State v. Luther K.B.

1992 OK CIV APP 172, 844 P.2d 889, 64 O.B.A.J. 360, 1992 Okla. Civ. App. LEXIS 139
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 22, 1992
DocketNo. 77907
StatusPublished
Cited by1 cases

This text of 1992 OK CIV APP 172 (State v. Luther K.B.) 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
State v. Luther K.B., 1992 OK CIV APP 172, 844 P.2d 889, 64 O.B.A.J. 360, 1992 Okla. Civ. App. LEXIS 139 (Okla. Ct. App. 1992).

Opinion

BRIGHTMIRE, Judge.

The sole issue presented for review is whether or not the trial court erred in prohibiting the state from continuing with proceedings to terminate the parental rights of a long-term imprisoned natural father in and to his ten-month-old child pursuant to the provisions of 10 O.S.1991 § 1130(A)(7).

We hold it did, vacate the order, and remand for further proceedings.

I

The Oklahoma County Department of Human Services removed ten-month-old M.L.B. from the custody of her parents, Luther and Elizabeth B., and took her into protective custody in December 1987. A show cause hearing was held by a referee on December 21, 1987, who noted hand burns indicating that the child “may have been abused,” and committed the baby to the temporary custody of her maternal aunt, Donna Hill.

A juvenile petition filed ten days later alleged that M.L.B. and her two brothers— five-year-old L.B. and two-year-old L.K.B. — were deprived children.1 The further allegation was that all three children had been physically abused, and specifically that there were first and second degree burns on M.L.B.’s hands. And, finally, the state pleaded that the parents’ home was unfit for the children due to severe domestic violence committed by the father.2

[891]*891Eventually the matter came on for a dispositional hearing. The mother — who, herself, on December 31, 1987, had become a ward of the court due to physical disability and suspected mental incompetence secondary to her near fatal strangulation by the father the previous February — stipulated that the allegations of the petition were true. The father declined to stipulate and demanded a jury trial.

Such a trial was held March 18, 1988. The jury returned a verdict finding that all three children were deprived within the meaning of 10 O.S.1991 § 1101(4). Consequently, the court ordered the two boys committed to the custody of DHS for interim placement in a foster home, and placed the baby girl in the care of her maternal aunt pending further disposition.

Periodic review hearings subsequently conducted by the court disclosed that the father had been charged with multiple felonies stemming from his earlier violent and disabling attack on the mother. The court rejected the paternal grandmother as an appropriate placement alternative and ordered the father to undergo psychological testing and examination in an effort to determine whether he could ever become a safe parent for the children.

The father was subsequently convicted of battering with intent to kill the mother and on August 1, 1989, was sentenced to one hundred years in the penitentiary for the crime.3 A month later the state filed an amended petition asking the court to terminate the father’s parental rights as a consequence of his extended incarceration pursuant to the provisions of 10 O.S.1991 § 1130(A)(7).4 The father objected.

At a hearing on June 17, 1991, the trial court ruled that the state could continue with proceedings to terminate the father’s parental rights in the two boys who had been placed in a foster home but that a § 1130(A)(7) termination would not lie as to the baby girl because she had been placed in the home of an “extended family member.”

The state appeals contending that the trial court’s construction and application of § 1130(A)(7)(b) is erroneous.

II

The controversy centers on the legal consequences of the court’s interim placement of its ward, the baby girl, in the care of her maternal aunt and generates this question: Did the aunt have “custody” of the baby girl within the intent and meaning [892]*892of that term as used in § 1130(A)(7)(b), so that the court was without authority to terminate the father’s parental rights in the baby girl?

We hold she did not. At the outset it is significant to note that the trial judge had no trouble finding that all the criteria required by § 1130(A)(7) for terminating the father’s parental rights existed with respect to the two boys. But then, with regard to their baby sister, the court held that one criterion, subsection (b), did not exist because of the fact it had earlier ordered the boys’ baby sister placed with her aunt, an “extended family member,” and therefore it had to find that “custody” of the child had not been placed outside the home of a natural or adoptive parent, guardian or “extended family member,” thus precluding termination of the father’s parental rights.

“Custody,” as that term is ordinarily used:

“[Ejmbraces the sum of parental rights with respect to the rearing of a child, including its care. It includes the right to the - child’s services and earnings ... and the right to direct his activities and make decisions regarding his care and control, education, health, and religion. ... Thus it is common practice in divorce cases for the court to award ‘legal custody’ to one or both parents and ‘physical custody’ to one parent with or without the right of visitation by the other parent, or physical custody may even be awarded to a third person, usually a relative.”

Burge v. City and County of San Francisco, 41 Cal.2d 608, 262 P.2d 6, 12 (1953).

We agree with the state’s thesis that the maternal aunt did not have “custody” of the baby girl within the meaning of that term as used in § 1130(A)(7)(b); that the custody referred to in subsection (b) is “legal custody” as distinguished from interim physical placement of a court’s ward. Consequently, the argument is, the temporary placement of the baby with the maternal aunt did not divest the court of its status as legal custodian and, thus, custody of the child had been placed outside the home of an extended family member. The father, of course, disagrees.

Before discussing the merits further it would be helpful to review certain fundamental rules of statutory construction. First of all the goal is to determine and follow legislative intent which is presumed to be expressed in the statute. Darnell v. Chrysler Corp., 687 P.2d 132 (Okl.1984). At the same time, if the intent is not clear, the statute should be given a sensible construction in keeping with the evils intended to be corrected or with the remedy afforded. AMF Tubescope Co. v. Hatchel, 547 P.2d 374 (Okl.1976). The same case also stresses that the legislature will not be presumed to have intended an absurd result by the enactment, and its various provisions will be construed in such a manner as to reconcile them, if possible, “and render them consistent and harmonious and give intelligent effect to each.” Id. at 380 (quoting Eason Oil Co. v. Corporation Comm’n, 535 P.2d 283, 286 (Okl.1975)).

Returning now to the merits, it is obvious that subsection (b) in subject act is ambiguous when it is considered in the context of the other four criteria. Indeed, each of the criteria required to be found, except subsection (b), clearly relates to parental conduct or status which has some bearing on the best interest of the child.

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Bluebook (online)
1992 OK CIV APP 172, 844 P.2d 889, 64 O.B.A.J. 360, 1992 Okla. Civ. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-luther-kb-oklacivapp-1992.