dissenting.
I must respectfully dissent.
In affirming this termination order the majority has changed two major areas of our law: standard of proof and the substantive due process standard necessary to justify termination of parental rights.
Not only do I dissent to the result of this particular decision, but, even more importantly, I dissent to the changes in the law this decision compels. The majority apparently sees these changes as inconsequential as it does not bother to mention them. I see them as substantial and distressing. They are also unnecessary to support the result of this particular decision.
The majority poses the question: “Was the order terminating the parental bond against the weight of the evidence?” It then proceeds to the conclusion that the order of termination “is therefore not against the clear weight of the evidence.” It is submitted the majority, by use of a “weight of the evidence” test measures the evidence in this cause by a two foot yardstick.
Review of the transcript of evidence in this case clearly establishes the State assumed the burden of proving that parental rights should be terminated. This is as it should be, in view of the fact that it relied primarily upon evidence supporting an adjudication of dependency and neglect.
In fact, this evidence was reviewed by the trial court in the absence of the natural parents. Although the court subsequently vacated the termination order on motion of the parties, the judge “permitted” the natural parents, who lack any type of formal education, to listen to tape recordings of the evidence at the initial termination hearing and then inquired of them if they had evidence to rebut what was recorded on the tapes. The trial court, as the majority points out, found the parents had met seven of fourteen conditions prescribed following an adjudication of the children as deprived, but had not yet fulfilled their obligation in seven other judicially imposed requirements of conduct.
The question is not whether the “weight of the evidence” favors termination by the state, but rather, whether or not the State demonstrated by “clear and convincing evidence” that parental rights should be involuntarily terminated.
*335Less than one year ago, this Court in the case of Adoption of Darren Todd H., Okl, 615 P.2d 287 (1980), addressed the precise issue of the standard of proof necessary to terminate the rights of a natural father as predicatory to an adoption proceeding. We recognized there that adopting a standard of proof was more than an “empty semantic exercise” (at 290). Based to a large extent on the rationale of the United States Supreme Court’s decision in Addington v. Texas1, we held that a “weight of the evidence” test is inadequate for cases involving parental rights, and, we adopted the standard of “clear and convincing” proof.
The following from that decision is particularly relevant here:
“We have 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. See, e. g., J. V. v. State, Dept. of Institutions, Soc. and Rehab. Services, Okl., 572 P.2d 1283 (1977). The fundamental nature of parental rights ‘requires that the full panoply of procedural safeguards must be applied’ before a parent may be deprived of that right. Matter of Chad S., Okl, 580 P.2d 983, 985 (1978). Assessing this situation under the rationale of Addington, we are convinced that because a declaration of a child’s eligibility for adoption without parental consent effects a termination of parental rights, the magnitude of the rights involved requires proof which is clear and convincing. We adopt that standard of proof prospectively and overrule previous holdings to the contrary.” At 290.
The majority opinion also obscures the change it makes in our law regarding the fundamental rights of parent and child. The majority holds “that the parties had failed to provide the children with that minimum level of wholesome milieu which may be expected of persons in their station in life.” Thus the majority concludes the parental rights must, and may, be terminated. Providing “minimum levels of wholesome milieu” is a test unrecognized in Oklahoma. It is unrecognized anywhere. I don’t know what it means and I’m sure that trial judges, parents and law enforcement personnel won’t know either.
Recognizing the constitutional importance of the interests placed in jeopardy in a termination hearing, this Court adopted in Matter of Sherol A. S.;2 the substantive due process standard necessary to justify a termination proceeding. That requisite state interest is “HARM . . . actual or imminent” to children.
The majority has turned its back on this standard of harm and adopted in its place a “wholesome milieu” test.
I dissent.
I am authorized to state that Justice DOOLIN joins me in this Dissent.
. 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).
. Okl., 581 P.2d 884, 888.