A.E. v. State

[34] Part V of today's opinion announces that, when a child's status has been adjudicated as "deprived" and the parental bond is sought to be terminated, the affected parent must be afforded a trial by jury under the mandate of Art. 2 § 19, Okla. Const.¹ I recede from this pronouncement which overrules extant case law² because I find its reasoning fundamentally flawed in these three respects: (1) there is no constitutional command, either state or federal, which mandates a jury trial for parental termination proceedings, (2) the court's opinion has created at least one subclass of parents who are to be deprived of jury trial and denied equal protection of the law and (3) the court's decision offends Art. 5 §§ 46 and 59, Okla. Const.³

[35] The court's willingness to adopt the notion that parental termination is a "juvenile proceeding" has placed it on the horns of a dilemma. If today's opinion extends the right to trial by jury to all persons whose parental status is at risk in any judicial proceeding, more than just jury trials for juvenile proceedings have been added to the command of Art. 2 § 19, Okla. Const., without any warrant from its text. On the other hand, if less than all such persons are to be benefited by today's pronouncement, the Equal Protection Clause and Art. 5 §§ 46 and 59, Okla. Const., have been violated. No subclass of parental termination litigants may be severed from the rest to receive a mode of trial different from one that is accorded to others. For trial purposes they comprise, and must be treated as, a singleclass. [36] I

[37] STATE FUNDAMENTAL LAW DOES NOT AFFORD A RIGHT TO TRIAL BY JURY IN TERMINATION PROCEEDINGS

[38] There is no federal constitutional mandate for a trial by jury in "juvenile proceedings." While the Sixth Amendment's right to a jury trial in criminal prosecutions is binding on the state,⁴ juvenile proceedings are not "criminal" in nature and hence are outside the ambit of the Sixth Amendment.⁵ The Seventh Amendment applies only in the federal courts.⁶ In McKeiverv. Pennsylvania⁷ the Court held that the Due Process Clause of the Fourteenth Amendment does not mandate a trial by jury in the adjudicatory phase of a state juvenile delinquency proceeding.

[39] The right to trial by jury, declared "inviolate" by Art. 2 § 19, Okla. Const.,⁸ is also *Page 1050 preserved by the federal constitution.⁹ It is extended only in those cases where it existed at common law. Except as modified by the constitution itself, the right to trial by jury was "frozen" as it stood in 1787 English jurisprudence. All actions or proceedings which called for a jury trial in England at that time also require the same mode of trial today. The right is "preserved" for all those cases.¹⁰ Because termination proceedings did not exist at common law, the Inviolate Clause does not preserve a right to trial by jury for them.

[40] By a vote held in 1968, Art. 2 § 19, Okla. Const.,¹¹ was amended to include a proviso that added "juvenile proceedings" to other classes of suits triable to a 6-person jury. The court today anchors its pronouncement upon this amendment.

[41] I can agree neither with the court's reasoning nor with the result reached here. Firstly, the object of the proviso added in 1968 was to regulate the size of the jury — where affordable either at common law or by statute — for litigation in the soon-to-be-effective single-level trial bench of the post-1969 district court and to define those cases where a jury of less than the requisite common-law number of twelve was to be authorized. The amendment was meant to secure for the people, and thus shield from legislative change, the there-prescribed jury size for each defined class of cases. Secondly, a termination of the parental bond is not a judicial remedy comprised within the rubric of "juvenile proceedings."

[42] The sweep of § 19 must be divined from the historical antecedents of the Inviolate Clause as well as from the genesis of the so-called "juvenile law."¹² We are not dealing here with the common law but rather with a fairly recent statutory suprastructure. The focus of our analysis is neither on the best interests of the child nor on the parental rights to be affected but on the cold letter of the fundamental law — the people's charter.

[43] Laws affecting parent-and-child relations come within the bounds of family law while "juvenile law" is centered on the child.¹³ *Page 1051 The process of juvenile law is designed to do two things: (1) to take underage persons out of the adult criminal prosecution system and to treat their wrongdoing as delinquency and (2) to facilitate the state's intervention into the familial domain for the purpose of protecting abused and neglected children. Oklahoma's statutory scheme provides remedies for judicial restraint of parental control as well as for the severance of parental bond both within and outside the Juvenile Code.¹⁴

[44] The termination remedy is distinguishable from delinquency and deprived-status proceedings in one important aspect; its focus is on the future of the parents' rights in the child. In deprived-status and delinquency proceedings the accent is solely on the future and legal disposition of the child. Termination proceedings, a fairly recent addition to the arsenal of legal remedies, cannot truly be considered a part of juvenile law. They are most often initiated by the government only at the point where welfare authorities decide that a parent is beyond rehabilitation and has failed to show promise of providing proper care for the child. Early impetus for enacting termination statutes came from the economic pressures placed on public and private welfare agencies in implementing the multitude of child welfare programs.¹⁵ These laws had a twofold purpose: (a) to free children from unfit parents and thus render them eligible for adoption and (b) to ease the financial burden upon state and foster care agencies.¹⁶

[45] In short, termination of parental rights as a judicial remedy cannot be considered as fairly comprised within the meaning of "juvenile proceedings" as that term appears in the 1968 amendment of § 19.

