Tosto v. State , 362 P.3d 666 ( 2013 )

JANE P, WISEMAN, Judge..

11 Rhiannon Tosto (Mother) and Randy Tosto (Father) appeal from an order of the trial court denying their motion to vacate a judgment in connection with the termination of their parental rights entered after they failed to appear at a pretrial hearing,. The issue on appeal is whether the trial court abused its discretion when it refused to vacate the default termination of their parental rights. After review of the record and applicable law, we reverse the trial court's order and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

2 On April 19, 2011, the trial court issued an order to take HRT, born in August 2006, into emergency custody based on allegations that HRT was found knocking on the door of a home at 3:80 a.m., after her parents left her alone in their truck. The State of Oklahoma filed a petition to adjudicate HRT deprived and to terminate Mother's parental rights because (1) Mother has failed to provide the proper parental care and guardianship for HRT; (2) Mother's home is unfit due to prior child welfare history, neglect, and lack of supervision; (8) "Mother left the child in the back of their truck at 8:80 am while she and Father went into a person's home to purchase a jukebox;" (4) Mother did not realize HRT was missing until later that morning; (5) HRT knocked on the door of the person's home whom Mother had been visiting saying she was scared and could not find her parents; and (6) Mother's parental rights to another child had been terminated in 2008 after he had been discovered playing in a busy intersection when he was four years old. State asked the court to adjudicate HRT deprived and to terminate Mother's parental rights "pursuant to 10A 0:8. 1-4-904(B)(14) for failure to correct conditions of a previous deprived adjudication" and "pursuant to 10A 0.8. 1-4-904(B)(8) for failure to correct conditions of a previous termination." State also sought to terminate Father's parental rights on these same statutory grounds.

T3 State sent Mother and Father éach a summons and notice to appear stating that the matter would be heard on May 28, 2011. Both notices included the following in capital letters and bold face type: "Failure to respond to this summons or to appear at this hearing constitutes consent to the adjudication of these children. as deprived children and may ultimately result in loss of custody. of these children or the termination of parental rights to these children."

4 4 State filed an amended petition on June 29, 2011, to correct what it later characterized in its brief on appeal as "a seriven[elr's error" The docket sheet shows that the case was set for pretrial on the following dates and then reset for hearing: June 27, 2011, September 9, 2011, October 20, 2011, December 8, 2011, and- March 15, 2012.

T 5 In an individualized service pre-adjudi-cation report filed December 8, 2011, State asked the trial court to find that reasonable efforts to reunite the family were not re-. quired. - State filed a third amended petition on March 1, 2012, to include as-another basis for termination of Mother's and Father's parental rights HRT's disclosure of sexual abuse by Father and Mother's failure to protect HRT, .

T6 The March 15, 2012, Permanency/Review Order indicates that Mother and Father were served with the third amended petition. The March 15 order sets a pretrial hearing for July 28, 2012, and jury trial for August 27, 2012. On the form used for the Permanency/Review Order was the following: "~_MMother [Father are advised that failure to comply with any requirements of the treatment plan or any requirements of the Court including failing to appear at any court hearing may result in the loss of custody of the child(ren) or the termination of parental rights to the child(ren)." Neither checkbox was marked.

T7 The transcript of the proceeding from July 28, 2012, states the following:

The parents do not appear. They were ordered to be here at 9:00 this morning. It is now 4:00 in the afternoon. They have not been here all day. The case is set for pretrial this morning. [Mother's and Father's attorney] Mr. Box.was here at 9:00. I advised him that his clients needed to be here by 1:80. They have not been here and have not arrived.

I gave them a tentative date of November 5th for jury trial if the parents appear. However, I told him that if they do not appear, I would take the State's request for default termination at that time.

The court stated that it "has been very specific with the parents repeatedly that they had to be here for pretrial hearings and they were not here today." The trial court stated:

I am going to go ahead and grant termination by default at this time, based upon what I advised Mr..Box of this morning. I think he was on notice of my intention. I think there's more than enough in the record to justify termination of parental rights and I'll make it part of the record at this time. ‘

(Emphasis added.)

