IN RE: X.W. (2026)

¶1 We granted certiorari to review the denial of Appellant Jessica Worley-Maycumber (Mother)’s petition to vacate the order terminating parental rights to her daughter, X.W. The Court of Civil Appeals (COCA) correctly found that Mother received the statutory warning required by 10A O.S. § 1-4-905(A)(2). However, the record does not demonstrate other procedural safeguards required in termination cases were afforded. Because these deficiencies require reversal regardless of how Mother's April 29 proceeding is characterized, we vacate the COCA's opinion, reverse the order denying the petition to vacate, and remand to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2 In this appeal, we address procedural due process issues arising from the trial court's termination of Mother's parental rights while Mother was incarcerated and unable to appear in person. The procedural history of this case is complicated, involving overlapping filings and motions that created uncertainty about Mother's ability and desire to attend the trial. That uncertainty is compounded by the court's failure to rule, or to at least make a clear record of rulings, on the motions and requests presented.

¶3 The trial was set for April 29, 2024.  ¹ Initially, an application for a writ of habeas corpus ad testificandum was filed and granted on March 28, with an order for Mother to pay for the costs of transportation. Acting pro se, Mother mailed an application to proceed in forma pauperis and a motion to waive travel costs arguing she could not pay for transport. On April 19, Mother's court-appointed counsel filed a motion for a continuance, mistakenly citing July 29 as the trial date and requesting to move a jury trial to November or December so Mother could complete programs in her individualized service plan. Attached to the motion was an affidavit from Mother stating she had been informed that a non-jury trial would occur on April 29. She objected to a non-jury trial and requested a jury trial instead. There are no recorded rulings on the motions, leaving Mother's requests unresolved.

¶4 During this period, Mother was transferred from the Mabel Bassett Correctional Center to the Dr. Eddie Warrior Correctional Facility (EWCC). On April 24, 2024, counsel filed a second application for a writ, this time directed to EWCC. Like before, the court issued a writ that same day. Another letter mailed by Mother was filed on April 26. Mother explained that she had begun the Department of Corrections’ Regimented Treatment Program/Residential Substance Abuse Treatment Program at EWCC. She requested to move trial to October or November in order to complete the program; she also provided her case manager's contact information. Like the other motions, Mother's request is not addressed by any recorded order or ruling.

¶5 On April 29, 2024, counsel appeared but Mother did not, and the court terminated her parental rights upon her failure to appear. The termination order recites that a non-jury trial was held and that the parties presented evidence and rested. However, the record contains no other indication the court in fact took evidence or conducted a trial: the docket does not reflect a trial, no exhibits appear in the record, and there is no transcript or indication a court reporter was present.

¶6 Mother filed a petition to vacate the termination order on April 1, 2025, asserting unavoidable casualty or misfortune, irregularity in obtaining the order, lack of actual notice, and fraud. See 12 O.S.2011 §§ 1031, 1033; 12 O.S.Supp.2013 § 1031.1(C).  ² Specifically, Mother claimed the court erred by construing her non-appearance as a failure to personally appear. First, she argued no one attempted to transport her to court on April 29 and her absence was therefore not voluntary. Second, she contended she did not understand the proceeding was moving forward on April 29 because the court never ruled on the various motions to continue filed in the lead-up to the hearing. She claimed she was confused by her lawyer's motion stating a jury trial was scheduled for July 29, and when no one appeared to execute the writ on April 29, she presumed the trial had indeed been continued. According to Mother, the court entered an unauthorized default judgment or an improper consent termination, neither of which can stand.

¶7 At the hearing on the petition to vacate, the State argued the record contained notifications emphasizing attendance and warning of possible termination if Mother failed to appear. It asserted that efforts were made to “writ her back,” but she elected not to be transported, and her rights were terminated because of that choice.

¶8 The State introduced a handwritten letter from Mother to support its argument that Mother “elected” not to attend. The letter was dated April 24, 2024, but was file stamped June 28, 2024. It stated:

I do not want to leave EWCC on my Writ to Comanche County due to the following: I'm an active participant in the RTP/RSAT program here at EWCC. I don't want to miss out on this opportunity I have been blessed with, this program is helping me better myself & as well as my kids. I have been waiting well over a year to be put in this program while in doc custody. This program offers classes that I need to complete my ISP that the court has made to be able to have my kids back home. I would like my attorney Mr. Newcombe to please represent me on April 29, 2024 at 9:00 AM for my trial for custody of my daughter [X.W.].

