officials. State addressed 20. 10 § Okl., 1088, Hunt, P.2d 1090 [1955] den v. 286 1103.1(A) Beverage and Control § 21. 10 Matter Christ- and Oklahoma Alcoholic O.S.1981 of T., Okl., 189, 666, Moss, Okl., [1979]. ina 590 P.2d 192 P.2d 668 [1973]. Board v. 509 1103.1(A) pleading provide: "No "any § The terms of provided rep- Although that earlier statutes petition required, subsequent is and the (who in person” a child his knows of utable filing pleading delay not motion or shall neglected, appears county de- to be either hearing.” holding adjudicatory delinquent) pendent to file a was authorized or 187, Okla.Sess.L.1909, 14, p. petition, Ch. 10 O.S.Supp.1982 pro- § The of 10 terms 105, judicial construction § O.S.1961 vide: attorney required county to be notified and was divorce, a the evidence in an action for "Where charge placed prosecuting the case as divorce, alimony a for an annul- for ment, Lewis, 322, parte Ex 85 Okl.Cr. dominus litis. appoint- child or for the of a 367, express- 380 Later statutes 188 P.2d [1947]. person guardian of a or ment a initiating ly private individual’s role limited a actions, proceedings subsequent indi- such prelimi- by requiring proceedings in each case deprived in need a child is or cates that nary inquiry whether fo- judicial to determine court, notice, proper shall supervision, after Only by leave of rensic action warranted. regard to the child transfer the issues in permitted private individual then court was a preliminary juvenile court for docket 1103(a). O.S.Supp.1968 petition. § file a 10 inquiry and determination.” dealing Notwithstanding of § the terms 1103— petition district attor- with the formalities—the word command or "shall” is a 23. The term duty preparing ney charged still mandate, peremptory compulsory arising Juve- prosecuting all cases meaning. It denotes exclusion of discretion 1109(c). O.S.Supp.1968 Even- § nile 10 Code. duty, especially signifies when an enforceable 1108 majority jurisdictions clearly finding of harm to the child —actual or
The vast potential parent’s of the custodial unf that, express statutory authori- hold absent —or finding, public policy this zation, standing itness.25 Absent private individuals have no clearly preservation, favors not destruc prosecute proceedings autho- to initiate and tion, subsisting prescribing parent-child of a relations forensic rized statutes i.e., hip.26 process per- juveniles, cess for status, deprived delin- the child’s
tains to
introductory phrase
clearly
The
1130
quency,
termination of
bond.24
provides
adjudica-
that while state-action
delinquency,
tion of a child’s
or of its de-
Ill
status,
prived
in-need-of-supervision
will
operate
as a severance of the
THE
10 O.S.1981
1130 CON-
TERMS OF
bond,
prerequisite
it could form a
for the
A
STAT-
STITUTE
STATE-ACTION
ensuing
Nay,
termination.27
the entire
UTE UNDER WHICH PROSECU-
public rights
Code is intended to serve the
OF A TERMINATION PRO-
TION
It
State.28
can hence be invoeable
ONLY
CEEDING IS AUTHORIZED
only
tripartite
inter-
when
cluster of
THE PUBLIC CAN ASSERT
WHEN
child, parent,
and the
ests —those
CONCERN IN ALTERING
OFFICIAL
implicated
state —comes to
in the contro-
A CHILD’S STATUS VIS-A-VIS ITS
being pressed.
versy that
PARENT OR PARENTS
By
very inclusion in the
All contests
instituted under
Juve
Code,
legislatively
judicially
ear
must first be
examined or
nile
1130 stands
Code
they
provision.
as a state-action
“screened”
for “intake” before
marked
court,
implicated upon
proceed.29
sitting in
state’s interest becomes
allowed to
24. E.g.,
Adoption
Appeal, 188 Conn.
J.R. and
App.1984]; In re
Interest
S.W.2d
Department
406 A.2d
State In Interest
Smith v.
of Parental
of
352
H09 juvenile tionship highest protection of the so-called command the the administration legally society.33 privacy functions as the trained our Intrusion process, discretionary authority charged sanctity justified with the and that bond can compelling demonstration of balancing only upon interests duty societal state of the child.30 those Public pro interest lies in concern.34 tecting the child from harm. Absent A 1130 termination harm, element of intervention by the state only simultaneously sought by the state impermissible. Resort to state-action prior adjudication or of a after private remedies by individuals would re Moreover, deprived status.31 termi child’s gross sult in distortion the legal demar an issue must be deferred nation is which cation line historically separated petition adjud has been until after initial purely private interspousal claims from icated.32 the legislatively-sanctioned process gov erning state intrusion into the tradition family integrity The of the unit pre-Code al family areas preservation parent-child of the rela and immunity,35 Division, J.N.M., W.J.M., County supra Juvenile Tulsa Dis- State v. and note 33 at S.T.M. Court, supra judges trict note 29. The must "adjustment whether an informal determine public private distinction between and 35.The preferable ju- diversion" institution of recognized Anglo-American in the law is well proceedings. exercise of venile Their discretion legal system. acknowledged the dis- purpose Blackstone effectuating is vital in Juve- two bodies of law. Black- tinctness of these nile Code. England, of The Laws of stone’s Commentaries IV, Ill, wrongs], p. p. [private Vol. Vol. Price, Okl., 1130(A)(5); Price v. 10 O.S.1981 1859). (Wendell’s [public de- wrongs] ed. He J., 251, (Doolin, 254-255 concur P.2d wrong infringement private as an fined 257, Price, supra ring specially). at Price belonging privation private rights or civil J., concurring); (Simms, specially Matter of individuals, individuals, merely considered as Okl., 1292, [1978]; H., Christopher 577 P.2d injuries, public civil and therefore termed while J.F.C., 1300, Okl, 1302 [1978] Matter wrongs as a breach and viola- were described Okl., P., Lyni 626 P.2d and Matter of affecting public rights and duties tion [1981]. community. community, as considered entire dichotomy, af- public-law/private-law as it The J.L., supra note 19. 