T8 A journal entry of judgment terminating Mother's and Father's parental rights was filed. August 7, 2012, citing their failure to appear at the pretrial hearing. The court found that termination was just and proper pursuant to 10A 0.8. 1-4-904(B)(4), (14) and that the termination of parental rights was in HRT's best interest. The court stated, "[Hlaving examined the document and records admitted into evidence and having heard the testimony of witnesses sworn and examined in open court, and having heard the statements of counsel, ... finds that the parental rights of the [MJother and [Flather .'. should be terminated." However, there is nothing in the record to show that the trial court heard testimony or considered any exhibits admitted into evidence on July 28, 2012, or on May 28, 2012, the date listed on the journal entry of judgment as the day- of the hearing.¹ The transcript of the July 28 hearing is represented as a complete tran-seript of the proceeding at which the trial court terminated the parents' parental rights. The two and a half page transcript contains argument of counsel and the court's ruling, but contains no testimony or admission of exhibits, There is no indication of what eur-rent evidence the trial court relied on, if any, except for its statement that, "I think there's more than enough evidence in the record to justify termination of parental rights and I'll make it a part of the record at this time."

19 On August 31, 2012, Mother and Father filed a motion to vacate the journal entry of judgment on the ground that they were not aware of the pretrial date on July 23, 2012.² They asserted the journal entry of judgment was entered without notice to them and asked for a hearing on the termination of their parental rights.

10 A hearing was held on March 7, 2018, for what the court stated was a hearing "on a motion to set aside a finding of termination by default." Parents' counsel, Mr. Box, told the court that at the March 15, 2012, hearing, he wrote down for Mother and Father the date of August 27 as the date of the hearing. Box stated that the parents appeared every single time for two years in this case on approximately 12 separate occasions, that it "is an aberration that they did not appear," and their failure to appear was not deliberate. Box stated, "(They were given, by me, the next court date to appear when they appeared the time before this default was taken. And they were given the date that I gave them, and wrote down for them, of August 27th, 2012." The court stated, "I take it, from their failure to appear in my court, from my case, that they're not interested in proceeding." The court also noted that there were two other times that Mother and Father were not present for court.

11 Father testified that he was unaware of the July 28, 2012, pretrial date because he had written down at the March hearing that the next court date was August 27, 2012. Father asserted he did not deliberately miss the court date.

T12 On cross-examination, Father was asked about several dates that he missed after the motion to vacate was filed. Box later explained that he came to court without Mother and Father on those dates "to reset these dates simply because the trial dates get put over." Box stated, "It wasn't anything that required them to appear in court, but I came out and reset." '

$13 After the hearing on the motion to vacate, the trial court took the matter under advisement. On March 21, 2013, the trial court denied the motion to vacate finding that the initial notice and summons, served on the parents in April 2011, notified them of the consequences of the failure to appear as required by statute and that the notice was given 15 days prior to the initial hearing in May 2011, "and well in advance of the hearing date July 23, 2012." , The order states that the parents failed to appear at the July 23, 2012, hearing at 9:00 a.m. and the court told their attorney he had until 1:30 p.m. to have the parents present in. court, or the court would hear evidence on whether their parental rights should be terminated. The order states that Mother and Father failed to appear on July 28, "[the court received evi-denee, which included testimony from DHS, as well as all of the records from this proceeding as well as the proceedings from Oklahoma - County - Case # JD-2008-655, which served as a basis for the termination of parental rights in the Petition The Court sustained the state's petition." The court considered the motion to vacate and found "Injlo evidence was presented that the parents failed to attend the hearing or contact their attorney due to unavoidable casualty or misfortuné." The court cites 10A 0.8. 1-4-905, In re A.T., 2011 OK CIV APP 81, 262 P.3d 386, and In re J.C., 2010 OK CIV APP 138, 244 P.3d 793, in support of its decision to deny the motion to vacate. Mother and Father appeal from the trial court's decision denying their motion to vacate.

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STANDARD OF REVIEW

114 We review " 'a trial court's ruling either vacating or refusing to vacate a judgment [for] abuse of discretion." Ferguson Enters., Inc. v. H. Webb Enters, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. This appeal involves the trial court's denial of Mother's and Father's motion to vacate a default judgment. "A default judgment is a judgment entered against a party because of that party's failure to comply with a command imposed by law." Powers v. District Court of Tulsa Cnty., 2009 OK 91, n. 6, 227 P.3d 1060. "Thus a "default judgment has been defined as a judgment rendered in consequence of the non-appearance of the defendant'" Id. (quoting Choctaw Cnty. Excise Bd. v. St. Louis-San Francisco Ry. Co., 1969 OK 110, ¶ 9, 456 P.2d 545, 548). This termination resulted from the parents' failure to appear at a pretrial hearing.

