author: COLBERT, J. Combs, J., dissenting:

text:
    STATE of Oklahoma, EX REL. OKLAHOMA BAR ASSOCIATION, Complainant v. Shad K. WITHERS, Respondent.
    SCBD No. 6480
    Supreme Court of Oklahoma.
    FILED JUNE 18, 2019
    Tommy Humphries, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant
    Shad Withers, Attorney, Wichita, Kansas, for Respondent, pro se
   COLBERT, J.

¶1 This disciplinary proceeding against a lawyer poses two questions: (1) Does the record submitted for our examination provide sufficient evidence for a meaningful de novo consideration of the complaint and its disposition? and (2) Is suspension for ninety days together with payment of costs an appropriate disciplinary sanction for Respondent's breach of acceptable professional behavior? We answer both questions in the affirmative.

¶2 Following a grievance filed by client Jackie Miller (Ms. Miller) on January 26, 2016, the Oklahoma Bar Association (Complainant) commenced an investigation against Shad K. Withers, a licensed lawyer (Respondent). On December 16, 2016, the OBA filed a formal complaint under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2011, Ch. 1, App. 1-A. The Complainant charged Respondent with one count of professional misconduct in violation of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2001, Ch. 1, App. 3-A, and are cause for professional discipline under the RGDP. The Complainant recommended suspension from the practice of law for a period of one year. Respondent answered the Complaint on January 3, 2017.

¶3 A trial panel of the Professional Responsibility Tribunal (PRT) conducted a PRT Hearing on February 2, 2017. Upon conclusion of the hearing, consideration of testimony (Respondent was the sole witness) and admitted exhibits, the PRT issued its Report (PRT Report) on April 24, 2017. The PRT Report found generally that Respondent had violated the ORPC Rules 1.15, 8.4(a), and 8.4(c), but did not find clear and convincing evidence to support the other allegations of misconduct against Respondent asserted by the Complainant, namely violations of ORPC Rules 1.1, 1.3, 1.4, and 1.5. The PRT recommended suspension of Respondent's license to practice law for one hundred twenty days and assessed to Respondent the payment of costs incurred in this proceeding. The Complainant filed a one-count complaint to our Court in Complainant's Brief-In-Chief on May 16, 2017. Withers responded with Respondent's Brief-In-Chief on May 30, 2017.

STANDARD OF REVIEW

¶4 The Oklahoma Supreme Court has exclusive original jurisdiction regarding OBA proceedings. In re Integration of State Bar of Okla., 1939 OK 378, ¶ 5, 185 Okla. 505, 95 P.2d 113, 114. The Court's review is de novo and takes into consideration all relevant facts in determining whether discipline is merited and what measures, if any, should be imposed for the misconduct. State ex rel. Okla. Bar Ass'n v. Donnelly, 1992 OK 164, ¶ 11, 848 P.2d 543, 546. The Court implements its constitutionally invested, nondelegable power to regulate and control the practice of law and the legal practitioners. Tweedy v. Okla. Bar Ass'n, 1981 OK 12, ¶ 2, 624 P.2d 1049, 1052. Under a de novo examination, the Trial Panel's findings and its recommendations are not binding nor are they persuasive upon this Court. State ex rel. Okla. Bar Ass'n v. Raskin, 1982 OK 39, ¶ 11, 642 P.2d 262, 265. This Court has a duty to be the final arbiter for adjudication and must conduct a full-scale examination of all the relevant facts. State ex rel. Okla. Bar Ass'n v. Johnston, 1993 OK 91, ¶ 13, 863 P.2d 1136, 1142 ("In a de novo consideration, in which the court exercises its constitutionally invested, nondelegable power to regulate both the practice of law and the legal practitioners, a full-scale exploration of all relevant facts is mandatory. The Court's task cannot be discharged unless the PRT panel submits a complete record of proceedings for a de novo examination of all material issues.").

¶5 Before a decision to discipline an offending attorney, the misconduct presented must be demonstrated by clear and convincing evidence, as required by Rule 6.12 of the RGDP, 5 O.S. 2001, Ch.1, App. 1-A. To make this determination of evidence and to fully discharge the court of its duty, the Trial Panel must present a complete record of the proceedings. State ex rel. Okla. Bar Ass'n v. Eakin, 1995 OK 106, ¶ 9, 914 P.2d 644, 648. The Court must determine whether the presented record is sufficient for an independent determination of the relevant facts and to craft an appropriate discipline. State ex rel. Okla. Bar Ass'n v. Perceful, 1990 OK 72, ¶ 5, 796 P.2d 627, 630. The record in this case consists of the pleadings filed with this Court, the exhibits admitted into the record at the PRT Hearing, the Report of the Trial Panel filed on April 24, 2017, and the transcript of the district court hearing held on February 2, 2017. After examination of the record on appeal, this Court determines that the record submitted is sufficient for the Court's de novo consideration of Respondent's alleged misconduct.

FACTUAL BACKGROUND

¶6 The chronology of this case is detailed and complex so it is necessary to provide a thorough summary of the facts. This case arises from Respondent's representation of a client who went to an emergency room for treatment of heart-related symptoms. The treatment given was alleged to have triggered a cardiac arrest which necessitated a readmission to the medical facility. Thereby this medical negligence action was filed in response to that incident.

¶7 Jackie Miller (Ms. Miller) sought medical assistance when she went to the emergency room of the Oklahoma University Medical Center (OUMC) on December 31, 2007. Experiencing pain and tenderness over her pacemaker, Ms. Miller was prescribed the medication Zofram, which allegedly caused cardiorespiratory arrest and readmission to the hospital with severe injuries as a result.

¶8 On September 30, 2009, Ms. Miller hired attorney David Van Meter to pursue a medical negligence action against the hospital and doctors involved in her case. Defendants included OUMC, Healthcare Services, Inc., Tarek Dernaika, M.D., Moeen Abedin, M.D., Regi Matthew Pappy, M.D., Bradley J. Johnson, M.D., and S. Brent Barnes, M.D. The claim which was filed by Mr. Van Meter on Ms. Miller's behalf asserted an attorney's lien in favor of Mr. Van Meter. On February 25, 2013, after Mr. Van Meter had spent a period of years on the case, Ms. Miller terminated the client relationship with Mr. Van Meter after she failed to accept his advice that she accept a settlement offer for a total of $25,000, as to all defendants in total. Mr. Van Meter indicated that if Ms. Miller did not accept the settlement offer, he would no longer represent her in the matter and thereafter, counsel withdrew from the case. Ms. Miller, of her own initiative on May 6, 2013, dismissed the action without prejudice.

¶9 On January 21, 2014, Ms. Miller retained Respondent to represent her in the previously filed medical malpractice case. Respondent at the time was employed by the law firm of Brown and Gould. Initially, Respondent and Mr. Van Meter had some preliminary email discussions regarding the attorney's lien Mr. Van Meter possessed on Ms. Miller's case. Mr. Van Meter stated that he was entitled to 50% of any proceeds for the case or a flat amount of $25,000 plus his expenses. Respondent and his firm's partner (Tony Gould) refiled the action for Ms. Miller on May 6, 2014, with all the initially named defendants but also adding a new defendant, Dr. Brian Plaxico, D.O.

¶10 Subsequent to the refiling of the medical malpractice action, Respondent left Brown and Gould in August of 2014, and by an agreement on August 13, 2014, Mr. Gould withdrew from the case and Respondent continued representation of Ms. Miller as a sole practitioner. This was Respondent's first experience as a sole practitioner. Mr. Gould made no attorney lien claim, offering instead that he would be satisfied with recoupment of costs incurred - approximately $705.64 - if the case resulted in recovery.

