Davis v. Davis

708 P.2d 1102

• Court: Supreme Court of Oklahoma
• Decided: October 25, 1985
• Docket: 58468
• Status: Published

Opinions

OPALA, Justice.

The dispositive issue on certiorari is whether an involuntary termination of parental bond may be effected in a private interparental proceeding based upon the grounds provided in 10 O.S. 1981 § 1130(A)(4).¹ We answer this question in the negative and reverse the trial court’s termination order.² The remedies provided in the so-called Juvenile Code³ are to be viewed as restricted to public-law contests in which the state may rightly assert an interest qua parens patriae. In a purely private interparental proceeding either to free a child of a parent’s dominion or to effectuate the termination of parental bond, the plaintiff must resort to the remedies provided under either 10 O.S. 1981 § 9⁴ or § 60.6(3).⁵

The mother brought a proceeding to effect severance of the father’s legal bond to his minor daughter. When the parties were divorced, custody of the minor daughter in contest was placed in the mother. The father, who was ordered to make monthly child support payments, was granted reasonable access by visitation. The mother remarried. She later obtained leave to take the child overseas by a modification order that provided for the father’s custody over a three-week period each year during the mother’s return visit to the United States.

The mother failed to comply with the decree. During her subsequent stay in the United States she declined to yield complete custody for the court-ordered period. The father then ceased making support payments in September, 1980. In February, 1982, the mother sought to terminate his parental bond by invoking the grounds provided in 10 O.S. 1981 § 1130(A)(4). Despite the father’s belated efforts to meet his delinquent support obligation, a termination order came to be rendered on March 31, 1982.⁶

The Court of Appeals reversed, holding that the trial judge mistakenly believed § 1130 left him without any choice in the matter of termination.⁷

I

THE PURPOSE OF THE JUVENILE CODE IS TO AUTHORIZE THE STATE’S INVOCATION OF SPECIAL JUDICIAL PROCESS WHEN CHIU DREN ARE DEEMED DEPRIVED OR DELINQUENT

Legislative concern for neglected and delinquent children first manifested itself in 1905.⁸ Laws dealing with state power to intervene through judicial process for adjudication of a child to be either delinquent or deprived are entirely of statutory origin. None of these legal norms existed at common law.⁹ The statutes pertaining to delinquent, dependent, and neglected children are found in Chapter 51 of Title 10 — the so-called Juvenile Code.¹⁰ For administration of legal process under this new body of law, special courts — the so-called “juvenile courts” — were created in 1909.¹¹ Until 1968 county courts remained vested with jurisdiction over all cases falling within the terms of the Code.¹² After that, cognizance came to be reposed in the district courts.¹³

Statutes dealing with the juvenile process allow the state, through its appropriate organs, to assume custody of deprived and delinquent children and to perform duties as surrogate parents.¹⁴ This form of government intervention is based upon the principle of parens patriae (parent of the country).¹⁵ The doctrine not only allows the legislature to enact laws affecting children, but also places on it the duty to do so. Every child, from the moment of its birth, owes allegiance to the government of his country and, conversely, is entitled to the protection of that government, both in his person as well as property.¹⁶

Before the Code’s enactment the state could not interfere by public action with the parental management of a child, nor was it able to protect a child who stood accused of criminal misconduct from the application of adult criminal process. The Code was designed (1) to enable the state to intercede by judicial proceedings whenever public protection for an underage citizen was deemed needed¹⁷ and (2) to authorize a special judicial process for underage persons charged with criminal misconduct.¹⁸ In short, the entire Juvenile Code must be viewed as creating public/state remedies to be administered in the best interest of minors who fall within its contemplation.¹⁹

II

THE LEGISLATURE INTENDED THAT ONLY THE STATE MAY INITIATE AND PROSECUTE PROCEEDINGS AUTHORIZED BY THE CODE

The legislature has laid down a line of demarcation between the proceedings in conformity to the “juvenile process” and private actions, with the plain objective of conferring on the state alone standing to file a petition and to prosecute a proceeding under the provisions of the Juvenile Code.

The terms of 10 O.S.1981 § 1102(A) provide that “[u]pon the filing of a petition, the district court shall have jurisdiction of any child ... alleged [to be] deprived, who is found within the county; and of the parent, guardian or legal custodian of said child_” [Emphasis added.] Jurisdiction over a wow-custodial parent is not deemed necessary for the state's pursuit of its interest in the child, although that cognizance would, of course, be essential in any private interparental contest. Section 1103(B)²⁰ directs that the petition be entitled “In the matter of_, an alleged ... [deprived] child_” Lawsuits involving private parties are typically captioned in the adversarial alignment, i.e., plaintiff v. defendant. The private-suit style is procedurally foreign to contests authorized under the Juvenile Code. Indeed, in proceedings under the Code no defensive pleadings are necessary.²¹ Section 1104 of the Code requires that the summons be served on the person who has actual custody of the child, and on the child, if it is over twelve years of age. A summons need not be served upon a wow-custodial parent.