32. Matter of custody and children fects claims to recognized Hunter v. to be in State ex rel. came custody Duncan, interest in the of a child court supra 14 at where the note Although initially rests on common law. legal clearly applicable to norms noted that the as moral (now created economic as well reasons seq. 101 et §§ 10 O.S.1951 actions under (Blackstone, on The Commentaries Laws necessarily seq.) the same et were not §§ (Wendells’ 1859)), England, presump ed. custody govern ancil- contests as those which a child's tion that best interests served lary proceedings. The court differen- to divorce parents remaining of its natural (1) disputes in the state tiated between jurisprudence predicated contemporary on is principles patriae parens concerned invokes interest respect ties and for familial natu and, society particular- more with the welfare of Okl., Sweet, In re 317 P.2d ral affection. (2) quests ly, with the welfare care, companionship, 235 [1957]. personal between for vindication management of child is a fundamental one’s parties-litigant. The former parents protected by the United interest both States relationship, disputes emphasize the state-child J.N.M., Matter the Oklahoma Constitutions. family (cid:127) parent-child stress while latter W.J.M., Okl., *8 S.T.M. status interaction. T.H.L., Okl., 330, [1982]; In re 636 P.2d 335 again acknowledged in dichotomy The was Williams, [1981]; supra Baby note Matter Girl 396, Okl., of Bingham, 366 397- Bingham A.S., supra and Matter note 25. 25 Sherol [1961], court Hunter cited where 398 right of a fundamental dictates Termination so private holding support its that panoply procedural application of the full an delinquency dispute related was not so Okl., S., safeguards. Matter Chad 580 P.2d bring well- proceeding the case within the toas 983, [1978], 985 general of im- recognized exception to the rule munity process is extend- which from service 25; Williams, the state supra witness who is in Baby to a note ed attending nonresident Matter Girl 34. Sherol, hearings. A.S, the non- The fact that supra 25 and Matter note court Matter of has distinguished be Indeed, this court THE MOTHER’S FOR THORITY ON consent under BASED adoption THAT IS tween an CLAIM remedy a 1130'termi- GROUNDS private 60.6—a —and In the remedy. state proceeding nation —a A re former, the child is not counsel Mat In The relies mother The latter, to the the court quired; respect with position. support her Mullins37 ter of in all state termination that concluded at the case from distinguishable Factually potential conflicts do exist be proceedings in a differ decided Mullins bar,38 also was the children interests tween there The mother posture. procedural ent hence, parents; state and those of a vacation appeal from brought an had appointed to must be counsel independent parental bond father’s in which the decree tripartite whenever the children represent us favored While she severed. to be came pro context pressed concerns brief-in-chief, the father submitted her juris court’s ceedings under § court concluded no answer brief. separate coun mandates prudence, duty to with a dispensed failure to brief his responsibility upon the state’s sel, is based theory to sustain record for search In minors.36 interests protect judgment. court’s trial on sum, not confer 1130 does reasonably sup- When the brief-in-chief is rights which to enforce a license litigants error, portive allegations and no only to the public. belong filed, answer brief a reversal opinion.39
effected without
a reasoned
Mullins
Since the outcome in
dictated
IV
largely by
a breakdown
the adversarial
THE MATTER
IN
OF MULLINS HAS NO posture,
precedential
no
value
be as-
AS AU-
PRECEDENTIAL VALUE
pronouncement.40
cribed to that
Bingham appeared
severing
parental
resident father in
at the de-
tion for
bond under
1130(A)(4). There,
linquency hearing
brought
at which he
could have
mother
an
pressed
did
of his son
not make him
action to terminate the father’s status vis-a-vis
"litigant”
an in-state
who would be amenable to
their minor child because of his failure to
process
private sup-
support.
service of
in the mother’s
vide
The court ordered the father to
port
pay
arrearage
thirty days
action.
the total
within
C.G., Okl.,
recently, Matter
Most
HU previously a custodial a nonexistent B secure, decree, by to power the destruction regards par a common law The parent’s aof noncustodial status. Contin- with the child as indestructible ent’s bond application grounds pri- 1130 ued of by judicial not terminable dec and hence 1130, provides litigation implied which effect an ree.41 Section vate would abro- rights, terminating parental grounds for gation of parent’s the noncustodial valu- derogation of the common law. a statute right integrity able common-law abrogate law the common Statutes that status. only within liberally construed—but to be Except as altered our constitution and legislative object parameters statutes, the common law in full remains is not device ive.42 Liberal construction change force.45 The intent to it is never extending the ambit of an enactment ambiguous, presumed from an inconclu- Rather, scope. beyond intended sive, or unclear text.46 Alteration of is to achieve inter goal that construction plainly clearly common law must be and coincides pretation which harmonizes expressed.47 legislature presumed objective.43 lawmakers’ Valuable with the extinguish to have no intent common- par those common-law —like Moreover, rights,48 public law must law destroyed by statutes ents—cannot be interpreted being not, destructive of explicitly or does either whose text interparental private rights by itself to mere implicitly, address inference.49 Be- cause sets grounds 1130 out termination contests.44 proceed- invocable in a state-initiated language no indi- Section 1130 contains ing, Mullins constitutes an aberrational applicable private litiga- cating that it is norm, and, interpreted insofar as it the court in Mullins —without tion. When to authorize a 1130 termination in the permitted construing the terms of § 1130— contest, interparental grounds private context it individual to invoke the statute, is overruled. provided in that it conferred
41.
42.
