Oklahoma Bar Journal
Trial By Jury: Unequal Protection for Oklahoma’s Abused and Neglected Children
By Christopher M. Calvert
Oklahoma is the only state that specifically provides parents of abused and neglected (deprived) children a constitutional right to a jury when terminating the parent-child relationship (termination)1. The story of how Oklahoma became the only state with such a specific jury right extends over four decades, beginning with the 1960s bribery scandal and ending in a 1997 Oklahoma Supreme Court decision. This article documents the history of that jury right, while also analyzing its impact from the perspective of a deprived child, arguing it violates the federal Constitution’s equal protection clause; because among the class of children subject to a termination, deprived children are made a subclass that’s afforded less protection since juries lack the experience and mandatory specialized training of juvenile judges.
Originally, the jury right was based on text in the Oklahoma Constitution. After voters removed that text, the court kept the right, requiring it of due process. To date, the court has never analyzed the issue using the modern due process test from Mathews v. Eldridge. Other states have, and none require a jury. We perform a similar analysis that separately and specifically considers the private interests of a deprived child. The result argues against the jury right, maximizing parents’ due process early in the case before the child’s interest in timely permanency becomes paramount.
If children’s attorneys put these issue before the court, Oklahoma could end its role as the lone holdout2, returning the jury question to the Legislature, a place much better suited to consider the competing facets underlying the question, and there are good reasons a legislature would rather put the fate of a deprived child in the hands of a judge rather than a jury.
THE BEGINNING: THE BRIBERY SCANDAL AND SQ 459
The 1960s Oklahoma Supreme Court bribery scandal led lawmakers and voters to reform Oklahoma’s judiciary through a series of state questions. In 1968, voters approved the last of these measures, State Question 459 (SQ 459), which amended the Constitution’s article II, section 19 clause (jury clause), adding a list of specific proceedings tried before a jury of six jurors instead of 12, including “juvenile proceedings.”3 Oklahoma’s attorney general rejected SQ 459’s original ballot title, which was all voters saw on their ballots. The revised title removed “juvenile proceedings,” giving voters no indication those proceedings were implicated. It took until 1977 before the court considered whether the amended jury clause afforded parents the right to a jury.
J.V. v. STATE – THE COURT’S FIRST IMPRESSION
In J.V. v. State, Dept. of Institutions, Etc.,4 in a 6-3 decision, the Oklahoma Supreme Court rejected arguments a parent had a right to a jury in a termination hearing, finding no support in either the Constitution or statutes. The court rejected the assertion due process requires a jury right whenever “substantial rights are affected,” noting a lack of supporting authority. The court didn’t find support in the jury clause, referencing the line of cases holding it merely preserved the jury right existing in common law or at statehood, a time before termination hearings. After considering the statutes, which only provided for a jury at the adjudication and not the subsequent disposition where termination was an option, the court upheld the trial court denying the parent a jury trial, though it reversed and remanded on other grounds.
The dissenting opinion evidences some of the termination statutes’ early growing pains, arguing for more formality, but it also evidences a struggle of whether to focus on the parent or child. In J.V., termination was added to the original petition, requiring its readjudication. The dissent argued this latter adjudication, which allowed for a jury, was the termination hearing. But as the majority noted, that contradicted the statutes, which only allowed termination at a disposition. It also overlooked that a deprived petition, and thus its adjudication, was against the child, something true since Oklahoma’s first deprived-related statutes in 1905.5
After J.V., the cry for more legal protections got louder, the makeup of the court changed and the number of dissenting justices slowly increased. Ten years after J.V., the court reached its critical mass.
A.E. V. STATE – THE COURT CHANGES COURSE
In 1987, in A.E. v. State,6 the court again took up the jury question and, in a 5-4 decision, recognized the constitutional jury right J.V. rejected. A.E. is a controversial decision that can be interpreted multiple ways, but for Oklahoma’s deprived children, all implicate equal protection.