Section 1102.1 presents another clear manifestation of legislative commitment to separating private-law from state-action issues in litigation which affects the rights and status of underage persons. Through that section the legislature directs that issues raised in interparental disputes, which are appropriate for resolution within the framework of the so-called juvenile-docket proceedings, must be isolated and transferred for litigation in the context of those proceedings.²² In private-law disputes involving parental rights, state-action issues may be triggered when the evidence shows that a child is deprived, i.e., neglected or dependent. Status-related issues must then be detached from the interparental private-law claim and removed to the juvenile docket for disposition under the Code.

Finally, 10 O.S.Supp.1982 § 1109(C) expressly provides that “[t]he district attorney shall prepare and prosecute any case or proceeding within the purview of Chapter 51 of this title.” [Emphasis added.] This language mandates that only the public prosecutor has standing to bring eases under the terms of the Juvenile Code.²³

The vast majority of jurisdictions clearly hold that, absent express statutory authorization, private individuals have no standing to initiate and prosecute proceedings authorized by statutes prescribing forensic process for juveniles, i.e., process which pertains to the child’s deprived status, delinquency, or termination of parental bond.²⁴

Ill

THE TERMS OF 10 O.S.1981 § 1130 CONSTITUTE A STATE-ACTION STATUTE UNDER WHICH PROSECUTION OF A TERMINATION PROCEEDING IS AUTHORIZED ONLY WHEN THE PUBLIC CAN ASSERT OFFICIAL CONCERN IN ALTERING A CHILD’S STATUS VIS-A-VIS ITS PARENT OR PARENTS

By its very inclusion in the Juvenile Code, § 1130 stands legislatively earmarked as a state-action provision. The state’s interest becomes implicated upon a finding of harm to the child — actual or potential — or of the custodial parent’s unfitness.²⁵ Absent this finding, public policy clearly favors preservation, not destruction, of a subsisting parent-child relationship.²⁶

The introductory phrase to § 1130 clearly provides that while state-action adjudication of a child’s delinquency, or of its deprived or in-need-of-supervision status, will not operate as a severance of the parental bond, it could form a prerequisite for the ensuing termination.²⁷ Nay, the entire Code is intended to serve the public rights of the State.²⁸ It can hence be invoeable only when the cluster of tripartite interests — those of the child, parent, and the state — comes to be implicated in the controversy that is being pressed.

All contests instituted under the Code must first be judicially examined or “screened” for “intake” before they are allowed to proceed.²⁹ The court, sitting in the administration of the so-called juvenile process, functions as the legally trained discretionary authority charged with the duty of balancing societal interests with those of the child.³⁰

A § 1130 termination may be sought by the state only simultaneously with or after a prior adjudication of a child’s deprived status.³¹ Moreover, termination is an issue which must be deferred until after the initial petition has been adjudicated.³²

The integrity of the family unit and preservation of the parent-child relationship command the highest protection in our society.³³ Intrusion upon the privacy and sanctity of that bond can be justified only upon demonstration of a compelling state concern.34 Public interest lies in protecting the child from harm. Absent the element of harm, intervention by the state is impermissible. Resort to state-action remedies by private individuals would result in gross distortion of the legal demarcation line that historically has separated purely private interspousal claims from the legislatively-sanctioned process governing state intrusion into the traditional pre-Code areas of family immunity,³⁵ Indeed, this court has distinguished between an adoption without consent under § 60.6 — a private remedy — and a § 1130'termi-nation proceeding — a state remedy. In the former, counsel for the child is not required; with respect to the latter, the court has concluded that in all state termination proceedings potential conflicts do exist between the interests of the children and those of the state and the parents; hence, independent counsel must be appointed to represent the children whenever tripartite concerns are pressed in the context of proceedings under § 1130. The court’s jurisprudence, which mandates separate counsel, is based upon the state’s responsibility to protect the interests of minors.³⁶ In sum, § 1130 does not confer on private litigants a license to enforce rights which belong only to the public.

IV

IN THE MATTER OF MULLINS HAS NO PRECEDENTIAL VALUE AS AU-

THORITY FOR THE MOTHER’S CLAIM THAT IS BASED ON § 1130 GROUNDS

A

The mother relies upon In The Matter of Mullins³⁷ to support her position. Factually distinguishable from the case at bar,³⁸ Mullins also was decided in a different procedural posture. The mother there had brought an appeal from vacation of a decree in which the father’s parental bond came to be severed. While she favored us with her brief-in-chief, the father submitted no answer brief. The court concluded that his failure to brief dispensed with a duty to search the record for a theory to sustain the trial court’s judgment.

