NOVEMBER 2025 | 43 THE OKLAHOMA BAR JOURNAL WHO WOULD YOU WANT TO DECIDE IF YOU COULD EVER SEE YOUR CHILDREN again? Or whether you could ever see your parents again? Would you want a group of six strangers to choose? What about a judge who may have already decided once before to keep your children or parents away from you? There are no simple answers to these grim questions. But parents and children must frequently answer questions like these in juvenile deprived proceedings. When a court places custody of a minor with the state, a time may come when the government (or child) wishes to permanently sever the parent-child relationship. In the parlance of juvenile deprived law, this permanent severance is known as “termination.” This article will explore the foundations of – and limitations on – the right to trial by jury on the issue of termination. With this information, practitioners can better assist their clients in answering these difficult questions on an informed basis. CONSTITUTIONAL FOUNDATION The Seventh Amendment guarantees the right to a jury trial in common law actions if the amount in dispute is more than $20. However, the U.S. Supreme Court has not yet held that this amendment applies to the states.1 As such, there is currently no precedential authority establishing a right to trial by jury in any kind of civil case in state court under the U.S. Constitution. Despite the lack of federal authority, the right to a jury trial does exist under Oklahoma law. Article II, Section 19 of the Oklahoma Constitution says, “The right of trial by jury shall be and remain inviolate.” But this right is not as boundless as it appears. It is limited to actions where the right to a jury trial was guaranteed by the U.S. Constitution or the common law at the time of its adoption. But this limitation itself has an important caveat. The guarantee of a right to trial by jury is so limited “except as modified by the Constitution itself.”2 This exception is key to understanding the Oklahoma Supreme Court’s ultimate application of Article II, Section 19 to termination proceedings. The court first wrestled with this application some 50-odd years ago.3 The parent in that case argued that they were entitled to a jury trial on the issue of termination because parental rights are fundamental. They also cited the Oklahoma Constitution and the statute in effect at the time. The court rejected each argument and held that the parent was not entitled to have a jury determine whether their rights to their children should be permanently ended. A decade later, the court revisited this issue in A.E. v. State.4 In this case, the court’s analysis was informed by the fundamental nature of parental rights and a categorical rejection of the idea that parental conduct has any bearing on a pure question of law. With these principles in mind, the court zeroed in on the “except as modified by the Constitution itself” language it had previously avoided. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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