J. v. v. State, Department of Institutions, Social & Rehabilitative Services , 572 P.2d 1283 ( 1977 )

BERRY, Justice.

District court entered an order terminating parental rights under 10 O.S.Supp.1975 § 1130 [now cited as: 10 O.S.Supp.1976 § 1130].¹ Child, with regard to whom rights were terminated, had previously been finally adjudged dependent and neglected under the provisions of 10 O.S.1971 § 1101 et seq., as amended [herein styled juvenile code.]

Appellant’s first assignment of error is failure of the district court to grant a trial by jury on the issue of termination of parental rights [hereinafter: “termination”].

Under this assignment appellant’s first proposition argues the right of a parent to the companionship, care, custody and management of the child is a fundamental right protected by the United States Constitution and the Oklahoma Constitution. Appellant cites ample authority for the proposition and we are in accord with this view. Bishop v. Benear, 132 Okl. 116, 270 P. 569; Alford v. Thomas, Okl., 316 P.2d 188 at 192.

Appellant concedes there is no present federal constitutional imperative requiring juries in cases of this nature. Rather, appellant urges due process and equal protection require this Court to interpret the Oklahoma Constitution and statutes as providing trial by jury on the issue of termination. Appellant says “. (S)ince substantial rights of the parent hang in the balance, the full gamut of procedural safeguards guaranteed by the United States Constitution and the Oklahoma Constitution must be accorded to the parent-litigant before these rights may be terminated by the State. One such safeguard is right to jury trial.”

Appellant cites us to no authority for the conclusion. We will not, absent authority, engraft the right to jury in termination cases upon the constitution and law of this State merely on the reasoning that because substantial rights are affected a jury is required.

Appellant, in the second proposition, maintains there is a present right to jury in termination matters under the Oklahoma Constitution. This is an issue of paramount significance in this appeal as the result of our determination will govern the conduct of the new trial in district court.

The Oklahoma Constitution, at Art. II § 19, provides:

“The right of trial by jury shall be and remain inviolate . . . ’’

Appellant argues this language, when construed in light of Salter v. State, 2 Okl.Cr. 464, 102 P. 719,² mandates a trial by jury in termination cases.

Appellant fails to consider the line of cases holding that the right to jury secured by the Oklahoma Constitution is limited to those cases in which the right existed either at common law or in federal court just prior to statehood.

In Maryland National Insurance Co. v. District Court, Okl., 455 P.2d 690, we upheld the constitutionality of statutes providing for enforcement of liability in bail bond forfeiture proceedings, by trial without jury, and said:

“In the briefs, petitioners argue that the new statute unconstitutionally denied them the right to a jury trial, and violates due process and equal protection clauses of both state and federal constitutions.

“We first consider the question of petitioners’ right to a jury trial. In . Keeter v. State ex rel. Saye, 82 Okl. 89, 198 P. 866, 17 A.L.R. 557, this court gave exhaustive consideration to the question of the jury trial guarantees of our own Constitution, in the face of prior holdings not in harmony, and held:

‘The right -to trial by jury, declared inviolate by section 19, art. 2, of the Constitution of Oklahoma, except as modified by the Constitution itself, has reference to the right as it existed in the territories at the time of the adoption of this Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in territories at that time, but the right as guaranteed under the federal constitution and according to the course of the common law.’ ”

We are not persuaded the right to jury trial has assumed a different character since we decided Maryland National, supra. Appellant has cited us no authority for the position that termination actions were accorded trial by jury at the common law. Appellant concedes terminations do not demand jury trial by virtue of the federal constitutional imperative. Absent authority or constitutional command we will not say trial by jury is required by the Oklahoma Constitution in termination proceedings.

To determine if there is a statutory entitlement to a jury on the issue of termination we must examine the provisions of the juvenile code. 10 O.S.1971 § 1110 provides:

“In hearings to determine whether a child is within the purview of this Act, the child informed against, or any person interested in such child, shall have the right to demand a trial by jury, which shall be granted as in other cases, unless waived, or the judge on his own motion may call a jury to try any such case. Such jury shall consist of six (6) persons.” (Italics added)

Juries are not provided for in every hearing under the juvenile code. It is only where the purpose of the hearing is to “determine whether the child is within the purview” of the code that a jury may be demanded.

The juvenile code provides for a comprehensive method of dealing with children who, in the view of the legislature, need special attention. The code provides for distinct types of hearings the character of which varies as the object of the hearing varies. Initially [10 O.S.Supp.1976 § 1103] there is a determination by the court, on information of a citizen, whether a juvenile petition ought be filed. If a petition is filed, there is then [10 O.S.1971 § 1104; 10 O.S.Supp.1976 § 1107] a summary determination of custody pendente lite.

