In re the Termination of Parental Rights

1993 OK 10, 847 P.2d 768, 64 O.B.A.J. 576, 1993 Okla. LEXIS 15, 1993 WL 44596
CourtSupreme Court of Oklahoma
DecidedFebruary 16, 1993
DocketNo. 75604
StatusPublished
Cited by21 cases

This text of 1993 OK 10 (In re the Termination of Parental Rights) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Termination of Parental Rights, 1993 OK 10, 847 P.2d 768, 64 O.B.A.J. 576, 1993 Okla. LEXIS 15, 1993 WL 44596 (Okla. 1993).

Opinions

SUMMERS, Justice.

Father’s parental rights were terminated for non-payment of child support by the District Judge in a non-jury proceeding. The Court of Appeals reversed, finding that Father had been unconstitutionally deprived of a jury trial. On certiorari we reinstate and affirm the Order of the trial court.'

[769]*769Father and Mother were divorced in Comanche County on October 3, 1986. She received custody of Sara, then two and a half years old, and he was ordered to pay $125 per month child support. In a criminal proceeding Father had entered a plea of guilty to the molestation of a daughter of Mother by a previous marriage. In November, 1989, Mother filed a petition to terminate her ex-husband’s parental rights under 10 O.S.1986 Supp. § 1180(D).1

Father retained counsel. The case proceeded through discovery and came on for trial before the Court in due course. The Court called the case and inquired if the parties were ready. The mother’s counsel announced that she was, and the father’s counsel did likewise. Opening statements were waived, witnesses were examined and cross-examined, arguments were made, and the matter was submitted. The trial judge ruled that the mother as petitioner had met her burden, and terminated the father’s rights under § 1130(D).

Father’s next move was to file a Motion for New Trial (through the same counsel), challenging certain of the Court’s eviden-tiary rulings and the sufficiency of the evidence, and raising for the first time the proposition that he should have been given a jury trial.2 The Motion was overruled and he appealed.

The Court of Appeals reversed, finding that Father had indeed been deprived of a jury trial, that the right to jury trial may not be waived except by compliance with 12 O.S.1981 § 591, and that there was no compliance with that statute. We have granted the mother’s Petition for Certiorari.

In A.E. v. State, 743 P.2d 1041 (Okla.1987), this Court held that parents in termination proceedings brought by the State were entitled to trial by jury. Our state’s constitutional assurance of the right to trial by jury appears in Art. 2, § 19, and that section at the time of A.E. included a reference to juries used in “juvenile proceedings.” Id. at 1045.3 The majority opinion in A.E. noted that subsection D had been added to § 1130 in 1986 and gave parents or guardians the authority to seek termination of parental rights without the necessity for the State to bring the action. But the opinion expressly left unanswered the question of whether the right to jury trial extended to such “private termination” actions. Id. at 1047. The intermediate appellate opinion in today’s case held that it did so extend. We are compelled to vacate that writing and once again leave the question unresolved for one reason only. Assuming, but specifically without deciding, that Father had the constitutional right to a jury trial here, he waived it.

Title 12 O.S.1991 § 591 provides for waiver of jury and dates back to 1910;

The trial by jury may be waived by the parties, in actions arising on contract, [770]*770and with the assent of the court in other actions, in the following manner. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal.

It has never, however, been held to provide the only way to waive a jury.

We said in Smith v. Smith, 80 Okla. 136, 184 P. 82 (1919):

... [Wjhere the parties to an action make no request for a jury at any stage of the trial or prior to the commencement thereof, and submit their testimony to the court without a jury, no question of a jury trial having been raised upon the trial of the cause, it is too late for the first time to object in this court that such consent had not been made, and where no request for a jury appears of record, the jury will be considered waived.

Id. 184 P. at 82, (syllabus by the Court), (emphasis added).

The Smith Court went on to take note of the waiver statute (now codified at § 591), and said this:

The provisions quoted provide that, in a civil action, the right to a trial by jury may be waived by the conduct of the parties, and where the parties to any civil action fail to make a timely request for a jury trial, and the cause is set for trial by the court for a day certain, and the parties appear in person and by attorneys, and submit their testimony to the court without a jury, and the record in the trial court is silent upon the question of jury trial, this is tantamount to an express waiver of a trial by jury, and an objection thereto and demand for a jury thereafter will not be considered by this court.

Id. 184 P. at 85.

In accord are Driver v. Tolstornog, 358 P.2d 1108 (Okla.1960) and Landrum v. Landrum, 50 Okla. 746, 151 P. 479 (1915).

Here we have a litigant, represented by counsel, who completes the pre-trial discovery procedures, appears at the time appointed for trial, announces ready to proceed, fully tries, argues, and submits the case, and then only when he has lost demands a jury trial. Such practices are frequently referred to as “laying behind a log”,4 and generally meet with disfavor in the courts.’ It is abundantly clear to us that the father, by announcing ready and proceeding to trial without any demand, oral or written, for jury trial, has waived any right to a jury he might have had, were we to adjudge that one existed.

This proceeding is before us on certiora-ri. We have said that our review of an opinion by the Court of Appeals is limited to those issues before us on certiorari. Matter of S.C., 833 P.2d 1249, 1251 (Okla.1992); Federal Deposit Ins. Corp. v. Moss, 831 P.2d 613, 617 n. 3 (Okla.1991); Ford v. Ford, 766 P.2d 950, 952 n. 1 (Okla.1988); Teel v. Teel, 766 P.2d 994, 997 n. 4 (Okla.1988); Mitchell v. Ford Motor Credit Co., 688 P.2d 42, 44 n. 1 (Okla.1984); Johnson v. Wade, 642 P.2d 255, 257 (Okla.1982). When a judgment has been reversed by the Court of Appeals, that reversal is later determined by us to be erroneous on certio-rari, and other assignments of error had been left unreviewed on appeal, we have remanded the proceeding to the Court of Appeals for adjudication of the other grounds. Athey v. Bingham, 823 P.2d 347, 351 (Okla.1991). But we have also recently reviewed on certiorari an assignment of error left unadjudicated by the Court of .Appeals. Handy v. City of Lawton, 835 P.2d 870, 874 (Okla.1992). Because of its ruling on the jury trial question the other issues raised by Father in his appeal were not reviewed in the Court of Appeals. But inasmuch as these other issues clearly afford him no relief we have determined to address them here in the interest of judicial economy.

[771]*771Father attacks the trial courts’ decision to exclude his offer of evidence that for the period in question (when he paid no child support), his ex-wife denied visitation except under her supervision. We wrote, however, in Hester v. Hester,

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Bluebook (online)
1993 OK 10, 847 P.2d 768, 64 O.B.A.J. 576, 1993 Okla. LEXIS 15, 1993 WL 44596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-termination-of-parental-rights-okla-1993.