A.E. is most controversial if it stands for the sole proposition the Oklahoma Constitution provides parents the right to a jury in a termination hearing. The court argued SQ 459’s “juvenile proceedings” phrase must necessarily include termination hearings because the Legislature drafted and voters passed SQ 459 contemporaneously with enacting the termination statute in 1968, both taking effect on Jan. 13, 1969, evidencing legislative and voter intent. The termination statute was first enacted in 1965,7 well before SQ 459; the Legislature simply renumbered it in 1968.8 Most notably, in those original termination statutes, the Legislature ensured a parent received both specific notice that termination was a possibility, mentioning it in three different statutes, and a specific termination hearing. The Legislature could’ve similarly ensured the parent had the right to a jury, as it did for the child at adjudications, but didn’t. Looking at how newspapers described SQ 459 to voters,9 it seems clear public perception associated SQ 459 with judicial reform, not as a tool expanding jury rights. Voter intent is hard to ascertain as voters never saw “juvenile proceedings” on their ballot.
While A.E. has its cynics,10 we judge it less harshly, seeing it as attempting to overcome early problems with the termination statutes. The A.E. court fell into the same trap ensnaring J.V.’s dissent, using a jury to overcome less-than-pristine statutes, something well beyond the scope of merely determining facts. The fallout from A.E., as Justice Opala noted in dissent, was to put the court “on the horns of a dilemma,” treating a subclass of similarly situated parents differently, providing some the right to a jury, but not all. Such a result, Justice Opala argued, violated both the federal Constitution’s equal protection clause as well as article V of the Oklahoma Constitution. Neither A.E. nor J.V. considered a jury’s impact on deprived children. But paralleling Justice Opala’s argument, now a class of similarly situated children are treated differently. In termination hearings, the fates of children in adoption cases are left solely to a judge with experience in such cases, while the fates of children in deprived cases may be left to a jury of six strangers. Over 30 years later, the dilemma remains as the court has refused to extend the jury right to all terminations.11
GRAY V. UPP – THE COURT DOUBLES DOWN
The Legislature appeared to rebuke A.E., putting State Question 623 (SQ 623) before the voters, who passed it in 1990, and removing SQ 459’s list of specific proceedings, including “juvenile proceedings.”12 Given the Legislature and voters removed the phrase on which A.E. was founded, it seemed only a matter of time before the court once again placed the jury question with the Legislature. But the court had a surprise.
In 1997’s Gray v. Upp,13 the court held SQ 623 “neither repealed nor negated” A.E.’s constitutional jury right. Of the three cases, we see Gray as the hardest to explain and reconcile. Part of A.E.’s justification was that changing the Constitution changes the law. Gray seemingly uses the opposite logic to reach the same result. The court now also requires the jury right as part of due process, the only state to so hold, despite having never analyzed it using the modern Mathews v. Eldridge due process test. The Legislature’s response in 2002 was to move the jury right from the adjudication to the termination.
WHAT CHILDREN’S ATTORNEYS CAN DO
Given the implications for deprived children, the jury question should again go before the Oklahoma Supreme Court. Children’s attorneys should specifically focus on the deprived child, arguing these children have interests separate from their parents that deserve to be recognized and protected under due process. Overturning the constitutional jury right still leaves the statutory right in place, so opponents may argue the court can’t provide relief and, therefore, the issue isn’t justiciable. Such an argument would require the political branches to enact legislation that knowingly violates the Constitution before the court could review its prior decisions. One can foreclose the argument by first showing the statutory right is unconstitutional. Enter Justice Opala’s “horns of a dilemma.”
Equal Protection – Getting Off the Horns of a Dilemma
Justice Opala’s dissent in A.E. provides a blueprint for arguing why 10A O.S. §1-4-502 violates equal protection, with one caveat. Instead of parents, it’s important to show how the statute treats children differently, specifically how among a single class comprised of children subject to a termination hearing, the statute provides less protection to the subclass of deprived children without a rational basis for doing so.
