Delaney, Matter of

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Delaney, Matter of
1980 OK 140
617 P.2d 886
Decided: 09/30/1980
Modified: 10/08/1980
Supreme Court of Oklahoma

IN THE MATTER OF JULIA KATHLEEN DELANEY, CHARLES DELANEY, TERRIE DELANEY, REBECCA DELANEY, SUSAN DELANEY AND MECHELL DELANEY. SCHARLENE GAFFORD, APPELLANT,
v.
STATE OF OKLAHOMA, APPELLEE.

Appeal from the District Court, Jefferson County, P.C. Largent, Jr., Judge.

¶0 Acting upon a District Attorney's application for combined relief, the trial court determined in a consolidated proceeding that certain children of a legally incompetent mother stood in a "deprived" status and her rights to them were terminable instanter. On mother's motion, filed over two years after the order had been rendered, trial court refused to treat it as facially void and hence subject to vacation.

AFFIRMED IN PART AND REVERSED IN PART.

Sullivan, Steely & Ellis by Ellen Colclasure Steely, Duncan, for appellant.

Melvin R. Singleterry, Duncan, Stan McKay, Marietta, for appellee.

OPALA, Justice:

[617 P.2d 888]

¶1 The question to be answered is whether the trial court erred when it refused to vacate as void its prior order by which the children of a legally incompetent mother were found to be "deprived" and her maternal rights came to be terminated. We hold that while the deprived-status adjudication of the order was impervious to the mother's attack on grounds of facial invalidity - launched two and a half years after the order had been made - the maternal rights' termination portion was void on the face of the judgment roll and hence subject to vacation.

¶2 A petition to adjudicate the deprived status of six children and to extinguish their mother's rights to them was brought by the District Attorney April 28, 1975. After several continuances, the cause was reached for hearing July 22, following which the court effected an adjudication of both the children's status and of the plea for termination of the maternal bond.

¶3 The scanty record before us reflects that at the time critical to this suit, mother-a mentally incompetent individual-had a [617 P.2d 889] guardian of her person and estate (paternal grandmother of children in suit). The guardian also served as a temporary custodian of one of the children. During the initial phase of the case the mother's guardian was represented by legal counsel. He withdrew from the case with leave of court a few days before the fateful July 22nd hearing. Both the mother and her guardian had been served with notice of the proceedings. The children were present in court by their guardian ad litem and were represented by court-appointed counsel. Mother did not make an appearance at the hearing, although she was present by her guardian. The hearing culminated in an order by which four of the six children sought to be affected were found to stand in a deprived status and mother's rights to all six of them came to be terminated. The record before us does not reveal why two of the children were omitted from the order here in question.

I

DEPRIVED STATUS ADJUDICATION

¶4 A void judgment may be vacated at any time if some fatal defect does appear on the face of the judgment roll. 12 O.S. 1971 § 1038 .

TERMINATION OF MATERNAL RIGHTS

¶8 So far as the order for termination of maternal bond may be affected by the vacation proceeding under review, the dispositive issue is whether the guardian of a mentally incompetent person has the power to "stipulate" the ward into an accelerated adjudication of the parental rights' issue which is to take place concurrently with the determination of the children's status.

¶9 Parents have a fundamental, constitutionally-protected interest in the continuity of the legal bond with their children. The integrity of familial status is a value to be regarded with great solicitude.

¶13 In short, the July 22nd adjudication, so far as it affects the status of the four children, is in law impervious to the attack launched upon it on grounds of facial invalidity. The order terminating the mother's rights is fatally flawed on the face of the record by the guardian's stipulation that allowed the court forthwith to effect the maternal bond's severance. Cause is remanded with directions to vacate that part of the order here under scrutiny which terminates the mother's rights to the six children.

[617 P.2d 892]

¶15 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, HODGES, BARNES and HARGRAVE, JJ., concurring.

¶16 SIMMS and DOOLIN, JJ., concurring in part and dissenting in part.

Footnotes:

1 Although not reflected in the record, we are informed by uncontradicted statements in the briefs that in separate proceedings, held the same day, the court determined that the two children omitted from the July 22nd order were "in need of supervision".

2 Scoufos v. Fuller, Okl., 280 P.2d 720, 723 [1955].

3 Want of verification constitutes a non-jurisdictional defect reachable by motion to strike rather than by plea to the jurisdiction. Doughty v. Funk, 24 Okl. 312, 103 P. 634 [1909]; Green v. James, 147 Okl. 273, 296 P. 743 [1931]; Matter of Ernest James C., Okl., 578 P.2d 352, 355 [1978]; Ilee M. v. State Department of Institutions, Social and Rehabilitative Services, Okl., 577 P.2d 908, 911 [1978].