¶11 Respondent then pursued a conclusion to the medical malpractice case for Ms. Miller. On April 28, 2015, he was able to reach a settlement agreement with OUMC for $75,000, and with the doctors, Pappy, Abedin, Dernaika, and Johnson (Pappy, et al.), for $7,000 "in verified litigation expenses." The agreements were initially handwritten and both agreements were executed by Ms. Miller personally. Doctors Barnes and Plaxico did not participate in the initial settlement agreement and the claims against them remained unresolved.

¶12 On May 3, 2015, Respondent and Ms. Miller executed a second attorney-client contractual agreement whereby the attorney fees due to Respondent was amended to 40% rather than 50% in the original agreement. The new amended section in the second contractual agreement stated that the Respondent would receive no more than 40% of the client's recovery and 10% would remain in escrow in order to satisfy the two attorney liens of Van Meter and Gould. If after the satisfaction of all lien claimants, there was still a remainder in the 10% withheld for escrow, that amount would go to the client. Ms. Miller disputes this explanation, alleging the second agreement specified 60% go to her rather than the initial 50%.

¶13 On August 31, 2015, a formal release of OUMC's medical claim was completed and executed in order to finalize the settlement agreement that was reached with OUMC on April 28, 2015. The forms were sent directly to Ms. Miller by email and she was able to sign the documents and return the same by fax.

¶14 When Respondent received the settlement check of $75,000 from OUMC on September 21, 2015, he endorsed the check with both his name and Ms. Miller's name as the check was made out to both of them. Respondent alleges that he signed Ms. Miller's name with her consent. He then deposited the check into his operating account. On September 23rd, Respondent sent a cashier's check to Ms. Miller in the amount of $22,594.56 drawn from his operating account and he contends that he sent a settlement statement along with the check. Ms. Miller alleges that she never received the settlement statement. Ms. Miller received the check in the amount of $22,594.56, leaving in escrow $11,863.43, for a potential CMS Medicare claim, and $3,042.01 for a potential Oklahoma Healthcare Authority (OHCA) claim, thus totaling $37,500.00, or 50% of the settlement paid.

¶15 In November and December of 2015, both CMS Medicare and OHCA waived their lien rights and Respondent proceeded to issue checks in the amounts of $11,863.43 and $3,042.01 to Ms. Miller representing their respective lien amounts. This brought the total amount of funds disbursed to Ms. Miller to $37,500.00 or 50% of the OUMC settlement amount.

¶16 The formal release of claims against Pappy, et al. (excluding Barnes and Plaxico), was signed by Respondent (using Ms. Miller's name) and the "signature" was caused to be notarized by Respondent on September 17, 2015. Respondent admits that he tried to replicate Ms. Miller's signature as close as possible before having it notarized. Respondent also admits that he had no power of attorney or other legal authority authorizing him to sign this agreement using Ms. Miller's name. However, Respondent alleges that he did have oral authorization to execute the formal release. However, Ms. Miller contended that she did not give Respondent permission to sign this formal release of claims against Pappy, et al.

¶17 On September 21, 2015, Respondent received and deposited a check made out to him from Pappy, et al., in the amount of $3,320.03, for his litigation expenses with these defendants. In both settlements (OUMC and Pappy, et al.), Respondent acknowledges that he commingled trust funds with his personal funds, knowing that it was inappropriate and thus violated RGDP rules 1.15 and 8.4(a).

¶18 On November 2, 2015, Ms. Miller's claim against Defendant Plaxico was dismissed with prejudice.

¶19 In early December of 2015, Ms. Miller called Respondent, agreeing to accept a settlement offer from Barnes. Then, on December 4, 2015, Ms. Miller subsequently attempted by email to retract the decision to agree to settle. On December 9, 2015, Ms. Miller emailed Respondent to ask if the Barnes settlement check would have her name on it. Following that, on January 6, 2016, Ms. Miller emailed Respondent again to tell him not to dismiss her case against Barnes. Later, on August 1, 2016, Barnes filed a motion to enforce settlement and the district court held a hearing regarding enforcement of the Barnes' settlement on October 28, 2016. The court concluded that the settlement agreement was valid and should be enforced because Respondent had both actual and apparent authority from Ms. Miller to accept the settlement offer from Barnes.

PROCEDURAL HISTORY

¶20 Ms. Miller filed a formal complaint with the OBA against Respondent on January 26, 2016, alleging multiple infractions of attorney misconduct. Ms. Miller terminated Respondent's representation in the spring of 2016. On September 8, 2016, Respondent filed a Motion for Substitution of Plaintiff's Counsel as Ms. Miller's attorney of record and the Order Allowing Withdrawal was issued on September 21, 2016.

¶21 The OBA formally opened a complaint and the PRT Trial Panel initiated a hearing February 2, 2017, to assess the complaints of Ms. Miller against Respondent. Though a substantial number of Exhibits were introduced, the sole witness heard from at the hearing was Respondent. The PRT Report was issued April 21, 2017.

¶22 Complainant agrees that all of the monies due to the client and all lien claimants have now been properly allocated. Respondent directly compensated his client within days of receiving settlement funds or lien releases (from Medicare and OHCA). However, Respondent failed to promptly notify the attorney lien claimant, Mr. Van Meter, or claim holder, Mr. Gould, of settlements in a timely manner, thus delaying the payments owed to them from the settlements. In fact, as Complainant points out, Respondent's total balance in his operating account on December 23, 2015, after full payments had already been disbursed to his client, Ms. Miller, was only $300.08. Claims from neither Gould or Van Meter had been satisfied at that point. Gould received payment from Respondent for the $705.64 owed to him on February 26, 2016. Respondent settled the payment due to Mr. Van Meter on September 29, 2016, for $7,500.00 plus any fees attained in the Barnes settlement.

DISCUSSION

¶23 Rationale for the "disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, those of the judiciary and of the legal profession." State ex rel. Okla. Bar Ass'n v. Combs, 2007 OK 65, ¶ 36, 175 P.3d 340, 351 (citations omitted). The measure of discipline imposed upon an offending lawyer should be consistent with the discipline visited upon other practitioners for similar acts of professional misconduct. Id. (citation omitted).

¶24 When we examine the actions taken by Respondent in the case before us, we hold that Respondent violated ORPC Rule 1.15 when he initially and subsequently received settlement checks from the defendants and deposited each into his operating account, a clear violation of the rules of professional conduct resulting in commingling of client funds and personal funds. Respondent acknowledges this violation and accepts full responsibility for it. We evaluate a commingling infraction based on three different levels of culpability, those being (1) commingling, (2) simple conversion, and (3) misappropriation or theft by conversion; each of which must be proven by clear and convincing evidence. State ex rel. Okla. Bar Ass'n v. Combs, 2007 OK 65, ¶ 13, 175 P.3d 340, 346 ; see also State ex rel. Okla. Bar Ass'n v. Cummings, 1993 OK 127, ¶ 23, 863 P.2d 1164, 1172 ; State ex rel. Okla. Bar Ass'n v. Parsons, 2002 OK 72, ¶ 12, 57 P.3d 865, 868. Each level represents a more serious infraction and thus demands more serious disciplinary action. In this case, Respondent not only commingled the settlement money with his personal funds in the operating account, he reached a point after paying his client the monies due to her, on December 23, 2015, where the balance available in his operating account was only $300.08. At that point, while payments were still due and unpaid for outside attorney claim interests (approximately $700.00 to Gould and $7,500.00 to Van Meter), the balance in his operating account was only $300.08. By operation of law, at this point there was clear and convincing evidence that his infraction became more than commingling and included simple conversion. However, we find no clear and convincing evidence that he was guilty of level three commingling which involves theft by conversion or otherwise. He never attempted to misappropriate the monies to his personal benefit.