¶ 15 When this Court reviews a trial court order refusing to vacate a default judgment, we will consider the following factors:

1) default judgments are not favored; 2) vacation of a default judgment is different from vacation of a judgment where the parties have had at least one opportunity to be heard on the merits; 3) judicial discretion to vacate a default judgment should always be exercised so as to promote the ends of justice; 4) a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has not,

Ferguson, 2000 OK 78 at ¶ 5, 13 P.3d at 482. We must also take into account . "whether substantial hardship would result from granting or refusing to grant the, motion to vacate." Id.

ANALYSIS

¶ 16 Title 10A O.S.2011 1-4-905, cited by the trial court in its decision, allows a consent judgment to be entered in a termination case; for a parent's failure to appear. Section 1-4-905(A)(1) provides the following:

Prior to a hearing on the petition or motion for termination of parental rights, notice of the date, time, and place of the hearing and a copy of the petition or motion to terminate parental rights shall be served upon the parent who is the subject of the termination proceeding by personal delivery, by certified mail, or by publication as provided for in Sectlon 1-4-8304 of this title.

The notice to the parents "must contain the following or' substantially similar language":

"FAILURE TO PERSONALLY APPEAR AT THIS' HEARING CONSTITUTES CONSENT TO THE TERMINATION OF YOUR PARENTAL RIGHTS TO THIS CHILD OR THESE CHILDREN. IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION OR MOTION ATTACHED TO THIS NOTICE."

10A O.S.2011 1—4—905(A)(2) The notice required by Section 14-905 must "be served upon the parent not less than fifteen (15) calendar days prior to the hearing." 10A O.S.2011 1-4-905(A)(8).

¶ 17 "The failure of a parent who has been served with notice under this section to personally appear at the hearing shall constitute consent to the termination of parental rights by the parent given notice." 10A O.S.2011 1-4-905(A)(5). "When a parent who appears voluntarily or pursuant to notite is directed by the court to personally appear for a subsequent hearing on a specified date, time and location, the failure of that parent to personally appear, or to instruct his or her attorney to proceed in absentia at the trial, shall constitute consent by that parent to termination of his or her parental rights." 10A O.S.2011 1-4-905(A)(5). The question here is whether Mother's and Father's appearance at several previous hearings but absence from one pretrial hearing was grounds for a default judgment. The statute specifically provides that "the failure of that parent to personally appear, or to instruct his or her attorney to proceed in absentia at the trial, shall constitute consent by that parent to termination of his or her parental rights." 10A 0.8.2011 I-4-905(A)(5)(emphasis added). This is clearly a provision allowing an attorney to proceed, presumably at trial, in the absence of his or her client, According to the trial court, Mother's and Father's attorney was present at the July 23, 2012, hearing. Their attorney could have adequately represented their interests at the pretrial hearing so that the matter could proceed to jury trial on August 27, 2012. Or, if the trial court decided to proceed with trial on July 283, the attorney could have eross-examined witnesses for State and presented witnesses for Mother and Father.

{13 Both Mother and Father had appeared at previously scheduled pretrial hearings. With Mother's and Father's attorney present at the July 28 pretrial hearing, the record provides no reason why the trial court did not consider holding the pretrial hearing as scheduled and proceeding with the scheduled jury trial on August 27, 2012.

119 Even if Mother and Father failed to appear after recewmg proper notice of the July 28 pretrial bearing and had been informed of the consequences of not appearing, this failure would not have unreasonably prolonged the termination process if the trial court had allowed the matter to proceed to trial. The trial was scheduled just over one month from the date the trial court decided that Mother's and Father's failure to appear should result in a default judgment.

T20 We recognize that Mother's and Father's rights must be balanced against the rights of the children to be in a wholesome environment and that the best interests of the children are always the paramount consideration. In re A.W., 2011 OK CIV APP 27, ¶ 22, 250 P.3d 343, 349. Without any prejudice resulting from a delay in the trial setting, the better course would have. been to allow the case to proceed to Jury trial and allow the parents to present witnesses and have their case heard at trial.

