State ex rel. Choctaw County District Attorney v. Anderson

OPALA, Justice,

concurring in part and dissenting in part.

Today the court 1) recasts sua sponte a single issue in this consolidated appeal into an original action for a prerogative writ, 2) vacates the trial court’s order which dismissed the parental termination proceeding by “waiver and relinquishment” of its “juvenile jurisdiction”, and 3) authorizes the foster parents to intervene in a proceeding brought for the child's adoption by the persons who held the mother’s consent. I concur in the view that the foster parents have standing to intervene in all proceedings that affect the child and join in the court’s conclusion that the foster parents have a statutory right to appeal from denial of their plea to intervene. I recede from the remainder of the court’s pronouncement. I would consider this consolidated appeal as bringing for review three final orders, all appealable. The first of these orders brought to an end the parental termination proceeding; the second refused to allow the mother’s withdrawal of her consent, and the third denied the foster parents’ plea in intervention.

I.

THE ANATOMY OF LITIGATION

Before the court are two appeals, both filed April 11, 1985: 1) cause No. 64,156 brought by the District Attorney of Choctaw County and the Oklahoma Department of Human Services [DHS], who are called collectively the State, and 2) cause No. 64,157 lodged by the foster parents. Both the State and the foster parents appeal from the trial court’s “waiver” or “relinquishment” of jurisdiction over the public-law parental termination proceeding and from an “interlocutory decree of adoption.”1 Foster parents appeal also from the trial court’s refusal to allow their intervention in the adoption proceeding.2

II.

THE TRIAL COURT’S DISMISSAL OF THE PARENTAL TERMINATION PROCEEDING BY “WAIVER AND RELINQUISHMENT OF JURISDICTION” CONSTITUTES AN APPEAL-ABLE ORDER AND MAY BE REVIEWED AS A PUBLIC-LAW ISSUE

The trial court’s “waiver” of jurisdiction in the then pending parental termination proceeding constitutes an appealable order. *548In the context of juvenile proceedings, waiver and relinquishment3 of jurisdiction is a conceptual anachronism that descended into the storehouse of antiquarian procedural lore, when, in the wake of our 1969 constitutional court reform, “juvenile judicature” 4 ceased to exist as a separate cognizance, and all judicial jurisdictions exercisable in the counties under the state law came to be integrated in the new omni-com-petent, single-level district court. Because the trial court’s “waiver” constitutes an “end-of-the-line” disposition of the parental termination case and must be regarded as the procedural analogue of a dismissal, it constitutes a final and appealable order. 12 O.S. 1981 §§ 952(b)(1) and 953.5 Moreover, a public-law suit for termination of parental bond is dismissible only if “good cause” is shown.6 The existence of that cause is reviewable on appeal.

The appeal was timely. Failure of DHS to include the dismissal as a ground for new trial raises no barrier to our review of the dismissal order. A public-law controversy may be decided by an appellate court upon issues not raised either before it or below.7

III.

THE TRIAL COURT’S REFUSAL TO ALLOW WITHDRAWAL OF THE MOTHER’S CONSENT TO ADOPT IS APPEALABLE

Withdrawal of a consent to adopt is authorized by 10 O.S. 1981 § 60.10.8 That *549section expressly makes any consent irrevocable upon entry of an interlocutory or final decree of adoption. The trial court’s refusal to allow the mother’s withdrawal made the consent to adoption irrevocable and terminated her claim to the child. The refusal — an order analogous in legal consequence to one declaring a child eligible for a consentless adoption — puts an end to a parent’s claim vis-a-vis the child and is hence appealable as a “final order.”9

IV.

SUMMARY

I would not reach for review on the merits either the dismissal of the parental termination proceeding or the trial court’s refusal to allow withdrawal of the mother’s consent to adopt. The foster parents were adversely affected by each of the three decisions now tendered for review in both appeals — not just by the denial of their plea in intervention. Since they were deprived of an opportunity to press their case in opposition to the vital issues raised below, which affected their status to the child, all three orders tendered for our review, must, as to them, be regarded as the product of tainted judicial process. The causes before us should hence be remanded with direction that the issues tendered by the public-law parental termination case be resolved in advance of reaching for disposition the controversy in the adoption-related proceeding.

