*1 1997 OK rel, ex
STATE DEPART- SERVICES,
MENT OF HUMAN
Petitioner, Jerry COLCLAZIER,
The Honorable Dis- Judge, County,
trict McClain State of
Oklahoma, Respondent.
No. 89356.
Supreme Court Oklahoma. 28, 1997.
Oct.
As Corrected Nov.
Rehearing Denied Jan.
¶
petitioner,
original proceeding,
2 In this
(DHS),
Department of Human
Services
separate
en-
seeks relief
two
orders
Colclazier,
Jerry
by the
Dis-
tered
Honorable
Judge,
trict
District
in McClain Coun-
Court
juvenile
styled
ty,
proceeding
in a
J.U.,
Alleged Deprived
In the
An
Matter
Child, No.
The orders direct
JFJ-95-63.
deprived
child
DHS to move
from the
parents
some
care of foster
who reside
away
place
child’s home
miles
from the
Counsel,
in
File,
another foster home nearer in
child
Diane
Assistant General
petitioner.
proximity
pay
to her
care
City, for
home
Oklahoma
expenses.
Franklin, Norman, for the mother.
Carl
¶
began
proceedings
3 The
below
Purcell,
Gray,
deprived
Charles N.
for
her
when J.U. was removed from
mother’s
child.
custody by
August,
DHS in
because
Puckett,
Attor-
Ann
Assistant District
Lori
hospitalized
her
for mental
mother was
Purcell,
ney,
respondent.
J.U.,
deprived
alleged
health reasons.
an
child,
placed in
was
a foster home where she
WILSON,
ALMA
Justice.
December, 1996,
remained until
when DHS
in
her
brother
J.U. and
new-bom
petitioner’s application
grant
1 We
foster-adoptive
at a
more than
home
location
jurisdiction
original
assume
to address two
March, 1997,
away.2
100 miles
In
at the
1)
may
questions:
the district court
Whether
trial,
three-day non-jury
conclusion of a
placement,
changes in the
care and
direct
request
district court
the state’s
denied
adjudicated deprived
of a child
treatment
parental rights
moth-
terminate the
of J.U.’s
Department
in
er and ordered immediate visitation with the
Human
under the Oklahoma Chil-
Services
therapy
program
mother and a
assist
2)
and,
Code;1
Whether the district
dren’s
goal
of reunification.3
Department of Human
court
direct the
¶4
disposition hearing
At
had on
payments
provide
Services
foster care
16, 1997,
mother,
attorneys'
adjudicated
April
for the
who
not
state,
that,
jointly, requested
Department.
and the
custody of the
We hold
Code,
from the fos-
year
five
be removed
pursuant
to the Oklahoma Children’s
old J.U.
County
ter-adoptive
home as soon as the move could
court McClain
had the
district
anxiety
Human
be effected with
least amount
power to
order
tending
modify
of the sub-
to J.U. The
heard evidence
Services
foster-adoptive parents’ behav-
ject deprived child, according to
show that the
the best
supportive
visita-
further
ior was
the ordered
interests
the child standard. We
plan
the fos-
tion and reunification
and that
upon
hold that
removal of
transport
ter-adoptive
refused to
subject
parents
of Human
had
child from the
or-
psychiatric
therapy services
County
J.U. for
the district court McClain
Services
court,
determined,
testimony
expert
proper
have
after a
hear-
dered
should
respon-
change
that a
is warranted
ing,
has the
is con-
payments for where the foster home environment
sibility to
foster care
efforts,
though
even
trary to reunification
the child.
December,
gave
ceeding.
J.U.’s mother
1. The Oklahoma Children’s Code
codified
of a
Chapter
to a male child who is
70 Title 10 of the Oklahoma Statutes.
birth
Okla.Sess.Laws,
proceeding in
District Court in
ch.
last amended
Okla.Sess.Laws,
County, Oklahoma.
ch. 386
ch. 389.