938-939
y
losing
parent-
child
a
is not left
adoption-related
less in the aftermath of an
9 AND
OF 10 O.S.1981
THE TERMS
§§
of the
replacement
termination.
lost
REME-
60.6(3) PROVIDE PROPER
very
same
effected is
INTERPAREN-
IN PRIVATE
DIES
ceeding
produces
of
the severance
TAL LITIGATION
Thus,
target
parental
old
bond.
of
any
of
the record here is devoid
Since
clearly
from that of
60.6
distinct
§
for invocation
of harm sufficient
evidence
parental
1130. The
aims at
sub-
former
§
intervention,
the mother’s
governmental
of
through
coupled with
stitution
termination
to
the father’s status
recourse
affect
sole
adoption, while
latter authorizes the
an
private
in a
his child lies either
vis-a-vis
rights order
parental
state to terminate
adop-
in an
countenanced
9 or
action
§
adop-
set the child
a
to
free
future
60.6(3).50
his consent under
tion without
tion.53 In
short,
proceeding
the 60.6
oper-
law,
While,
under
common
courts
replace
ates to
parent,
while that under §
powerless to
the natural bond
sever
were
designed
1130 is
to emancipate the child
child, they could in
parent and
between
the offending parent’s
parents’
from
or
le-
parental
quantum
of
equity restrict
gal bond.
declaratory
The terms
9 are
control.51
of §
That section
of the common-law norms.
of
1973 amendment54
10
action, upon
provides for á
civil
presents
60.655
another elo
O.S.1971 §
authority,
complaint
parental
of abuse of
quent
re
demonstration of
from
freeing
the child
with a view
maintain
solve to
the traditional common-
guilty parent’s dominion.
boundary line
law
state-action and
between
private-law
By
remedies.
that amendment
the termi
provides
Section 60.6
legislature expressly provided
that con
pri
ancillary to a
parental rights
nation of
adoptions permissible
sent-free
under
adoption
parental consent.52
vate
without
—
offending parents—
60.6 vis-a-vis some
60.6,
In the context of
termination
granted
substitutionary
insures
an antecedent
device which
without
53. 10 O.S.1981 1133 and
51. See Allison
52. The
Adoption
Adoption
Adoption
The terms
been available
supra note
Fontaine,
adoptions
Mantooth,
Okl.,
re
tion
terminating parental rights
§ 4388.
[1972];
C.M.C.,Okl., 656 P.2d
out the imminent
[1978];
Adoption
Adoption
purpose
[1908]
C.L.P.,
of
Greer, Okl.,
legal
In the
Matter of
P.2d 287
of
Okl.,
Okl.,
are well established.
and Roxana Petroleum
Okl.,
Eddy,
of the statute.
without
Goodson, Okl.App.,
V.A.J., Okl.,
of
norms
Matter
H13
*11
adoption,
design
while the
the
a nonconsensual
The effect of
1130 termination.56
§
by
termination
the
of 1130is to authorize
§
recognized Wade
was
amendment
tripartite cluster of in
state whenever the
held that termi
In that case we
Brown.57
child, parents,
of
terests —those of the
1130 is
rights under
parental
nation of
§
implicated.60
may
the
become
state —
adoption
to a consentless
prerequisite
not a
conformity
with the Juvenile Code’s
60.6, and that
113458—which
under
§
§
purpose,
hold that
history and its
we
adopt may
proceeding to
that a
provides
pri-
grounds are not invocable
a
§
1130 termination
with a
combined
§
not
by
parent
seeks
vate suit
the custodial
who
60.6 because
not conflict with
suit—does
§
rights
non-
parental
of
termination
operative effect.59
separate
a
each
parent.
custodial
60.6 is
scheme shows that
§
This
remedy
opinion
Appeals
for
a
of the Court
to afford
intended
vacated,61
trial court’s termination
and the
parental bond via
involuntary severance of
56. The
58. The
59. In Wade
vant
"A
born out
the
shall not be
rights,
(Okla.Sess.L.1981,
was
necessary
mother,
rights
ground
adoption
cree
vided:
Oklahoma
was not obtained.”
final decree
"An action
bined
rights,
been
proceeding to
bined
Section 1134
rights,
come final.”
Ch. 259
"An action to
been
final decree
come
ed.]
of
consent is
1134, provides:
Okl.,
appropriate
legitimate child cannot be
consent of
decree
decree
where
adoption
part:
not obtained
terminated,
terminated,
final,
with an action to terminate
with an action
adoption
present
and where
[******]
terms of 10
that such
if
prescribed in Section
of wedlock
from
terminating parental
terminating parental
living, except
wherein
when
P.2d 526 [1973].
when the
Section 1130 this
but this section
said child.
was amended
adopt
necessary
legally
adopt
adopt
Brown,
jurisdiction
adoption may be rendered until
version of
adoption may
Its
a father or
heretofore
neither an
termination of
neither an
parents,
Ch.
the court has determined
present
the above conditions
shall not be invalid
[Emphasis added.]
a child without
O.S.Supp.1968
required."
without the consent
a child
a child
termination of
107, 1)
supra
rights
to terminate
Provided that
to terminate
§
if
§
that consent
version,
mother;
entered
within the
does not
interlocutory nor a
interlocutory
60.6,
living,
note
of a
be rendered
Okla.Sess.L.1977,
adopted without
provides
title
[Emphasis
parental rights
consent under
a
rights
not be com-
not
parent have
10 O.S.1981
nor
prior
of this
the consent
apply to a
amended,
parental
parental
parental
be com-
State of
any de-
has be-
petition
has be-
in rele-
a child
exist it
on the
is not
to the
of its
court
nor
have
title,
until
add-
60. The record reflects
The trial court refused
posed
termination
it
quested a
hearing
whether a
§
a
under
529.
mother’s motion
bond,
fered or to be suffered
and wanted
expressed the desire not to
nated,
evidence
presented
no evidence
these
ceased
make
wanted to
conduct.
parental
not be
the father
ber
atory
his child.
custody,
vacated
opinion,
nation
sion,
60.6 was filed in the
may
In addition
date of divorce in
1130 termination
precise question presented
being
$2,200
relied on
move
the state’s interest was
payments
or that without
order,
declaring
not and directed the trial court to
making
order. We
because that
without
1130.
bond.
not
adequately
was adduced
when he
hearing
no other
denied access
§
adoption
She
made child
secure a
in back
against the mother’s
to see
60.6 action
to reverse
Court of
in an effort
presented
presented
payments.
the
to the reasons
Wade v.
questioned
Irby v.
