author: ADAMS, Presiding Judge:

text:
    2002 OK CIV APP 94
    Richard M. STEINBERG, Plaintiff/Appellant, v. Alice FRENTZ, Defendant/Appellee.
    No. 95,559.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    May 29, 2002.
    Certiorari Denied Sept. 24, 2002.

      Jon L. Hester, Scott A. Hester, Hester & Hester, Oklahoma City, for Plaintiff/Appellant.
    James A. Kirk, Jennifer S. Alger, Kirk & Chaney, Oklahoma City, for Defendant/Ap-pellee.
   OPINION

ADAMS, Presiding Judge:

¶ 1 Richard Steinberg appeals a trial court order dismissing his claim for visitation with C, the child of Alice Frentz, to whom Steinberg was married from 1990 until 1999. Steinberg made no allegation that Frentz was unfit as a parent but alleged that C would be harmed if Steinberg was not allowed to exercise court-ordered visitation with C. Ruling on a motion to dismiss filed by Frentz, the trial court concluded Stein-berg lacked standing to enforce visitation under any set of facts which might be proven in support of his petition and amended petition. Because we agree that under current Oklahoma law the trial court could not have granted visitation to Steinberg, we affirm.

¶2 We recognize, as argued by Stein-berg, that a motion to dismiss does not test the facts regarding a claim but the law that governs the claim. We may affirm the trial court’s order only if we determine that Stein-berg would not be entitled to relief “under any set of facts that could be established consistent with the allegations.” Boren v. Thompson & Associates, 2000 OK 3, ¶ 25, 999 P.2d 438, 447.

¶ 3 Citing Looper v. McManus, 1978 OK CIV APP 26, 581 P.2d 487, and cases from other jurisdictions, Steinberg argues the trial court should have allowed him the opportunity to prove that it was in C’s best interest to continue a relationship with him and that C would be harmed by being deprived of his company. In Looper, another division of this Court affirmed an order for visitation in favor of the child’s paternal grandparents and a former stepmother who had been the primary caretaker of a child for several years. Its discussion regarding visitation with the former stepmother is unsupported by any citation to authority for such an award of visitation and contains virtually no analysis of the policy judgment involved in allowing someone other than a parent to judicially impose a continued relationship with the child over the objections of the parent.

¶4 Moreover, Steinberg’s argument and Looper are inconsistent with Oklahoma precedent, decided after Looper, which ties a right to enforce visitation to a right to custody, in the absence of statutory provision. The Oklahoma Supreme Court addressed this principle in the context of grandparental visitation in Leake v. Grissom, 1980 OK 114, ¶ 8, 614 P.2d 1107, 1110:

The right of a parent to the companionship, care, custody and management of his/her child is a basic fundamental right protected by the United States and Oklahoma Constitutions. The right of visitation in the absence of a statute derives from the right to custody. A grandparent who has no right to the custody of the child is not entitled to an award of visitation rights. A parent is under no legal obligation to permit a child to visit its grandparents in the absence of a statute. This Court is not insensitive to the yearning of grandparents for the company of their grandchildren. However, this longing may not be translated into a legal right in the absence of a statute dictating visitation. (Footnote omitted, emphasis added.)

¶ 5 The Court reiterated this view in Ju~ lien v. Gardner, 1981 OK 54, ¶2, 628 P.2d 1165,1166:

Under common law, grandparents did not have the legal right to visit their grandchildren if the parents chose to prohibit the visitation, and their right to visitation was not subject to judicial enforcement. The right to visitation derives from the right to custody. A parent is under no legal obligation to permit a child to visit his/her grandparent; a grandparent, absent a custodial right, is not entitled to an award of visitation privileges in the absence of a statute. (Emphasis added.) ■

This principle, visitation is tied to the right to custody, still appears to be valid Oklahoma law, even if it was somewhat muddied by dicta in In re Bomgardner, 1985 OK 59, 711 P.2d 92, which suggested that grandparents might have some claim to the companionship of their grandchild in absence of a statutory provision.