When the brief-in-chief is reasonably supportive of the allegations of error, and no answer brief is filed, a reversal may be effected without a reasoned opinion.³⁹ Since the outcome in Mullins was dictated largely by a breakdown in the adversarial posture, no precedential value may be ascribed to that pronouncement.⁴⁰

B

The common law regards a parent’s bond with the child as indestructible and hence not terminable by judicial decree.⁴¹ Section 1130, which provides grounds for terminating parental rights, is a statute in derogation of the common law. Statutes that abrogate the common law are to be liberally construed — but only within the parameters of the legislative objective.⁴² Liberal construction is not a device for extending the ambit of an enactment beyond its intended scope. Rather, the goal of that construction is to achieve interpretation which harmonizes and coincides with the lawmakers’ objective.⁴³ Valuable common-law rights — like those of the parents — cannot be destroyed by statutes whose text does not, either explicitly or implicitly, address itself to interparental contests.⁴⁴

Section 1130 contains no language indicating that it is applicable to private litigation. When the court in Mullins — without construing the terms of § 1130 — permitted a private individual to invoke the grounds provided in that statute, it conferred upon a custodial parent a previously nonexistent power to secure, by decree, the destruction of a noncustodial parent’s status. Continued application of § 1130 grounds to private litigation would effect an implied abrogation of the noncustodial parent’s valuable common-law right to the integrity of the parental status.

Except as altered by our constitution and statutes, the common law remains in full force.⁴⁵ The intent to change it is never presumed from an ambiguous, inconclusive, or unclear text.⁴⁶ Alteration of the common law must be clearly and plainly expressed.⁴⁷ The legislature is presumed to have no intent to extinguish common-law rights,⁴⁸ Moreover, public law must not be interpreted as being destructive of private rights by mere inference.⁴⁹ Because § 1130 sets out termination grounds invocable only in a state-initiated proceeding, Mullins constitutes an aberrational norm, and, insofar as it may be interpreted to authorize a § 1130 termination in the context of a private interparental contest, it is overruled.

y

THE TERMS OF 10 O.S.1981 §§ 9 AND 60.6(3) PROVIDE PROPER REMEDIES IN PRIVATE INTERPAREN-TAL LITIGATION

Since the record here is devoid of any evidence of harm sufficient for invocation of governmental intervention, the mother’s sole recourse to affect the father’s status vis-a-vis his child lies either in a private action countenanced by § 9 or in an adoption without his consent under § 60.6(3).⁵⁰

While, under the common law, courts were powerless to sever the natural bond between parent and child, they could in equity restrict the quantum of parental control.⁵¹ The terms of § 9 are declaratory of the common-law norms. That section provides for á private civil action, upon a complaint of abuse of parental authority, with a view to freeing the child from the guilty parent’s dominion.

Section 60.6 provides for the termination of parental rights ancillary to a private adoption without parental consent.⁵² In the context of § 60.6, termination is a substitutionary device which insures that the child losing a parent is not left parent-less in the aftermath of an adoption-related termination. The replacement of the lost parent is effected in the very same proceeding that produces the severance of the old parental bond. Thus, the target of § 60.6 is clearly distinct from that of § 1130. The former aims at parental substitution through termination coupled with an adoption, while the latter authorizes the state to terminate parental rights in order to set the child free for a future adoption.⁵³ In short, the § 60.6 proceeding operates to replace a parent, while that under § 1130 is designed to emancipate the child from the offending parent’s or parents’ legal bond.

The 1973 amendment⁵⁴ of 10 O.S.1971 § 60.6⁵⁵ presents another eloquent demonstration of the legislative resolve to maintain the traditional common-law boundary line between state-action and private-law remedies. By that amendment the legislature expressly provided that consent-free adoptions — permissible under § 60.6 vis-a-vis some offending parents— may be granted without an antecedent § 1130 termination.⁵⁶ The effect of the amendment was recognized in Wade v. Brown.57 In that case we held that termination of parental rights under § 1130 is not a prerequisite to a consentless adoption under § 60.6, and that § 1134⁵⁸ — which provides that a proceeding to adopt may not be combined with a § 1130 termination suit — does not conflict with § 60.6 because each has a separate operative effect.⁵⁹ This legislative scheme shows that § 60.6 is intended to afford a private remedy for involuntary severance of parental bond via a nonconsensual adoption, while the design of § 1130 is to authorize termination by the state whenever the tripartite cluster of interests — those of the child, parents, and of the state — may become implicated.⁶⁰

In conformity with the Juvenile Code’s history and its purpose, we hold that § 1130 grounds are not invocable in a private suit by the custodial parent who seeks termination of parental rights of the noncustodial parent.

The opinion of the Court of Appeals is vacated,⁶¹ and the trial court’s termination order is reversed without prejudice to the mother’s post-remand institution of a § 9 suit or to her joining in a proceeding to terminate the paternal bond in an adoption to be effected without the father’s consent pursuant to the authority of 10 O.S.1981 § 60.6(3).