In the Oklahoma Adoption Code, a judge determines facts and best interests in a termination, but for a deprived case under the Oklahoma Children’s Code, the statute allows a jury to determine both. The Legislature requires attorneys and judges involved in deprived cases to get continuing, specialized training in complex issues related to such cases.14 Oklahoma, to the extent its Constitution allows, adheres to the one family-one judge model, which two well-known national guidelines recommend for cases involving children.15 The idea is one judge becomes the expert in the family and serves as a familiar face, gaining a long-term perspective of the parties that leads to better quality decisions. On the other hand, a jury is composed of six strangers, some of who may not know anything about children or the complex issues underlying a deprived case. Thus, a judge is better positioned to determine facts and especially best interests. As a result, taking the decision from the judge, the specially trained expert in the case, and giving it to a jury affords deprived children less protection, which isn’t rationally related to the legitimate government purpose of protecting children.
A possible counter argument is the distinction between the state and private individual petitioning for termination, but two justices in A.E.’s majority later rejected that argument, endorsing Justice Opala’s “observation that there is no rational connection between the distinction of classes of parents and the purpose for the classification,”16 giving that view a clear majority among A.E.’s justices. Lacking a rational basis to afford deprived children less protection makes 10A O.S. §1-4-502 unconstitutional. The requested relief is to ban jury trials in deprived cases until the law protects all children within the class equally,17 ideally without a jury. Not coincidentally, one of the national guidelines expressly discourages using juries in termination hearings.18
Due Process – Using the Modern Test
The court has never analyzed the jury question using the Mathews v. Eldridge19 due process test, which balances three factors: 1) the affected private interests, 2) the risk of error, in this case without a jury, and 3) the government’s interest. Courts in several states have, and none require a jury as part of due process. We perform a similar analysis that specifically considers the deprived child, and the result argues against a jury right in termination proceedings, effectively realigning due process and maximizing it for parents at the front end of the case before the child’s need for timely permanency becomes paramount.
Other states. In 2016, the Nevada Supreme Court, like J.V., rejected the blanket argument due process requires a jury whenever a fundamental interest is at stake. Turning to the three factors and acknowledging the compelling interests, the question turned on the risk of error, which the court found to be minimal because of sufficient alternative fact-finding procedures, such as getting notice, having counsel, confronting and cross-examining witnesses, and applying the higher clear and convincing standard. The court warned adding the jury right also adds its traditional delays, slowing progress and causing backlogs, to a docket where speedy disposition of a child is important and time is of the essence; it also mentioned that juries compromise efforts to maintain a child’s anonymity. Thus Nevada joined “the national trend to deny jury trials in termination ... proceedings.”20 In 2005 and 2007, the Alaska Supreme Court found judges “well situated to make reliable findings” because of knowing the law and being familiar with a case’s prior proceedings, similarly warning juries could delay a child achieving permanency and reduce judicial economy.21 In 2004, the Wisconsin Supreme Court characterized the jury right as purely statutory, noting “[j]ury trials are expensive and time-consuming.”22 In 1997, though not expressly using Mathews v. Eldridge, the New Mexico Court of Appeals observed its courts “appropriately balance the children’s interests with those of the parents.” Rejecting the argument judges are biased against the parent, it specifically noted the judge’s familiarity with the case and any prior proceedings allows the judge to properly consider all the necessary factors for termination.23
Mathews v. Eldridge analysis. We perform a separate Mathews v. Eldridge analysis, specifically considering the deprived child, and show the private interests are compelling, the risk of error without a jury is minimal, and the government’s interest is significant; and each of the three factors argues against the right to a jury.
At a termination hearing, parents have a compelling interest in the care, control and custody of their child. Such an interest requires fundamentally fair procedures, so it’s best seen as an interest in a fair decision. A deprived child has a compelling interest in achieving timely permanency24 (i.e., free of unnecessary and unreasonable delay) in a placement promoting healthy development. It’s an interest in timely reaching the right decision. The “fair” and “right” distinctions are important because a wrong decision, even if fair, hurts the child. Some may argue that only a jury, one naïve to the case’s history, can reach a fair termination decision because a judge’s familiarity with the case leads to bias against the parent. Like New Mexico, we disagree. What some call “bias,” we believe is better characterized as “context,” and it’s this context, coupled with the juvenile judge’s mandatory specialized training and experience applying the law, that puts the judge in the best position to make a decision that’s both right for the child and fair to the parent.