¶ 6 The Bomgardner Court did not apply any such “equitable” principle to reverse a trial court’s decision denying grandparental visitation, but used an extensive statutory analysis to conclude that the Legislature intended the grandparental visitation statute, 10 O.S.1981 § 5, to apply to any circumstances in existence at the time it was enacted. The Court concluded that the grandparents in question were not limited to the statutory provisions in place at the time of the death of the children’s mother, their daughter, but could take advantage of statutory provisions enacted after the father gained custody of the children after the mother’s death. More significantly, despite recognizing the existence of Julien, the Court did not overrule that decision.

¶ 7 Even if we might conclude that Bom-gardner represented a retreat by the Court, under the limited circumstances presented there for grandparental visitation, from its commitment by Leake and Julien to leaving to the Legislature decisions concerning what persons should have the ability to judicially enforce the right to a relationship with a child over the objections of parents, nothing suggests we can extend that decision to the circumstances presented here. To do so would require us to ignore the principle recognized in Leake and Julien by the OHa-homa Supreme Court.

¶ 8 We, like the trial court, decline to follow Looper, and conclude that Steinberg’s right to enforce visitation, in the absence of any allegation that he is entitled to custody because Frentz is unfit, depends on OHa-homa’s statutory provisions, which do not provide for such visitation. Because we so conclude, we need not reach the validity of Frentz’s argument that granting such visitation would violate her constitutional rights as a parent. The trial court’s order is affirmed.

AFFIRMED

JOPLIN, V.C.J., concurs; and JONES, J., dissents.


source: Caselaw Access Project

author: ADAMS, J: MITCHELL, J.,

license: Public Domain

text:
    2002 OK CIV APP 93
    Joanne SAGONA, Plaintiff/Appellant, v. SUN COMPANY, INC., Defendant/Third Party Plaintiff/Appellee, v. DHA Facilities Management Group, Inc., Third Party Defendant.
    No. 94,701.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    May 31, 2002.
    Certiorari Dismissed Sept. 24, 2002.

      James R. Hicks, Morrel, West, Saffa, Craig & Hicks, Inc., Tulsa, for Plaintiff/Appellant.
    Robert P. Redemann, Michael F. Smith, Rhodes, Hieronymous, Jones, Tucker & Gable, P.L.L.C., Tulsa, for Defendant/Third Party Plaintiff/Appellee.
   OPINION

ADAMS, J:

¶ 1 Joanne Sagona appeals a trial court judgment accepting a jury verdict in favor of Sun Company, Inc. (Sun) in her action for damages arising out of injuries she allegedly sustained when the doors to an elevator in Sun’s office building closed on her left wrist as she was attempting to keep the doors open. Sagona’s sole allegation of error on appeal is that the trial court erred in treating her as a licensee rather than an invitee and therefore improperly instructed the jury with regard to Sun’s duty of care. Because we agree that Sagona was an invitee in Sun’s building, we reverse and remand for new trial.

¶ 2 The essential facts are not in dispute. Sun owned the building where the injuries occurred. Sagona was allegedly injured after she left her husband’s office where she had come to meet him for lunch. Sagona’s husband was admittedly Sun’s tenant. Because he was in a meeting when she arrived, her husband asked her to wait for him downstairs. 'After she entered the elevator to descend from the ninth floor, on which her husband had his office, she stuck her hand against the elevator doors to keep them open because she believed she heard someone else approaching the elevators to get on. However, the doors closed anyway, trapping her hand and wrist.

¶ 3 Sagona presented evidence and argued at trial that the elevator was unsafe because the safety bumpers did not function properly and that Sun knew or should have known of that condition and corrected it or warned her about it. According to that evidence, the danger in the elevator was common knowledge to the building’s tenants, and those who worked in the building and Sun had not performed any tests on the safety bumpers for more than a year prior to this incident. Over Sagona’s objection, the trial court told the jury that Sagona was a licensee and instructed the jury on Sun’s duty of care by using OUJI-CIV 11.13. Under that instruction, Sun would be liable only if Sago-na proved by a preponderance of the evidence that Sun “actually” knew about the danger presented by the elevator.