¶25 Respondent's actions were also a violation of ORPC Rules 8.4(a) and (c). The PRT Report found that Respondent violated Rule 8.4(c) when he endorsed the Formal Release of Claims for the Pappy, et al. settlement, signing his client's name. Although he claimed that the signature was done with his client's permission, she disputed that fact. But more seriously, he acknowledged that after he signed the settlement agreement, he caused that signature of his client's name to be notarized, and by his admission, attempted to make the signature look as much as possible to the client's signature. Though Respondent claimed to have had the client's oral consent to effect the signature, his actions reveal that it was not, at the very least, in accord with legal procedures. He admitted that he no power of attorney or other legal authorization to sign his client's name.

¶26 We have reviewed all cited authority and arguments by Complainant and Respondent in this action. After a thorough review of the arguments, we must determine the necessary discipline here based upon similar infractions and previous assessments for those violations by this Court. In a review of that authority, we find several cases persuasive in determining Respondent's appropriate discipline and effective remedy. The cases that we find most persuasive and analogous to the instant case are State ex rel. Okla. Bar Ass'n v. Combs, 2007 OK 65, 175 P.3d 340 ; State ex rel. Okla. Bar Ass'n v. Jaques, 2000 OK 57, 11 P.3d 621 ; State ex rel. Okla. Bar Ass'n v. Parsons, 2002 OK 72, 57 P.3d 865 ; and State ex rel. Okla. Bar Ass'n v. Taylor, 2000 OK 35, 4 P.3d 1242.

¶27 In Combs, the respondent was held to have committed, and that he admitted to, were violations of ORPC Rules 1.15 (mishandling funds) and 8.4(a) (professional misconduct), as well as RGDP Rules 1.3 and 1.4(b). 2007 OK 65, ¶ 13, 175 P.3d 340, 346. Contrary to the PRT's recommendation in Combs, the Court did not find an intent to defraud or deceive, and thus did not find clear and convincing evidence of a violation of ORPC 8.4(c). Id. ¶ 19, 2007 P.3d at 351. As in this case, the court found no previous disciplinary violations, a respondent who accepted full responsibility for his actions and fully cooperated with the investigation, and neither the client nor third parties suffered any harm. Id. Though the PRT Report recommended suspension for two years plus one day, the respondent in Combs was disciplined by this Court with a ninety day suspension plus costs incurred in the proceedings. Id. ¶ 39, 2007 P.3d at 352.

¶28 Another recent case decided by this Court involved a respondent who was charged with, and admitted to, fraudulently acknowledging a legal document and causing improper notarization of same. State ex rel. Okla. Bar Ass'n v. Jaques, 2000 OK 57, ¶ 11, 11 P.3d 621, 624. Again, the respondent, never previously disciplined for professional misconduct, fully cooperated with the complainant's investigation and fully admitted the misconduct. Id. ¶ 21, 11 P.3d at 625. In Jaques, the respondent's acts were found not to have been motivated by a desire for personal gain, but rather a result of poor judgment and management. Id. In that instance, the Court ruled that respondent was subject to a thirty day suspension of his license to practice law and required to pay the costs of the proceedings against him. Id. ¶ 26-27, 11 P.3d at 626.

¶29 The Parsons case involved a respondent who, when settling a personal injury case, not only endorsed the two settlement checks without notifying an interested third party (medical provider), but also failed to ever notify the interested party for years, distributing the proceeds of the two settlement checks between himself and his client. State ex rel. Okla. Bar Ass'n v. Parsons, 2002 OK 72, 57 P.3d 865. The respondent there was also found to have violated ORPC Rule 1.15 (commingling) and Rule 8.4(c) (dishonest misconduct). In an evaluation of the 8.4(c) violation, the court held that although a violation occurred, the Complainant had failed to show by clear and convincing evidence that respondent intended to misappropriate funds by fraud or deceit. Id. ¶ 14-16, 57 P.3d at 869. Respondent was ordered disciplined by suspension of his license for one year plus payment of costs incurred for the proceedings. Parsons can be distinguished from the instant case by the fact that, Respondent here never displayed any actions to attempt to hide the settlements from the third parties. He did contact and reimburse one attorney claimant within five months (February 26, 2016) of settlement and did reach an agreement as to settlement terms with the other claimant on March 18, 2016 - although the final settlement was not effectuated for another six months (September 29, 2016). The respondent in Parsons was disciplined by requiring a one year suspension of his licence to practice law and ordered to pay the costs of the investigation. Id. ¶ 22, 57 P.3d at 870.

¶30 In summary, we agree with the PRT finding in this case that there was no clear and convincing evidence that Respondent violated ORPC Rules 1.1,1.3,1.4, or 1.5. The cases cited in support of this proposition along with the evidence and testimony do not support such a finding. Respondent's competency, diligence, communication with client, and assessment of fees were disputed. For example, Respondent was able to achieve a far better settlement than her original attorney, Van Meter, was able to achieve and, there is no evidence of lack of diligence and disputed evidence at best as to any communication or fee arrangement failures. What is supported by the evidence, is a violation of ORPC Rule 1.15 (Safekeeping Property). When Respondent deposited checks into his operating account, he by definition, violated this rule. In fact he never used his trust account, if it was even active, at any time during the case.

¶31 There is also no question that Respondent violated ORPC Rules 8.4(a) and (c). The more serious violation here is 8.4(c) which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Respondent here acknowledged that he endorsed the settlement agreement with Pappy, et al. with his client's name, attempting to make it look like his client's signature, and then having that signature notarized. Though he claimed to have oral consent to do this, he acknowledged that he did not have any legal written authority to do it and his client disputes the oral consent. However, the fact that he acknowledges trying to replicate his client's signature for notarization established an attempt at misrepresentation.

¶32 Assessing Respondent's actions and professional conduct violations, we must keep in mind that the disciplinary process is not designed to punish the lawyer but to safeguard the interests of the public, judiciary and the profession itself. Combs, 2007 OK 65, ¶ 36, 175 P.3d at 351. We must also consider that the discipline imposed should bear resemblance to other practitioners for similar violations of misconduct. Id. Although this was Respondent's first experience as a sole practitioner, we cannot and do not excuse the seriousness of his infractions.

MITIGATING FACTORS

¶33 Respondent's client and the other interested parties were made whole by Respondent. There was no involvement of the OBA Client Security Fund in order to accomplish this result. It was noted in the record that Respondent had no previous reprimands or complaints filed prior to this case and Respondent discontinued the practice of law immediately following the case. As was acknowledged in the PRT Report and by the Complainant, Respondent was at all times cooperative with the investigation into this complaint against him. Respondent willingly acknowledged mistakes made and showed remorse for his actions. While these mitigating factors do not excuse Respondent's violations of the rules of professional misconduct, they are to be considered when determining the appropriate discipline required. It is also noted that the client benefitted because Respondent was able to achieve a recovery that was more than 3 times higher than the prior settlement offer. Again, this does not excuse, but is a consideration, when meting out discipline. His actions displayed no purposeful intent to deceive the client or other interested parties. See Combs ¶ 19, 175 P.3d at 347. The two attorney claim holders, though experiencing delay in the satisfaction of their claims, did not file grievances against Respondent.