¶9 At the conclusion of the hearing, the court denied the petition to vacate, effectively finding Mother had waived her right to participate and to a jury trial. The court stated Mother's trial counsel “convinced the court not to have her picked up” for her trial on April 29. The court also agreed with the State that Mother's April 24 letter constituted waiver, stating that although a writ had issued, she did not want to attend.

¶10 Mother appealed, and the COCA affirmed, concluding that Mother received a summons and notice containing the statutory language required by 10A O.S. § 1-4-905(A)(2) and was properly notified her rights could be terminated. The COCA rejected Mother's contention that the court entered an impermissible default judgment based on non-appearance, stating termination followed a trial she requested be conducted in her absence. The COCA treated Mother's inability to produce a record showing termination occurred by unauthorized default as requiring a presumption that a trial indeed occurred.

¶11 The COCA did not comprehensively address Mother's claim that she was denied an opportunity to be heard because no one transported her on April 29. The COCA, like the trial court, attributed responsibility to Mother and her trial counsel, relying on the view that counsel convinced the court not to execute the writ after the April 24 letter indicated she did not want to be picked up.

STANDARD OF REVIEW

¶12 The standard of appellate review of an order granting or denying a petition to vacate a judgment is whether the trial court abused its discretion. Patel v. OMH Med. Ctr., Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194. “An abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence. It is discretion employed on untenable grounds or for untenable reasons, or a discretionary act which is manifestly unreasonable.” Id.

¶13 When the petition to vacate is predicated on a claim that the procedure used in a termination proceeding denied procedural due process, our review of the due process question is de novo. In re A.M., 2000 OK 82, ¶ 6, 13 P.3d 484, 486-87. “The fundamental nature of parental rights requires that the full panoply of procedural safeguards must be applied to child deprivation hearings.” Id. ¶ 8, 13 P.3d at 487. However, the Due Process Clause does not by itself mandate any particular procedure. Id. ¶ 9, 13 P.3d at 487. Our task, accordingly, is to determine on a case-by-case basis whether the procedural protections afforded were sufficient for the demands of the specific situation. Id.

¶14 These standards operate together here. We defer to the trial court's discretionary determinations on a petition to vacate, but no discretion exists to deny vacatur where the underlying judgment was obtained through procedures that fail constitutional due process. Thus, to the extent Mother's petition challenges the fairness and adequacy of the process that produced the termination order, we independently assess whether the record demonstrates the safeguards due in a termination proceeding. If it does not, the denial of the petition to vacate constitutes an abuse of discretion.

ANALYSIS

¶15 Two statutes frame the possible procedural consequences of a parent's failure to personally appear. First, when the court directs a parent to personally appear for a subsequent hearing on a specified date, time, and location, “the failure of the parent to personally appear, or to instruct his or her attorney to proceed in absentia at the trial, shall constitute consent by that parent to termination of his or her parental rights.” 10A O.S.2011 § 1-4-905(A)(5) (since amended). Consent to termination is akin to “a stipulation that a ground exists to support termination.” In re H.M.W., 2013 OK 44, ¶ 3, 304 P.3d 738, 740. Consent does not constitute a complete relinquishment of parental rights or empower the court to terminate rights solely because the parent failed to appear. See id. Second, a parent's failure to personally appear may be deemed a waiver of the right to trial by jury. See 10A O.S. Supp.2016 § 1-4-502(B) (since amended).

¶16 The COCA correctly concluded Mother received a summons and notice containing the statutory warning required by § 1-4-905(A)(2)--that her parental rights may be terminated if she failed to personally appear.  ³ But Mother's challenge is not that she lacked a generic warning that termination was a possible consequence of non-appearance. Her claim is that the trial court treated her absence as dispositive, effectively ending the case without a procedurally valid merits adjudication, when the record does not show she had notice of, or knowingly accepted, the specific procedural consequences the court later attributed to her non-appearance (consent, waiver of jury, and waiver of meaningful participation).

¶17 The record does not establish what occurred on April 29 beyond the form termination order's checked box reciting that a non-jury trial was held and evidence was presented. The docket does not reflect a trial; there are no exhibits; and there is no transcript or indication a court reporter was present. On this record, we cannot determine whether the court (1) entered a true default judgment based solely on Mother's non-appearance without taking evidence, (2) proceeded on a “consent” theory while taking evidence on remaining issues such as prior deprived status adjudication, best interests, etc., or (3) conducted a full merits trial as a non-jury proceeding based on perceived waivers.