It is
support payments
that he
to terminate the
a
parental rights
discontinued
on
her. He stated that
evidence of
hearing
feed,
expressly overruled
prior
clear from the
proceeding. We held that
cared
judicial
court,
March,
Appeals’
that at the
the
disclosing any
district court. The
Irby,
support payments from
Brown, supra
to set the
to the child.
may
the trial
as to
still loved his
to the trial
to abandon or
clothe or shelter
She
§
have his
payments
§
without
60.6
for. The
Okl.App.,
1130 termination.
not
child. The father
severance of
refused to
reaching its deci-
decision
to the court
stated
the father’s mis-
them in a
combined with
withholding of
hearing
triggered.
adoption
under
his failure
court’s termi-
until
father's
adoption
rights
necessity of
because
because he
proceeding
record that
she would
There was
note 57
court,
harm
daughter
Septem-
must be
§
mother
he had
neglect
Irby in
today’s
on
accept
termi-
retali-
1130.
legal
hold
pro-
was
suf-
she
No
re-
at
a
time as the husband
prejudice to the
is reversed without
order
Plaintiff
is stationed
the United States
of a
[in
post-remand institution
mother’s
overseas;
during
peri-
Army]
such
proceeding
joining
her
suit or to
od
the husband
[as
adoption
paternal
in an
terminate the
bond
Plaintiff
stationed
of time the Defend-
overseas]
the father’s consent
to be effected without
granted custody
Brandy
ant shall be
authority of 10 O.S.1981
pursuant
period
Michelle Davis for a
of 3 weeks
60.6(3).
*12
arranged
said time to be
dur-
per year,
ing
period
returns to
that Plaintiff
C.J.,
LAVENDER,
SIMMS,
HAR-
and
year;
the United States each
and that
SUMMERS, JJ., concur.
GRAVE and
during
period
custody,
such 3 week
DOOLIN,
HODGES,
V.C.J.,
WILSON
support
for ¾ of the month shall be
KAUGER, JJ.,
and
dissent.
waived.”
During
period
appellee’s military
WILSON, Justice, dissenting.
ALMA
stationed in the United
husband was
States
Davis,
moth-
appellee,
Dean Ann
Army
Germany,
in
the child was twice
case, brought
in this
this
er of the child
brought back to the United States. On
appellant-fa-
action for termination of the
occasions, appellant
granted,
these two
was
rights subsequent
to the
ther’s
in,
apparently acquiesced
and
visitation ar-
complete
contribute to
appellant’s
failure to
rangements
Brandy
(age
Michelle
one
Davis,
support
Brandy Michelle
1980;
1981)
year
age
years
in
two
in
in the
divorce,
parties
provided in the
decree of
appellant-father’s
home of the
own mother.
September
1980 until March
from
in
These two occasions
1980 and 1981
appel-
1982.1 The record reveals that while
during
period appellee’s
which occurred
support
lant withheld his court decreed
overseas, however,
husband was stationed
earning
appellant
from the
was
be-
do not form the basis
the current contro-
only
per
hour. The
$10.00
tween $9.00
versy.
subsequent
modifying
order
explanation given by appellant
sup-
for not
decree did not extend
original
beyond
was,
Brandy
get
porting
Michelle
“I didn’t
period
appellee’s
of time that the
hus-
rights,
visitation
so I didn’t feel
it was
or-
See
Germany.
band was stationed
However,
right
pay;
...”2
at no time
der, quoted supra. At the conclusion of
appellant
pleadings
did
file
to enforce the
tour,
military
appellee re-
her husband’s
visitation
which he claimed had been
Brandy
turned to the United States with
Moreover,
testify
he
that
violated.
did not
6, 1982,
January
Michelle on
at which time
arrange-
he had even demanded or made
original
providing
decree
for “reason-
ments to enforce the
cus-
visitation and/or
Thereafter,
able visitation” was effective.
tody rights provided
original
order
appellee
appellant-father
testified that
decreeing “reasonable visitation” and the
granted
opportunity
was
for visitation
subsequent
court’s
modification order of
Brandy
appellant-fa-
Michelle at the
5, 1979,
provided:
December
which
parents’
Saturday
ther’s own
house on
“That the Plaintiff should be entitled
(then
3)
Sunday
Brandy
age
when
Michelle
parties,
to remove the minor child of the
was there. Whether or not this constituted
Davis,
Brandy Michelle
from the Conti-
visitation” is not now before
“reasonable
period
Rather,
during
such
appeal
appel-
nental
us.
this
concerns the
United States
Hester, Okl.,
Hester v.
three
child’s
to child
is not
1H5
eases under
failure,
exclusively to the state
all
period
utter
lant-father’s
a welfare state of
all circumstances. Such
months,
support due
pay the
seventeen
view,
affairs,
irreconcilably
my
remains
by court order
forth
the child as set
notions of free
antithetical to fundamental
10 O.S.
therefor under
consequences
end,
open access to the courts. To this
clear-
1130(A)(4),
states most
1981 §
(through her custodi-
the minor child herein
ly:
re-
parent)
legislatively ordained
al
seeks
delinquent
finding
a child is
A. The
medial redress of the child’s individual
deprived shall
supervision
need of
original
right
support set forth in the
to the
the child of
parents of
deprive
not,
legal
decree of divorce. The
contest
rights, but a court
their
substance,
parents;
the child’s
between
terminate the
child and the
is rather between the
but
situations:
following
child in the
actions,
non-supporting parent. As in tort
finding
who does
4. A
disability minority,
excepting legal
the child has
custody of
not have
wilful-
against
bring the action
child could
*13
support
to the
ly
to contribute
failed
ca-
non-supporting parent in her individual
a decree
provided in
the child as
in such instance is not
pacity. The state
order
court
in some other
divorce or
necessary party
action. As the ma-
to the
or, in the
year
preceding
during the
out,
are
jority points
state-action issues
order,
consistent
absence of such
that a
triggered when evidence is adduced
earning capacity;
means and
parents’
the
by statute.
deprived,
child is
as defined
[Emphasis
...
mine.]
in
finding
required nor made
No such
governed by a
case is not
Only when a
required, a
finding
this case.3 Were such
free to work out
is this Court
statute
in favor of a child would
support order
Yet, here, 10 O.S.1981
own solution.
un-
to remedial redress
never be amenable
1130, above,
greatest
and is of the
exists
I do
deprived
eases.
der
1130 outside
section, our State
Under this
relevance.