4 Although this is not shown by the record, the briefs indicate that grandmother had been awarded custody of more than one of her grandchildren.

5 Stephenson v. Stephenson, 196 Okl. 623, 167 P.2d 63 [1946]; Johnston v. Guy, 165 Okl. 156, 25 P.2d 625 [1933].

6 In a felony case the law makes the demand for a lawyer and, unless there be a valid waiver, the court must appoint one. Juvenile delinquency proceedings fall into the same protected category. Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]. In deprived-status hearings the law makes no comparable demand. In those proceedings the right to counsel is not constitutional but purely statutory.

We need not decide here whether uncounseled appearance at the parental termination hearing should be likened to uncounseled appearance in a felony case. In Part II of this opinion we ground our pronouncement of the termination order's facial invalidity on the guardian's lack of authority to "stipulate" her ward into a consolidated proceeding in which adjudication of the children's status was allowed to be combined with the decision on the issue of the maternal bond's severance.

7 Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70, 77 [1962].

8 10 O.S. 1971 §§ 24 (a) and 1109 (b). The former contemplates an appointment for a parent who "desires counsel", while the latter provides that counsel be appointed for a parent who "requests counsel".

9 Another reason which militates against our assumption from the silent record that mother was in fact denied state-provided counsel is that it clearly appears free counsel was furnished for the children.

10 Want of counsel especially when not accompanied by a showing of some jurisdictional infirmity-will not render a judgment facially void. In Matter of F.K.C., Okl., 609 P.2d 774 [1980], we distinguished a vacation proceeding from a direct appeal, holding that while absence of counsel might afford a ground for reversal on direct review, it will not necessarily operate as a ground for vacation.

11 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 [1972]; Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 [1972]; Matter of Chad S., Okl., 580 P.2d 983, 985 [1978]; Matter of F.K.C., supra note 10.

12 Covey v. Town of Somers, 351 U.S. 141, 146, 76 S. Ct. 724, 727, 100 L. Ed. 1021 [1956].

13 Hendricks v. Grant County Bank, Okl., 379 P.2d 693, 697 [1963].

14 The duty of a guardian to its mentally incompetent ward is no less than that accorded to minors. In the case of In re Sanders' Estate, 67 Okl. 3, 168 P. 197 [1917], in the second syllabus, we said that "[i]t is the duty of courts to guard with jealous care the interests of minors in actions involving their rights. No presumption can be permitted against an infant, but, on the contrary, every presumption must be indulged in his favor, and a guardian ad litem or other person representing such minor must see to it that every question available is urged on behalf of said minor, and in case of a failure to discharge this duty, it becomes the imperative duty of the court to see that the infant's rights are protected." See also Bolling v. Campbell, 36 Okl. 671, 128 P. 1091 [1912]; Griffin v. Galbraith, 114 Okl. 208, 247 P. 339, 343 [1926].

15 In Matter of Baby Girl Williams, Okl., 602 P.2d 1036 [1979] - our most recent expression concerning a mentally incompetent person whose parental rights were sought to be terminated - we held that a person who is confined to a mental hospital and thus unable to assume custody of her child or support it may not be deemed to have "wilfully failed" to provide for the child or to have created a harmful milieu for its upbringing. An order terminating parental rights, when grounded solely on a finding of the parent's mental asylum confinement, fails to set forth any standards of conduct enabling the parent later to eschew termination by correcting the harmful condition.

16 Confession of judgment by a guardian's stipulation or otherwise is void. It may be collaterally attacked. Lowery v. Richards, 120 Okl. 261, 248 P. 622, 625-626 [1926]. In Title Guaranty & Surety Co. v. Foster, 84 Okl. 291, 203 P. 231, 241 [1922], we said that a stipulation "founded on a mistaken view of the legal rights of the infant . . . is not binding on the court. The guardian cannot irrevocably waive a legal right of his ward. * * * The court is not bound by that stipulation . . ." In Harjo v. Johnston, 187 Okl. 561, 104 P.2d 985, 991 [1940] we said that a certain action of the guardian was in effect a confession of judgment against the ward in conformity with a compromise and settlement of the litigation, which resulted in a denial of the ward's right to a judicial determination of the issues and constituted a fraud upon the court and the ward. Fraud which prevents a ward's interest from being "fairly presented or fully considered by the court vitiates a judgment and will authorize a court to vacate it."

17 Under the statute then in force, 10 O.S.Supp. 1975 § 1130 (2)(c), the mother was entitled to a six-month period for correction of conditions that resulted in the deprived-status adjudication. That section, amended in 1977, now provides a three-month period.