¶18 Ordinarily, a silent record weighs against an appellant because proceedings are presumed regular and the appellant bears responsibility for providing a record demonstrating error. See Davidson v. Gregory, 1989 OK 87, ¶¶ 8, 11, 780 P.2d 679, 682-83. But termination proceedings are different in two respects that matter here. First, Mother was entitled to effective assistance of counsel. See Matter of D.D.F., 1990 OK 89, ¶ 15, 801 P.2d 703, 707. Second, the court has an independent statutory duty to “make and keep” the legal record--including the docket, findings, and orders--so that the basis for proceeding, the rulings made, and the safeguards afforded are reviewable. See 10A O.S.2011 § 1-6-101. Where the alleged error is that the court proceeded to termination without the required safeguards and without a record demonstrating them, the absence of a record is not merely an appellate inconvenience; it is part of the due process problem.

¶19 In any event, the uncertainty about which procedural path the trial court took does not control the outcome, because due process was denied under any plausible characterization of the April 29 proceeding.

¶20 First, if the court terminated Mother's rights based solely on her failure to appear without conducting an evidentiary hearing, reversal is required. A parent's non-appearance after notice may be treated as a stipulation that a ground for termination exists, but it does not authorize a true default judgment. See In re H.M.W., ¶ 3, 304 P.3d at 740. The State is still required to meet its burden of proof on best interests and other “critical issues other than grounds for termination” through an evidentiary hearing. Id. ¶ 6, 304 P.3d at 740. Thus, if the court entered a default-style termination without proof on the required elements, Mother was deprived of due process.

¶21 Second, even if the court took evidence while treating Mother's absence as consent to the grounds for termination under § 1-4-905(A)(5), reversal is still required. Mother's April 24 letter requested that counsel represent her at the April 29 trial in her absence. “[T]he failure of th[e] parent to personally appear, or to instruct his or her attorney to proceed in absentia at the trial” constitutes consent. 10A O.S. § 1-4-905(A)(5) (emphasis added). Under § 1-4-905(A)(5), Mother's request forecloses a finding that her non-appearance constituted consent to termination. If the court proceeded on a consent theory notwithstanding that instruction, it abused its discretion and deprived Mother of the full merits trial to which she remained entitled.

¶22 Third, even if the court conducted a full merits trial, due process concerns remain if the proceeding was non-jury based on deemed waiver under § 1-4-502(B).  ⁴ Mother demanded a jury trial in the affidavit attached to the motion to continue her trial attorney filed on April 19, 2024. Due process requires that the record reflect the parent received notice that failure to appear could result in waiver of the jury right. Matter of F.B., 2025 OK 25, ¶ 19, 579 P.3d 1039, 1044. The record here shows Mother was provided the standard § 1-4-905(A)(2) warning that rights may be terminated upon personal non-appearance, but it does not show Mother was informed that non-appearance could waive her jury demand.

¶23 In Matter of F.B., such silence required a limited remand to determine whether the specific jury-waiver notice was given. Id. ¶ 20, 579 P.3d at 1044. However, remand is unnecessary here because, even assuming arguendo that Mother received the jury-waiver notice contemplated by Matter of F.B., the record establishes additional due process violations that require reversal.

¶24 Mother was entitled to notice of the date, time, and place of the merits hearing, to reasonable access to the court, and to a meaningful opportunity to be heard. See 10A O.S. § 1-4-905(A)(1); In re A.M., 2000 OK 82, ¶ 9, 13 P.3d at 487 (noting “essence of procedural due process” in termination proceeding is “meaningful and fair opportunity to defend”). Yet the record does not reflect rulings on Mother's pro se filings seeking to proceed in forma pauperis and to waive transport costs, nor on counsel's continuance motion--which erroneously referenced a jury trial on July 29--nor on Mother's April 26 letter again requesting a continuance to complete ODOC's RTP/RSAT program. The absence of recorded rulings matters because it bears directly on whether Mother could reasonably know whether trial would proceed on April 29 and on what terms, and it prevents meaningful review of the court's decision to proceed.

¶25 The court also abused its discretion by attributing waiver to Mother's absence based on the letter stating she did not want to leave EWCC on her writ but asking that counsel represent her at the April 29 trial. This is the letter that was dated April 24 but not file stamped until June 28. The court stated the letter was “received before [April 29], although it was filed later.” Whatever the court meant by “received,” it is improper to bolster a waiver finding with a document not shown to have been part of the court file when the waiver determination was made. Nothing in Mother's communications that had been filed in the record at the time the court ruled reflects a competent, knowing, and intelligent waiver of her right to be heard or to a jury trial.