Cleveland
rights
refusing
parental
always
order
to terminate
Apparently,
had
3.The
court-ordered
pro-
this
is not before this Court.
been with DHS until after initiation of
change
requiring
increases the risk of 29th
payments
foster care
The court determined
attachment disorders.
are excessive and unwarranted exercises of
foster-adoptive
that removal from
remote
judicial power and asks
Court
to issue
to a foster home located in McClain
home
prohibition.6
argues
writ of
County
*3
County
or
in
Cleveland
would be
the April
place-
16th order invades the exclusive
best
interest of
The court ordered
J.U.
authority
pursuant
in
vested DHS
to 10
ment
change
placement
to
DHS
the foster home
7003-7.1(B)(l).
§
O.S.Supp.1996,
DHS also
designed
approved
plan
and
a treatment
to
May
may
asserts that
29th order
be
goal
meet the
of
of
and
reunification
J.U.
her
§
contrary to 42 U.S.C. 672.
required by
mother as
statute.
¶
22, 1997,
April
5 On
the district court
April 16,
I. The Order of
granted
stay
April
Upon
a
of its
16th order.
¶
§
O.S.Supp.1996,
7 Title
7003-
subsequent hearing,
a
the court dissolved the
7.1(B)(1),
by
as amended
1997 Okla.Sess.
stay
place
and ordered that
J.U. in a
DHS
Laws,
386, 7,7§
ch.
provides:
forty-mile
foster home within a
radius
by
May
Friday,
May
courthouse
1997. On
B. 1.
If the child is
in the
2, 1997,
original proceeding.
filed this
custody
of the
of Human Ser-
stay
emergency
This
entered an
Court
vices,
emergency,
temporary
May 12,
on
suspending the effective-
permanent custody,
or
change
ness of the
ordered
foster home
appropriate place-
shall determine
Thereafter,
placement.
the district court re-
However,
ment of the child.
under no
custody
specified
voked
of DHS and
circumstances
of Hu-
placement of J.U.5 DHS canceled J.U.’s
parent
a
man Services return
child to
medical, psychological,
medical card for
being
that contributed to the child
de-
system
social services under the Medicaid
prived
neglect,
due
abuse
without
payments
and terminated foster-care
prior ápproval
Any
change
the court.
29,1997,
clothing
May
vouchers for J.U. On
placement
adjudicated
of a child
to be
the district court
DHS to
ordered
provi-
shall
with
accord
payments
clothing
foster care
vouchers
sions of
B of
subsection
Section 7003-5.4a
herein,
By supplemental filing
for J.U.
added.)
(Emphasis
of this title.
May
álso seeks relief from the
29th order to
provision
expenses.
make
foster care
¶
emphasized
8 DHS relies on the
¶6
language
April
proposition
place
DHS contends the
16th order
for the
that it has
change
requiring
placement
May
every
and the
ment
at
stage of the
dissent,
According
Today
4.
specific placement
to the
the issue raised
we hold that DHS’
original proceeding
DHS in this
approval
rendered
disapproval
J.U. was
was
change
moot
clarification,
mid-stream
Be-
purposes
district court. For
our
capable
repetition,
cause it is
the issue is
holding
recognize judicial power
does
excepted from the mootness doctrine. Gaines v.
