INDICATE A LEGISLATIVE INTENT TO ALLOW FOR FLEXIBILITY IN EXTRAORDINARY CASES UNDER SECTION 1107 AND TO GIVE THE COURT OPEN-ENDED AUTHORITY TO TAKE ACTION NECESSARY TO GIVE NOTICE WITHIN THE SPIRIT OF SECTION 1107 AND ARTICLE VII, SECTION 7, OF THE OKLAHOMA CONSTITUTION. THE GOAL, ACCORDING TO 10 O.S. 1107(C), IS TO PROVIDE "ADEQUATE" NOTICE. THIS WOULD IMPLY THAT ACTUAL NOTICE BE GIVEN, AND THE METHOD UNDERTAKEN SHOULD BE REASONABLY CALCULATED TO BE EFFECTIVE IN THIS RESPECT. CREASY V. U.S., 4 F.SUPP. 175 (D.C.VA. 1933). THE METHOD MOST LIKELY TO PROVIDE ADEQUATE NOTICE UNDER 1107 IS DEPENDENT UPON FACTUAL CIRCUMSTANCES WHICH THIS OFFICE CANNOT ADDRESS.
OF COURSE, IT MUST BE NOTED THAT AT THE TIME PETITIONS ARE FILED UNDER 10 O.S. 1107, DHS WOULD NOT LIKELY BE A PARTY TO THE ACTION. IN THE CONTEXT OF 1107, THE PARTY INVOLVED AT THE TIME THE DEPRIVED CHILD IS TAKEN INTO CUSTODY AND BROUGHT BEFORE A DISTRICT JUDGE IS A "PEACE OFFICER OR EMPLOYEE OF THE COURT." 10 O.S. 1107(A) AND 10 O.S. 1107(C).
ARTICLE XXV, SECTION 1, OF THE OKLAHOMA CONSTITUTION CREATED THE OKLAHOMA DEPARTMENT OF PUBLIC WELFARE FOR THE RELIEF AND CARE OF THE "NEEDY, AGED PERSONS WHO ARE UNABLE TO PROVIDE FOR THEMSELVES, AND OTHER NEEDY PERSONS WHO, ON ACCOUNT OF IMMATURE AGE, PHYSICAL INFIRMITY, DISABILITY, OR OTHER CAUSE, ARE UNABLE TO PROVIDE OR CARE FOR THEMSELVES(.)" ARTICLE XXV, SECTION 2, OF THE OKLAHOMA CONSTITUTION PROVIDES, IN PART:
"SAID DEPARTMENT OF PUBLIC WELFARE IS HEREBY CHARGED WITH THE DUTY AND RESPONSIBILITY OF FAITHFULLY ADMINISTERING AND CARRYING INTO EXECUTION ALL LAWS ENACTED PURSUANT TO THE AUTHORITY GRANTED IN SECTION ONE HEREOF, AND SHALL PERFORM SUCH OTHER DUTIES AS MAY, FROM TIME TO TIME, BE PRESCRIBED BY LAW."
A REVIEW OF TITLE 10 O.S. 1101 ET SEQ., DOES NOT INDICATE A STRICT LEGISLATIVE INTENT FOR DHS TO PROVIDE NOTICE OF ACTIONS. HOWEVER, NEITHER DOES IT INDICATE, ESPECIALLY IN CONJUNCTION WITH ARTICLE XXV, THAT A COURT DOES NOT HAVE JURISDICTION TO ORDER DHS TO TAKE SUCH ACTION.
THEREFORE, IT IS THE OPINION OF THE UNDERSIGNED ATTORNEY THAT TITLE LO OF THE OKLAHOMA STATUTES, 1107, PROVIDES NO SPECIFIC METHOD FOR THE PROVISION OF NOTICE OF HEARING AFTER A CHILD HAS BEEN TAKEN INTO CUSTODY AS A DEPRIVED CHILD. FURTHER, ARTICLE VII, SECTION 7, OF THE OKLAHOMA CONSTITUTIONS ALLOWS THE DISTRICT COURT TO REQUIRE THE DEPARTMENT OF HUMAN SERVICES TO PROVIDE NOTICE NECESSARY UNDER SECTION 1107.
(JAMES ROBERT JOHNSON)