State ex rel. Choctaw County District Attorney v. Anderson

SUMMERS, Justice. In the district court of Choctaw County there were pending two types of cases concerning the same small boy who had been adjudicated “deprived” and was a ward of the court: (1) a juvenile proceeding to terminate the mother’s rights brought by the Department of Human Services (DHS), and (2) an adoption proceeding brought by a couple named Anderson. These cases stretched out over several years, were consolidated, and finally resulted in a hearing at which the trial court “relinquished jurisdiction” in the juvenile case and entered an interlocutory decree of adoption in favor of the Andersons. That decree had the potential effect of removing the child from the home of certain DHS-approved foster parents where the child had been living the previous four years. Those foster parents (known herein as the Does) then sought leave to intervene in the adoption case and their petition to do so was denied. Both the DHS in No. 64,156 and the Does in 64,157 appealed the proceedings to this court, and we entered an order staying removal of the child pending appeal. Then on our own motion we dismissed those portions of the appeal relating to the interlocutory decree of adoption as premature; an interlocutory decree of adoption is not an appealable order. 10 O.S. 1981 § 60.19. We now make disposition of the issues remaining on appeal, the appeals being consolidated under 64,156 as the surviving number. The juvenile case is remanded with instructions, and the order denying leave to intervene in the adoption is reversed. The essential operative facts are these. J.W.C. was born May 15,1979, immediately placed in the emergency custody of DHS, and ten days later placed with the Andersons who were foster care volunteers. The child’s mother was of questionable mental ability and J.W.C. was likely of incestuous origin. In the autumn of that year the court pursuant to a jury verdict adjudicated him “deprived”. (JFJ-79-10). In May of 1981 the court determined that J.W.C.’s best interest would be served by removing him from the home of the Andersons. The Andersons physically resisted and the sheriff accomplished the child’s removal. He was then placed in the DHS’s foster care/adopt program in another community with Mr. and Mrs. John Doe, where he has remained to this time. In October of 1981 the district attorney filed a motion to terminate the parental rights of the mother for abandonment in order that the Does might become eligible to adopt. That winter the mother was admitted to Eastern State Hospital and in the spring of 1982 she was ordered to the Dow Room and Board facility for treatment as a mentally ill person (in DMH-82-4) where she remained at the time of these appeals. In the meantime the Andersons had filed a petition to adopt along with a consent of the mother in their favor. The mother had attempted to withdraw that consent, and there were numerous filings, pleadings and hearings in both cases without much of anything determinative occurring. Finally on March 5, 1985 the judge presiding over the consolidated cases “waived or relinquished” jurisdiction over J.W.C. in the juvenile cases (actually there were two juvenile cases on file, JFJ-79-10 and JFJ-80-22) and entered an interlocutory decree of adoption in the other, approving the consent of the mother, thus setting the stage for the events described in our second paragraph. I. Was the trial court at liberty to waive and relinquish jurisdiction over J.W. C. in the juvenile proceeding? DHS urges that such was an abuse of discretion. The issue before the trial court in that case was whether to terminate the mother’s parental rights for abandonment, thus making J.W. C. eligible for adoption by the Does. DHS insists it is entitled to have a ruling on that issue. The Andersons, however, correctly point out that when DHS filed its Motion for New Trial to the March 5, 1985 ruling no such error was brought to the attention of the trial court. 12 O.S. 1981 § 991(b) [544] and Federal Corp. v. Ind. School Dist., 606 P.2d 1141 (Okl.App.1978 and approved for publication by Supreme Court February 14, 1980) would put the issue beyond our reach on appeal where the Motion for New Trial merely used the statutory language that the decision “is not sustained by sufficient evidence and is contrary to law.” Our analysis of the procedural stance of this part of the case, however, prevents us from disposing of the issue without a ruling. That analysis is thus: a “relinquishment of jurisdiction”, a failure of the trial court to act, is not a judgment. 12 O.S. 1981 § 681. It is not an appealable order. 12 O.S. 1981 § 958. That does not necessarily mean that we may not review it. We customarily look to the content and substance of an instrument filed in this court rather than its form or title, Horizon’s, Inc. v. KEO Leasing Co., 681 P.2d 757 (Okl.1984), and sometimes treat a paper entitled “Application to Assume Original Jurisdiction” as a Petition in Error, or vice versa. Amarex, Inc. v. Baker, 655 P.2d 1040 (Okl.1983). Here if relief sought by DHS tends to inform us that a trial judge has refused to perform an act which the law enjoins upon him as a duty we will recast that part of its “appeal” as a “petition for mandamus” and respond accordingly. See Sheegog v. Inc. Town of Lindsay, 127 Okl. 39, 259 P. 551 (1927). We find that to be the case here. Thus DHS is not bound here by the rule that on appeal only the assignments of error appearing in its Motion for New Trial will be considered; we do not treat this issue as an appeal at all. While we will not by mandamus require a trial court to exercise its discretion in a particular way, we will require the