a law
Legislature intended
not believe the
termination of
Legislature has authorized
here, the child’s
remedy, where as
parent who does
parental rights of a
the
are
own interests
parent, whose
custodial
wilfully
custody of the child
not have
issue,
duties the
performed those
not at
support of the
fails to contribute
perform as a surro-
state could otherwise
provided in a decree of divorce.
child as
interven-
governmental
gate parent. State
payments are
child
Inasmuch as
doc-
the
family
in
matters based
tion
child,
than for
of the
rather
for the benefit
not be invo-
patriae should
parens
trine
parent, I cannot
the custodial
the
The doc-
benefit
all circumstances.
under
cable
which
majority’s
only
rationale
agree
traditionally
invoked
trine has been
that the entire Juvenile
holds to the idea
war-
necessity of the situation
where
only
public
intended to serve
Code is
intervention
state-governmental
ranted
child,
example
While the state
the state.
as for
protection of a
circumstances, on
proper
brought against abu-
proceed, under
deprived child actions
cases,
interests
the remedies
public
of the
to enforce
In such
parents.
behalf
sive
diametri-
Act,
parents
thrust of the
alleged
still the main
abusive
child;
helpless
parameters
cally opposed
those of
Act establishes the
children,
surro-
is in need of
by, or on
and the child
behalf of
enforceable
Ac-
her interest.
obligations imposed
his or
gate to advocate
of the correlative
surrogate par-
may,
cordingly,
Act
nothing in the
the state
upon parents.
I find
for the
ent,
as advocate
by
Legislature
then intervene
intent
evinces an
however,
is,
un-
surrogate parent
child. A
enforcement
relegate complete and total
custodial
child’s own
necessary
where
support rights of children
1980),
be followed.
(Okl.
should now
Mullins,
this case and
ed in
Mullins
present
precise
issue
addressed and settled
however,
repeal,
presumed
can never
interest is not at issue with the
parent’s
child,
sought
accomplished expressly.6 I
right
whose
is
must be
interest of the
but
It
redressed.
is
where
evi-
this Court is bound to construe the
believe
“Children”,
indicates that a child
dence
such actions
statutes of Title
entitled
other,
supervision,
giving
or in need
deprived
conjunction,
is
one with the
appropriate
(as prior
issues become
for transfer
force and effect to each
case law
docket,
juvenile
prop-
after
done)
to the so-called
thereby
facilitate
sub-
opinion.
majority
er notice. See
irrespective of
stantive
intent
f.n.
parent and
The conflict of interest between
imposed procedural dichotomies.
judicially
deprived
manifested
and in need
case,
present
agree
In the
I do
that re-
issues, then, requires
ad-
supervision
state
appropriate
the trial court
versal
since
vocacy
appointed
in the form of state
coun- apparently thought
no discretion and
it had
There are no conflict of interest issues
sel.
that termination was
The trial
mandated.
against
present
action to resolve
pronouncing judgment
court in
stated:
parents.
the element of harm to
Absent
O.S.1981,
“The
statute
[10
imper-
intervention
the state is
1130(A)(4)] appears to be a rather
majority
concedes that the
missible.
remedy,
anything
I
harsh
but don’t see
record here is devoid of
evidence of
the statute that shouldn’t be followed.
govern-
sufficient for invocation of
harm
very
It’s
clear that a father or
However,
mental intervention.
I cannot
who fails to contribute to the
1130(A)(4)
agree that
recourse to
period
year,
the child for
of over one
previously
thereof.
barred
reason
As
during
preceding year,
has their
stated
this Court:
*14
So,
rights terminated.
I don’t see that
receiving
“A
excellent
child
be
under
the
the Court has
choice
parent,
care
custodial
from the
while the
parental
statute
but
to terminate
parent
obey a
noncustodial
refuses to
[Emphasis
rights.”
added.]
court order to contribute to the child’s
presented
support
only
evidence
support.
per-
It
be
would
ludicrous and
pay support,
of termination was failure to
haps impossible
require
to
a determina-
coupled
with the trial court’s obser-
deprivation
delinquency
tion of
under
judgment,
the deci-
vations
its
indicates
circumstances,
irresponsi-
these
and the
sion was based on misconstruction
only
to
ble
would not
be able
“may” in 10
law. The word
O.S.1981
escape
responsibilities,
his
continue
but
1130(A)(4), permissive
mandatory.
enjoy
parenthood,
to
the
in-
benefits of
Thus, the
failure of a noncustodial
wilful
visitation,
cluding
rights of inheritance
support
parent to contribute to the
of his or
rights
earnings.
and
to the childrens’
year preceding judgment
her child for
only
ineq-
a result
Such
would not
be
ipso
operate
pa-
to forfeit
does not
unconscionable,
uitable and
it would vio-
facto
require their termination.
rental
late the statute.”4
rather
the trial
The statute
vests
court
agree
interpretation
Nor can I
with an
with discretion to terminate
consider-
the statutes
in Ti-
which renders
contained
circumstances;
of all the
it does not
ation
“Children”, procedurally
tle
ir-
entitled
mandate termination.
addressing
reconcilable. Statutes
the same
Additionally,
appellant-father
the
in this
subject
are to
in a
matter
be construed
ultimately attempted
comply
to
provi-
case
differing
manner which reconciles
tendering
sup-
support
the
order
child
intelligent
sions and renders an
effect to
arrearage
prior
majority’s
port
into court
to the trial
each statute.5 The
construction
1130(A)(4).
virtually repeals
Legislative
judgment.
court’s rendition of
Unlike
Safety,
Dept.
Id.
6. Beavin v. State ex rel.
Public
(Okl.1983).
