Matter of Rich , 1979 Okla. LEXIS 329 ( 1979 )

OP ALA, Justice:

This appeal raises four questions: [1] Was an indigent out-of-state prisoner entitled to a free trial transcript in this civil appeal from an order adjudicating his children’s status as deprived and terminating his paternal rights? [2] Was the prisoner denied due process when the trial court proceeded to terminate his paternal rights over the objection by appointed counsel that he had been prevented by out-of-state incarceration from being able to appear in person to give viva voce testimony in the case? [3] Is there competent evidence to support the verdict which finds the children in a deprived status? and [4] Was denial of paternal grandparents’ plea in intervention reversible error? We find the proceedings under review free from both error and constitutional infirmity.

Appellant [Father] is incarcerated in a Texas prison under a life sentence for the murder of his wife, the mother of the children whose status is here in question. Maternal grandparents, who had charge of these children, sought an adjudication of their status as deprived, permanent custody and termination of Father’s rights. In accordance with a jury verdict in the proceeding the children’s deprived status was judicially determined. Some nine months later Father’s rights came to be terminated. This is an appeal by the Father from both the deprived-status adjudication as well as from the termination order. He is represented here by counsel appointed by the trial court who has been active in his behalf since the very inception of the proceedings below, as well as by a self-procured Texas lawyer, of whom he had three in succession.

Father’s initial petition-in-error was filed here thirty-one days after the deprived-status order.¹ Because the last day for bringing that appeal fell on a Sunday, the motion by appellees, maternal grandparents, to dismiss it must be denied. The appeal was timely instituted. When the public office in which an act is to be performed is closed on the terminal day prescribed therefor, time to perform that act is extended to the next business day.²

For over four decades now federal case law has been increasingly coming to grips with the impact of broadly phrased constitutional values on the responsibility of our government — federal, state and local— to guard against what may appear as plainly uneven forensic combat between the government’s own forces of police and prosecution and those indigent individuals who are haled into courts for imposition of criminal punishment or juvenile delinquency-related sanctions.³ The large body of extant federal precedent is grounded on more than a single source of fundamental law. Some of the cases invoke Due Process — that universal gauge of our constitutionally-mandated dimension of fairness in the legal system — others profess to rest on Equal Protection, the Sixth Amendment’s right to counsel or that amendment’s guaranty of compulsory process for defense witnesses.⁴ Beyond the contours of criminal, delinquency and, perhaps, mental health process, there is but meager federal constitutional authority on the subject.⁵ Fixed landmarks there are none to guide us through the pathway of federally-mandated state responsibility to prevent that civil process disadvantage — at trial or appellate level— which stems from á party’s lack of adequate economic resources and results in an unfair court battle against his non-public adversary. Suffice it to say that in forensic disputes over parental, spousal or custodial rights, the U.S. Supreme Court has not been willing to extend the resourceless litigant the very same constitutional protection and procedural safeguards which apply to a felony defendant under the Bill of Rights.

Oklahoma law shows a high degree of sensitivity to the resourceless litigant involved in non-delinquency-related aspects of juvenile process. It affords him/her both access to our courts and the means of fairly litigating in them. Our statutes authorize the appointment of state-paid counsel for both indigent parents and minors.⁶ No court costs may be taxed to any party in the proceeding.⁷ Since 1972 this court has been authorized to dispense with cost deposit when civil appeal is sought to be prosecuted by an indigent person.⁸ The Father in this case is a recipient of all these legal benefits. He has been allowed the services of a court-appointed lawyer,' although he has had three additional self-procured counsel in succession. The last one of these is co-counsel here. So far as the record discloses, he has had no difficulty securing, cost-free, needed process for the attendance of his witnesses. Lastly, the clerk of this court has accepted his petition-in-error, with an affidavit pursuant to 12 O.S.1971 § 922, as sufficient for institution of his appeal in forma pauperis. No one challenged here the Father’s condition as a person without means by invoking the provisions of 28 O.S.Supp.1978 § 152. We hence permit the case to stand in its present cost-free posture. Moreover, we recognize the course followed as being in compliance with 20 O.S.Supp.1978 § 15 and with the current operating procedures of this court.