21 After considering the factors enunciated in Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482 (default judgments are disfavored, the parties have not had at least one opportunity to present their case on its merits to a jury, judicial discretion should be exercised to promote justice, and a lesser showing of abuse of discretion is required where a judgment has not been set aside); we conclude that failifig to appear for a pretrial hearing should not have in and of itself resulted in a default judgment when the parents' attorney was present and able to represent them. Nothing in the July 28 transcript shows that the trial court heard testimony or. conducted a trial on the issue of whether State met its burden to prove by clear and convincing evidence grounds for termination and that HRT's best interest was served by the termination of Mother's and Father's parental rights.³ See In re C.D.P.F., 2010 OK 81, ¶ 5, 243 P.3d 21, 23 ("In parental termination cases, the State must show by clear and convincing evidence that the child's best interest is served by the termination of parental rights."). ‘

122 "The integrity of the family unit and preservation of the parent-child relationship command the highest protection in our society." . In re M.H., 2010, OK CIV APP 136, ¶ 12, 245 P.3d 1266, 1269. "Because of the fundamental right which parents. have in the custody of their children and the gravity of the sanction imposed by termination, there is no substitute to fully complying with all procedural safeguards.?! Id. Termination of a parent's "parental rights is too serious to permit procedural shorteuts." Id. at 13, 245 P.3d at 1269.⁴

23 There is no confirmation in the record that the trial court advised Mother and Father that they must be present at the July 28 hearing. The March 15, 2012, order setting the July 23 and August 27 dates shows that no such instruction was given, even though there is clearly a space on the order to indicate that such notice was given. Even if the May 2011 summons and notice more than two years earlier, informing Mother and Father of the consequences of non-appearance meet the notice requirement of 10A O.S.2011 1-4-905 in regard to consent to termination, Section 1-4-905(A)(5) clearly allows an attorney to proceed, presumably at trial, in the absence of his or her client. Mother's and Father's attorney could have adequately represented their interests at the pretrial hearing so that the matter could proceed to jury trial as scheduled. '

1 24 The trial court cites In re J.C., 2010 OK CIV APP 138, 244 P.3d 793, and In re A.T., 2011 OK CIV APP 81, 262 P.3d 386, to support its decision to deny Mother's and Father's motion to vacate. We find that neither case supports the trial court's decision. In re J.C. addressed termination of a mother's parental rights after she failed to appear at trial, However, the trial court in In re J.C. held an evidentiary hearing and did not base its decision solely on the mother's failure to appear. In re J.C., 2010 OK CIV APP 138 at n. 1, 244 P.3d 793.

125 The trial court in In re A.T. found that a mother consented to the termination of her parental rights when she failed to show up for pretrial and her attorney was present at the hearing to present his motion to withdraw due to her failure to stay in contact with him. In re A.T., 2011 OK CIV APP 81 at ¶ 3, 262 P.3d at 387. The trial court granted the attorney's request to withdraw as the mother's attorney. Id. Therefore, it appears that the mother did not have 'at the pretrial hearing an attorney ready and able to represent her. In contrast, Mother's and Father's attorney appeared for the pretrial hearing to represent Mother's and Father's interest in the termination proceedings. -

€ 26 The mother in A.T. filed a motion to vacate pursuant to 10A 0.8. Supp.2009 1-4-905(B), Whlch provided then and still provides:

1. The court shall have the power to vacate an order terminating parental rights if the parent whose parental rights were terminated pursuant to subsection A of this section files a motion to vacate the order within thirty (80) days after the order is filed with the court clerk.

2. Notice of the motion shall be given to all the parties and their attorneys and the court shall set the matter for hearing expeditiously.

8. The burden of proof is on the defaulting parent to show that he or she had no actual notice of the hearing, or due to unavoidable casualty or misfortune the parent was prevented from either contacting his or her attorney, if any, or from attending the hearing or trial.

4, If the motion to vacate the order terminating parental rights due to a failure to appear is found to have merit, the statutory consent shall be set aside and a new trial conducted.

The mother alleged that a surgery and subsequent complications caused her to be unable to attend the trial., In re A.T., 2011 OK CIV APP 81 at ¶ 4, 262 P.3d at 387. The Court of Appeals found that the mother "met her burden under 1-4-905(B)(3)." Id. at 10, 262 P.3d at 388.