II[46] TODAY'S PRONOUNCEMENT VIOLATES STATE AND FEDERAL FUNDAMENTAL LAW

[47] A. The Equal Protection Clause

[48] Parents confronting potential loss of their children by judicial termination of rights comprise but a single class of individuals who, until today, have been recipients of equal procedural treatment. None was afforded the right to jury trial. Today's holding singles out one subclass of these parents for jury trial while it remains silent or noncommittal about others whose interest may be at risk in the context of adoptions andprivate interparental disputes.

[49] Though free to enlarge upon the basic freedoms guaranteed by the federal constitution, states may not create artificial boundaries for suitors in the same class. The Equal Protection Clause is violated when some but not all litigants in an entire class are singled out for the benefit of trial by jury.¹⁷ Although the Equal Protection Clause does not require that all persons receive identical treatment, it does mandate that the distinctive feature of a classification have some relevance to the purpose for which it has been created.¹⁸ The only purpose for the court's classification today is to afford some parents the right to demand a jury trial; the only distinction between this newly created subclass and the wider general class lies in the person or entity prosecuting the claim for termination. I find no rational connection between the distinction and the purpose for the classification.¹⁹ *Page 1052

[50] Baxstrom v. Herold²⁰ and Humphrey v. Cady²¹ stand as authority for the principle that state law offends the Equal Protection Clause when it affords different modes of trial to persons who belong to the same litigation class. For jury trial purposes, the court's pronouncement today trichotomizes parental claims into (1) proceedings by the state under 10 O.S.Supp. 1986 § 1130[10-1130]; (2) private interparental disputes based upon grounds provided under 10 O.S.Supp. 1986 § 1130[10-1130](D) and (3) adoptions without the other parent's consent under 10 O.S.Supp. 1986 § 60.6[10-60.6]. The court's holding that the right to trial by jury avails to parents in the first, or possibly even the second, group clearly results in extending the constitutional right to trial by jury far beyond the permissible rubric of "juvenile proceedings."

[51] B. State Fundamental Law

[52] Today's pronouncement also violates Art. 5 §§ 46 and 59, Okla. Const.; the former requires that court procedure be uniformly extended to all persons similarly situated²² and the latter prohibits a different mode of trial for the single class of parents haled into court for termination of rights to their children.²³

[53] C. Asymmetry is created by today's pronouncement

[54] Today's inclusion of parental terminations in the class of § 19 "juvenile" proceedings commits Oklahoma to a further extension of jury trials to all purely private interparental contests for severance of a child's bond and to all quests for a consentless adoption. This is reason enough to reject thenotion embraced by today's opinion. Because I am unwilling to join in pledging myself to a constitutional construction so very fraught with the spectre of asymmetry and distortion in our legal tradition, I dissent from Part V of today's pronouncement.

[55] In short, my dissent from today's pronouncement rests on three grounds: (1) the court's opinion offends the Inviolate Clause in Art. 2 § 19, Okla. Const., by extending jury trials to termination proceedings and by mistakenly viewing parental termination as a juvenile proceeding; (2) the court commits Oklahoma to a further and unwarranted extension of jury trials to cases clearly not embraced within the term "juvenile proceeding" — private interparental terminations and adoption-related proceedings to declare a child eligible for adoption without the other parent's consent and (3) the court's opinion offends the state's fundamental law that (a) mandates uniformity of court procedure for like-situated litigants and (b) prohibits classification of similarly situated litigants based on unreasonable grounds.

¹ See footnote 8 infra for the pertinent text of Art. 2 § 19, Okla. Const.

² The court recedes today from its earlier view that the 1968 amendment to Art. 2 § 19, Okla. Const., does not provide a mandate for a right to jury trial in termination proceedings. See, J.V.v. State Dept. of Institutions, etc., Okla., 572 P.2d 1282 [1978] and Wilson v. Foster, Okla., 595 P.2d 1329, 1332 [1979].

³ See footnotes 22 and 23 infra for the pertinent text of Art. 5 §§ 46 and 59, Okla. Const.

⁴ See Duncan v. State of Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 [1968] (pertaining to state criminal actions) and Bloom v. State of Illinois, 391 U.S. 194, 200, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 [1968].

⁵ Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 [1966].

⁶ See Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436 [1877];Maryland National Insurance Co. v. District Court, Okla.,455 P.2d 690, 692 [1969] and Harada v. Burns, 50 Haw. 528,50 Haw. 588, 445 P.2d 376, 380 [1968].

⁷ 403 U.S. 528, 545, 91 S.Ct. 1976, 1986, 29 L.Ed.2d 647 [1971]. The pronouncements in Duncan v. State of Louisiana,supra note 4, and Bloom v. State of Illinois, supra note 4, were not extended to state noncriminal (delinquency) proceedings against underage persons accused of a violation that would constitute a criminal offense if it were committed by an adult. See McKeiver v. Pennsylvania, supra. In Wilson v. Foster,supra note 2, we opined that the rationale of McKeiver, a delinquency case, applied with even greater force to deprived-status cases.

