F. K. C., Matter of

F. K. C., Matter of
1980 OK 47
609 P.2d 774
Decided: 04/01/1980
Supreme Court of Oklahoma

IN THE MATTER OF: F.K.C., T.M., R.J.C., CHILDREN UNDER EIGHTEEN YEARS OF AGE.
C.C., APPELLANT,
v.
THE STATE OF OKLAHOMA AND DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE SERVICES, APPELLEE.

Appeal from the District Court of Pontotoc County; Calvert L. Cannon, Judge.

¶0 Appellant appeals from the judgment of the trial court which terminated her parental rights. She alleges that she was denied due process because she was not advised of her right to assistance of counsel at a hearing where her children were declared dependent and neglected and placed in the custody of DISRS; and that the evidence was insufficient to support termination of her parental rights.

AFFIRMED.

William N. Peterson, Ada, for appellant.

Thomas H. Tucker, Dept. of Institutions, Social and Rehabilitative Services, Oklahoma City, for appellee.

HODGES, Justice.

[609 P.2d 775]

¶1 This case concerns a lengthy involvement by the Department of Institutions, Social and Rehabilitative Services [DISRS] in an unsuccessful attempt to aid the mother, C.C., in creating a responsible home environment for her three children. The determinative issues on appeal are whether: 1) the mother was denied due process of law when the trial judge, in a hearing in which her children were declared dependent and neglected, failed to advise her of her right to the assistance of counsel, and 2) whether the judgment of the court terminating her parental rights was supported by the evidence.

¶2 The mother was served with summons and notice on March 7, 1974,

¶3 A final disposition of this case was pressed by DISRS after the children had been in foster homes under the supervision of DISRS for over four years. It was the position of DISRS that the children should either be returned to the mother or that they should be adopted. DISRS maintained that for the children to continue in a temporary and unsettled condition was not in their best interest, and that prolonged foster care would impair permanent placement in an adoptive home.

¶4 This case involves a continuing saga of an indigent mother who has been unable to accept the responsibility for the care of her children. Although the mother has attempted to secure adequate employment, and managed to obtain her GED, the equivalent of a high school diploma, with the help and encouragement of DISRS, after four years nothing had essentially changed. The mother admitted that she had left the children unattended in her car in a tavern parking lot while she got drunk four nights a week; that she was unable to obtain medical care for the children because she owed doctor bills; that it was in the best interest of the children to leave them in the foster home because she could not care for them; that she lived in a hotel room; and that basically nothing had changed during the four years her children had been in a foster home which would permit her to provide a home for the children.

¶5 It is admitted by the mother's counsel that there are no facts or record to indicate why the children were declared dependent and neglected on March 12, 1974, and that the time period for any appeal from this determination has expired. It is contended, however, that because the order of March 12, 1974, is a basis for the termination proceedings of February 12, 1978, the failure to afford the mother due process at the initial hearing constitutes reversible error.

I

¶6 Although many states have no statutory authority requiring appointment of counsel at the time of the hearing for indigents in dependency proceedings. Oklahoma has two statutes, [609 P.2d 776] 10 O.S. 1971 § 24 (a) and 10 O.S. 1971 § 1109 (b) which mandate the appointment.

¶7 This Court in In Matter of Chad S., 580 P.2d 983, 985, 986 (Okl. 1978)

¶8 This case is distinguishable from Chad S. because in Chad S. the failure to appoint counsel was timely appealed. In this instance, over four years elapsed between the hearing determining that the children were dependent and neglected and the lodging of this appeal. Also, the children were represented by counsel at the initial hearing and the summons clearly stated that counsel would be provided for the mother. There is no evidence that the mother was unable to read and comprehend the plain language of the summons.

II

¶9 The mother contends that her parental rights were terminated because she was uncooperative with the social workers, poor, did not like to accept state assistance, lacked responsibility, and lived in a home which was dark, dirty and dismal, and that insufficient evidence was presented to mandate termination of her parental rights. None of these reasons are bases of termination of [609 P.2d 777] parental rights,

¶10 We find that the judgment of the court is supported by more than sufficient evidence to warrant a termination of the mother's parental rights.

¶11 AFFIRMED.

¶12 LAVENDER, C.J., and WILLIAMS, SIMMS, DOOLIN, HARGRAVE and OPALA, JJ., concur.

Footnotes:

1 The summons and notice stated:

(1) Attached hereto is a copy of the petition setting forth the facts bringing the aforesaid children within the purview of the Dependent & Delinquent Children Act.

(2) You are further advised that you and the children in question are entitled to be represented at said hearing by an attorney of your choice. If you are unable to hire an attorney, one will be appointed by the Court and paid out of the Court Fund.

2 The putative natural father waived notice of any further legal proceedings and voluntarily relinquished his parental rights.

3 It is provided by 10 O.S. 1971 § 24 (a):

"When it appears to the court that the minor or his parent or guardian desires counsel but is indigent and cannot for that reason employ counsel, the court shall appoint counsel. In any case in which it appears to the court that there is such a conflict of interest between a parent or guardian and child that one attorney could not properly represent both, the court may appoint counsel, in addition to counsel already employed by a parent or guardian or appointed by the court to represent the minor or parent or guardian provided that in all counties having Public Defenders, said Public Defenders shall assume the duties of representation in proceedings such as above."

It is provided by 10 O.S. 1971 § 1109 (b):

"If the child or his parents, guardian, or other legal custodian requests an attorney and is found to be without sufficient financial means, counsel shall be appointed by the court if the child is being proceeded against as a delinquent child, or a child in need of supervision, or if termination of parental rights is a possible remedy, provided that the court may appoint counsel without such request, if it deems representation by counsel necessary to protect the interest of the child or of other parties."

4 In Matter Chad S., 580 P.2d 983, 985, 986 (Okl. 1978) the Court said:

"The United States Court further held that implicit in the right to counsel is the right to notice that counsel will be provided without expense to the indigent parents. Counsel must be appointed unless knowingly and intelligently waived . . . a holding that indigent parents have a right to court appointed pointed counsel carries with it the obligation to advise parents of their right. Where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on request."

Also see Chad S. for extensive citations from other jurisdictions supporting this view.

5 Davis v. Page, 442 F. Supp. 258, 263 (S.D.Fla. 1977); Smith v. Edmiston, 431 F. Supp. 941, 945 (W.D.Tenn. 1977).

6 See note 1, supra.

7 In Matter of Sherol A.S., 581 P.2d 884 (Okl. 1978).