CONCLUSION

¶34 After a thorough review of the record, the Court concludes that Respondent violated ORPC Rules 1.15 and 8.4(a) and (c). These serious violations of the rules of professional conduct require requisite disciplinary action. Upon consideration of these violations found by clear and convincing evidence, and giving due consideration to the mitigating factors tendered,

RESPONDENT IS ORDERED DISCIPLINED (1) BY SUSPENSION FOR A PERIOD OF NINETY DAYS AND (2) BY IMPOSITION OF COSTS OF THIS PROCEEDING IN THE AMOUNT OF $2,136.39, WHOSE PAYMENT SHALL BE DUE NO LATER THAN ONE HUNDRED TWENTY DAYS AFTER THIS DECISION BECOMES FINAL.

VOTE: Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson and Colbert, JJ., concur;

Combs, J., dissent.

Combs, J., dissenting:

"I would suspend Mr. Withers for one (1) year."

      The record consists of the Complaint, Answer, transcript of the PRT Hearing, Report of the Trial Panel, Complainant's Brief in Chief, Respondent's Brief in Chief, Exhibits Not Under Protective Order, and Exhibits Under Protective Order.

      The Rules Governing Disciplinary Proceedings are found at 5 O.S. 2001, Ch. 1, App. 1-A. The provisions of the RGDP Rule 6.1 state:
      "The proceeding shall be initiated by a formal complaint prepared by the General Counsel, approved by the Commission, signed by the chairman or vice-chairman of the Commission, and filed with the Chief Justice of the Supreme Court."

      The Oklahoma Rules Governing Disciplinary Proceedings are found in 5 O.S. 2001, Ch. 1, App. 3-A.

      Rule 1.15 - Safekeeping Property
      (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the written consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
      (b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account but only in an amount necessary for that purpose.
      (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
      (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
      (e) When in connection with a representation, a lawyer possesses funds or other property in which both the lawyer and another person claim interests, the funds or other property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved, and the undisputed portion of the funds shall be promptly distributed.

      Rule 8.4 - Misconduct
      It is professional misconduct for a lawyer to:
      (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

      Rule 1.1 - Competency
      A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

      Rule 1.3 - Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

      Rule 1.4 - Communication
      (a) A lawyer shall:
      (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
      (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
      (3) keep the client reasonably informed about the status of the matter;
      (4) promptly comply with reasonable requests for information; and
      (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      Rule 1.5 - Fees
      (a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent.
      (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.


source: Caselaw Access Project

author: GURICH, C.J. DARBY, V.C.J., dissenting:

license: Public Domain

text:
    Lori SCHNEDLER, Petitioner/Appellant, v. Heather Nicole LEE, Respondent/Appellee, and Kevin Platt, Third Party Defendant/Appellee.
    No. 115,362
    Supreme Court of Oklahoma.
    FILED JUNE 25, 2019
    Christopher U. Brecht, McDaniel Acord & Lytle, PLLC, Tulsa, Oklahoma, and Michael F. Smith, McAfee & Taft, Tulsa, Oklahoma, for Lori Schnedler, Petitioner/Appellant.
    Bryan J. Nowlin, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for Heather Nicole Lee, Respondent/Appellee.
    No appearance for Kevin Platt, Third Party Defendant/Appellee.

      Identified herein are only those counsel who have entered an appearance for the parties in this cause in conformance with the requirements of Sup. Ct. R. 1.5(a).

   GURICH, C.J.

¶1 Lori and Heather, a same-sex couple, built and shared a life together in the ten or so years before Oklahoma recognized marriages between two people of the same sex. In the course of their committed relationship, they started a family together through assisted reproduction. In 2007, Heather gave birth to J.L. Eight years went by in which young J.L. grew up in a nurturing and loving environment with two parents, during which time J.L. came to know Lori as a parent in every significant sense. Lori and Heather separated in April 2015. When Heather abruptly denied Lori any further visitation with their daughter, Lori petitioned the district court for shared legal custody of, and visitation with, J.L. under the doctrine of in loco parentis and this Court's precedent in Ramey v. Sutton , 2015 OK 79, 362 P.3d 217.

¶2 Interpreting our decision in Ramey as prioritizing and privileging the veto power of a genetic donor -in this case, Kevin, who at no point in those eight years had sought any determination of his own parental rights-over the parental rights of the non-biological same-sex parent, the district court concluded that Lori lacked standing to seek any adjudication of custody, visitation, or support. Lori appealed; the Court of Civil Appeals affirmed the district court's dismissal for lack of standing. We are now tasked with deciding whether our law recognizes Lori's right to seek custody and visitation on the same equal terms as a legal parent. We hold here that it must.

Facts and Procedural History

¶3 Lori Schnedler and Heather Lee met each other in the early 2000s while working for the Bartlesville Police Department, staying only acquaintances at first. As their relationship advanced, they began living together in a modest apartment. Once Lori returned from her overseas military deployment in 2004, they bought a home. For the nearly eleven years that followed-with the sole exception of a brief separation early in the relationship-Lori and Heather lived in the home they had purchased together.

¶4 At that time, of course, they were unable to legally marry in (or have their marriage recognized by) the State of Oklahoma. Before the landmark rulings in Obergefell v. Hodges and Bishop v. Smith , marriage between them would have been a "legal nullity." Ramey , 2015 OK 79, ¶¶ 12, 17, 362 P.3d at 220-21. Yet they became a family in every meaningful sense of the word, culminating in their mutual decision to have a child.

¶5 A work friend of Heather's, Kevin Platt, agreed to serve as the sperm donor. Heather became pregnant and delivered J.L. in July 2007, with her family and Lori present in the delivery room. Lori cut the umbilical cord, and the couple gave the newborn Lori's middle name. From the outset of Heather's pregnancy, both women agreed that they intended to raise J.L. together as their daughter.

¶6 Though Lori and J.L. do not share blood ties, J.L. recognized Lori as her "momma" or "Momma Lori." For the first eight years of J.L.'s life, Lori was a parent to her in every respect. By Heather's own admission, Lori provided "food, clothing, and shelter" for J.L. and "supplied all the financial stability" for the entire family. Moreover, her contributions to J.L.'s wellbeing were not limited to financial support: Lori was a full and active participant in J.L.'s emotional, social, and intellectual development.

¶7 Lori and Heather ended their relationship in April 2015. Heather left the home they had shared, and took J.L. with her. In the initial months following their separation, Lori and Heather adhered to a regular visitation schedule for J.L. This arrangement seemed workable for seven months, until Heather suddenly denied Lori any further contact with their daughter. Since that time, Lori has neither seen nor spoken with J.L.

¶8 In December 2015, Lori filed a petition in Tulsa County District Court for an adjudication of J.L.'s custody, visitation, and child support on in loco parentis grounds. Heather objected and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings. Additionally, both Heather and Kevin brought crossclaims in the action, requesting the trial court's determination that Kevin was J.L.'s "biological and natural father" and therefore entitled to full parental rights of custody, visitation, and support.

¶9 Before this litigation began, Kevin was not demonstrably involved in J.L.'s life.

Since the start of these legal proceedings, however, J.L. has been staying with Kevin for overnight visits, and she has met Kevin's wife and children. She refers to him as "Kevin," although the recently increased frequency of their interactions has led to her calling him "dad" on occasion. Kevin testified that this surge in interaction between himself and J.L. came about because Lori's custody action "forced [his] hand" in entering J.L.'s life earlier than he expected, though he had always hoped to do so at some unspecified future time.