I

Oklahoma law also shows a high degree of sensitivity to the needs of those persons, with limited or no means at their disposal, who desire to procure appellate review of trial proceedings but cannot afford to defray . the high cost of a court reporter’s transcript based on a legislatively prescribed per-page rate.⁹ Alternatives to the transcript, which may be available as an approved form of substituted record, provisional or permanent, are:

(1) a statement of material facts alleged not to have been proved which were deemed essential to support the judgment sought to be reviewed.¹⁰

(2) a statement of the evidence in narrative form.¹¹

(3) a stipulation of all, or pertinent part of, the proceedings.¹²

(4) the medium (tape, disc or record) on which the proceedings were electronically recorded when certified as to correctness by the trial judge or court reporter.¹³

Neither the Father’s brief nor the record discloses why one of these alternative devices was not available or was inadequate for a fair prosecution of this appeal. Under federal constitutional case law it is not error to deny a cost-free transcript in a criminal prosecution when the availability of an adequate alternative has been shown.¹⁴ Not even in criminal cases is state government required by the Equal Protection Clause to furnish penny-for-penny, every conceivable resource which a financially able litigant may be willing to expend in order to vanquish his adversary.¹⁵

Father’s federally-grounded claim that denial of a free transcript deprived him of Due Process or Equal Protection is without merit. He was afforded a meaningful and legally adequate opportunity for a fair resolution of issues which pertain to his status vis-a-vis the two children. Turning to the Father’s assertion of state constitutional rights under Art. 2 §§ 6 and 7, Okl.Con.¹⁶ we establish as a rule of practice that an application for cost-free transcript in a juvenile proceeding unrelated to delinquency must be accompanied or followed by a showing of unavailability or inadequacy of alternative media for record preparation.¹⁷ In each instance the burden shall additionally rest on the applicant to show that a transcript is indispensable to afford him/her Due Process. Absent a requisite showing, it is not error to deny the application.

The trial court’s order denying the Father’s request for a transcript at public expense is free from federal or state constitutional infirmity. Our previous order to the same effect, rendered in pre-decisional stage of this appeal, must stand.

II

The Father contends that his involuntary absence from the two proceedings in which his children were adjudicated to be in a deprived status and his paternal rights came to be terminated operates to deny him due process within its Fourteenth Amendment meaning.

Oklahoma law allows testimony from an incarcerated witness to be taken by deposition in lieu of viva voce.¹⁸ The record discloses no effort to secure the Father’s testimony in this manner.¹⁹

The Father is entitled under the Federal Constitution to a meaningful and fair opportunity to defend in a family-status suit.²⁰ He was assured of effective access to the courts by the appointment of free counsel. His opportunity to meet the issues raised via deposition testimony was nowhere impaired. If he had no lawyer in these proceedings we could not expect him to make a record conformable to prescribed procedure. Since legal counsel were serving, we must ascribe the absence of deposition testimony in the record to deliberate strategy choices of counsel acting in the best interest of their client’s cause.

The Father’s presence at these proceedings was not the only effective means of fairly meeting the issues. He was hence, by his absence, denied no opportunity for a fair and just hearing. Courtroom confrontation with one’s civil adversary is not required either by due process or other constitutional strictures.²¹

Ill

We next pass to the Father’s contention that the evidence adduced at both the hearings to adjudicate the status of his children and to terminate his paternal rights was insufficient to support the orders made.

The papers forwarded to us contain no record of trial proceedings in any form. Nor do we have before us deposition testimony or any other evidence upon which we may determine the merits of this assigned error. The Supreme Court is, of course, confined to the record made below. It may not accept, as a basis for its decision, argument for which there is no foundation in the record before it.²²

Where the record does not contain evidence presented at trial and no errors appearing on the face of the judgment roll are assigned, there is nothing for us to review and the trial court’s judgment may not be disturbed.

IV

The Father urges that the trial court erred in refusing to allow in the proceedings below intervention by his parents, the paternal grandparents. Although the record shows that these grandparents filed a motion to intervene before the deprived-status adjudication, it is silent as to the disposition made. The court’s order terminating paternal rights recites that the grandparents were in fact allowed to appear in person and by counsel at the disposi-tional hearing below.

No appeal was lodged by the Father’s parents. A denial of intervention, a final order as to them, would have been appealable. Since they did not bring an appeal, the Father cannot maintain one in their behalf to complain of errors by which they, rather than he, came to be aggrieved.²³

We find the proceedings both free from error and any vitiating constitutional infirmity.

Affirmed.

LAVENDER, C. J., IRWIN, V. C. J., and WILLIAMS, HODGES, HARGRAVE, JJ., concur.

1 . A civil appeal must be commenced within 30 days of the appealable decision. 12 O.S.1971 § 990.

2 . 12 O.S.1971 § 82; 25 O.S.1971 § 82.1; Evans v. Davis, Okl., 405 P.2d 975, 977 [1965]; Crabtree v. Crabtree, Okl., 420 P.2d 494, 496 [1966]; David v. Pennwalt Corp., Okl., 592 P.2d 980, 981 [1979].

3 . Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 [1932]; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 [1938]; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963]; In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 [1967]; Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 [1971].

4 . Powell v. Alabama, supra note 3 (Due Process); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 [1956] (Equal Protection); Gideon v. Wainwright, supra note 3 (Sixth Amendment right to counsel); and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 [1967] (right to compulsory process for witnesses).