SIMMS, C.J., and LAVENDER, HAR-GRAVE and SUMMERS, JJ., concur. DOOLIN, V.C.J., HODGES, WILSON and KAUGER, JJ., dissent.

1 .The terms of 10 O.S. 1981 § 1130(A)(4) provide in pertinent part:

“A. The finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations: * * *

4. A finding that a parent who does not have custody of the child has willfully failed to contribute to the support of the child as provided in a decree of divorce or in some other court order during the preceding year or, in the absence of such order, consistent with the parent’s means and earning capacity: * * * ”

2 . The dispositive issue — a public-law issue — was raised by none of the parties. Where public-law issues are involved, this court may, on review, consider them upon theories not presented below. Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 [1948] and McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 [1982],

3 . 10 O.S.1981 § 1101 et seq.

4 . 10 O.S.1981 § 9 provides:

"The abuse of parental authority is the subject of judicial cognjzance in a civil action in the district court brought by the child, or by its relatives within the third degree, or by the officers of the poor where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced."

5 . The relevant terms of 10 O.S.1981 § 60.6 are:

"A legitimate child cannot be adopted without the consent of its parents, if living, nor a child born out of wedlock without the consent of its mother, if living, except that consent is not necessary from a father or mother: * * *

3. Who, for a period of twelve (12) months next preceding the filing of a petition for adoption of a child, has willfully failed, refused, or neglected to contribute to the support of such child:

a. in substantial compliance with a support provision contained in a decree of divorce, ...” [Emphasis added.]

6 . When he was served with the motion to terminate his parental rights, the father tendered into the court the sum of $2,200. The money was refused by the mother. At trial, she stated, "I want his rights terminated, so I didn’t accept the money.”

7 . When rendering his order, the trial judge stated:

"The statute appears to be a rather harsh remedy, but I don’t see anything that shouldn’t be followed. It’s very clear that father or parent who fails to contribute to the support of the child for a period of over one year, or during the preceding year, has their [sic] rights terminated. So, I don’t see that the Court has any choice under the statute but to terminate parental rights.”

8 . The Legislative Assembly of the Territory of Oklahoma created the Children’s Aid Society and prescribed methods for protecting dependent, neglected, and ill-treated children within the territory. Okla.Sess.L. 1905, Ch. 14, p. 201.

9 . Ex parte Powell, 6 Okl.Cr. 495, 120 P. 1022, 1027 [1912].

10 . Through the enactment of the Juvenile Code, "... the law extended its power over young people — mostly lower class — who had been beyond the reach of prior law, and who had committed no crimes." [Emphasis added and footnote omitted.] Lawrence M. Friedman, A History of American Law, at 520 [1973].

The so-called "dependent and neglected" category became the "deprived” class of children. 10 O.S.1981 § 1101(4).

11 . Okla.Sess.L., 1909, Ch. 14, p. 185.

The first juvenile court act was passed in Illinois. Laws of Ill., 1899, p. 131. For an in-depth study of the history and philosophy of juvenile courts, see Glueck, The Problem of Delinquency [1959]; Platt, The Child Savers — The Invention of Delinquency [1969] and Wald, State Intervention on Behalf of "Neglected” Children: A Search for Realistic Standards, 27 Stan.L.R. 985 [1975].

12 . Okla.Sess.L. 1909, Ch. 14 § 2, p. 186; 10 O.S. 1961 § 102; Powell v. Lohah, Okl., 436 P.2d 55 [1967]; State ex rel. Cox v. Lohah, Okl., 434 P.2d 928 [1967] and In re Harris, Okl., 434 P.2d 477 [1967].

13 . Okla.Sess.L. 1968, Ch. 282 § 102 and 10 O.S. 1981 § 1102(A).

14 . 10 O.S.1981 § 1129; Ex parte Parnell, 19 Okl.Cr. 273, 200 P. 456, 458 [1921]; State ex rel. Hunter v. Duncan, Okl., 288 P.2d 388, 391 [1955] and Carignan v. State, Okl., 469 P.2d 656, 659 [1970],

The terms of § 1129 provide that Juvenile Code provisions "... shall be liberally construed, to the end that [their] purpose may be carried out, to wit: That the care and custody and discipline of the child shall approximate, as nearly as may be, that which should be given by its parents _" [Emphasis added.]

15 . State ex rel. Hunter v. Duncan, supra note 14. See generally, Rossman, Parens Patriae, 4 Ore. L.R. 233 [1925],

16 . Ex parte Powell, supra note 9, 120 P. at 1028.

17 . Ex parte Parnell, supra note 14.

