Opinion:In the Matter of A.T., 2022 OK CIV APP 10
Subject Matter:Family Law
Date Decided:March 23, 2022
Trial Court:District Court of Oklahoma County
Route to this Court:Appeal of the trial court’s denial of her petition to vacate an order terminating her parental rights.
Facts:In May 2020, the state filed a petition seeking to terminate Mother’s parental rights on ground of failure to correct the conditions leading to prior deprived adjudication. Mother failed to appear at her scheduled hearing and DHS reported that Mother had not engaged in any services and had inconsistent contact with DHS. Mother failed to appear at the pretrial hearing on November 12th, testimony was given that the parental rights should be terminated, and Mother failed to appear for the November 16th trial. Sixty-four days later Mother filed a petition to vacate pursuant to 12 O.S. § 1031, claiming unavoidable casualty, alleging that she was unaware of the pretrial hearing and could not attend remotely due to technological impediments. On cross-examination, the state elicited that Mother had not attempted to contact her DHS contact or the court regarding her inability to appear.

The court subsequently issued an order denying the request to vacate, citing 10A O.S. § 1-4-905, the request was untimely. The trial court also concluded the claimed casualty was “preventable.” Ms. Burke appealed this order.
Standard of Review:“An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Fent v. Okla. Natural Gas Co., 2001 OK 35, ¶12. However, in passing upon a claim that the procedure used in a proceeding to terminate parental rights resulted in a denial of procedural due process, the court reviews the issue de novo. In the Matter of A.M., 2000 OK 82, ¶6.
Analysis:The Court addressed three main issues in this case. First, it juxtaposed 10A O.S. § 1-4-905 and 12 O.S. § 1031, of which the state declined Mother’s petition to vacate was declined pursuant to the former statute. The Court rejected the state’s use of Title 10A, reasoning that 10A’s provisions supplement and do not override the vacatur provisions allowed by Title 12. Although 10A’s provision allowing a motion to vacate to be filed within thirty days duplicates the provisions of Title 12, which allows vacatur to be filed within two years, there was no direct conflict of law here. Looking at prior cases examining the intersection of provisions of the children’s code and the general pleading code, the Court concluded that those cases are in accord.

The issue of unavoidability of the casualty is not limited to whether the casualty caused an inability to appear but includes whether the casualty caused the adverse judgment Mother sought to vacate. The Court rebutted Mother’s argument using evidence from the trial, that Mother had not attempted to attend the pretrial hearing in person or remotely, she made no attempt to contact DHS on the day of the pretrial nor on any of the days before the trial. She waited two months to file her vacation of the petition and the internet issues on the day of the pretrial did not cause her failure to appear on any of the following days. The trial court has discretion to deny a request to vacate.

In regard to Mother’s due process, the state must still prove all elements for termination. In re H.M.W., 2013 OK 44, ¶3. The trial court heard evidence, gathered four pages of relevant transcript, delayed its order until after trial date, and followed the proper procedures. Mother’s argument that the state lacked sufficient evidence to terminate. The Court rejected that argument because the state followed the proper procedures and held that it is practically impossible to have a hearing to the due process standards that Mother proposed. Due process makes no such demands.
Outcome:Trial Court’s Termination is Affirmed.
Vote:3-0. Wiseman, P.J., Rapp, J., and Blackwell, J. (author) concur.