| (Cite
as: 643 P.2d 306)
Supreme
Court of Oklahoma.
In
the Matter of J. B., An Alleged Deprived Child.
No.
55919.
March 23, 1982.
*307 Appeal
from District Court of Oklahoma County; Donald Howard, presiding judge.
Natural mother appeals
from an adjudicatory judgment and jury verdict finding an infant male
child to be deprived. The adjudication was based on physical harm to the
child. Mother appeals, seeking the burden of proof in such cause to be
held to be proof by clear and convincing evidence. Declining to disturb
the burden of proof as now recognized in adjudicatory proceedings to declare
an infant
deprived, the verdict and judgment are affirmed.
AFFIRMED.
Mary Barksdale, Okmulgee,
Barry Benefield, Albert Ghezzi, Geoffrey StandingBear, Douglas Parr, Tie
Aum, Inc., Oklahoma City, for appellant.
Lynn Rambo-Jones, Asst.
Dist. Atty., Oklahoma City, for State of Okl.
James Demopolos, Thomas
J. Ray, Jr., Asst. Public Defenders, Oklahoma City, for alleged deprived
child.
HARGRAVE, Justice.
This action is an appeal
from a judgment rendered pursuant to a jury verdict finding J.B. to be
a deprived child. The judgment orders the child placed in the custody
of the Department of Human Services with authority to consent to necessary
medical services required by the child. The journal entry further set
a date for a dispositional hearing.
The appellant, C.B.,
natural mother of J., alleges in her petition in error that the judgment
is not supported by clear and convincing evidence, and the trial court
committed reversible error by failing to apply the clear and convincing
evidentiary standard required by 25 U.S.C. 1901, et seq. (1978).
The factual background
of this action, as revealed by the evidence, reveals a central point.
That is the alleged deprived child, J.B., was examined by physicians
when he was eight months old and was found to have a new skull fracture
in addition to an older and healed skull fracture. Expert testimony from
physicians disclosed that it is more difficult to fracture the skull of
an infant such as J. than to do so to an adult. The impact required to
inflict such injuries upon an infant is the equivalent of a fall from
the height of one flight of stairs. Eighty-one percent of single skull
fractures seen at Children's Memorial Hospital are the result of child
abuse. J. has suffered two such injuries before attaining the age of one
year. The appellant and her supporting witness stated the child had fallen
from an adult bed and an Indian cradle swing.
Under the facts as summarized
we reject out of hand appellant's contention that the determination of
deprived status is against the clear weight of the evidence and requires
reversal. The only two medical experts presented to the jury related the
above summarized testimony. That testimony was not refuted by expert medical
witnesses. The only contradictory testimony was presented by the appellant
and relatives. The explanations offered for these two injuries were a
fall from an adult bed and another fall from an "Indian cradle swing."
The dates given for these accidents do not coincide with the experts'
estimation of time of injury. The jury verdict establishes the jury believed
the expert witnesses. Under the preponderance of the evidence standard
the jury was entitled to determine that J. was deprived.
On the basis of the evidence summarized above, a jury determined J. to
be deprived. The instructions given the jury required the jury to use
the standard of preponderance of the evidence. Appellant urges that under
25 U.S.C. s 1912(e) and (f) *308
the appellant, presumably an Indian, was entitled to the protection of
a jury instruction utilizing the standard of clear and convincing evidence.
The Court cannot consider the merits of such an argument on the basis
of the record on appeal before the Court. Appellant's designation of the
record specifies the transcript of the adjudicatory trial, the respondent's
requested jury instructions, and those instructions given to the jury.
Under such a record it cannot be demonstrated that appellant comes within
the provisions of 25 U.S.C. s 1901, et seq., thus the appellant has failed
to demonstrate the trial court erred in refusing to apply the provisions
of 25 U.S.C. 1912(e). Error is never presumed. The appellant carries the
burden to disclose through his brief and a sufficient part of the record
to support his theory that error was committed by the trial court. Taylor
v. Taylor, 90 Okl. 128, 215 P. 1070 (1923). Under the record as presented,
it is impossible to determine whether the issue of the federal statutes'
applicability was raised prior to trial, and the transcript does not establish
the appellant's status as an Indian sufficient to bring her within the
ambit of those statutes. Under such circumstances, this Court will not
and cannot determine the trial court erred.
The remaining portion
of error asks this Court to extend the rule of Matter of Adoption of Darren
Todd H., 615 P.2d 287, (Okl.1980) wherein it was held that in an adoption
proceeding, the party seeking to sever the parent-child relationship must
present clear and convincing evidence of the right to do so. Appellant
requests this rule be extended to adjudicatory stages of dependency actions.
This rule has subsequently been applied to termination of parental rights
under 12 O.S.Supp.1977 s 1130 in In the Matter of C.G., an Alleged Dependent
and Neglected Child, 637 P.2d 66, (Okl.1981). In this last cited case
the Court noted that In the Matter of Darren Todd H., supra, utilizes
a rationale closely following Addington v. Texas, 441 U.S. 418, 99 S.Ct.
1804, 60 L.Ed.2d 323 (1979). In Addington, supra, the Federal Supreme
Court passed upon the standard of proof necessary in a civil commitment
proceeding. Harlan, J., concurring, stated at 441 U.S. 423, 99 S.Ct. 1808:
"The standard serves to allocate the risk of error between the litigants
and to indicate the relative importance attached to the ultimate decision."
In Darren Todd, supra,
at p. 290, this Court explained the interest to be protected and the reasons
for adopting a clear and convincing evidentiary standard in a termination
proceeding as follows:
"Through
a balancing test, weighing the significance of an individual's loss of
liberty, by an erroneous commitment against the interests of the state,
the Court concluded that the individual should not be asked to 'share
equally with society
the risk of error when the possible injury to the individual is significantly
greater than any possible harm to the state.' (441 U.S.) At 331, 332,
99 S.Ct. at 1810.
"It
is clear to us that the interests of a parent in and to his child which
are placed in jeopardy by an action such as this are, at a minimum, of
the same magnitude as those of a defendant in a fraud action or an individual
in a civil commitment proceeding. It follows that parental rights must
similarly be protected from the increased risk of an erroneous decision
created by a mere preponderance or weight of the evidence test.
"Assessing
this situation under the rationale of Addington, we are convinced that
because a declaration of a child's eligibility for adoption without parental
consent effects a termination of parental rights, the magnitude of the
rights involved requires proof which is clear and convincing. We adopt
that standard of proof prospectively...."
Applying that rationale
to this cause we note that an adjudication of deprived status does not
terminate parental rights. 10 O.S.Supp.1977 s 1130A. Thus the risk of
an erroneous proceeding is less onerous on a parent in an adjudicatory
proceeding than in a termination proceeding. Contrary to *309
this, the risk to a child and thus the State, is greater in an adjudicatory
proceeding if a removal from custody of a parent where abuse is a ground
for adjudication of deprived status is not effected by virtue of a greater
standard of proof. It thus cannot be said that the rationale of Darren
Todd, supra, mandates the clear and convincing standard in an adjudicatory
proceeding such as this and therefore this Court declines to extend that
rule to this action.
The judgment of the court
pursuant to a jury verdict finding J.B. to be deprived is therefore AFFIRMED.
All Justices concur.
643 P.2d 306, 1982 OK
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