court to exercise it, so as to give the losing party a final order from which it can appeal. Mapco v. Means, 538 P.2d 593 (Okl.1975); Livingston v. Graham, 396 P.2d 496 (Okl.1964); Parks v. Hughes, 312 P.2d 435 (Okl.1957). The trial court is directed to withdraw its Order relinquishing and waiving jurisdiction in JFJ-79-10 and JFJ-80-22 and proceed to hear and rule on those matters properly before it in those cases. The trial court is further directed to allow temporary custody of the child to remain with the Does until such time as it may determine otherwise upon hearing with notice to all interested parties. II. The Andersons have moved to dismiss the appeals of both DHS and the Does for lack of standing. Because we view DHS’s supplication as an original action for mandamus rather than an appeal we do not further address that motion as concerning DHS. Andersons argue that the denial of the Does’ Motion For Leave to Intervene in the adoption case is not an appealable order. We held to the contrary in Stubblefield v. GMAC, 619 P.2d 620 (Okl.1980). Denial of a petition to intervene is a final, appealable order. The motions to dismiss are denied. III. Although numerous assignments of error appear in the petitions in error we believe that with one exception all are related to the ruling on the interlocutory decree of adoption, and are thus not before the court at this time. The one exception is the Doe’s appeal from the order denying their petition to intervene. 12 O.S.Supp. 1984 § 2024 governs intervention and provides in pertinent part: A. INTERVENTION OF RIGHT Upon timely application anyone shall be permitted to intervene in an action: 1. When a statute confers an unconditional right to intervene; or 2. When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest. The above portion of Section 2024 deals with intervention as a matter of right. We held in Re: Daugherty, 347 P.2d 657 (Okl.1959) that failure of the foster parents to receive notice did not deprive the district court of its jurisdiction to place the custody [545] of the children from DHS back to the natural mother. But we did not address the issue of the foster parents’ right to intervene in juvenile or adoption proceedings. In reviewing the case law across the country we find several occasions where foster parents have been found to have standing and/or right to intervene in adoption proceedings, Smith v. Wilson, 269 S.W.2d 255 (Ky.1954); Hyman v. Stanley, 257 S.W.2d 388 (Mo.App.1953); Oxendine v. Catawba Co. Dept. of Soc. Services, 303 N.C. 699, 281 S.E.2d 370 (1981); and Harris Co. Child Welfare Unit v. Caloudas, 590 S.W.2d 596 (Tex.Civ.App.1979), juvenile proceedings, Welfare of E.G., 268 N.W.2d 420 (Minn.1978), and custody proceedings, Trotter v. Pollen, 311 S.W.2d 723 (Tex.Civ.App.1958). In Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) the United States Supreme Court addressed several questions concerning the standing of foster parents. The suit involved an attack on the constitutionality of state procedures for the removal of foster children from foster homes. The Court held that not only do foster parents have standing to assert the claim that they have a constitutionally protected liberty interest in the integrity of the family unit, but also that they have standing to raise the rights of foster children even where court-appointed counsel represent the children. In Trotter v. Pollen, supra, the Texas Court of Civil Appeals considered a case where a father and mother were divorced, the custody of a child was awarded to the father, the father boarded the child in a home of third persons, and the father after one year ceased making the ten dollar weekly payments under his contract with the third persons. When the third persons thereafter voluntarily assumed responsibility for the child’s care and maintenance and treated the child as their own, these third persons were “foster parents”, stood “in loco parentis”, and were held to have a justiciable interest in the controversy involving the custody of the child as against the natural mother after the death of the father. In Oklahoma we have defined the term “in loco parentis” as follows: “The term 'in loco parentis’ means in place of a parent, and a ‘person in loco parentis’ may be defined as one who has assumed the status and obligations of a parent without a formal adoption.” Workman v. Workman, 498 P.2d 1384, 1386 (Okl.1972) The Does have had custody of J.W.C. since June 19, 1981 with repeated assurances from DHS that due to the mother’s abandonment her rights would be terminated and they would be able to adopt him. They have cared for and treated the child as a member of their own family since that date, and are without doubt “persons in loco parentis”. Being foster parents and persons in loco parentis, we hold that the Does do have standing to intervene and to assert their justiciable interest in the adoption case by the Andersons. On remand of this case to the district court for reasons as herein stated, we find that the Does should be allowed to intervene as a matter of right and participate as parties in all further proceedings. 12 O.S.Supp. 1984 § 2024 A.2. Their intervention will better enable the trial court to have before it “all the evidence concerning the child” in making its final decision, as is required in adoption proceedings under State ex rel. Dept. v. Griffis, 545 P.2d 763, 768 (Okl.1975). The case is remanded to the District Court with instructions to proceed in a manner consistent herewith. DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, LAVENDER, ALMA WILSON and KAUGER, JJ., concur. SIMMS, J., concurs in result in part and dissents in part. OPALA, J., concurs in part and dissents in part.