1H7 adoption 60.6 which authorizes sonable tension between state and showing based on a upon a of non- law strained construction of the parental consent statutes of the filing year State of Oklahoma. The support preceding for a the protect Juvenile Code was enacted the petition, 1130(A)(4) to adoption state, best interest of children of this to parental rights for for termination of vides care,1 provide adequate appropriate support failure to contribute to the wilful and to shield them not from lack of preceding year. child during life, the necessities of from but also abuse language specifying qualifying Absent the bodies, mind, psyche. of their To the applicable period non-support as be- extent that the state has an interest in its petition, filing ing measured children-citizens, public law is involved. reasonably period may calculated as However, majority, in a to refusal fol- on date trial court ascertainable Mullins, precedent Mullins low judgment. erring An renders final (Okla.1980), spectre raises the every is thus accorded reasonable Code, O.S.Supp.1983 duty to opportunity comply with the 1130(A)(2), applicable only to state ac- or her minor child termi- his before majority opinion spawns pub- tions. The rights. nation of Absent unexcus- lic-private right dichotomy holding that compliance, as determined the trial able by parents 1130 cannot be used termi- circumstances, all the an irre- court under parental rights, nate and that 10 O.S.1981 sponsible parent’s wilful refusal provides private paren- exclusive minor termi- his or her result remedy. tal nation 1130(A)(4). Legislature. This will be news stronger could no statement of There DOOLIN, V.C.J., HODGES, legislative intent that all sections Title KAUGER, JJ., expressed join in the views cumulatively than 10 are be construed herein. recent Under the its most amendments. Bill, Leg- of House No. umbrella DOOLIN, KAUGER, J., with whom combined, amended, and codified islature JJ., V.C.J., WILSON, and ALMA HODGES *15 60.5, 60.6 and 10 O.S.1981 10 O.S.1981 § dissenting. join, provide pa- The amendments required is not under 60.6 rental consent I rights terminated parental have been if THE JUVE- THE STATED PURPOSE OF 1130 The amend- pursuant to and 1131. TO ADE- NILE CODE IS INSURE proceed- provides to that in a ment QUATE AND APPROPRIATE CARE parental parental rights if ing to terminate FOR EVERY CHILD. THE PUBLIC 60.6, required par- is not consent PRIVATE LAW DIS- LAW VERSUS parental rights. to is deemed be without ent BAR PRI- DOES NOT TINCTION E as amend- of 10 O.S.1981 Section O.S.Supp. VATE UNDER SUITS ed, pursuant permits of notice waiver 1130(A)(2) 1983 § and this provisions By putative fa- requiring notice to majority opinion title. I must dissent from born out of wedlock an thers of children attempts to unrea- it establish because any for the use allow O.S. treatment purpose is contained 1. The which part: Supp.1984 provides pertinent of treatment of the least restrictive method treatment needs custody consistent with the and approximate, and disci- "... 1. That the care and, nearly delinquents, the child case pline the child shall as be, given by orderly public, provide should be tection any practicable, parents, far placement and that as of a procedures for the reliable delinquent treated as child shall not be alleged need of treat- to be a child in child criminal. 2. rights protect ment and public policy this state is to That pursuant to law.” placed home out his appropriate adequate care and assure possible CODIFICATION; Legislature recognized a constitu- FOR AND PROVID- ING AN DATE.” grant EFFECTIVE problem, and moved to tional out of wedlock the fathers of children born requires The Oklahoma Constitution process procedural same due afforded to every Legislature title of act of the fathers of children born wedlock.2 expressed clearly subject. embrace one purpose provision prevent of this is to Act, The Title of the H.B. states: joinder subjects of diverse or unconnected CHILDREN; “AN ACT RELATING TO Legislation amending in the same act.3 O.S.1981, AMENDING SECTIONS general operate sections of law must on the 60.5, 1131; 60.6 and PROVIDING FOR logically legally same matters which THE PARENTAL OF CER- RIGHTS originally.4 could have been included PERSONS; TAIN MODIFYING THE imply merely change These amendments LIST PERSONS WHO ARE RE- OF provisions of the Act on the same sub- QUIRED AN TO CONSENT TO ADOP- ject original contained in the sections. TION; MODIFYING LIST OF PER- parental Termination of did not SONS FROM WHOM CONSENT TO Statutory exist at common law. involun- REQUIRED; ADOPT IS NOT PROVID- tary proceedings termination are in der- ING FOR TERMINATION OF PAREN- ogation of the common law and must be PERSONS; TAL RIGHTS OF CERTAIN liberally. construed The fact that statutes REQUIRING CERTAIN PETITIONS abrogating the common law are to be con- CONDITIONS; RE- UNDER CERTAIN liberally harmoniously strued within QUIRING NOTICE AND HEARING legislative objectives the bounds of is the SPECIFYING PERSONS ELIGIBLE TO majority opinion. I cornerstone NOTICE; RECEIVE SPECIFYING agree principle. this I What do not NOTICE; CONTENTS OF PROVIDING agree majority’s is the failure to rec- COURT; FOR ORDERS OF THE PRO- ognize controlling precedent patent leg- expressed VIDING FOR CERTAIN DUTIES OF islative intent as in the title of previous CLERKS; H.B. and as codified en- COURT ESTABLISHING actments.5 REGISTRY; THE PATERNITY PRO- VIDING FOR CERTAIN DUTIES OF Act, at the time the father’s THE DEPARTMENT SER- OF terminated, provided that a HUMAN were VICES; REQUIRING PUBLICATION legitimate adopted minor child could not be AND DISTRIBUTION OF CERTAIN pursuant consent to 10 INFORMATION; REQUIRING CER- 60.6, unless the O.S.1981 REPORTS; drunkard, deprived TAIN PROVIDING FOR judicially had been CONFIDENTIALITY; proceeding, judicially in a divorce PROVIDING Evans, Highway "Independent Adoptions; In Whose State ex rel Okla. State Comm’n v. *16 Interest?’’, 1805, (1982). 605, 234, Horn, (1940); Best O.BJ. P.2d 187 Okla. 102, Cupp, Bros. Const. Co. v. 177 Okla. March Const, 57; § 3. See Okla. art. 5 852, (Okla. 1936). 57 P.2d "Every Legislature act of the shall embrace subject, clearly but one which shall be ex- provides: Title 12 2§ O.S.1981 title, except general appropria- pressed in its law, by "The common as modified constitu- bills, bills, general tion revenue and bills law, statutory judicial decisions tional and code, statutes; digest, adopting a or revision of people, and the condition and wants of the revived, amended, and no law shall be provisions or the general conferred, aid of the shall remain in force in thereof extended or Oklahoma; only; but the rule of the but much thereof statutes reference to its title so revived, amended, extended, law, derogation or con- as is common thereof, that statutes in construed, published at strictly ferred shall be re-enacted and length: be shall not shall Provided, any subject That if be em- applicable any general to statute of Okla- be contrary provisions braced in act to the homa; liberally but all such statutes shall be section, of this such act shall be void promote object.” construed to their to so much of the law as not be ex- pressed in title thereof."