¶26 The court's statement that trial counsel “convinced the court not to have [Mother] picked up” on April 29 is unsupported by any recorded order quashing or modifying the writ. Further, Mother's absence cannot be treated as a voluntary failure to appear where the court itself ordered her presence through writs that did not comply with 12 O.S.2011 § 397’s notice and timing requirements. Both writs were issued the same day as their applications and without the statutory notice to the custodian.  ⁵ The second writ issued only five days before the hearing.  ⁶ A non-compliant writ “shall be void and unenforceable,” and custodial officers are not liable for failing to execute it. Id. § 397(D).

¶27 Finally, the court could have employed available alternative procedures to ward against the risk of erroneous deprivation. Mother acknowledges she does not have an absolute constitutional right to attend her termination hearing in person. See In re K.N.L., 2007 OK CIV APP 22, ¶17, 154 P.3d 1276,1281 (citing In re Rich, 1979 OK 173, 604 P.2d 1248). She argues though, that the court could and should have enabled Mother's participation by using alternatives like telephone or video conferencing. We agree. In her pro se applications to proceed in forma pauperis and to waive the costs of transport, Mother asked to have the matter placed on the docket for a “Virtual Zoom, Video Hearing.” Prior to the scheduled merits proceeding, the court ordered relief sought by the State for certain witnesses to testify via video conferencing. The court's failure to utilize the same technology to give Mother meaningful access and an opportunity to defend was an abuse of discretion.

¶28 In sum, the COCA's conclusion that Mother received the § 1-4-905(A)(2) warning does not resolve the due process problems presented here. The termination judgment cannot stand where the record does not demonstrate a procedurally valid merits adjudication and where the court's waiver/consent rationale rests on unrecorded rulings, a letter not filed until after the termination hearing, an irregular writ process, and the absence of reasonable alternative procedures to secure meaningful participation. Because these defects require reversal regardless of whether Mother received the jury-waiver notice discussed in Matter of F.B., remand for an evidentiary hearing on that single notice question would serve no purpose.

CONCLUSION

¶29 We hold the district court abused its discretion in denying Mother's petition to vacate because the record does not demonstrate that the termination judgment was entered after a procedurally valid merits adjudication consistent with due process. The Court of Civil Appeals’ opinion is vacated, the order denying the petition to vacate is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT ORDER REVERSED; CASE REMANDED TO TRIAL COURT.

FOOTNOTES

1.   No scheduling order appears, and Mother's summons and notice refer only to a “hearing,” leaving unclear whether the court intended a jury or a non-jury trial.

2.   The record does not establish exactly how or when Mother was notified of the judgment. Although the court terminated Mother's rights on April 29, 2024, the termination order was not filed until May 15, 2024. Mother's counsel approved the order as to form, and his name was listed on the certificate of delivery page under the portion of the form indicating service was made by hand delivery. However, the box for indicating hand delivery actually occurred was not checked.

3.   Prior notice of the date, place, and time of the hearing and a copy of the petition or motion to terminate shall be served upon the parent who is the subject of the termination proceeding. 10A O.S. § 1-4-905(A)(1). The notice shall contain the following or substantially similar language:FAILURE TO PERSONALLY APPEAR AT THIS HEARING CONSTITUTES CONSENT TO THE TERMINATION OF YOUR PARENTAL RIGHTS TO THIS CHILD OR THESE CHILDREN. IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION OR MOTION ATTACHED TO THIS NOTICE.Id. § 1-4-905(A)(2).

4.   The statute provides:The demand for a jury trial shall be granted unless waived, or the court on its own motion may call a jury to try any termination of parental rights case․ A party who requests a jury trial and fails to appear in person for such trial, after proper notice and without good cause, may be deemed by the court to have waived the right to such jury trial, and the termination of parental rights shall be by nonjury trial unless another party demands a jury trial or the court determines on its own motion to try the case to a jury.10A O.S. § 1-4-502(B).

5.   See 12 O.S. § 397(B) (“The custodian of the prisoner shall be given prior notice of the application [for a writ of habeas corpus] and fifteen (15) days to respond prior to the decision of the court.”)

6.   See id. (“If the court issues such writ, it shall be issued and delivered to the custodian of the prisoner at least fifteen (15) days prior to the date the prisoner is to appear ․”).

KANE, J.:

CONCUR: Rowe, C.J., Kuehn, V.C.J., Winchester, Edmondson, Combs, Gurich, and Kane, JJ. CONCUR IN RESULT: Jett, J. NOT PRESENT: Darby, J.