Meekins v. Department of Institutions, Social & Rehabilitative Services

BRIGHTMIRE, Judge

(concurring specially) .

In general I agree with the majority opinion. However, I think the circumstances raise a more fundamental question —one about the constitutionality of § 1118, namely, its potential for depriving a parent of procedural due process 1 and perhaps for encroaching on inherent judicial power of the court. 2

Two essentials of due process are: (a) notice of a hearing and (b) an opportunity to be heard. Dodds v. Ward, Okl., 418 P. 2d 629 (1966); Greco v. Foster, Okl., 268 P.2d 215 (1954).

Here the petitioning mother was given notice of the hearing — albeit a questionable one — but the court found the fact to be that she was “prevented by unavoidable casualty and misfortune from appearing in Court and contesting the termination of her parental rights.” This being true, can it be said the mother had an opportunity to be heard? Suppose an accused in a criminal case is involved in a wreck on the way to court the morning of trial and is rendered unconscious for several hours. Does anyone suppose that if the court proceeds with a trial, the defendant will not have a valid complaint that he was deprived of a constitutional right to be heard and defend? The chance that chance may operate to destroy one’s chance to be heard is not a mystery to be solved, but a reality to be recognized by the court in shielding the constitutional rights of individuals from statutory-interpretational abridgment.

In my opinion § 1118 cannot constitutionally be construed as depriving the court of the power to vacate a parental-rights-termination judgment when a timely showing is made that the affected parent was unavoidably prevented from being heard— a showing that was made by petitioner here. Indeed, in my opinion the judge has no discretion under such circumstances — he must vacate the judgment.

. U.S.Const. amend XIV, § 1; Okla.Const. art. 2, § 7.

. Okla.Const. art. 7, § 1.