specific placement
order a
of a child whose
(Okla.1991);
Maynard,
APPLICATION TO ORIGI- ber of the following ASSUME J.U. GRANTED; adoptive-foster NAL PETI- and newborn brother in a JURISDICTION his TION FOR WRIT OF PROHIBITION home some one-hundred miles from the IN AND IN GRANTED PART DENIED mother’s In a dispositional hearing location. 16, 1997, PART. April held on the district court adop- from ordered J.U. removed SUMMERS, V.C.J., HODGES, and tive-foster home to foster home located HARGRAVE, WATT, ALMA WILSON and County. either in McClain or Cleveland Af- JJ., concur. original ter an proceeding ques- DHS filed tioning the court’s to review it’s KAUGER, C.J., part concurs decision, the trial court removed part. dissents in J.U. from DHS the child SIMMS, J., part. dissents in designated. with custodians it Once revoked, agency: was canceled ALA, JJ., LAVENDER OP dissent. card, J.U.’s medical payments terminated KAUGER, Justice, Chief concurring in care; clothing and refused to issue (cid:127)part part: dissenting 29, 1997, May vouchers. On the district presented by original Two issues are provide court ordered foster care 1) action: decision payments clothing vouchers for the child. (DHS) of Human Services pursuant O.S.Supp.1996 § made to 10 7003- PRESENTED, UNDER THE FACTS THE 7.1(B)(1)1 2) subject judicial review; PLACEMENT DECISION MADE BY whether, once child is removed THE DEPARTMENT OF HUMAN SER- custody, agency remains liable for the VICES IS NOT SUBJECT TO JUDICIAL living expenses. child’s medical Al- O.S.Supp.1996 REVIEW UNDER 70 I though agree majority with the that DHS 7003-7.1(B)(l). requirements must follow federal in continu- ing child,2 support to the minor presumed It Legislature has presented, I under the facts would find that expressed its intent in a it statute and that the decision DHS on expressed.3 intended what it so The deter- judicial review. judicial of legislative mination intent controls *7 statutory interpretation;4 however, it is un-
FACTS
necessary
apply
to
rules of construction to
1995,
J.U.,
August
In
of
placed
legislative
clearly
a
discern
intent if the will is
deprived
in a foster
expressed.5
child
home.
In Deeem-
7003-7.1(B)(l)
O.S.Supp.1996
pro-
xng
§
1.
10
Tide
voucher.
I dissented to the orders in No.
74,516,
rel.,
vides:
Dept.
State
ex
Hu
of
of
79.497,
man Serv. v. Wilson and in No.
State of
"If the child is
in the
the
of
Dept.
Oklahoma ex rel.
Human Serv. v. Hall.
Services,
Department of Human
whether in
Unpublished
opinions
prece-
orders and
have no
emergency, temporary
permanent custody,
1.200(5), O.S.Supp.1997,
dential value. Rule
12
Department
appropri-
the
shall determine the
15, App.
Ch.
2.
However,
placement
ate
of the child.
under
may
Department
no circumstances
the
of Hu-
Odom,
64,
449,
3. Fuller v.
1987 OK
P.2d
741
parent
man
a
to
Services return
child
a
that
453;
57,
Chrysler Corp.,
Darnell v.
1984 OK
being deprived
to
contributed
the child
due to
132, 134; Independent
P.2d
School Dist. No.
v.89
neglect,
prior approval
abuse or
without
the
Teachers,
89,
Oklahoma Fed'n
1980 OK
Any change
placement
court.
in the
of a child
719,
P.2d
723.
deprived
adjudicated to be
shall be in accord
provisions
with the
of subsection F of Section
Stone,
154,
754,
Copeland
4.
v.
1992 OK
842 P.2d
7003-5.6 of this tide.”
756;
Odom,
3, supra;
Fuller v.
see note
Matter of
Co.,
112,
Phillips Petroleum
1982 OK
652 P.2d
dissent,
In his
Justice Simms’
on
relies
two
283, 285.
unpublished
proposi-
orders
Court for the
that
tion
the trial court was without
to
Stone,
require
Copeland
DHS to
supra;
the minor child
see note
v.
Fuller
card,
Odom,
expenses,
supra.
medical
foster-care
and a cloth-
see note
strong
contrary,
the
are
language
no doubt
statutes
statutory
leaves
The
legislative
Depart-
unless
direct
statement
Legislature intended that
re-
to determine the
that a child should be
ment’s exclusive discretion
determines
appropriate placement
for children in its cus-
parent who contributed to
turned to a
tody.
O.S.Supp
deprived
recognizes,
status
of abuse
As the Court
child’s
because
7003.7.1(B)
subject
not
placement
provides:
§
decision is
neglect, its
7.1(B)(1)
approval.