5 . Boddie v. Connecticut, 401 U.S. 371, 380-382, 91 S.Ct. 780, 787-788, 28 L.Ed.2d 113 [1971], holds that due process is denied when re-sourceless persons, unable to pay court costs, are barred from the opportunity to litigate matters of family status (divorce) in state courts of first instance. We applied Boddie in the Matter of Del Moral Rodriguez v. State, Okl., 552 P.2d 397, 399 [1976] to impose on the state the responsibility for paying the costs of publication in a parental termination proceeding.

The full shield of safeguards afforded in criminal prosecutions does not apply to parental rights’ litigation. In Smith v. Organ. of Foster Families for E. & Reform, 431 U.S. 816, 97 S.Ct. 2094, 2112, 53 L.Ed.2d 14 [1977] the Court said that “ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ Cf. Matter of Chad S., Okl., 580 P.2d 983, 985 [1978]. Our due process concept under Art. 6 § 7, Okl.Con., is said to be coextensive with its federal counterpart. McKeever Drilling Co. v. Egbert, 170 Okl. 259, 40 P.2d 32, 36 [1935].

6 . 10 O.S.1971 § 24.

7 . 10 O.S.Supp. 1976 § 1124.

8 . 20 O.S.Supp. 1978 § 15. Before the 1972 amendment this court deemed itself precluded from entertaining appeals attempted to be brought on a pauper’s affidavit. In re Lee, 64 Okl. 310, 168 P. 53 [1917] and Howe v. Federal Surety Co., 161 Okl. 144, 17 P.2d 404 [1942].

9 . 20 O.S.Supp. 1972 § 106.4(b).

10 . Rule 1.21, Civ.App.Proc.Rules, 12 O.S. Ch. 15, App. 2.

11 . Rule 1.22, Civ.App.Proc.Rules, 12 O.S. Ch. 15, App. 2; See Nu-Pro, Inc. v. G. L. Bartlett & Co., Inc., Okl., 575 P.2d 620, 622 [1977].

12 . Rule 1.20(f), Civ.App.Proc.Rules, 12 O.S. Ch. 15, App. 2.

13 . This alternative stands approved for criminal review in Britt v. North Carolina, 404 U.S. 226, 229-230, 92 S.Ct. 431, 434-435, 30 L.Ed.2d 400 [1971]; Mayer v. Chicago, supra note 3. See also Morgan v. Graham, Okl.Cr., 497 P.2d 464 [1972].

14 . Britt v. North Carolina, supra note 13. Britt requires the prosecution to show the alternatives offered are partly or wholly inadequate.

15 . Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 [1974]. There the Court said: “The duty of the State ... is not to duplicate the legal arsenal that may be privately retained . . . . but only to assure the indigent ... an adequate opportunity to present his claims fairly . . . ” [emphasis ours].

16 . Art. 2 § 6 Okl.Con., provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

Art. 2 § 7, Okl.Con., is Oklahoma’s counterpart of the Fifth Amendment’s Due Process Clause.

17 . Unlike in Britt, supra note 13, a criminal case, we place upon the applicant the burden of showing unavailability or inadequacy of record devices alternative to the transcript. We see no reason in a civil case to saddle the onus on the successful litigant in the trial court and thereby disturb the presumption of correctness which attaches to the judgments of a first-instance civil court.

18 . Testimony of witnesses may be taken by (1) affidavits (2) deposition and (3) oral examination. 12 O.S.1971 § 421. A deposition may be used when a party is unable to attend court because of his incarceration. 12 O.S.1971 § 433. Where a deposition is taken and filed in the case, either party is entitled to its use in the trial of the case. Smart v. Cain, Okl., 493 P.2d 821 [1972], and it becomes a part of the record. U. S. v. Choctaw, O. & G.R.Co., 3 Okl. 404, 41 P. 729 [1895].

19 . Since no demonstrable attempt was made by the Father to secure testimony by deposition, we need not reach the issue of whether under Boddie v. Connecticut, supra note 5, the state would have been subject to liability for the costs of deposition on the theory that the Father was seeking to litigate a matter of family status in the tribunal of first instance and that without the aid of deposition testimony his involuntary absence from the trial court would impair a fair trial of the issues.

20 . Boddie v. Connecticut, supra note 5.

21 . The Sixth Amendment’s right of confrontation applies to criminal cases. There is no similar right in a civil trial. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 [1968]; Kiddie v. Kiddie, Okl., 563 P.2d 139, 141 [1977].

22 . Ajax Contractors, Inc. v. Myatt, Okl., 424 P.2d 30, 35 [1967]; Price v. Price, Okl., 471 P.2d 894, 895-896 [1970]; McGhee v. McAllister, Okl., 474 P.2d 940, 941 [1970].

23 . Trapp v. Board of Com’rs of Okmulgee County et al., 79 Okl. 214, 192 P. 566 [1920]; Ogle v. Ogle, Okl., 517 P.2d 797, 799 [1973].