18 . See Friedman, supra note 10 and Perrin, The Future of the Children’s Court, 8 A.B.AJ. 767 [1922],

19 . Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 [1966] (The theory underlying juvenile-related statutes is to determine the needs of the child and of society); Stratton v. Steele, Okl., 519 P.2d 468, 471 [1974] (Actions under the Juvenile Code are in the nature of special proceedings instituted for the child’s protection); York v. Halley, Okl., 534 P.2d 363 [1975]; Matter of Meekins, Okl.App., 554 P.2d 872, 874 [1976] and Matter of J.L., Okl., 578 P.2d 349, 351 [1978].

20 . 10 O.S.Supp.1982 § 1103(B).

21 . 10 O.S.1981 § 1103.1(A) and Matter of Christina T., Okl., 590 P.2d 189, 192 [1979].

The terms of § 1103.1(A) provide: "No pleading subsequent to the petition is required, and the filing of any motion or pleading shall not delay the holding of the adjudicatory hearing.”

22 . The terms of 10 O.S.Supp.1982 § 1102.1 provide:

"Where the evidence in an action for a divorce, for alimony without a divorce, for an annulment, for custody of a child or for the appointment of a guardian of the person of a child, or in subsequent proceedings in such actions, indicates that a child is deprived or in need of supervision, the court, after proper notice, shall transfer the issues in regard to the child to the juvenile docket of the court for preliminary inquiry and determination.”

23 . The term "shall” is a word of command or mandate, with a compulsory and peremptory meaning. It denotes exclusion of discretion and signifies an enforceable duty, especially when addressed to public officials. State ex rel. Ogden v. Hunt, Okl., 286 P.2d 1088, 1090 [1955] and Oklahoma Alcoholic Beverage Control Board v. Moss, Okl., 509 P.2d 666, 668 [1973]. Although earlier statutes provided that "any reputable person” (who knows of a child in his county that appears to be either neglected, dependent or delinquent) was authorized to file a petition, Okla.Sess.L.1909, Ch. 14, p. 187, 10 O.S.1961 § 105, by judicial construction the county attorney was required to be notified and placed in charge of prosecuting the case as dominus litis. Ex parte Lewis, 85 Okl.Cr. 322, 188 P.2d 367, 380 [1947]. Later statutes expressly limited a private individual’s role in initiating proceedings by requiring in each case a preliminary judicial inquiry to determine whether forensic action is warranted. Only by leave of court was a private individual then permitted to file a petition. 10 O.S.Supp.1968 § 1103(a). Notwithstanding the terms of § 1103 — dealing with the petition formalities — the district attorney was still charged with the duty of preparing and prosecuting all cases arising under the Juvenile Code. 10 O.S.Supp.1968 § 1109(c). Eventually, the direct participatory role of private individuals was completely eliminated when the legislature amended § 1103 to provide that only "... the district attorney or the person who is authorized to make a preliminary inquiry to determine if further action is necessary ...” may file a petition. Okla.Sess.L.1977, Ch. 259 § 3; 10 O.S.Supp.1984 § 1103(B).

24 . E.g., McCall v. District Court, County of Montezuma, 651 P.2d 392 [Colo.1982]; In re Juvenile Appeal, 188 Conn. 259, 449 A.2d 165 [1982]; In Interest of J.S., 404 So.2d 1144 [Fla.App.1981]; Department of Human Resources v. Ledbetter, 153 Ga.App. 416, 265 S.E.2d 337 [1980]; In Interest of Dively, 79 Ill.App.3d 428, 34 Ill.Dec. 812, 398 N.E.2d 635 [1979]; In the Interest of J.R. and S.R., 315 N.W.2d 750 [Iowa 1982]; Smith v. Wilson, 269 S.W.2d 255 [Ky.1954]; State In Interest of Bartee, 446 So.2d 512 [La. App.1984]; In re Welfare of G., 268 N.W.2d 420 [Minn.1978]; In re Interest of S.R., 217 Neb. 528, 352 N.W.2d 141 [1984]; Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 [1974]; D.Y.F.S. v. D.T. and J.T., 171 N.J.Super. 520, 410 A.2d 79 [1979]; Harris County Child Welfare Unit v. Caloudas, 590 S.W.2d 596 [Tex.Civ.App.1979] and In re Welfare of Coverdell, 30 Wash.App. 677, 637 P.2d 991 [1982], But see, In re G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244 [1974] and In re Adoption of Two Children, 170 N.J.Super. 320, 406 A.2d 468 [1979]. See generally, Termination of Parental Rights — Standing, 21 A.L.R.4th 535.

25 . Matter of Sherol A.S., Okl., 581 P.2d 884, 888 [1978] and Matter of Baby Girl Williams, Okl., 602 P.2d 1036, 1040 [1979].

26 . Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 [1982],

27 . See the introductory phrase in § 1130(A), quoted in footnote 1, supra.

