IN THE MATTER OF O.R., AN ALLEGED DEPRIVED CHILD: PAULA WINFREY, Appellant,
STATE OF OKLAHOMA, Appellee.
Mandate Issued: 10/16/2019
FROM THE DISTRICT COURT OF ROGERS COUNTY HONORABLE TERRELL
CROSSON, TRIAL JUDGE
Jeffrey A. Price, PRICE & SEARS, P.C., Muskogee,
Oklahoma, for Appellant,
Strain, Assistant District Attorney, Claremore, Oklahoma, for
Appellee, State of Oklahoma,
A. Murphy, Megan D. Martin, MURPHY FRANCY, PLLC, Tulsa,
Oklahoma, for Appellees, Foster Parents,
Cresswell, BAYSINGER, HENSON, REIMER & CRESSWELL, Owasso,
Oklahoma, for Appellee, O.R., Minor Child.
JACK GOREE, CHIEF JUDGE
Paula Winfrey is the paternal grandmother and former foster
parent of O.R. The Department of Human Services removed O.R.
from Winfrey's home when he was eight months old and she
filed an objection requesting his return. The juvenile court
denied her motion and she commenced this appeal. We interpret
the applicable statute de novo and review the
decision for an abuse of discretion. 
DHS is authorized to move a child in its custody from one
foster placement to another when there is an emergency.
The court may return a child to the objecting foster
parent's home if it finds the decision to remove him was
arbitrary, inconsistent with the child's permanency plan
or not in his best interests.  In this case, the trial
court conducted an evidentiary hearing and denied
Winfrey's motion on grounds it was filed too late. We
hold (1) Winfrey's motion was not time-barred, (2) the
decision to remove O.R. was not arbitrary, (3) the removal
was not inconsistent with the permanency plan, and (4) the
case must be reversed for a determination of O.R.'s best
Objection was not Time-Barred
DHS must give a foster parent 5 days advance notice before
removing a child from the foster placement, except in an
emergency. 10A O.S. §1-4-805(A)(1)(a). If the foster
parent objects, the objection must be filed within 5 days
after receipt of the notice. §1-4-805(C)(2).
Law enforcement seized drugs on Winfrey's premises and
DHS removed O.R. on July 25, 2018 without giving advance
written notice. Winfrey filed an objection almost two months
later, on September 20, 2018. The trial judge implicitly
found that the removal was an emergency and apparently
concluded that in such a case the foster parent is required
to file an objection within 5 days of the date the child was
actually removed. The statute, however, is silent as to when
a foster parent must file an objection when a child is
removed without notice.
The State argues that in an emergency situation the foster
parents are given actual notice when the child is physically
removed and therefore the same five-day period to object
should apply - especially given the law's policy of
expediency of permanency for deprived children. This is sound
argument. Nevertheless, establishing time periods for
requiring action such as filing an ...