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In re O.R.

Court of Appeals of Oklahoma, Division I

September 20, 2019

IN THE MATTER OF O.R., AN ALLEGED DEPRIVED CHILD: PAULA WINFREY, Appellant,
v.
STATE OF OKLAHOMA, Appellee.

          Mandate Issued: 10/16/2019

          APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY HONORABLE TERRELL CROSSON, TRIAL JUDGE

          Jeffrey A. Price, PRICE & SEARS, P.C., Muskogee, Oklahoma, for Appellant,

          Kali Strain, Assistant District Attorney, Claremore, Oklahoma, for Appellee, State of Oklahoma,

          Becki A. Murphy, Megan D. Martin, MURPHY FRANCY, PLLC, Tulsa, Oklahoma, for Appellees, Foster Parents,

          Kacie Cresswell, BAYSINGER, HENSON, REIMER & CRESSWELL, Owasso, Oklahoma, for Appellee, O.R., Minor Child.

          BRIAN JACK GOREE, CHIEF JUDGE

         ¶1 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. [1]

         ¶2 DHS is authorized to move a child in its custody from one foster placement to another when there is an emergency. [2] 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. [3] 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 interests.

         I.

         The Objection was not Time-Barred

         ¶3 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).

         ¶4 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.

         ¶5 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 ...


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