¶4 Sagona asked the trial court to tell the jury that she was an invitee and instruct the jury on Sun’s duty by using OUJI-CIV 11.10. Under that instruction, Sun could be liable if the jury concluded Sun should have discovered the danger by the exercise of reasonable care. Therefore, the trial court’s decision on Sagona’s status effectively eliminated consideration of all of Sagona’s evidence concerning lack of testing.

¶ 5 This significant difference between the standard by which the jury evaluated Sun’s conduct under the trial court’s instructions and the standard by which Sagona argues the jury should have evaluated that conduct supports the conclusion that the trial court’s decision to treat Sagona as a licensee rather than as an invitee, if incorrect, was prejudicial to Sagona and would be cause for reversal. See Bouziden v. Alfalfa Electric Cooperative, Inc., 2000 OK 50, 16 P.3d 450.

¶ 6 Sun premised its argument that Sago-na was a mere licensee on undisputed evidence that she was there, not to conduct business with Sun, but to have lunch with her husband. This argument ignores the commercial purpose inherent in the landlord/tenant relationship between Sun and Sagona’s husband.

¶ 7 English v. Thomas, 1915 OK 371, 149 P. 906, addressed a similar situation. Thomas, a newspaper carrier, was injured on premises owned by English. Thomas was in the building owned by English to deliver newspapers to subscribers who were tenants of English. The Court rejected the argument that Thomas was only a licensee, but treated him as an invitee and concluded that English owed him the same duty he owed his tenants.

¶ 8 This view is also consistent with the status accorded the plaintiff in Ross v. Otis Elevator Company, 1975 OK 105, 539 P.2d 731. Although the Court was not confronted with deciding between the plaintiffs status as licensee or invitee, the Court concluded that the plaintiff, who was in the building to visit a tenant, was an invitee of the building owner.

¶ 9 The Oklahoma Supreme Court discussed the distinction between a licensee and an invitee in McKinney v. Harrington, 1993 OK 88, ¶ 8, 855 P.2d 602, 604.

An invitee is one who possesses an invitation to be upon the premises, express or implied. St. Louis-San Francisco Ry. Co. v. Williams, 176 Okl. 465, 56 P.2d 815 (1936). Where there is a common interest or mutual advantage an invitation is inferred, C.R. Anthony Co. v. Williams, 185 Okl. 564, 94 P.2d 836 (1939), and thus the term “business invitee” is frequently used. To be given licensee status, as Defendant urged below, Plaintiff must have been on the premises for his own benefit, for purposes in which the owner had no financial or other interest. Brewer v. Independent School District No. 1, [1993 OK 17, 848 P.2d 566]; Foster v. Harding, 426 P.2d 355 (Okla.1967). (Emphasis added).

¶ 10 The record contains no evidence of any express invitation by Sagona’s husband. However, the only reasonable inference from the evidence is that Sagona was on Sun’s premises for the mutual benefit of herself and her husband, and an invitation was implied.

¶ 11 Even the Restatement of Torts, 2d, which concludes in § 330(h) that an invited social guest is only a licensee, states in § 332(k), p. 181:

A person may be a business visitor of a lessor of land although he is merely a gratuitous licensee of the lessee. Thus, the lessor of an apartment in an apartment house or of an office in an office building, who retains the control of the halls, stairways, and other approaches to the apartment or office, holds such parts of the premises open to any person whom his lessee may choose to admit, irrespective of whether the visit of such a person is for his own or the lessee’s business purpose or whether he comes as a mere social guest of other licensee of the tenant.

¶ 12 Based on the undisputed evidence in this record, the trial court erred in concluding Sagona was a licensee and instructing the jury concerning Sun’s duty in accordance with that erroneous conclusion. The trial court’s judgment is reversed, and the case is remanded for new trial consistent with this opinion.

REVERSED AND REMANDED

HANSEN, P.J., concurs.

MITCHELL, J., dissents with separate opinion.

