dissenting:
I must respectfully dissent. I agree with the Court of Appeals that this father had a constitutional right to a jury trial in this proceeding which was brought to sever his natural and legal relationship with his child. That court correctly determined that our holding in A.E. v. State, 743 P.2d 1041 (Okla.1987), which recognized the state constitutional basis of a parent’s right to a jury trial in a termination action initiated by the state, should also be applied where the termination is initiated by an individual.
This proceeding was brought to terminate father’s parental rights, and the identity of’the initiating party was irrelevant to its consequences to him. He stood to lose his rights to his child just as surely as if the action were brought by the state through the district attorney. The fact that this termination procedure was initiated by an individual rather than the State of Oklahoma, does not change it from being “state action” at its most significant, and the majority’s holding that the availability of a jury trial depends on the identity of the complaining party, creates a denial of equal protection of the law. States may not create artificial boundaries for suitors within the same class. This is particularly true here, where we are dealing with rights which are “[f]ar more precious than property rights,” May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953), they have been deemed “essential”, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), and the “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942).
*772Clear warning of the uneonstitutionality of such disparate treatment was sounded in the dissenting opinion to A.E. authored by Justice Opala, where he pointed out that it would violate federal and state constitutional guaranties of fair and equal treatment to deny a jury trial to a subclass of parents facing the same threat as the general classification where the only distinction between the two lies in the person or entity prosecuting the claim. His observation that there is no rational connection between the distinction of classes of parents and the purpose for the classification, is as true now as it was then. So too is his conclusion that treating those similarly situated persons differently would violate federal and state constitutional guarantees.
The majority’s refusal to extend the holding in A.E. to this father based on its stated assumption that even if he had a constitutional right to a jury trial, he had waived it, is unconvincing. The record does not support a finding that his right to a jury trial was waived. There is no written waiver before us and nothing in the record indicates a knowing and intentional waiver of a jury trial. While this right, like other statutory and constitutional rights, is personal and may be waived, waiver is never presumed from a silent record. The fact that one knows his rights and intends to waive them must plainly appear in the record. Faulkenberry v. Kansas City Southern Ry. Co., 602 P.2d 203 (Okla.1979); In Matter of D.D.F., 801 P.2d 703 (Okla.1990), this Court recognized that a parent in a termination action can waive his right to a jury trial, and the waiver will be upheld where the record supports a finding that it was voluntarily and knowingly made. That finding cannot be made here.
Even without questions of the constitutionally fundamental right to a jury trial in this termination action, waiver of a trial by jury is nonetheless required by statute, 12 O.S.1991, § 591, to be acknowledged by written consent or oral consent given in open court, and entered in the court’s journal.
In the face of a silent record, I would not presume waiver of a trial by jury which has been held by this Court to be a constitutional right in a termination proceeding.
I am authorized to state that Justice KAUGER joins with me in the views expressed herein.