28 . The legislative characterization of the Juvenile Code is found in the title of the act, 10 O.S.Supp.1968 § 1101 [Okla.Sess.L.1968, Ch. 282, p. 444]:

"An Act relating to children; defining terms; dealing with delinquent children, dependent and neglected children, and children in need of supervision; defining powers of District Courts; prescribing procedure in certain cases; dealing with care and custody of children and termination of parental rights; restricting questioning of children by law enforcement officers and providing for counsel; providing for petition, hearing and powers of court; providing for juvenile probationary services; establishing domestic relations bureau in counties with population of 100,000; providing for detention of certain children; providing for operation of children’s institutions, and for parole and after-care services, and defining powers of Department of Public Welfare; ...”

29 . State v. Juvenile Division, Tulsa County District Court, Okl.Cr., 560 P.2d 974, 975-976 [1977].

30 . State v. Juvenile Division, Tulsa County District Court, supra note 29. The judges must determine whether an informal "adjustment or diversion" is preferable to the institution of juvenile proceedings. Their exercise of discretion is vital in effectuating the purpose of the Juvenile Code.

31 . 10 O.S.1981 § 1130(A)(5); Price v. Price, Okl., 573 P.2d 251, 254-255 [1978], (Doolin, J., concurring specially). Price v. Price, supra at 257, (Simms, J., specially concurring); Matter of Christopher H., Okl., 577 P.2d 1292, 1293 [1978]; Matter of J.F.C., Okl, 577 P.2d 1300, 1302 [1978] and Matter of Lyni P., Okl., 626 P.2d 864, 866 [1981].

32 . Matter of J.L., supra note 19.

33 . The parental interest in the custody of a child rests on the common law. Although initially created for economic as well as moral reasons (Blackstone, Commentaries on The Laws of England, (Wendells’ ed. 1859)), the presumption that a child's best interests are served by remaining in the custody of its natural parents is predicated in contemporary jurisprudence on principles of respect for familial ties and natural affection. In re Sweet, Okl., 317 P.2d 231, 235 [1957]. The companionship, care, and management of one’s child is a fundamental interest protected by both the United States and the Oklahoma Constitutions. Matter of J.N.M., S.T.M. and W.J.M., Okl., 655 P.2d 1032, 1035 [1982]; In re T.H.L., Okl., 636 P.2d 330, 335 [1981]; Matter of Baby Girl Williams, supra note 25 and Matter of Sherol A.S., supra note 25. Termination of a right so fundamental dictates an application of the full panoply of procedural safeguards. Matter of Chad S., Okl., 580 P.2d 983, 985 [1978],

34 . Matter of Baby Girl Williams, supra note 25; Matter of Sherol, A.S, supra note 25 and Matter of J.N.M., S.T.M. and W.J.M., supra note 33 at 1036.

35 .The distinction between public and private law is well recognized in the Anglo-American legal system. Blackstone acknowledged the distinctness of these two bodies of law. Blackstone’s Commentaries of The Laws of England, Vol. Ill, p. 1 [private wrongs], Vol. IV, p. 1 [public wrongs] (Wendell’s ed. 1859). He defined a private wrong as an infringement or privation of the private or civil rights belonging to individuals, considered merely as individuals, and therefore termed civil injuries, while public wrongs were described as a breach and violation of public rights and duties affecting the entire community, considered as a community. The public-law/private-law dichotomy, as it affects claims to custody of and rights to children came to be recognized in State ex rel. Hunter v. Duncan, supra note 14 at 391, where the court clearly noted that the legal norms applicable to actions under 10 O.S.1951 §§ 101 et seq. (now §§ 1101 et seq.) were not necessarily the same as those which govern in custody contests ancillary to divorce proceedings. The court differentiated between (1) disputes in which the state invokes its interest as parens patriae concerned with the welfare of society and, more particularly, with the welfare of the child, and (2) quests for vindication of personal rights between the parents as private parties-litigant. The former disputes emphasize the state-child relationship, • while the latter stress the parent-child family status interaction.

The dichotomy was again acknowledged in Bingham v. Bingham, Okl., 366 P.2d 396, 397-398 [1961], where the court cited Hunter to support its holding that a private child support dispute was not so related to a delinquency proceeding as to bring the case within the well-recognized exception to the general rule of immunity from service of process which is extended to a nonresident witness who is in the state attending court hearings. The fact that the nonresident father in Bingham appeared at the delinquency hearing at which he could have pressed for custody of his son did not make him an in-state "litigant” who would be amenable to service of process in the mother’s private support action.

Most recently, Matter of C.G., Okl., 637 P.2d 66 [1981], gives continued viability to the public-law/private-law dichotomy. There, the court, though acknowledging that varying standards of review were being employed in purely private-law litigation affecting parental rights (whether these be custody, paternity or adoption contests), adopted the clear-and-convincing standard for all § 1130 public-law status-termination contests. C.G. explicitly distinguished between the § 1130 parental bond severance and § 9 actions. Litigation under the former section was characterized as of vital interest to the state, and the statute was described as intended to serve public rights only.

