THE OKLAHOMA BAR JOURNAL 46 | NOVEMBER 2025 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. another section of the children’s code still states that a parent’s failure to appear in person, “or to instruct his or her attorney to proceed in absentia at the trial,” is equivalent to consenting to the termination.19 The Supreme Court did not address this language allowing a person “to instruct their attorney to proceed in absentia” when it overruled Matter of H.M.W. It remains to be seen how the courts will interpret the ability to demand a jury trial in absentia in light of this statute. In analyzing the revised statute, the Oklahoma Supreme Court held that it was constitutional for the Legislature to create a process where a party’s failure to appear for a jury trial may be considered a waiver of their right to that form of trial. Still, the court required that a party receive some form of notice that their failure to appear “for such trial” could result in the loss of that right.20 While the court did not delineate what that notice must look like, the children’s code requires petitions and motions for termination of parental rights to be served in essentially the same manner as initial pleadings in other civil cases.21 But failing to appear for just any hearing does not result in the loss of the right to a jury trial. The phrase “for such trial” has been examined by one division of the Court of Civil Appeals in a published opinion. In Matter of J.B., the mother demanded a jury trial on the state’s motion to terminate her parental rights.22 A jury trial was set but then continued multiple times. The mother failed to appear at a subsequent hearing, which was not for the purpose of holding a jury trial. Nevertheless, the trial court took the mother’s failure to appear as her consent to the termination of her rights. Division IV found that her absence from a nonjury trial setting did not waive her right to trial by jury. Under this rationale, a party should only lose this right if they fail to appear for their scheduled jury trial. Skipping any other setting in front of the court does not create a consent termination. CONSIDERATIONS IN DEMANDING OR WAIVING A JURY TRIAL There is no concrete set of factors that must be considered when advising a client on whether they should proceed with a bench or jury trial on the issue of termination. Nevertheless, there are some common considerations an attorney should discuss when the client is making this difficult decision. The first consideration is the judge. Usually, the judge sitting as the trier of fact in a termination bench trial is the same judge who has presided over the case since the beginning. Therefore, the attorney and the client should have a sense of the judge’s perception of the case. If it seems like the judge may be open to the client’s position, then proceeding to a bench trial can be a viable option. But if there is some reason to believe that the judge has a less favorable view of the client’s desired outcome, then a jury trial may be the better alternative. The second consideration is the potential jury pool itself. According to the U.S. Department of Health and Human Services, the majority of Oklahoma children in foster care in September 2023 were nonwhite.23 However, across the country, “people of color are significantly underrepresented in the jury pools from which jurors are selected.”24 Financial barriers There is no concrete set of factors that must be considered when advising a client on whether they should proceed with a bench or jury trial on the issue of termination.
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