We rely on the analyses of the United States Supreme Court and the Nevada and Alaska Supreme Courts for concluding accurate fact finding doesn’t require a jury,25 but termination involves more than fact finding; it also includes determining the child’s best interests, which can implicate complex questions related to childhood trauma, mental illness, substance abuse, adolescent brain development, etc. Unlike juries, juvenile judges get training in these areas, on top of any expertise gained from prior experience in similar cases. Thus, relying on a judge to determine a child’s best interests carries a minimal risk of error compared to a jury.
The government’s interest is protecting deprived children in the most judicially economic manner.26 In 2003, Arizona reformed its Child Protective Services (CPS), and fearing more child removals, its Legislature enacted a jury option. After analyzing its impact,27 the Legislature let the jury option expire after only three years. Arizona’s analysis gives insight into how juries undermine the government’s interest, adversely affecting both deprived children and judicial economy, and from our experience, is applicable to Oklahoma.
The high cost of juries goes beyond the direct cost of paying jurors, especially in urban counties with typically higher volumes of cases. Jury trials are held on consecutive days during a limited number of jury terms. Multiple trials are scheduled to increase the odds one is held. Those not held are pushed to a later term, delaying those children’s permanency. Because the courtroom is scheduled for the week, if the jury trial takes less than a week or no trial is held, it sits idle. An idle courtroom means fewer hearings for other deprived children, potentially delaying their permanency. Bench trials can be scheduled over nonconsecutive days, giving judges flexibility in busy dockets, increasing courtroom efficiency. Jury trials take longer to conduct because of voir dire, jury instructions and jury deliberations; and all three provide additional grounds for an appeal, further delaying permanency.
Arizona noted jury trials have higher workload demands for attorneys and CPS workers. More significantly, the analysis indicated a jury is more likely requested when cases involve substance abuse, serious mental health issues, parental involvement in the criminal justice system or when the child has been out of the home the maximum allowed time. This suggests the parents most likely to demand a jury were the ones most likely to lose a termination trial, which is consistent with an Oklahoma legislative interim report.28 These parents seem to treat the jury trial as a judicial Hail Mary pass, supporting our earlier assertion a judge’s perceived “bias” is better characterized as “context.”
It’s hard to assess juries’ value. If termination rates are similar for both juries and judges, what are juries adding? Yet even if the rates differ, it doesn’t necessarily mean juries are making the right decision, especially if juries are perceived as “unpredictable.”29 In Arizona, juries terminated 88% to judges 92%, but there were far fewer jury trials. Just one additional jury termination raises its rate from 88% to 91%. The Arizona analysis concluded any difference in termination rates “is a very small one,” indicating juries give little value for their high costs.
Given the deprived child’s compelling interest in timely permanency, it makes sense to maximize parents’ due process early in a case when the permanency interest is at a relative minimum, such as making it harder to initially remove children and affording specially trained counsel at the earliest possible time. But once removed, the focus should turn to the child and timely permanency because the child has the most at stake, 30especially infants and young children.31 A child only gets one childhood, only one opportunity to develop secure attachments to appropriately responsive caregivers who can positively impact the child’s developing brain, laying the foundation for healthy socio-emotional development,32 and most brain development occurs by age five.33 The absence of such attachments can lead to physical and mental health problems later in life.34 Most of Oklahoma’s deprived cases involve young children.35 For them, the right to a jury delays permanency and the secure attachments required to become healthy adults.
A parent decides whether a child is deprived, while it’s the child who suffers the abuse and neglect. It’s unfair to protect that parent at the child’s expense, an ideal some states have put into law.36 We believe Oklahoma’s right to a jury in a termination hearing is one such unfair protection. The last two decades of research in childhood trauma and adolescent brain development shows just how high the stakes are for deprived children, so for both equal protection and due process, it’s time to look at the jury right from the child’s perspective.
ABOUT THE AUTHOR
Christopher M. Calvert earned his J.D. in 2017 from the OCU School of Law, also completing the OUHSC’s Center on Child Abuse and Neglect Interdisciplinary Training Program. He volunteers through Oklahoma Lawyers for Children and as a permanency mediator and is a former CASA volunteer. He’s also a meteorologist/software-engineer with the National Weather Service.