36 . Matter of T.M.H., Okl., 613 P.2d 468, 471 [1980]; Matter of Christopher W., Okl., 626 P.2d 1320, 1322 [1981]; Price v. Price, supra note 31 (Doolin, J., concurring specially) and Price v. Price, supra note 31 (Simms, J., specially concurring).

37 . Okl., 606 P.2d 573 [1980].

38 . In Mullins, supra note 37, the court held that an anterior adjudication of either delinquency or deprived status was not required as a foundation for severing the parental bond under § 1130(A)(4). There, the mother brought an action to terminate the father’s status vis-a-vis their minor child because of his failure to provide support. The court ordered the father to pay the total arrearage within thirty days or suffer termination of the parental bond. The father failed to make the payment, and an order of termination followed. In the instant case, the father, upon receiving notice of the motion to terminate, tendered into the court the entire amount of past due support payments. He stated at the termination hearing that he did not want his rights severed, and that he was prepared to make further support payments.

39 . Matter of Lehman, Okl., 591 P.2d 700, 703 [1979],

40 . An exception to stare decisis, which withholds binding force from an appellate court decision that was not developed from adversary argument, is recognized by modern English jurisprudence. Cross, Precedent in English Law, 136, 140-146 [1961]. Oklahoma and federal authorities appear in accord with the English rule. See, e.g., United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 69, 97 L.Ed. 54 [1952]; Miami Tribe of Oklahoma v. United States, 281 F.2d 202, 208 [U.S.Ct. of Claims 1960] and Lee v. Hester, Okl., 642 P.2d 243, 245-246 [1982],

41 . See Allison v. Bryan, 26 Okl. 520, 109 P. 934, 938-939 [1910]; Bishop v. Benear, 132 Okl. 116, 270 P. 569 [1928]; In re Talley's Estate, 188 Okl. 338, 109 P.2d 495, 498 [1941]; Alford v. Thomas, Okl., 316 P.2d 188, 192 [1957]; J.V. v. State, Dept. of Institutions, etc., Okl., 572 P.2d 1283, 1284 [1978]; In re Jackson, 55 Nev. 174, 28 P.2d 125, 127 [1934] and Nevelos v. Railston, 65 N.M. 250, 335 P.2d 573, 576 [1959],

42 . 25 O.S.1981 § 29; 12 O.S.1981 § 2; Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084, 1086 [1928]; In re Captain's Estate, 191 Okl. 463, 130 P.2d 1002, 1004 [1942] and Republic Bank & Trust Company of Tulsa v. Bohmar Minerals, Inc., Okl., 661 P.2d 521, 524-525 [1983].

The terms of § 29 provide: "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice.” [Emphasis added.]

The terms of § 2 are virtually identical to those of § 29.

Even the severance of a parental bond by adoption will not, absent explicit legislative language, operate to destroy the common-law right of a child to inherit from its natural parent. Stark v. Watson, Okl., 359 P.2d 191, 194-195 [1961] and In re Talley’s Estate, supra note 41.

43 . Republic Bank & Trust Company of Tulsa v. Bohmar Minerals, Inc., supra note 42.

44 . Republic Bank & Trust Company of Tulsa v. Bohmar Minerals, Inc., supra note 42.

45 . 12 O.S.1981 § 2. Its relevant terms provide: "The common law, as modified by constitutional and statutory law, judicial decisions and the conditions and wants of the people, shall remain in force in aid of the general Statutes of Oklahoma; ..."

46 . Reaves v. Reaves, 15 Okl. 240, 82 P. 490, 495 [1905]; McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 [1980] and State Mutual Life Assurance Company of America v. Hampton, Okl., 696 P.2d 1027, 1036 [1985] (Opala, J„ concurring).

47 . State Mutual Life Assurance Company of America v. Hampton, supra note 46.

48 . Reaves v. Reaves, supra note 46.

49 . Ricks Exploration Company v. Oklahoma Water Resources Board, Okl., 695 P.2d 498, 504 [1985]. See also the authorities cited in footnote 41 supra.

50 . Adoption without parental consent has long been available in Oklahoma. See R.L.1910 § 4388.

51 . See Allison v. Bryan, 21 Okl. 557, 97 P. 282, 287 [1908] and Roxana Petroleum Co. v. Cope, supra note 42, 269 P. at 1086-1087.