¶10 Both Heather and Kevin challenged Lori's standing to seek in loco parentis status. Following an evidentiary hearing in which Lori, Heather, and Kevin all gave testimony, the trial court-citing our decision in Ramey -found that Lori "has not met her burden of being considered a parent under the doctrine of in loco parentis ... and shall not be entitled to further pursue the aforementioned action relative to the custody, visitation and child support" of J.L. Specifically, the trial court interpreted the final prong of our holding in Ramey as requiring the biological donor's consent to, and encouragement of, the non-biological same-sex partner's parental role. The Court of Civil Appeals affirmed. We granted certiorari to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same. We now reverse.

Standard of Review

¶11 The dismissal of a petition by the trial court is reviewed de novo . Ramey , ¶ 5, 362 P.3d at 219 ; Eldredge v. Taylor , 2014 OK 92, ¶ 3, 339 P.3d 888, 890. "Court supervision over the welfare of children is equitable in character." In re Bomgardner , 1985 OK 59, ¶ 17, 711 P.2d 92, 97 ; see also In re Guardianship of Sherle , 1984 OK CIV APP 23, ¶ 10, 683 P.2d 78, 80 ("Court supervision over the custody and welfare of children is equitable in nature."). " 'The purpose of a court sitting in equity is to promote and achieve justice with some degree of flexibility.' " Merritt v. Merritt , 2003 OK 68, ¶ 13, 73 P.3d 878, 883 (quoting Garrett v. Arrowhead Improvement Ass'n , 826 P.2d 850, 855 (Colo. 1992) ). Doing so "requires an inquiry into the particular circumstances of the case." Id. In a case of equitable cognizance, this Court "will administer complete relief on all issues formed by the evidence regardless of whether the pleadings specifically tendered them for resolution." In re Estate of Bartlett , 1984 OK 9, ¶ 4, 680 P.2d 369, 374.

¶12 "Whenever possible, an appellate court must render or cause to be rendered, that judgment which in its opinion the trial court should have rendered." Clark v. Edens , 2011 OK 28, ¶ 5, 254 P.3d 672, 675 ; see also Snow v. Winn, 1980 OK 27, ¶ 3, 607 P.2d 678, 680-81. "We are bound neither by the reasoning nor by the findings of the trial court." Estate of Bartlett , ¶ 4, 680 P.2d at 374. Though this Court does not disturb the trial court's factual findings merely because we disagree with them, we will substitute our own view when "the trier's decision is manifestly wrong.'' Sides v. John Cordes, Inc. , 1999 OK 36, ¶ 17, 981 P.2d 301, 307-08.

Analysis

¶13 In Ramey , we confronted an issue in many ways similar to that here. That case also involved a custody dispute between separated same-sex partners. There, we established a trifold test for acknowledging the in loco parentis standing of a non-biological parent in a same-sex relationship where "the couple, prior to Bishop , or Obergefell , (1) were unable to marry legally; (2) engaged in intentional family planning to have a child and to co-parent; and (3) the biological parent acquiesced and encouraged the same sex partner's parental role following the birth of the child." Ramey , 2015 OK 79, ¶ 2, 362 P.3d at 218.

¶14 Here, the trial court correctly found that Lori and Heather were unable to marry at the time of J.L.'s conception, and also that the couple had consciously decided to co-parent together. But the trial court erred in concluding that the third prong of this test required Kevin's acquiescence in, and encouragement of, Lori's parental role. In short, this was a fundamental misreading of Ramey . The only acquiescing "biological parent" contemplated by Ramey is the same-sex partner who "entered into an intentional intimate relationship and made a conscious decision to have a child and co-parent as a family." Id. ¶ 17, 362 P.3d at 221. Only Heather could have fulfilled that role here.

¶15 The trial court's faulty application of our precedent found root in footnote four of the Ramey opinion. The footnote specified that the biological father in Ramey had never had a relationship with the subject child, and thus had never asserted a claim for custody or visitation. Id . n.4, 362 P.3d at 219 n.4. But here, because Kevin alleged he had maintained some relationship-albeit minimal and covert-with J.L., the trial court erroneously reasoned that Ramey likewise required his consent before Lori could assume a parental role after the birth of J.L. To be abundantly clear, Ramey focuses on the carefully and consciously chosen intentions of the parties within the same-sex relationship -not the subjective beliefs of the third-party donor. Id . ¶¶16, 17, 362 P.3d at 221.

¶16 In this case, the record amply and plainly reflects that Heather both acquiesced in and encouraged Lori's role as a co-parenting mother to J.L. Accordingly, all three prongs of Ramey 's standing test were satisfied-irrespective of Kevin's consent, or lack thereof, to Lori's parental role. This determination, however, does not end our analysis. Just as we broadened Eldredge 's holding in Ramey to remove the barrier of an express, written co-parenting agreement between same-sex partners, we hold that a non-biological same-sex co-parent has the right to seek custody, visitation, and support of his or her child on the same equal terms as the biological parent.

¶17 The fundamental guiding principle of our family-law jurisprudence is the pursuit of the best interests of the child. Rowe v. Rowe, 2009 OK 66, ¶ 3, 218 P.3d 887, 889 (the "best interests of the child must be a paramount consideration" in determining custody and visitation); In re Adoption of M.J.S. , 2007 OK 44, ¶ 17, 162 P.3d 211, 218 (applying the "best interests" doctrine to adoption proceedings); Daniel v. Daniel , 2001 OK 117, ¶ 21, 42 P.3d 863, 871.

¶18 Our jurisprudence has been consistent in considering issues of parental rights to be equitable in nature, as this approach has allowed us to most adaptively serve the best interests of the child. E.g. , Bomgardner , 1985 OK 59, ¶ 17, 711 P.2d at 97 ("Court supervision over the welfare of children is equitable in character."); Ex parte Yahola , 1937 OK 306, ¶ 14, 180 Okla. 637, 71 P.2d 968, 972 (explaining that "the supervision of the courts over the custody and welfare of children is of itself equitable, and not strictly legal, in nature").

¶19 We have also long recognized that the right of custody and visitation is not bound to the strict confines of biological relation. Ex parte Yahola , 1937 OK 306, ¶ 5, 180 Okla. 637, 71 P.2d at 970 (the right of a biological parent to custody "is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child"). But, in the context of same-sex parentage, we have thus far allowed a non-biological parent standing to assert parental rights only in loco parentis . We have not presumed parentage for the non-biological parent in same-sex couples, but allowed the pursuit and validation of such rights only when there exists some prior agreement between the couple regarding the same-and only where the same-sex couple was "unable to marry legally" before Bishop and Obergefell . Ramey , 2015 OK 79, ¶ 2, 362 P.3d at 18. We can no longer say that this approach serves the best interests of the children of these relationships.

¶20 Indeed, "a person standing in loco parentis is one who acts 'in the place of a parent.' " United States v. Floyd , 81 F.3d 1517, 1524 (10th Cir. 1996). Consequently, in loco parentis status-at root, a legal fiction-is "by its very nature, a temporary status." Id . Temporary and uncertain parental status only exacerbates the frequency of cases like today's, and creates an inherently more unstable environment for the children of same-sex couples. Their children see them as mom or dad. The law should treat them as such.