- Texas interprets its Constitution’s article V, section 10, as providing “the right to have a jury resolve fact questions in all causes brought in the district courts.” Barshop v. Medina Cty. Underground Water Consrv. Dist., 925 S.W.2d 618, 636 (Tex. 1996). Unlike Oklahoma, Texas’s right is not exclusive to deprived proceedings.
- Currently, Texas also provides a constitutional right, but it’s not tied to the state Constitution’s due process clause.
- H.R.J. Res. 559, 31st Leg., 2d Sess. (Okla. 1968), available at www.sos.ok.gov/documents/questions/459.pdf; A.E. v. State, 1987 OK 76, ¶6, 743 P.2d 1041, 1050, (Opala, J., dissenting).
- J.V. v. State, Dep’t of Insts., 1977 OK 224, 572 P.2d 1283, overruled by A.E. v. State, 1987 OK 76, 743 P.2d 1041.
- Okla. Stat. ch. 11, §§687-98 (1908); 1905 Okla. Sess. Laws pp. 201-09.
- A.E. v. State, 1987 OK 76, 743 P.2d 1041.
- Okla. Stat. tit. 10, §§471-75 (1965); 1965 Okla. Sess. Laws pp. 1046-47.
- Okla. Stat. tit. 10, §§471-75 (1965) became Okla. Stat. tit. 10, §§1130-34 (1968) essentially verbatim, except for a paragraph added to §1131 describing when a father or putative father was not entitled to notice.
- “Those Six State Questions,” The Daily Oklahoman, Sept. 15, 1968, at 23 (discussing SQ 459 only in terms of the monetary value triggering the jury right). “Light Turnout Likely Today as State Votes,” The Daily Oklahoman, Sept. 17, 1968, at 51 (State Question 459 would eliminate the trial by jury requirement in cases involving less than $100.). “Voters Reject Sneed Plan of Court Reform,” The Altus Times-Democrat, Sept. 18, 1968, at 1 (describing SQ 459 as “eliminating the requirement of jury trial in certain cases”).
- Edward L. Thompson, “Protecting Abused Children: A Judge’s Perspective on Public Law and Deprived Child Proceedings and the Impact of the Indian Child Welfare Acts,” 15 Am. Indian L. Rev. 1, 112 (1990) (characterizing A.E. as a “judicial fiat”).
- In re Termination of Parental Rights, 1993 OK 10, ¶6, 847 P.2d 768, 769.
- S.J. Res. 17, 42nd Leg., 1st Sess. (Okla. 1989), available at www.sos.ok.gov/documents/questions/623.pdf.
- Gray v. Upp, 1997 OK 98, 943 P.2d 592 (per curiam).
- Okla. Stat. tit. 10A, §1-8-101 (2013).
- Admin. Child. & Fams., Guidelines for Public Policy and State Legislation Governing Permanence for Children, IV-4 (1999), available at ia802607.us.archive.org/20/items/guidelinesforpub00duqu/guidelinesforpub00duqu.pdf; Nat’l Council Juv. & Fam. Ct. Judges, Enhanced Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases, 34 (2016), available at www.ncjfcj.org/wp-content/uploads/2016/05/NCJFCJ-Enhanced-Resource-Guidelines-05-2016.pdf.
- In re Termination of Parental Rights, 1993 OK 10, ¶¶3, 7, 847 P.2d 768, 771-72. (Simms, J., dissenting).
- Some states avoid the issue by having a single termination process, regardless if for adoptions or deprived cases. See 40 R.I. Gen. Laws §40-11-12.1(e)(3) and 15 R.I. Gen. Laws §15-7-7.
- Admin. Child. & Fams., Guidelines for Public Policy and State Legislation Governing Permanence for Children, VI-8 (1999), available at ia802607.us.archive.org/20/items/guidelinesforpub00duqu/guidelinesforpub00duqu.pdf.
- Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
- In re M.F., 132 Nev. 209, 213-16, 371 P.3d 995, 998-1000 (Nev. 2016).
- Alyssa B. v. State, Dep’t Health & Soc. Servs., 123 P.3d 646, 649-50 (Alaska 2005), and, 165 P.3d 605, 613 (Alaska 2007).
