Scott v. State

2013 OK CIV APP 33, 299 P.3d 515
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 15, 2013
DocketNo. 110,800
StatusPublished
Cited by1 cases

This text of 2013 OK CIV APP 33 (Scott v. State) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. State, 2013 OK CIV APP 33, 299 P.3d 515 (Okla. Ct. App. 2013).

Opinions

BRIAN JACK GOREE, Judge.

T1 Appellant, Victoria Seott (Mother), seeks review of the trial court's judgment terminating her parental rights to K.S., K.S., RS., Jr., and RS. (Children) Appellee, State of Oklahoma (State), moved for a default termination of Mother's parental rights after she failed to personally appear for a court date that the parties considered a pretrial conference, at which she was represent[516]*516ed by counsel. The record on appeal fails to show that Mother was ever served with the statutorily required notice that her failure to personally appear for the hearing on a motion for termination of parental rights would constitute consent to termination. In addition, the record fails to show Mother had any notice that she was to appear for any matter at all on the date in question. Furthermore, the statutory authority to deem failure to appear to constitute consent to termination is limited specifically to the initial or subsequent hearing on a motion or petition to terminate parental rights, and not to just any hearing in the abstract. We reverse and remand for jury trial because the trial court terminated Mother's parental rights without affording her notice and the opportunity to be heard.

12 State took Children into emergency custody on January 19, 2011 after a CT sean revealed the infant R.S.'s skull was fractured following a domestic violence incident between Mother and the father (Father) of the two youngest Children. On January 27, 2011, State petitioned for Children to be adjudicated deprived and to terminate Mother's parental rights on the grounds of heinous and shocking neglect. It sought to terminate Father's rights on other grounds.

T 3 State's brief asserts Mother was served with the petition, summons, and notice of a pre-trial hearing. The record contains the petition with a summons and notice attached. The summons includes the language:

FAILURE TO RESPOND TO THIS SUMMONS OR TO APPEAR AT THIS HEARING CONSTITUTES CONSENT TO THE ADJUDICATION OF THESE CHILDREN AS DEPRIVED CHILDREN AND MAY ULTIMATELY RESULT IN LOSS OF CUSTODY OF THESE CHILDREN OR THE TERMINATION OF PARENTAL RIGHTS TO THESE CHILDREN.1

However, the record contains no return of service of this summons and notice. The record does show that the trial court appointed counsel for Mother on February 10, 2011, and Mother appeared with counsel for a pretrial conference on February 14, 2011. On that date, the trial court reset the pre-trial conference for March 24, 2011 and set jury trial for April 18, 2011.

T4 State amended its petition on March 15, 2011, to add the father of the two older Children. The petition in the record on appeal contains no summons and notice and no return of service.2

15 Mother appeared with counsel for the pre-trial conference on March 24, 2011. The court minute states Mother and Father were served with the amended petition. The trial court again continued the pre-trial conference to August 18, 2011 and the jury trial to August 29, 2011. It later reset the pre-trial conference to August 25, 2011. On April 27, 2011, the trial court appointed counsel for Children.

T6 At the August 25, 2011 pre-trial conference, both fathers failed to appear. State moved for default adjudication and termination as to Father. The trial court found Father was properly served and granted the motion. The other parties, including Mother and her attorney, announced ready for trial. Children's counsel filed her witness and exhibit list and requested jury instructions.

7 However, the trial court's minute entry on August 29, 2011, shows the trial court again continued trial, to December 12, 2011, "due to anticipated length of trial and inability to schedule [jury trial] [without] adjournment." The minute order did not reschedule a pre-trial conference.

18 The August 29, 2011 minute reflected that the father of the two older Children appeared with his attorney and "stipulated." The trial court set disposition in his matter for October 6, 2011. On that date, it contin[517]*517ued the matter to November 10, 2011. On November 10, 2011, it continued the matter to December 8, 2011.

T9 On December 8, 2011, the trial court entered a court minute on the usual pre-printed form. The court minute reflected, by the box checked, that the purpose of the proceeding that day was "Other," and not "Pre-trial." It showed that the father of the older Children appeared with his attorney, and it set hearing in his matter for March 8, 2012.

110 The December 8, 2011 minute also reflected that Mother's attorney appeared on that date but Mother failed to appear. The minute showed that State orally moved for default adjudication and termination of parental rights as to Mother. The trial court granted the motion and struck the December 12, 2011 trial date. The trial court checked none of the boxes indicating its certification that the minute was delivered to any of the parties.

11 On December 12, 2011, the trial court entered another minute stating that Mother failed to appear for pre-trial conference on December 8, 2011 and the court granted State's motion for default adjudication and termination of parental rights. This minute also stated the trial date was stricken, and again, no box was checked showing delivery to any party.

T 12 On February 13, 2012, the trial court entered a minute denying Mother's motion to set aside the default termination for failure to appear. On May 17, 2012, the trial court entered its journal entry of judgment terminating Mother's parental rights to Children. The journal entry stated the matter came on for hearing on December 8, 2011, and Mother appeared not. It made the following findings, among others:

5. THAT the [Children] were adjudicated deprived by the trial court on December 8, 2011, when [Mother] consented to the said adjudication by failing to appear after proper service of the court date;
7. THAT [Mother] was properly served August 29, 2011 upon receiving personal service in Court of the December 8, 2011 court date;
8. THAT [Mother] failed to appear in Court on December 8, 2011 after being called in open court; ...

On the same date, the trial court filed its journal entry denying Mother's motion to set aside the default termination.

13 Mother appeals only from the order terminating her parental rights. She contends the trial court erred in granting default judgment terminating her parental rights because "there is nothing in the record to indicate that [Mother] was aware that her failure to appear at the pre-trial hearing could result in the termination of her parental rights." We agree.

$14 In reviewing a claim that the procedure used in a proceeding to terminate parental rights resulted in a denial of procedural due process, we will review the issue de movo. In re A.M., 2000 OK 82, ¶ 6, 13 P.3d 484, 486-87. We will not accept conclusory findings in an order when such findings lack record support and are challenged by the appellant on that basis.

915 A parent has a basic fundamental right, protected by the United States and Oklahoma Constitutions, to the companionship, care, custody and management of her child. Gillette v. Gillette, 2002 OK CIV APP 106, 57 P.3d 888, 891.

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Related

Tosto v. State
2013 OK CIV APP 114 (Court of Civil Appeals of Oklahoma, 2013)

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Bluebook (online)
2013 OK CIV APP 33, 299 P.3d 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-state-oklacivapp-2013.