Section
7003—
is
“If the child
mandatory language
provides in clear and
Services,
Department of Human
custody,
that,
in its
a child is
when
temporary or
emergency,
permanent
appro-
Department shall determine
“the
custody,
Department
shall determine
priate placement of
child.” The use of
appropriate placement of the child.”
normally
Legislature is
consid-
by
“shall”
support
holding,
relies
Court
legislative
equivalent ered as a
mandate
on the
two
of this section
next
sentences
“must”, requiring interpretation as
the term
which read:
Here,
did not order J.U.
a command.6
“However,
under no circumstances
exception
to his mother
returned
Department of Human Services return
7003-7.1(B)(l)
§
approval in
requiring court
parent
a child to a
that contributed to the
Therefore,
inapplicable.
under the facts
ne-
being
due
abuse or
presented,
made
decision
glect,
prior approval
without
court.
judicial
review under
Any
change
7.1(B)(1).7
§
O.S.Supp.1996
7003—
adjudicated
be
shall
in ac-
provisions of
F of
cord with the
subsection
SIMMS, Justice, dissenting
part:
this title.”
Section 7003-5.6 of
Today
reaching
the Court is
out
address
however,
misplaced,
Court’s rebanee
judge
regarding the
a district
issues
provisions
carefully
only
as those
estabbsh
care and
decisions
intervene
exceptions
unquah-
bmited
otherwise
are not be-
made
fied
to deter-
longer
Depart-
fore us.
J.U. Is
mine the care
treatment decisions of
custody. Any questions
ment’s
about
provisions of
control over her foster home
court’s
7003-5.6,
§of
subsection F
referred
were
rendered
above,
O.S.Supp.1996
are
forth in 10
now set
respondent
and moot when the
abstract
specific
limitations
7003-5.4a.
those
Department’s custody
judge revoked the
as
not relevant to
facts
this matter
even
pending
this matter was
here. Of
while
Department’s
they
intended
concern the
importance
greater
than the fact that
placement only
change of a child’s
under
proceeding with this action and issu-
Court is
1.) The child would be
circumstances where:
dicta,
ing this
which is mere
howev-
decision
neglectful parent;
returned to an abusive or
er,
fact
it reaches are
is the
answers
*8
2.)
already
The
been moved once
or
child has
wrong.
hearing.
court
since the last
support
no
for the
conclu-
There is
Court’s
situations,
newly
legisla-
these
the
revamped statutory
particular
In
sion that
Code,
its intent that the court
expressed
Title 10 Okla-
ture has
of the Children’s
scheme
Department’s
on the
Statutes,
judges
act as a check
gives juvenile court
should
homa
existing
out of an
De-
discretion to move the child
power
approve
disapprove
statutory
placement
another. This
placement
and into
partment’s
choices
expbcitly designed
promote
placed
agency’s custody.
in the
To
restriction is
Freeman,
59,
juvenile judge placed a
Macy
a
we held
where
ex rel.
v.
1991 OK
6. State
147, 153;
Corp. Corporation
custody
supervision
Oil
v.
P.2d
Forest
child
need
774,
Comm'n,
DHS,
P.2d
thority granted by law.
I am authorized to state that Justice LAV- join ALA
ENDER and Justice OP me in expressed
the views herein.
1997 OK STOP, Appellant, INC.
TRAVEL
ALLIANCE GENERAL INSURANCE
COMPANY, foreign corporation, Agency,
Oklahoma Business Insurers
Inc., Appellees.
No. 86973.
Supreme Court of Oklahoma.
Nov.
Rehearing Denied Jan. Lynn Summars,
D. Babb and Paul G. Pierce, Couch, Hendrickson, Baysinger & Green, City, Oklahoma and Lawrence A Waks, Sutherland, Brennan, Austin, Asbill & Texas, Appellant, for Stop, Inc. Travel B. Rainey, Neal Stauffer and Kent B. Sel- Stauffer, Inc., Tulsa, Appellee, man & Alliance Company. General Insurance Bergner William J. and Debra L. Chiono- poulos, City, Appellee, Oklahoma Okla- homa Agency, Business Insurors Inc. WATT, Justice.
FACTS AND PROCEDURAL HISTORY 19,1993 August destroyed 1 On a fire building commercial at located Texanna road