1H9
neglectful
or
shoulder the burden of motherhood/father-
to have been cruel
determined
Unfortunately,
child,
to
the
nu-
wilfully
or
failed
contribute
hood.
fabric
the
exceptions
family
frayed,
single
support.6 If these
clear
has become
to
child’s
the
existed,
parental rights
parent
many
the
un-
families
instances are
termination
rule,
exception
Supp.
unneces-
not the
to
rule. Neither
O.S.
1983 1130was
der 10
implied,
of the State of
Thus,
must
the constitution
Oklahoma
sary.7
the converse
be
exceptions nor
United States Constitution tolerate
not meet the
parent
if a
could
imposition
governmental
preference
adoption
to seek
without con-
under
60.6
patterns
family living.9
Courts
be
must
then he/she must seek termination
sent
oper-
sensitive
different norms which
requisites of ter-
1130. The basic
under §
pluralistic society.
within our
ate
consent have been some-
mination without
by the 1985 amend-
what standardized
adopt
statutory application
If
we
required
par-
if the
is not
ments. Consent
urged by
majority,
following
sce-
terminated
have been
ent’s
A parent
wilfully
nario will occur.
who
1131,
parent
if the
willful-
pay
support
year
fails to
child
for over a
to
ly
failed to contribute
parental rights
have his/her
terminat-
required if a determi-
nor is consent
if
adoptive
there is an
ed
that an unwed fa-
been made
nation has
But,
waiting
wings.
without
unnecessary.
ther’s consent
adoption,
parent, wilfully
the same
re-
fusing
pay
support, may
have
to
not
However,
majority
asserts
parental rights terminated
his/her
unless
brought
which can
1130 is an action
be
attorney brings
district
the action un-
exclusively by
state
state-
because
This taints
der
1130.
termination
essence,
private
distinction.
law
ceedings
appearance
with at least
opinion is
majority
distillate of
criminality;
subjects
possible
it
the district
parental rights may not be terminated
attorney’s
to an enormous financial
office
parties
adoption
unless an
fol-
burden;
requires hiring
and it
additional
consti-
This is contra
fundamental
lows.
basically are domes-
process
what
staff
it
an im-
law because
establishes
tutional
At a time when the
tic matters.
fat
of children and
permissible classification
trimmed,
this stat-
government should
Const,
parents,
both the Okla.
and violates
imprudent
well
utory
construction
equal protection
and the
clause
art.
59§
as unconstitutional.
A
Amendment.8
distinc-
of the Fourteenth
public-private
i.e.
Apparently,
out of
law
tion is
children born
made between
recog-
first
wedlock,
state-private dichotomy was
children who do
have
Duncan,
missing component nized in Hunter
to fill the shoes of
However,
Hunter,
(Okla.1955).
family, and those
nuclear
of the traditional
solely
explain
distinction
parent ready to
court used the
who have a substitute
neglected
pertinent part
contribute
exceptions
provided in
fused or
6.The
child:
...”
such
10 O.S.1981 60.6:
adopted
legitimate
child cannot
"A
See note
infra.
living,
parents,
nor a child
if
the consent
its
without the consent of
born out of wedlock
mother,
Foster,
See Wilson v.
except
living,
is not
if
that consent
1979)
(Okla.
necessary
father or mother:
from a
Equal
Clause of
under the
Protection
"Both
drunkard;
Adjudged
to be an habitual
Consti-
to the U.S.
the Fourteenth Amendment
*17
judicially deprived
the
of
Who has been
2.
tution,
provisions
the
of Art.
as
as under
well
by any
compe-
custody
the child
court
Con.,
dichotomizing
parents
Okl.
§
including
jurisdiction,
a court which has
tent
affording them different
results from
which
involving
jurisdiction
action
said
of a divorce
adjudicatory stage
the
of trial at
modes
neglect
cruelty to
parent,
on account
proceeding
impermissi-
deprived-status
child; or
ble....”
Who,
(12)
period
a
twelve
months
for
filing
petition
Cleveland,
preceding
a
next
431 U.S.
Moore v. East
failed,
child,
1932, 1940,
(1977).