The foster parents are adversely affected by, and hence entitled to participate in, all phases of the case which deal with the status of the child in contest. I would hence reverse 1) the dismissal of the parental termination proceeding effected below by “waiver and relinquishment,” 2) the refusal to allow the mother’s withdrawal of her consent to adoption, 3) the denial of the foster parents’ plea to intervene. The proceedings should be remanded for further hearing in which all interested parties must be afforded full and fair opportunity to participate.

. The court dismissed as premature that portion of the foster parents’ appeal by which they sought review of the interlocutory adoption decree.

. The foster parents were also aggrieved by the trial court’s refusal to allow the mother’s withdrawal of her adoption consent. That ruling formed a well-nigh insuperable legal impediment to the foster parents’ own quest for adoption.

. In national jurisprudence “waiver" or "relinquishment” of jurisdiction is used to signify a cession or transfer of cognizance from an adult to a juvenile tribunal or, vice versa, from a juvenile to an adult forum. This procedure is also known as “transfer,” "remand,” or "certification." See West v. State, Department of Public Welfare, Okl., 536 P.2d 901, 903-904 [1975]; State v. Valentine, Okl.Cr., 536 P.2d 1291, 1292 [1975]; Ex parte Lewis, 85 Okl.Cr. 322, 188 P.2d 367, 383 [1947]; Besharov, Juvenile Justice Advocacy, 249 (Practising Law Institute, New York City, 1974); Miller, Dawson, Dix, and Parnas, The Juvenile Justice Process, 333-386 (The Foundational Press, Inc., 1976); Standards Relating to Transfer Between Courts, Juvenile Justice Standards Project, IJA-ABA Joint Commission, 1977; Keith, Waiver of Jurisdiction in Juvenile Courts, 30 Ohio St.L.J. 132 [1969]; Hosey, Waiver in Juvenile Proceedings, 23 Baylor L.Rev. 467 [1971].

. “Juvenile judicature” means judicial decision-making process under that body of statutory public law which protects underage persons from adult criminal accountability and shields them from exposure to harm by abuse or neglect. Davis v. Davis, Okl., 708 P.2d 1102, 1108-1110 [1985]; Matter of C.G., Okl., 637 P.2d 66, 71 [1981]; see also, A.E. v. State, Okl., 743 P.2d 1041, 1050-1051 [1987] (Opala, J., dissenting in part).

. The terms of 12 O.S. 1981 § 952(b)(1) provide: “The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:

1. A final order; * * *" [Emphasis added.] The terms of 12 O.S. 1981 § 953 provide:

“An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, reversed, as provided in this article.” [Emphasis added.]

An order which precludes a person from proceeding further in the trial court is appealable. Mayhue v. Mayhue, Okl., 706 P.2d 890, 893 [1985] and Centorp Corporation v. Gulf Production Corporation, 183 Okl. 436, 83 P.2d 181, 185 [1938]. See also, Carder v. Court of Criminal Appeals, Okl., 595 P.2d 416, 422 [1979], where dismissal of a juvenile proceeding operated to terminate the action as well as the court’s jurisdiction.

. The terms of 10 O.S.Supp. 1986 § 1116(A)(6) provide;

“The court may dismiss the petition or otherwise terminate its jurisdiction at any time for good cause shown.” [Emphasis added.]

. Davis v. Davis, Okl., supra note 4 at 1104.

There is no need for recasting any part of this appeal into a prerogative writ proceeding. All the issues tendered by DHS may be reached for review because of this court's freedom to resolve a public-law controversy unimpaired by the usual strictures of the adversary process. “Whenever widespread interest may demand an immediate resolution of some vital public law issue, no impediment arising from infirmity in the procedural posture of the case — however well recognized in purely private litigation — will bar our exercise of reviewing powers.” Application of Goodwin, Okl., 597 P.2d 762, 764 [1979].

. The terms of 10 O.S.1981 § 60.10 provide:

"Withdrawal of any consent filed in connection with a petition for adoption hereunder shall not be permitted, except that the court, after notice and opportunity to be heard is *549given to the petitioner by the person seeking to withdraw consent and notice to any agency participating in the adoption proceedings, may, if it finds that the best interest of the child will be furthered thereby, issue a written order permitting the withdrawal of such consent if request for leave to withdraw consent is submitted in writing not later than thirty (30) days after consent was executed. The entry of the interlocutory or final decree of adoption renders any consent irrevocable." [Emphasis added.]

. See Merrell v. Merrell, Okl., 712 P.2d 35, 36 [1985]; Matter of Adoption of E.S.P., Okl., 584 P.2d 209, 210 [1978].