MITCHELL, J.,

dissenting.

¶ 1 I disagree with the majority. I believe Appellant was a licensee on the premises and the jury was correctly instructed.

¶ 2 The evidence reflects that Appellant was on Appellee’s premises to pick up her husband, a tenant in Appellee’s building, for lunch. There was no business or commercial interest or significance to Appellant being in the building. That being the case, Appellant does not qualify for invitee status.

¶ 3 The definitions of “invitee” and “licensee” are set forth in the Oklahoma Uniform Jury Instructions (Civil), Second Edition:

OUJI — CIV. No. 11.3 INVITEE — DEFINED

An invitee is one who is on the premises at the express or implied invitation of the [owner/occupant] thereof for some purpose in which the [owner/occupant] has some interest of business or commercial significance, which business may be of mutual interest, or in connection with the [owner/occupant’s] business.

OUJI — CIV. No. 11.8 LICENSEE — DEFINED

A licensee is one who is on the premises of another by [tolerance/permission, express or implied] of the [owner/occupant] thereof for purposes in which the [owner/occupant] has no business or commercial interest.

These instructions were approved for use by the Oklahoma Supreme Court in 1981 and again in 1993.

¶4 The trial court declined to instruct the jury that the Plaintifi7Appellant was an invitee. This was proper because Appellant, at the time she was injured, clearly did not fit within the above definition of invitee. The facts of this case, however, place Appellant squarely within the above definition of licensee. It would more likely have been error for the trial court to instruct the jury other than as it did. I respectfully DISSENT.

      . Sun dismissed its third party claim against DHA Facilities Management Group', Inc. prior to trial.'

      . That instruction, which the trial court adapted to reflect Sagona’s gender and Sun’s status, provides:
      The [owner/occupant] of premises has a duty to a licensee, whose presence on the premises is known or reasonably should be known, not to injure [him/her] 1) by a willful or wanton act, or 2) by needlessly exposing [him/her] to danger by a failure to warn of any hidden danger on the premises that is known to the [owner/occupant] and that the licensee is not likely to discover by [himself/lierself]. This duty is limited to any hidden danger that the [owner/occupant] actually knows about, and the [owner/occupant] has no duty to inspect the premises for hidden dangers.
      (Brackets in original).

      .This instruction provides:
      It is the duty of the [owner/occupant] to use ordinary care to keep [his/her/its] premises in a reasonably safe condition for the use of [his/ her/its] invitees. It is the duty of the [owner/occupant] either to remove or warn the invitee of any hidden danger on the premises that the [owner/occupant] either actually knows about, or that [he/she/it] should know about in the exercise of reasonable care, or that was created by [him/her/it] [or any of [his/her/its] employees who were acting within the scope of their employment]. This duty extends to all portions of the premises to which an invitee may reasonably be expected to go.
      (Brackets in original).

      . Sun does not suggest that this trial court decision was insignificant to the outcome or might constitute "harmless error."

      . Section 332 of the Restatement of Torts, 2d, which is entitled “Invitee Defined," also includes comment g, P. 180, which states, in pertinent part:
      It is not necessary that the visitor shall himself be upon the land for the purposes of the possessor’s business. The visit may be for the convenience or arise out of the necessities of others who are on the land for such a purpose. Thus, those who go to a hotel to pay social calls upon the guests ... are business visitors, since it is part of the business of the hotelkeeper ... to afford the guest ... such conveniences.

      . Because we are bound by Oklahoma precedent, we need not consider Sun’s argument that we should follow the cases it cites from other jurisdictions. However, we do note that each of those cases involved a visitor to someone alleged to be an employee of the defendant, and none involved a tenant’s invitee.


author: MITCHELL, J.

text:
    2002 OK CIV APP 97
    Donna HILL, Plaintiff/Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 25 OF ADAIR COUNTY, Oklahoma, a.k.a. Stilwell Public Schools, and Floyd Cox, Jr., Betty Barker, Hiram McFarland, Mary Stilwell, Mike Pinkerton, and Gerald Whit, in their official capacity as members of the Board of Education of Independent Schools District No. 25 of Adair County, Oklahoma, a.k.a. Stilwell Public Schools, Defendants/Appellees.
    No. 96,306.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 6, 2002.
    As Corrected Nov. 5, 2002.