⁸ The pertinent terms of Art. 2 § 19, Okla. Const., provide:

"The right of trial by jury shall be and remain inviolate. . . . Juries for the trial of civil and criminal cases shall consist of twelve (12) persons; but in the trial of . . . juvenile proceedings . . . juries shall consist of six (6) persons. . . ." [Emphasis added.]

⁹ See Tull v. United States, 481 U.S. ___, 107 S.Ct. 1831, 1835, 95 L.Ed.2d 365 [1987]. There the Court preserved the right to trial by jury in a case held to be analogous to a common-law action in which the right was afforded. The pertinent part of the Seventh Amendment provides as follows:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . ."

¹⁰ Maryland National Insurance Co. v. District Court, supra note 6 at 692, and Hamil v. Walker, Okla., 604 P.2d 377, 378 [1979].

¹¹ See footnote 8 supra for the pertinent text of Art 2 § 19, Okla. Const.

¹² The history of the juvenile justice system evolved simultaneously with the child welfare system. Prior to the 19th century, the same institutions handled both adults and children who committed crimes. Children who received inadequate care from their families were assisted by local communities and churches as charity cases. Poverty and crime were treated separately before the rise of a governmental welfare system. The emergence of the child welfare system was seen in various innovative trends in the 19th century such as (a) "shelters" for dependent, neglected, or abandoned children, (b) "houses of refuge" established in early 1825 for children who were convicted of criminal offenses or admitted as vagrants and (c) the establishment of a juvenile court by Illinois in 1899. The latter marked the first implementation of a separate judicial framework whose sole concern was directed to problems and misconduct of youth. The juvenile court marked a conceptual change in the nature of the child's conduct, the child's responsibility for its conduct and the state's role in dealing with that conduct. The state's relationship to the child was based on the old English concept ofparens patriae which was central to the juvenile court concept. See, H. Lou, Juvenile Courts in the United States, 13-19 [1927]; Mennel, Origins of the Juvenile Court: ChangingPerspectives on the Legal Rights of Juvenile Delinquents, 18 Crime Delinq. 68 [1972]; Davis, Rights of Juveniles: TheJuvenile Justice System, § 1.1 [2nd Ed. 1987]; see generally, Fox, Juvenile Justice Reform: An Historical Perspective, 22 Stan.L.Rev. 1187 [1970], Besharov, Juvenile Justice Advocacy, § 1.1, pg. 1-3 [1974]; Bailey and Rothblatt, Handling JuvenileDelinquency Cases, §§ 1:2-1:5 [1982]; Rubin, Juvenile Justice:Policy, Practice and Law, pgs. 35-38 [2nd ed. 1985]; ALI/ABA,Law and Tactics in Juvenile Cases, § 1.1 [1977] and IJA-ABA Joint Commission on Juvenile Justice Standards: A Summary and Analysis, Part III: The Historical Development of the JuvenileJustice System, §§ 3.1-3.2, pgs. 29-38 [1982].

¹³ See Dobson, The Juvenile Court and Parental Rights, 4 Fam.L.Q. 393-394 [1970].

¹⁴ See 10 O.S. 1981 § 9[10-9] and 10 O.S.Supp. 1986 § 60.6[10-60.6]. Juvenile Code provisions may be found at 10 O.S. 1981 §§ 1101[10-1101] et seq.

¹⁵ Gordon, Terminal Placements of Children and PermanentTermination of Parental Rights: The New York Permanent NeglectStatute, 46 St. John's L.Rev. 215, 219-244 [1971].

¹⁶ See footnote 12 supra for a discussion of the early 19th century reform efforts directed toward the protection of wayward children (orphans, paupers and juveniles convicted of offenses in criminal courts).

¹⁷ See Baxstrom v. Herold, infra note 20, and Humphrey v.Cady, infra note 21.

¹⁸ See Baxstrom v. Herold, infra note 20, and Humphrey v.Cady, infra note 21.

¹⁹ See Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 [1980]; Barnes v. Superior Court,186 Cal.App.3d 969, 231 Cal.Rptr. 158, 162 [1986]; and Hickey v.Morris, 722 F.2d 543, 546 [9th Cir. 1984].

²⁰ 383 U.S. 107, 110-113, 86 S.Ct. 760, 762-763, 15 L.Ed.2d 620 [1966]; for a discussion of Baxstrom, supra, see Jacksonv. Indiana, 406 U.S. 715, 723-724, 92 S.Ct. 1845, 1851, 32 L.Ed.2d 435 [1972] and United States ex rel. Murray v. Owens,465 F.2d 289, 293-294 [2nd Cir. 1972].

²¹ 405 U.S. 504, 508-513, 92 S.Ct. 1048, 1053-1054, 31 L.Ed.2d 394 [1972].

²² The terms of Art. 5 § 46, Okla. Const., provide in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * * * * *

Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts . . ." [Emphasis mine].

²³ The terms of Art. 5 § 59, Okla. Const., provide:

"Laws of a general nature shall have a uniform form operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

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