Only after the first of these hearings, and the second in cases were necessary, and pre-trial proceedings, does the court proceed to the [10 O.S.Supp.1976 §§ 1101(f), and 1111] adjudicatory hearing in dependency cases. The function of the adjudicatory hearing is to determine whether the allegations of the § 1103 petition are true, and whether the child should be made a ward of the court [10 O.S.Supp.1976 § 1101(f)], It is at this hearing, for these purposes, that a jury may be demanded [10 O.S.1971 § 1110].

After a child is determined to be within the purview of the juvenile code [i. e. adjudged dependent in the context of this appeal] the court proceeds to determine what disposition ought be made of the child in accordance with 10 O.S.1971 § 1116 et seq. The court is guided in the conduct of dispositional hearings [10 O.S.Supp.1976 § 1101(g)] by the provisions of 10 O.S.1971 § 1115.

Prior to the enactment of 10 O.S.Supp. 1965 § 471 et seq. [now 10 O.S.1971 § 1130 et seq.] award of custody to a third person with power to consent to adoption was a dispositional alternative extended to the juvenile judge. Since the enactment of the statutes the court is required to conduct a separate hearing on the question of termination. The hearing to determine whether child is within the purview of the Act does not fully protect the parent’s right to a day in court on the issue of termination of parental rights. The present procedure is to further extend the parent’s right of due process over the prior procedure.

The termination statutes operate upon the parent’s right to the care, custody and control of the child and [to the extent material in this appeal] may operate only after a decision that the child’s right to proper nurture has been infringed, however innocently, by some act of omission or commission by the parent.

A hearing on the question of termination of parental rights, then, is not a hearing to determine whether the child is within the purview of the juvenile code. The legislature has authorized the use of a jury in cases under the code only in those hearings to determine whether the child is within the purview of the code. Logic leads us to conclude the legislature has not provided for a jury as part of termination proceedings.

Appellant urges us to adopt the position that the juvenile code violates the Oklahoma Constitution by failing to provide a jury in the instant circumstances. We decline to do so. Since the Oklahoma Constitution does not require a jury in termination matters there is no constitutional infirmity in a statute which, while providing for a jury in some juvenile hearings, fails to provide a jury in termination proceedings.

Appellant’s third proposition is a jury is required in order to maintain the appearance as well as the actuality of fairness in termination proceedings. Rather than a general proposition on this point appellant ties the argument rather specifically to the unusual facts in this case. The record reveals the referee who conducted the first termination hearing [which resulted in the later vacated termination order] is the same person who was petitioner when the dependency and neglect petition was filed some six years earlier. The second termination hearing, from which this appeal is taken, was conducted after the trial court sustained this appellant’s motion to vacate the order which resulted from the first hearing. The second hearing was conducted by the judge without reference. No objection was made in the trial court which would preserve the issue for appeal. We deem the issue moot.

Appellant’s fourth proposition is waiver of jury at the adjudicatory stage of juvenile proceedings ought not operate as a waiver of jury at the termination stage. Appellant has shown no logic nor authority to convince us that once a jury is waived, it can later as a matter of right be demanded. In light of the foregoing discussion of right to jury in termination proceedings further consideration is not necessary.

Appellant’s second specification of error is that evidence is insufficient to support the trial court’s judgment terminating appellant’s parental rights.

We observe that at the time of first hearing of termination appellant was in a mental hospital. Even though appellant’s whereabouts were known to appellees appellant was not notified. Subsequently appellant was released from the institution, was responding to prescribed medication, established residence with an aunt, and was preparing for the proper care of the child.

On motion by appellant trial judge set aside the termination order and reset the matter. At this time appellant demanded a jury trial.

At the hearing that ensued the record indicates a vigorous effort was made by appellant’s attorney to obtain a jury. The merits of proceedings appear obscured.

Even though the record shows that the trial judge had deep concern for the welfare of the child, we reverse and remand with directions to rehear and determine whether appellant has corrected conditions alleged in motion to terminate and whether it is in the best interest of the child to terminate parental rights.

The only issues decided in this opinion are the issue of right to trial by jury in termination cases and the issue of sufficiency of the evidence in this case. We affirm trial court’s denial of jury trial; we reverse on the evidentiary issue and remand for new trial not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded for further proceedings.

HODGES, C. J., LAVENDER, V. C. J., and DAVISON, IRWIN and BARNES, JJ., concur. WILLIAMS, SIMMS and DOOLIN, JJ., dissent.

1 . Citations to Title 10, Oklahoma Statutes, will be to the latest edition wherein the cited statute appears unless the latest statute is materially different from the statute applied by the trial court, in which case the cite will be to the statute used by the trial court.

2 . “In the Constitution of Oklahoma the utmost pains have been taken to preserve all of the securities of individual liberty, and all provisions of the Constitution designed to safeguard the liberty and security of the citizen should be liberally construed by the Courts.” (first syllabus)