willfully
re-
adoption of a
H21 an a an action or result cumulative effect of 1130 can institute abandonment § 60.6, rights. been cross parental On referenced to be used action to terminate A(l) O.S.Supp. adoption custody proceedings. in contrary, 10 1130 The § paren- private interparen- of 1130 from allows a minor parent to terminate removal § 1130(A)(1) rights.12 specifically proceedings tal Section termination could mean tal conjunction 1130 that best interest refers 60 in standard which is to § § 60.6(3)(a) solely there in not Under is articulated could be terminations. § § except explicit saving integrates anything proceedings used in an clause which § necessary brought by Obviously, it Although 1130.13 is not to state. this § rights 1130 if would intent. parental under violate terminate § required under 60.6 are conditions § Brown, (Okla. Wade met, prevent does 1130 termi-- this not § 1973) the court examined the cumulative being as a for nations from used basis 1130, 1131, use of 10 O.S.1971 1134 and §§ adoption without consent 60.6. held, acknowledging The 60.6. Court a specific The cross references belie statutes statutory construction, fundamental rule of to con- they that the conclusion permits combining that 60.6 an action to is, only separately, that in strued adopt parental an action terminate to proceedings and state instituted rights. The found no violation Court also private proceedings. in process provided of the Code due because opportunity interest of the child standard notice and to be heard before best has, adoption statutorily under 1130 and as an without consent.14 arises title, 1130(A)(1)provides O.S.Supp.1983 of this was not obtained in Section 1130 12. Title 10 pertinent part: ground in not be invalid on the that such shall rights parental delinquent, of was not ob- finding a is in termination "A. The that child supervision deprived de- or shall not need of tained." prive parents parental of their of child was amended in 1985 H.B. 1308 This statute rights, rights but a court terminate the provide part: to following parent a to a child in the situations: (18) eighteen years age child under "A parent, Upon a of a in- written consent adopted without consent cannot minor, cluding edged parent who a acknowl- a is parents, living, except if that consent is not (5) provided paragraph of Section as required from ... title, 60.5 of this who desires terminate his who, (12) period for twelve 2. A a parental rights; provided that the court finds filing immediately preceding a months termination is in the best interests such child, willfully petition adoption for has child; or ...” failed, refused, neglected to contribute savings is support clause contained in O.S. ... of such child: part: which states in parent’s 1981 60.6 according financial abili- b. to such adopted support if legitimate ty child’s no "A child cannot be contribute to such living, parents, support provided of its if nor provision consent in a decree for is wedlock, modification, without the consent of born out subse- of divorce or an order of mother, living, except its necessary if that consent not thereto; any quent of the above or and where a father or mother: ... from necessary not be exist it shall conditions Who, (12) period for of twelve months parental under Section 1130 terminate petition filing preceding the of a next adoption prior of said child. title to the of this failed, willfully re- adoption of a any adoption hereto- decree Provided that neglected support to contribute fused or juris- any appropriate court fore entered of such child: ... Oklahoma wherein within the State of diction according parent’s abili- b. to such financial rights, prescribed parental termination ty if no to such child's to contribute title, was obtained 1130 of this in Section provision provided a decree ground that such on the not be invalid shall order of modification subse- of divorce an not ob- termination thereto; any quent of the above and where tained; or ...” necessary to it shall not be conditions exist parental rights under Section 1130 terminate adoption proceedings are before 14.Notice adoption prior said child. of this title O.S.Supp.1983 part pertinent vided adoption any hereto- decree Provided § 60.7: juris- appropriate court of fore entered application, hearing on Prior to "... wherein State of Oklahoma diction within the given whose con- shall be notice rights, prescribed termination *19 II inequitable unconscionable, it
would violate the statute.”
MULLINS V. MULLINS PERMITS
procedural
The
posture of Mullins bears
PRIVATE UTILIZATION
10OF
relationship
no
to its
controlling
stature as
O.S.1981
precedent here. The Mullins court was
Mullins,
In Mullins v.
rights are necessarily terminated, tent, and that different enact and that rights may expressly ments be construed cumulatively and har be terminated for wilful refusal to con- moniously. This may Court not read ex tribute to the children’s in ac- ceptions into the statutes which were not cordance with a court order to do so. legislature.17 made In McCain v. This is in conformity with the obvious Board, State Election 85, 144 Okla. 289 P. intent of the statute. A child 759, (1930) the Court held that because receiving excellent care from the custodi- Legislature had session for two been parent, al while the noncustodial terms since the statute had been con obey refuses to a court order to contrib- strued, and at no time had seen fit ute to the support. child’s It would be change law, Legislature ap had perhaps impossible ludicrous and to re- proved and ratified given the construction quire a determination deprivation to the statute the courts.18 Since Mul delinquency circumstances, under these lins promulgated, there have been five irresponsible and the parent would not legislative sessions in which teaching only be able to escape responsibilities, his approved. legislature been The had an but enjoy continue to , the benefits of opportunity 1981, to amend 1130 in parenthood, visitation, including rights of again 1983, and 1985 when it amended inheritance and portions children’s other of the Act changing earnings. Such a result applicable provision would not Lek alleged unnecessary. (10) sent is days notice, to be receipt The notice after the of such application except shall contain the name parent, with the consent of the if application each child adoption for whom known.” made, hearing is tion, applica- date for on the 16. See 12 15, 1, O.S.Supp.1983 App. Ch. Rule eligible and the reason that said child is adoption par- 1.200. without the of said consent publication ent The ... shall not be less than (15) Hughes Drilling Morgan, Brown, days prior Co. v. fifteen ing...." 648 P.2d to the date of the hear- (Okla. 1982). Wade v. (Okla.1973). requirement 15.This is also a before a court parents rights McCain v. State Election terminate a 1130. No- Board, 144 Okla. requirements provided tice in 10 (1930). O.S.1981 289 P. § 1131: "(2.3) Legislature has been in session for given "A shall be actual notice of placed two terms since this construction was hearing parental rights. statute, to terminate his said and at no time saw fit to requested, change notice shall indicate the relief the law as construed the state elec- hearing shall not be held until at least ten tion board."
H23 *20 Co., P L an v. & Fire Protection (Okla.1980), the Court held: In re GUARDIANSHIP OF Archie familiarity extant Legislative Dave DEERE.
“... of statutes in judicial construction DEERE, Jr., Appellant, Archie Dave presumed. is process being amended contrary clearly appears intent Unless plainly expressed, terms DEERE, Sr., Appellee. Archie Dave same, amendatory retain the acts which No. 61905. dissimilar, substantially por-
or not Supreme Court Oklahoma. provisions formerly in tions force iden- be accorded the construction will Oct. placed them tical (Emphasis ...” preexisting case law
supplied). amended, 60.6, deletes habit- as
Section deprivation of judicial and ual drunkenness adoption grounds for consent, parents restricts lack of consent to pursu- have been terminated
whose 1130 and 1131 of this “title of this ant to Act”, instances certain where is an is born out of wedlock. This recognition by the and concrete
explicit doctrine. Legislature Mullins have majoritys’ argument would validity if not the statutes had been some Wade, and if interpreted Mullins acquiesced and re- legislature had not endorsed, strongly cently even more in these application position in this case cases. dissenter’s legislative squarely permissable within majority refusal of boundaries. The is not.19 This Court follow stare decisis consistently parents has to termi- allowed rights under 1130 and
nate as well the state signaled private parties public and controls that the Juvenile Code proceedings. To recant private termination controlling precedent, and cre- ignores now orderly administration chaos ates jointly justice. Failure to consider constitutional 60.6 violates extant and intent, requires law, obvious am overruled—I and Mullins be that Wade these. willing to countenance (1985). 1308, 7 Okla.Sess.Laws 1521 H.B. No. See