- In re Alexander V., 2004 WI 47, ¶¶34, 43, 271 Wis. 2d 1, 678 N.W.2d 856.
- State ex rel. Children, Youth & Families Dep’t v. B.J., 1997-NMCA-021, ¶12, 123 N.M. 99, 934 P.2d 293.
- See Kimberly Barton, “Who’s Your Daddy?: State Adoption Statutes and the Unknown Biological Father,” 32 Cap. U.L. Rev. 113, 143 (2003) (A child’s need for permanence and stability, like his or her other needs, cannot be postponed. It must be provided early.); Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502, 513-14 (1982) (describing a prolonged lack of permanency as “detrimental to a child’s sound development”).
- McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971); M.F., 132 Nev. at 213, 371 P.3d at 998; Alyssa B., 123 P.3d at 649-50.
- See In re I.B., 933 N.E.2d 1264, 1269-70 (Ind. 2010) (noting case delays “can impose significant costs upon the functions of government as well as an intangible cost to the life of the child involved”).
- Gene C. Siegel & Michele Robbins, Termination of Parental Rights by Jury Trials in Arizona A Second Year Analysis (2005), available at www.azcourts.gov/Portals/46/Publications/tpr_jury_trial.pdf.
- H.R. Judiciary Comm., Interim Stud. Rep., H.R. 53-11-009, at 1 (Okla. 2011) (Most termination cases are not borderline.), available at www.okhouse.gov/Documents/InterimStudies/2011/11-009%20report.doc.
- Siegel & Robbins, supra note 27, at 18.
- Nat’l Sci. Council Dev. Child, The Timing and Quality of Early Experiences Combine to Shape Brain Architecture: Working Paper No. 5, 6 (2007) (The window of opportunity for remediation in a child’s developing brain architecture is time-sensitive and time-limited.).
- Early-childhood adversity can alter a gene’s chemical markers, leading to “poor physical and mental health outcomes” and “impairments in future learning capacity and behavior.” Nat’l Sci. Council Dev. Child, Early Experiences Can Alter Gene Expression and Affect Long-Term Development: Working Paper No. 10, 5 (2010).
- Joan L. Luby et al., “Maternal Support in Early Childhood Predicts Larger Hippocampal Volumes at School Age,” 109 Proc. Nat’l Acad. of Sci. 2854, 2858 (2012). See also Frank W. Putnam, “The Impact of Trauma on Child Development,” 57 Juv. & Fam. Ct. J., No. 1, 2006, at 1, 7 (listing “a healthy, secure, and loving relationship with a primary caregiver” as one of “three basic components” that “ensure optimum psychosocial development”).
- Erica J. Adams, Just. Pol. Inst., “Healing Invisible Wounds: Why Investing in Trauma-Informed Care for Children Makes Sense,” 2 (2010), available at www.justicepolicy.org/images/upload/10-07_REP_HealingInvisibleWounds_JJ-PS.pdf.
- Ctr. Dev. Child Harv. U., The Foundations of Lifelong Health Are Built in Early Childhood, 8 (2010).
- In 2018, 10% of foster children were under one, and 42% were between one and five. The Annie E. Casey Foundation KIDS COUNT Data Center at datacenter.kidscount.org, looking by topic at Out of Home Placement data.
- See Wash. Rev. Code §13.34.020 (2018) (stating child’s rights should prevail over parents’ legal rights if in conflict); Tenn. Code Ann. §37-2-401(c) (2018) (When the interests of a child and those of an adult are in conflict, such conflict is to be resolved in favor of a child ...”); S.C. Code Ann. §63-7-2620 (2018) (The interests of the child shall prevail if the child’s interest and the parental rights conflict.); In re M.L.M., 682 P.2d 982, 990 (Wyo. 1984) (concluding when parent’s and child’s rights collide, “the rights of the parent must yield”); L.M. v. Dep’t of Children & Families, 946 So. 2d 42, 46 (Fla. Dist. Ct. App. 2006) ([T]o the extent the mother’s due process rights were affected ..., those rights must yield to the needs of the children.).
Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 6 (August 2020)