52 . The legal norms applicable to consentless adoptions are well established. E.g., Wade v. Mantooth, Okl., 417 P.2d 313 [1966]; In re Adoption of Greer, Okl., 463 P.2d 677 [1970]; In re Adoption of Eddy, Okl., 487 P.2d 1362 [1971]; In re Adoption of Gregory, Okl., 495 P.2d 1275 [1972]; In the Matter of the Adoption of E.S.P. and C.L.P., Okl., 584 P.2d 209 [1978]; Matter of Adoption of Goodson, Okl.App., 585 P.2d 1130 [1978]; Matter of Adoption of Darren Todd H., Okl., 615 P.2d 287 [1980]; Matter of Adoption of C.M.C., Okl., 656 P.2d 262 [1982] and Matter of Adoption of V.A.J., Okl., 660 P.2d 139 [1983],

53 . 10 O.S.1981 § 1133 and Matter of Baby Boy Fontaine, Okl., 516 P.2d 1333, 1337 [1973].

The terms of § 1133(A) clearly indicate that terminating parental rights under § 1130 — without the imminent prospect of adoption — defeats the purpose of the statute. They provide:

"After parental rights have been terminated, a court may award custody of the child to any qualified person or agency with authority to consent to the adoption of the child, or the court, in its discretion, may reserve the authority to consent to the adoption of the child; but a court cannot consent to or authorize any person or agency to consent to the adoption of a child unless the rights of the parents have been terminated in accordance with the provisions of this act.”

54 . OkIa.Sess.L.1973, Ch. 69 § 1.

55 . 10 O.S.1971 § 60.6 provided:

"A legitimate child cannot be adopted without consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights or adjudged guilty of cruelty, and for either cause divorced, or adjudged to be an habitual drunkard, or who has been judicially deprived of the custody of the child by any court of competent jurisdiction on account of cruelty or neglect.”

56 . The present version of § 60.6, as amended, (Okla.Sess.L.1981, Ch. 107, § 1) provides in relevant part:

"A legitimate child cannot be adopted without the consent of its parents, if living, nor a child born out of wedlock without the consent of its mother, if living, except that consent is not necessary from a father or mother;

******

and where any of the above conditions exist it shall not be necessary to terminate parental rights under Section 1130 of this title prior to the adoption of said child. Provided that any decree of adoption heretofore entered by the court of appropriate jurisdiction within the State of Oklahoma wherein termination of parental rights, as prescribed in Section 1130 of this title, was not obtained shall not be invalid on the ground that such termination of parental rights was not obtained.” [Emphasis added.]

57 . Okl., 516 P.2d 526 [1973].

58 . The terms of 10 O.S.Supp.1968 § 1134 provided:

"An action to adopt a child may not be combined with an action to terminate parental rights, and where the rights of a parent have been terminated, neither an interlocutory nor a final decree of adoption may be rendered until the decree terminating parental rights has become final.”

Section 1134 was amended by Okla.Sess.L.1977, Ch. 259 § 20. Its present version, 10 O.S.1981 § 1134, provides:

"An action to adopt a child may not be combined with an action to terminate parental rights, and when the rights of a parent have been terminated, neither an interlocutory nor a final decree of adoption may be rendered until the decree terminating parental rights has become final, but this section does not apply to a proceeding to adopt a child without the consent of a parent when the court has determined that consent is not legally required." [Emphasis added.]

59 . In Wade v. Brown, supra note 57, a petition for adoption without parental consent under § 60.6 was filed in the district court. The proposed order, presented to the trial court, requested a hearing on the § 60.6 adoption or a termination of the parental rights under § 1130. The trial court refused to set the adoption for hearing without a prior § 1130 termination. The precise question presented to the court was whether a § 60.6 action may be combined with a § 1130 termination proceeding. We held that it may not and directed the trial court to hold the § 60.6 adoption hearing without proceeding under § 1130. Wade v. Brown, supra note 57 at 529.

60 . The record reflects that at the hearing on the mother’s motion to terminate the father's legal bond, the state’s interest was not triggered. No evidence was adduced disclosing any harm suffered or to be suffered by the child. The father expressed the desire not to have his rights terminated, declaring that he still loved his daughter and wanted to see her. He stated that he had ceased making support payments because he was being denied access to the child. There was no evidence presented as to the necessity of these payments to feed, clothe or shelter the child, or that without the payments she would not be adequately cared for. The mother presented no other evidence of the father’s misconduct. She questioned only his failure to make support payments. She refused to accept the $2,200 in back child support because she wanted to secure a judicial severance of the parental bond. It is clear from the record that the father made child support payments from the date of divorce in March, 1979 until September 1980, when he discontinued them in a retaliatory move against the mother’s withholding of custody, not in an effort to abandon or neglect his child.

61 . In addition to the reasons stated in today’s opinion, the Court of Appeals’ decision must be vacated because that court, in reaching its decision, relied on Irby v. Irby, Okl.App., 629 P.2d 813 [1981], to reverse the trial court’s termination order. We expressly overruled Irby in Hester v. Hester, Okl., 663 P.2d 727 [1983], three months prior to the Court of Appeals’ decision in this case.