¶21 While some states have enacted clear statutory reforms to address the ambiguities of same-sex parentage, others have relied on their common-law precedents and equitable powers to do so as well. The experience of these states provides a helpful and persuasive framework for Oklahoma, with the best interests of the child as our polestar. This holding is consonant with the constitutional protections guaranteed in Obergefell as well, for it ensures that children like J.L. will not "suffer the stigma of knowing their families are somehow lesser." 135 S. Ct. at 2590.

¶22 In announcing today's decision, we are mindful of the need to establish practical guidelines for state courts. We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate-by a preponderance of the evidence-that he or she has

• engaged in family planning with the intent to parent jointly
• acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and
• resided with the child for a significant period while holding out the child as his or her own child.

As always, a court shall assess these factors with the best interests of the child as its foremost aim. When a continuing relationship with the non-biological parent is in those best interests, a court must honor its validity and safeguard the perpetuation of that bond. In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g. , equitable estoppel.

¶23 A non-biological same-sex parent stands in parity with a biological parent. Once an individual has standing, the court shall adjudicate any and all claims of parental rights-including custody and visitation-just as the court would for any other legal parent, consistent with the best interests of the child.

Conclusion

¶24 Lori did not act in the place of a parent; she is a parent. The record in this case cannot reasonably be read otherwise. Lori has emphatically demonstrated standing to seek a determination of visitation and custody of J.L. under the Ramey test. Consistent with the best interests of children in similar scenarios, we hold that non-biological same-sex parents may attain complete parity with biological parents. The trial court's judgment is reversed. This matter is remanded for further proceedings consistent with this opinion.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT

¶25 Gurich, C.J., Kauger, Winchester, Edmondson, Colbert, Combs, JJ., Reif, S.J., and Bass, S.J., concur;

¶26 Darby, V.C.J., dissents (by separate writing).

DARBY, V.C.J., dissenting:

¶1 I agree with the majority that the Ramey test has been satisfied, Ramey v. Sutton , 2015 OK 79, ¶ 2, 362 P.3d 217, 218, and Lori has in loco parentis standing. I dissent from the rest of the majority opinion. The majority compares its expansion of rights and creation of guidelines as similar to our broadening Eldredge 's holding in Ramey . However, Ramey removed the requirement of an express, written co-parenting agreement between same-sex partners in a case where there was none. Here, the majority finds that all of the requirements for the requested in loco parentis standing are met. The majority then goes on to state that the Ramey test no longer serves the best interest of children and creates in its place guidelines the courts must follow for claims of parentage by a non-biological same-sex co-parent. This Court does not issue advisory opinions. Scott v. Peterson , 2005 OK 84, ¶ 27, 126 P.3d 1232, 1239. Therefore, I believe the Court should use judicial restraint in this matter and base the holding on the narrowest grounds possible.

      See Bishop v. Smith , 760 F.3d 1070 (10th Cir. 2014) (holding that Oklahoma's ban on same-sex marriage was an unconstitutional burden on same-sex couples' fundamental right to marry). We do not mean to be patronizing or overly familiar in referring to the parties by their first names. We do so as a convenience to the readers of this opinion and, "in part, to humanize a decision resolving personal legal issues which seriously affect [the parties'] lives." In re Marriage of Smith , 225 Cal.App.3d 469, 274 Cal. Rptr. 911, 913 n.1 (1990).

      --- U.S. ----, 135 S. Ct. 2584, 192 L.Ed.2d 609 (2015).

      760 F.3d 1070 (10th Cir. 2014).

      "The term 'in loco parentis' means in the place of a parent, and a 'person in loco parentis' may be defined as one who has assumed the status and obligations of a parent without a formal adoption." Workman v. Workman , 1972 OK 74, ¶ 10, 498 P.2d 1384, 1386, overruled on other grounds by Unah ex rel. Unah v. Martin , 1984 OK 2, 676 P.2d 1366 (quotations omitted); see also In re B.C. , 1988 OK 4, ¶ 19, 749 P.2d 542, 545 (same).

      Kevin has explained that he, Heather, and J.L. met on a monthly basis for approximately an hour at a time-unbeknownst to Lori and with no documentation of the same-throughout the first year after J.L.'s birth. During the course of these clandestine monthly meetings, he gave Heather several hundred dollars for J.L.'s support. Shortly after J.L.'s birth, Kevin and Heather had signed a document waiving any claims against Kevin for future child support. He testified that he provided these payments only out of a moral obligation.

      At the trial-court hearing on Lori's standing, Kevin testified that he has "[f]ive - six" children.

      In addition, "[w]hen resolving a public-law controversy, the reviewing court is generally free to grant corrective relief upon any applicable legal theory dispositive of the case." Russell v. Bd. of Cty. Comm'rs, Carter Cty. , 1997 OK 80, ¶ 10, 952 P.2d 492, 497 ; see also Eldredge v. Taylor , 2014 OK 92, ¶ 3, 339 P.3d 888, 890 (noting that same-sex partner's claim for custody and visitation implicates a question of public law).

      Neither Heather nor Kevin has appealed these determinations by the trial court.

      Oklahoma's Uniform Parentage Act, 10 O.S. §§ 7700-101 to 7700-902, was enacted in 2006 and appears to have in no way anticipated conflicts between biological and non-biological same-sex co-parents regarding the parental rights of children artificially conceived. Given that same-sex marriage would not even be legally recognized until nearly a decade after the Uniform Parentage Act's adoption, this omission is understandable. Still, this Court is left with "absolutely no textual indication" of how to proceed and "can derive no help from the textual analysis of the Act." State ex rel. Macy v. Bd. of Cty. Comm'rs of Cty. of Okla. , 1999 OK 53, ¶ 6, 986 P.2d 1130, 1135.

      See, e.g. , Frazier v. Goudschaal , 296 Kan. 730, 295 P.3d 542, 553 (2013) ; Mullins v. Picklesimer , 317 S.W.3d 569 (Ky. 2010) ; E.N.O. v. L.M.M ., 429 Mass. 824, 711 N.E.2d 886, 891 (1999) ("A child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent."); In re Parentage of L.B. , 155 Wash.2d 679, 122 P.3d 161, 173 (2005) ; In re Custody of H.S.H.-K. , 193 Wis.2d 649, 533 N.W.2d 419, 436 (1995).


author: OPINION BY P. THOMAS THORNBRUGH, JUDGE:

text:
    Candice MONTES, Plaintiff/Appellant, v. STATE of Oklahoma EX REL. OKLAHOMA DEPARTMENT OF HUMAN SERVICES, Restricted Registry Review Committee, Defendant/Appellee.
    Case No. 116,683
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED JUNE 26, 2019 Mandate Issued: July 24, 2019
    Ky D. Corley, BAKER, IHRIG & CORLEY, P.C., Stillwater, Oklahoma, for Plaintiff/Appellant
    Bonnie Clift, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF HUMAN SERVICES, Oklahoma City, Oklahoma, for Defendant/Appellee
   OPINION BY P. THOMAS THORNBRUGH, JUDGE:

¶1 Plaintiff, Candice Montes, seeks review of an order by the district court affirming a Department of Human Services (DHS) administrative hearing officer's (AHO's) decision that sustained the agency's decision to list Plaintiff's name on Oklahoma's child care "Online Restricted Registry" (Restricted Registry or Registry). For the reasons set forth below, we find the decisions by the trial court and DHS to list Plaintiff on the Registry are erroneous as a matter of law and must be vacated and set aside.