27 The Court also stated,

Even if Mother had failed to meet her burden under 1-4-905(B)(8), we would still reverse the trial court's judgment because State neglected to comply with the .due process requirements prescribed by the Oklahoma Legislature in- parental rights termination proceedings. Termination of parental rights is only proper where clear and convincing evidence in the record supports the grounds alleged for termination. In re S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080, 1082-83. We hold this heightened eviden-tiary standard is applicable even when parental rights are terminated pursuant to the statutory consent provisions of 1-4-905.

Id. at 11, 262 P.3d at 388 (emphasis added). The Court noted that although the docket revealed a long history of the mother's failure to correct the conditions that led to the deprived adjudication, "there is no indication the trial court considered such evidence in granting State's termination motion." Id. at 12, 262 P.3d at 388. The Court found that the mother's "parental rights were terminated by consent based upon her failure to appear and present arguments on the merits-not because clear and convincing evidence supported the termination and the children's best interests would be served, by the termmatlon " Id.

128 We find the reasomng of the A.T. Court persuasive, but in support of Mother's and Father's argument on appeal rather than in. support of the trial court's decision to grant a default termination of parental rights Mother's and Father's parental rights were terminated because they failed to appear, not because State presented clear and convincing evidence to support the termination of parental rights or evidence that termination of their parental rights was in HRT's best interest, We cannot ascertain from the record on appeal what evidence, if any, was submitted to and relied on by the trial court, and we therefore cannot find that the trial court had clear and convincing evidence on which to terminate Mother's and Father's parental rights. The record does not show that State presented any evidence to the trial court at the proceeding at which Mother's and Father's parental rights were terminated. State asked for a termination by default, and the trial court granted that request. We conclude State failed to present clear and convincing evidence to support its request to terminate parental rights.

129 For the foregoing reasons and given the fundamental right parents have in their children's custody and the finality of the termination process which ends that right, it was an abuse of discretion to refuse to vacate this default judgment Mother's and Father's parental rights were terminated for their failure to appear. State did not meet its burden to present clear and convincing evidence in support of the grounds for termination or to show that termination was in HRT's best interest.

"CONCLUSION

'~ (830 The trial court's denial of the motion to vacate the default judgment constituted an abuse of discretion. Accordingly, we reverse the decision of the trial court and remand for a new trial. ~

{31 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

. BARNES, V.C.J., concurs, and FISCHER, P.J., dissents.

1 . The docket sheet doés not indicate that a hearing was held on May 23, 2012, or July 23, 2012. There is,. however, a transcript of a proceeding on July 23.

2 . The motion to vacate, filed within 30 days after the default judgment was filed, falls under 12 . 0.8.2011 1031.1. }

3 . - State says in its brief on appeal, "It should be - noted that there were two hearings that day the one that was scheduled at 9:00 am. in which testimony was taken and the second hearing was at 1:30 wherein the court noted that the mother and father did not appear." This is the only reference to such an evidentiary hearing, and the record contains no: transcript of. such a proceeding. In contrast, the trial court recites in its order denying the motion to vacate that it instructed Mr. Box "to have his clients before the court at 1:30 that afternoon, otherwise the court would proceed to hear the evidence and consider whether or not termination of parental rights should be granted and whether or not it would be in the child's best interest." Nothing on the case docket sheet shows that such an evidentiary hearing took place. -

4 . We disagree with the dissent's conclusion, based on a non 1031.1 case (Farm Credit Bank of Wichita v. Trent, 1997 OK 70, ¶ 22, 943 P.2d 588, 592), that Mother and Father must show by cogent, clear, and convincing evidence "sufficient cause" for -their non-appearance in order to prevail on their motion to vacate pursuant to 12 O.S.2011 1031.1. Further, the dissent's reliance on Woodruff v. Moore, 1938 OK 119, 182 Okla. 120, 77 P.2d 62, and Ross v. Pace, 2004 OK 13, 87 P.3d 593, is misplaced-the former being a 12 0.8, 1031 case raising questions of whether statutory grounds ("irregularity in obtaining the judgment") and defenses to the action had been proven by defendant, and the latter involving failure to respond to discovery after a "number of opportunities." Ross, 2004 OK 13 at ¶ 12, 87 P.3d at 595.