Griffith v. Griffith

MEMORANDUM OPINION

SIMMS, Chief Justice.

The trial court’s judgment terminating mother's parental rights based upon grounds of 10 O.S.1981, § 1130(A)(4) is reversed. The statute was invoked and applied during proceedings which were plainly private, a post-divorce interparental contest. Our holding in Davis v. Davis, Okl., 708 P.2d 1102 (1985) establishes the rule that application of 10 O.S.1981, § 1130(A)(4) is limited to actions brought by the state. A § 1130 termination may be sought only by the state and only simultaneously with or after a prior adjudication of a child’s deprived status. Davis, supra.

The father had no standing to'invoke the provisions of 10 O.S.1981, § 1130, and the trial court erred in proceeding on that ground and entering its order based upon that statute.

Appellant mother was not under a court order requiring her to support the children. On September 8, 1982, at the hearing from which the challenged order was issued, the trial court had before it two motions filed by appellee father, one to establish child support by mother, and one to terminate her parental rights under § 1130 for failure to support. At the hearing, father announced that he was “electing” to proceed only on the petition to terminate.

That hearing proceeded over objections by appellant. The record shows that appel-lee father admitted that during the pre-ceeding year, mother had furnished clothing, gifts and toys during visitation and that financial support had not been needed or requested. The trial court nonetheless found that appellant mother had “wilfully failed” to support the children and terminated her parental rights. This judgment was not based upon a finding by the court that termination would be in the best interests of the children. Appellant mother’s additional challenges to the correctness of the trial court’s judgment for insufficiency of the evidence to support the finding of “wilful failure” are also well-taken. Matter of Adoption of C.M.G., Okl., 656 P.2d 262 (1982).

The validity of 10 O.S.Supp.1986, § 1130(D), (Senate Bill No. 447, effective June 12,1986), is not before us now. However, the application of that provision is prospective only. Legislative history materials unmistakably demonstrate that the SB-477 abrogation was intended by the legislature to be prospective in its effect— i.e. to run from and after the effective date of the Act. A proviso that would have explicitly given the SB-477 abrogation a fully retroactive sweep and would have made it apply “to terminations of parental rights heretofore granted by any court in this state” was rejected in the House of Representatives by a vote cast on May 27, 1986. Obedience to clear legislative intent and respect for “accrued rights” acquired through past adjudications which are protected by Art. 5, § 54, Okl. Const., mandate that the termination order under review here be reversed with directions to dismiss the parental termination proceedings below.

The order of the trial court terminating the rights of appellant mother to her children is accordingly REVERSED. Davis v. Davis, supra; Yarborough v. Yarborough, Okl., 708 P.2d 1100 (1985).

DOOLIN, V.C.J., and LAVENDER, HARGRAVE, OPALA and SUMMERS, JJ., concur. HODGES and KAUGER, JJ., concur in part; dissent in part. WILSON, J., concurs in result only, but dissents to application of Davis v. Davis.