BACKGROUND

¶2 DHS is the state administrative agency required to establish and maintain the Restricted Registry pursuant to 10 O.S.2011 & Supp. 2018 § 405.3. This matter concerns the DHS Restricted Registry Review Committee's decision to list Plaintiff on the Registry following a finding by DHS that allegations of "lack of supervision and threat of harm" to a child while in Plaintiff's care were "substantiated."

¶3 The facts underlying the "substantiated" finding are largely undisputed. In August 2015, Plaintiff, the owner and director of a newly licensed child care facility in Yukon, inadvertently left a sleeping 3-year-old child in a locked vehicle after Plaintiff had returned to the facility and gone inside. Although the length of time the child was left unattended remains unclear, there was no evidence the child, who was awake and crying when he was found, sustained physical harm. The incident occurred on the first day of the school year and Plaintiff had picked the child up, along with several other children, from pre-school before returning to the facility to drop the children off. The children were "unloaded" by a facility worker while Plaintiff waited in the vehicle, and Plaintiff had then gone to Sonic and to make a drive-through bank deposit without realizing the child in question had mistakenly been left in the back seat. The temperature outside was in the low 70s, which was lower than normal for that time of year.

¶4 After receiving a referral about the incident and making an investigation, DHS child welfare service investigators prepared and submitted a report to the Canadian County District Attorney. The report reflected the investigators' conclusion that "[b]ecause [the child] was carelessly left in an unattended vehicle and made unsafe," the allegations against Plaintiff were "substantiated." Plaintiff did not appeal this finding. The district attorney did not file criminal charges.

¶5 DHS thereafter forwarded its report to the DHS Restricted Registry Review Committee (Committee), together with a copy of the notice sent to Plaintiff and a document indicating that Plaintiff had not appealed. DHS then informed Plaintiff that her name had been "proposed to be recorded" on the Restricted Registry based on "a substantiated or confirmed finding of abuse or neglect that occurred to a child(ren) while in the care of a licensed child care program."

¶6 Under DHS rules, an individual whose name is placed on the Registry-i.e., a "registrant"-is prohibited from ownership or licensure of, or employment in, a child care program as well as from "unsupervised access to children" in a program. Okla. Admin. Code (OAC) 340:110-1-10.1(a). A registrant may not seek removal from the Registry for at least 60 months. OAC 340:110-1-10.1(p).

¶7 Plaintiff appealed the Committee's decision to the DHS Appeals Unit, and an AHO heard the matter in January 2017. DHS called one witness, Jennifer Towell, who described her job as including oversight of the Registry. She stated that the Committee's decision to list Plaintiff was based on its consideration of the DHS investigative report, which was in evidence and included a description of the investigators' interviews with "collateral" witnesses who stated that Plaintiff attempted to "cover up" the incident primarily by instructing staff not to discuss it. Towell also said the Committee had access to the "full child welfare referral report," which was not in evidence, and also considered it significant that Plaintiff had not appealed DHS's "substantiated" finding. She said the Committee conducted no independent interviews with DHS investigators or the collateral witnesses, however. The document entered into evidence reflecting Committee members' votes does not make specific findings concerning criteria the Committee was required to consider. It is not clear from Towell's testimony whether those criteria were considered, and even if they were considered, how they factored into the Committee's decision.

¶8 Plaintiff called three witnesses, including herself. Plaintiff testified that she had not appealed the "substantiated" finding because she admitted that the child had been left in her car unattended, even though she disputed the two-hour time that DHS claimed the child was alone, and stated the time length was no more than 15 to 25 minutes. She said that a DHS investigative worker also told her that appealing the decision would be pointless because Plaintiff admitted the underlying incident; however, Plaintiff said she did not understand that her right to continue in the child care business could be lost.

¶9 Plaintiff also denied attempting to "cover up" the incident, but said she was told by her DHS child care licensing worker not to discuss the matter with anyone until the investigation was complete, and to tell her staff likewise. Plaintiff's other witnesses supported Plaintiff's contention that, after the incident, she took immediate and substantial steps to assure that the facility had more consistent policies and procedures in place to assure that all children were accounted for at all times, and that she had worked with child welfare officials to implement those policies.

¶10 At the close of the evidence, the AHO left the record open to allow Plaintiff to submit additional evidence to support her contention that the time the child was left unattended was no more than 15 to 25 minutes.

The transcript of the proceeding reflects confusion as to how the evidence was to be submitted and conveyed to the AHO, but both parties were then allowed to make supplemental, written "closing arguments" that refer to the evidence and are included in the administrative record. The AHO thereafter entered an order affirming the Committee's decision "based on [a] substantiated finding of abuse or neglect ... that occurred to a child while in the care of a licensed child care program," but making no further findings.

¶11 Plaintiff appealed to district court. After review of the administrative record, including a transcript of the proceeding before the AHO and the parties' briefs, the trial court affirmed the AHO's ruling, stating merely that DHS had acted "within [its] statutory authority" by placing Plaintiff's name on the Registry and there was "no error of law" in the proceedings. Plaintiff seeks review here.

STANDARD OF REVIEW

¶12 While the state Child Care Facilities Licensing Act and DHS rules provide for the right of appeal from an agency decision, the Act does not prescribe the standard of review to be used by the district court or by this Court. In addition, DHS is not required to comply with the Oklahoma Administrative Procedures Act's (OAPA's) Article II, governing individual proceedings. 75 O.S.2011 § 250.4(B)(2). However, this Court, noting that the Oklahoma Supreme Court has consistently recognized the Legislature's intent to provide uniformity in judicial review of administrative proceedings under the OAPA, has applied the OAPA standard in a child care facility licensing appeal. See Walker v. Okla. Dep't of Human Serv. , 2001 OK CIV APP 107, ¶¶ 4-5 and 9, 32 P.3d 881 (citing, inter alia, City of Tulsa v. State ex rel. Pub. Emp. Relations Bd. , 1998 OK 92, 967 P.2d 1214 ). The OAPA standard is fully set forth at OAPA §§ 318 through 322, and was described by the Supreme Court in its City of Tulsa opinion as follows:

Generally, an administrative decision ... should be affirmed if it is a valid order and the administrative proceedings are free from prejudicial error to the appealing party. An administrative order, however, is subject to reversal if an appealing party's substantial rights are prejudiced because the agency's decision is entered in excess of statutory authority or jurisdiction, or an order is entered based on an error of law.
Reversal is also appropriate if the agency's findings are clearly erroneous in view of the reliable, material, probative and substantial competent evidence in the record. As to factual questions, neither a district court [nor] this Court is entitled to substitute its judgment for that of the agency as to the weight of the evidence.

1998 OK 92 at ¶¶ 12-13, 967 P.2d 1214 (citations omitted); see also Agrawal v. Okla. Dep't of Labor, 2015 OK 67, ¶ 5, 364 P.3d 618 (order "is subject to reversal, ... if the appealing party's substantial rights were prejudiced because the agency's findings, inferences, conclusions or decisions were entered in excess of its statutory authority or jurisdiction, or were arbitrary, capricious, or clearly erroneous in view of the reliable, material, probative and substantial competent evidence").

ANALYSIS

¶13 Plaintiff contends the DHS decision to list her on the Restricted Registry is erroneous as a matter of law because it fails to reflect that the agency, at any step of the proceedings, applied the correct standard of review to the evidence. She further contends the decision was arbitrary and capricious because the record shows the Committee failed to consider the various factors required by DHS rules before placing Plaintiff's name on the Registry.

