State v. Tambunga

CAROL M. HANSEN, J.,

dissenting:

111 I dissent because Parents' rights were terminated in the absence of the full panoply of procedural safeguards due to them in a termination proceeding. The Oklahoma Supreme Court has repeatedly recognized that the right of a parent to the care, custody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions, requiring that the full panoply of procedural safeguards be applied before a parent may be deprived of that right. In Re Adoption of D.T.H., 1980 OK 119, 615 P.2d 287, 290 (overruled on *737other grounds). The process due in a termination proceeding includes notice by the trial court of the parental conduct norms which the parent must follow to regain legally unencumbered standing as a parent. The prescribed norms of parental conduct must be stated with judicial clarity in order to preserve the procedural safeguards mandated by state and federal due process. A lack of specificity renders these fundamental-law guarantees meaningless. In Re C.G., 1981 OK 131, 637 P.2d 66, 69.

12 The trial court in this case failed to provide the required judicial clarity in advising Parents of the conditions leading to Children being adjudicated deprived. At the adjudication hearing, the trial court stated which allegations of the petition it found proved. However, it failed to place those findings in its journal entry, stating instead, "STATE HAS SUSTAINED A MAJORITY OF ALLEGATIONS IN PETITION." This language leaves doubt as to which of the allegations were proved and which were not. The trial court's adjudication order fails to provide Parents the requisite notice of the conditions leading to Children's' adjudication as deprived children. The majority appears to view the trial court's oral statement at hearing as sufficient notice of the conditions leading to deprived adjudication. In the absence of any showing Parents received a memorialization of those findings, I cannot agree.

T8 The individual service plan (ISP) also lacks a clear statement of the conditions leading to deprived adjudication. At most, it can be construed to give notice that Children were adjudicated deprived because of domestic violence. However, at trial, State asserted other conditions leading to the adjudication had not been corrected. In particular, State's attorney argued Parents had not corrected the condition of Children being dirty and having an odor. She called as a witness Children's court-appointed special advocate, who testified she had supported returning Children to Parents until an incident in which she had hands-on experience helping two of the children change their clothes and discovered their basic hygiene needs were not being met. Other witnesses testified to Children's' odor. However, Parents' ISP made no mention of correcting any conditions relating to Children's' hygiene needs. It did not even address cleanliness of the home except to require that Parents keep it "free from clutter."

T4 Although the ISP arguably identified domestic violence as a condition needing correcting, State put on no witness who testified to continuing domestic violence based on personal knowledge, except Mother and Father themselves. Mother testified Father had not hit her for three years but that she had bruises from "wrestling." Father testified they "trade punches ... just for fun," causing bruises. Neither Parent seemed to consider bruise-causing conduct to be domestic violence when it was not done in anger. The ISP did not specify otherwise.

1 5 Not only did Parents lack a clear statement of the conditions they were required to correct, the jury also lacked such a statement. State's petition, the adjudication order, and the ISP were submitted into evidence, but were inadequate to inform the jury what conditions led to the deprived adjudication. The jury did not have access to the transcript of the adjudication hearing, upon which the majority relies. Furthermore, the jury instructions did not eure the deficiency, stating only that the jury must find the conditions which caused the child to be deprived have not been corrected.

T 6 The failure of the adjudication order to clearly identify the conditions leading to deprived adjudication and the failure of the ISP to clearly state the norms of parental conduct to which Parents would be held resulted in the lack of specificity that rendered notice meaningless. Termination of parental rights in the absence of adequate notice violated Parents' due process rights.

T7 The lack of due process arising from an absence of a clear statement as to the conditions leading to the deprived adjudication prejudiced Parents' ability to cure the conditions and reunite the family, extending the amount of time Children spent in foster care. Therefore, termination of Parents' rights on the alternate grounds that Children had been placed in foster care for fifteen out of the most recent twenty-two months preceding *738the filing of the petition must also fail on due process grounds. This fifteen-month provision does not trump lack of due process. Otherwise, State could hold children for any reason or no reason and terminate parental rights any time fifteen months had passed.

18 Parental rights were terminated in this case because the children were dirty. DHS never told Parents to bathe their children. It never provided services to Parents to improve the family's hygiene. I further point out there are no allegations of physical abuse of the children. I would remand with instructions to maintain Children's eurrent placement while implementing an ISP directed to Children's personal hygiene.