¶14 Title 10 O.S.2011 & Supp. 2018 § 406 authorizes DHS to investigate a complaint alleging a violation of the Child Care Facilities Licensing Act or any DHS licensing standard. Upon completing that investigation, under § 406(D), DHS "shall clearly designate its findings ... [which] shall state whether the complaint was substantiated or unsubstantiated." "Substantiated" is defined in the Oklahoma Children's Code within the Code's definition of "Investigation" at 10A O.S.2011 & Supp. 2018 § 1-1-105(39)(b)(1), as follows:

(1) "substantiated" means the Department has determined, after an investigation of a report of child abuse or neglect and based upon some credible evidence, that child abuse or neglect has occurred. [Emphasis added].

¶15 The meaning of "substantiated" found at 10A O.S. § 1-1-105 is incorporated into the statutory directive for DHS to establish and maintain the Registry, 10 O.S. 2011 & Supp. 2018 § 405.3, which also authorizes DHS to promulgate rules and procedures related to recording individuals on the Registry. The Registry itself is described at OAC 340:110-1-10.1. The rule provides that registration of an individual "may result" after review by the Registry Committee when a "substantiated finding" of abuse or neglect has been made as to a child in the care of a licensed facility. OAC 340:110-1-10.1(b). In addition, the Committee must consider a number of other factors:

(j) Restricted Registry Review Committee. The Restricted Registry Review Committee consists of six DHS staff and one OJA staff, who make a determination of registration within 30-calendar days of receipt of necessary information from Restricted Registry staff.
(1) Criteria considered for Restricted Registry registration include, the:
(A) individual's age at the time of the offense(s);
(B) length of time since the offense(s) occurred;
(C) number and types of offenses the individual was convicted for, or for findings made;
(D) circumstances surrounding commission of the offense(s) demonstrating willful intent;
(E) likelihood the individual will re-offend; and
(F) other documentation submitted indicating children's health, safety, and well-being are, or are not endangered.
(2) The Restricted Registry Review Committee standard to determine Restricted Registry registration by clear and convincing evidence includes consideration of:
(A) the individual's history of behavior likely to create a reasonable risk of harm to children; and
(B) if the individual is unsafe with children; either alone or in a group.

OAC 340:110-1-10.1(j) (emphasis added).

¶16 Thus, the rule is clear that the Committee's authority to list an individual on the Registry must be based on a decision both evaluated under, and supported by, the standard of "clear and convincing evidence." The same standard applies in proceedings governing appeals from the Committee's decision. Pursuant to OAC 340:2-5-119(a), the standard of review applicable to an AHO's review of a DHS action is whether the DHS decision "is supported by clear and convincing evidence and not contrary to the applicable law." Under subpart (b) of the same rule, the burden of proof is on "DHS to show that [a] person should be recorded on the Child Care Restricted Registry." DHS rules define "clear and convincing evidence," in turn, as "the degree of proof that produced in the AHO a firm belief as to the truth of the allegation sought to be established." OAC 340: 2-5-112.

¶17 Here, the administrative record shows on its face that neither the Committee nor the AHO considered any factor other than that DHS deemed "substantiated" the allegation of abuse or neglect by Plaintiff. This is tantamount to allowing a DHS "substantiated" finding, in and of itself, to warrant listing on the Registry. A substantiated finding, however, need only be supported by "some credible evidence," which obviously is not equivalent to "clear and convincing evidence." Allowing a listing on the Registry based solely on a "substantiated" finding runs counter to DHS's own rules, which clearly contemplate that other factors be taken into account when such a decision is made-signaling that a "substantiated" finding alone, whether appealed or not, is insufficient.

¶18 Although this Court may not substitute its own judgment for that of the agency on questions of fact, we may reverse or set aside an administrative order "if an appealing party's substantial rights are prejudiced because the agency's decision is entered in excess of statutory authority or jurisdiction, or an order is entered based on an error of law." City of Tulsa , 1998 OK 92 at ¶ 12, 967 P.2d 1214. A party also may obtain relief from an administrative decision upon a showing to this Court that the "substantial rights of the appellant ... have been prejudiced because the agency findings, inferences, conclusions or decisions are ... arbitrary or capricious." State ex rel. Bd. of Trustees of Teachers' Ret. Sys. v. Garrett , 1993 OK CIV APP 29, ¶ 6, 848 P.2d 1182 (footnote omitted). "Arbitrary and capricious" is defined as action which is "willful and unreasonable without consideration or in disregard of facts or without determining principle," or "unreasoning ... in disregard of facts and circumstances." Id. ; see also NVI, LLC v. Okla. Dep't of Envtl. Quality , 2012 OK CIV APP 30, ¶ 8, 276 P.3d 1069.

¶19 We find that the record here shows the agency-at both the Committee and Appeals Unit level-went outside its authority and erred as a matter of law in failing to apply the correct standard of review to the evidence presented by DHS and, at the Appeals Unit level, by Plaintiff-to the extent that, from what appears on the record-it ignored the factors required by DHS rules. We thus hold the agency acted arbitrarily and capriciously by disregarding the requirements of DHS rules, and erred as a matter of law by applying the wrong standard to the evidence as to whether Plaintiff's name should be placed on the Registry. Consequently, we hold that the trial court erred in affirming the DHS decision, and vacate the district court's order. Pursuant to 10 O.S.2011 § 408(B), we hold that the DHS decision to place Plaintiff's name on the Restricted Registry also must be set aside.

CONCLUSION

¶20 The decision by DHS to place Plaintiff's name on the Restricted Registry was arbitrary and capricious and erroneous as a matter of law, and must be set aside. Consequently, the district court's order affirming the DHS decision also was in error, and must be vacated.

¶21 DISTRICT COURT ORDER VACATED; AGENCY ORDER SET ASIDE .

FISCHER, P.J., and GOODMAN, J., concur.

      This procedure is allowed by OAC 340:2-5-117(a)(1).

      Title 10 O.S.2011 & Supp. 2018 §§ 401 through 418.

      Title 10 O.S.2011 § 408, governing appeals from DHS administrative decisions that deny or revoke a child care facility license, is made applicable to appeals from DHS decisions to list an individual or facility on the Restricted Registry under DHS's administrative rules. See OAC 340:2-5-110. Section 408 states:
      A. Any licensee or applicant aggrieved by the decision of the Department of Human Services ... may, within ten (10) days after the revocation or denial of the license, appeal to the district court of the county in which the child care facility is maintained and operated ...
      B. The licensee or applicant shall, within twenty (20) days of the filing of the appeal, file with the clerk of such court a transcript of the proceedings .... [and] [t]he district court shall thereupon be vested with jurisdiction to review the proceedings of the Department; provided that, if the Department prevails, the judgment of the district court shall be that the decision of the Department be affirmed, and if the licensee or applicant prevails, the judgment of the court shall be that the revocation be set aside or the license issued or renewed, as the case may be. ...

      Title 10A O.S.2011 & Supp. 2018 §§ 1-1-101 through 1-9-122.

      Though the "Definitions" section of the Oklahoma Children's Code has been amended several times, this definition of "substantiated" has remained unchanged since June 2012, and the requirement that a "substantiated" finding be based on "some credible evidence" has been in the statute since July of 2009. When child abuse or neglect is substantiated, the Department may recommend: "(a) court intervention if the Department finds the health, safety, or welfare of the child is threatened, or (b) child abuse and neglect prevention- and intervention-related services for the child, parents or persons responsible for the care of the child if court intervention is not determined to be necessary[.]" Title 10A O.S. Supp. 2018 § 1-1-105(39)(b)(1).