      Todd Hembree, Stilwell, for Plaintiff/Appellant.
    J. Douglas Mann, Jerry A. Richardson, Tulsa, Lloyd E. Cole, Stilwell, for Defendants/Appellees.
   MITCHELL, J.

¶ 1 After a due process hearing, Appel-lee, Stilwell School District, dismissed a career teacher, Appellant, Donna Hill, who served as a certified high-school guidance counselor, on the grounds of moral turpitude and willful neglect of duty. Following the hearing, Hill filed a petition in the district court for a trial de novo. Finding Hill had falsified certain entries on the transcripts of several students, including that of her own daughter, and that such acts constituted willful neglect of duty and moral turpitude, the trial court sustained School District’s decision to dismiss Hill. We affirm.

Factual and Procedural Background

¶ 2 Acting upon teacher concerns about favoritism, the new Superintendent of the Stilwell School District, Dr. W. Neil Morton, appointed a faculty committee to investigate the integrity of academic records at Stilwell High School. One of the projects the committee undertook was to compare student transcripts with the final marks in teachers’ grade books. Recording students’ grades was apparently one of Hill’s responsibilities as counselor.

¶ 3 The committee discovered one instance of a student’s final grade being changed from an “F” to a “D-” in a required Senior English course; without this grade change, the student would not have been eligible to graduate. The committee also found that Hill posted a grade on another student’s transcript for an Advanced Sociology course, a class not offered at Stilwell High School. Although Leon Hill, principal of Stil-well High School and husband of Appellant, Donna Hill, was the purported teacher of this class, the committee could find no evidence to show such a course had ever been taught at the school.

¶ 4 The committee further discovered that Hill had favored her daughter, a student at Stilwell High School, in connection with her daughter’s switch from a chemistry class to a home economics class eleven weeks into the eighteen week semester. Hill’s daughter received a final grade of “A” in the home economics class even though her chemistry grade, a “C-,” should have been averaged with her home economics grade, making a final score of “A” a mathematical impossibility. Hill also changed her daughter’s transcript to reflect that she had taken two nonexistent courses. During the 1998-99 school year, Hill’s daughter took the same home economics class, Food & Nutrition, two periods in a row in the fall and then signed up for back-to-back Clothing classes in the spring. Hill altered her daughter’s official transcript to show that her daughter had taken two different classes: Food & Nutrition I and Food & Nutrition II in the first semester, and Clothing I and Clothing II in the second. Food & Nutrition II and Clothing II áre not offered at Stilwell High School. Finally, Hill failed to assign credit points on her daughter’s transcript for a particular class, thereby artificially enhancing her daughter’s overall grade point average.

¶ 5 The committee notified Superintendent Morton of these findings in two separate reports concerning the integrity of student records at the school. On October 30, 2000, the superintendent notified Hill that he had made a recommendation to the Board of Education that she be dismissed from her employment for willful neglect of duty. Hill’s due process hearing was originally scheduled for November 9, 2000, but was subsequently passed to January 10, 2001, to accommodate the holiday travel plans of Hill’s counsel who had recently experienced a death in the family. Prior to November 9, 2000, School District provided Hill’s counsel with copies of the- committee’s reports, which detail the facts set forth above upon which the superintendent based his dismissal recommendation. On December 29, 2000, Superintendent Morton notified Hill through her attorney that he was amending the notice of termination to include the additional statutory ground for dismissal of moral turpitude. 70 O.S.2001 § 6-101.22(A).

¶ 6 When the Board of Education convened on January 10, 2001, Hill’s counsel objected to holding the due process hearing that day, arguing that Hill had not received the statutory minimum of twenty days in which to prepare a defense to the newly-added moral turpitude charge. The school board agreed to postpone the hearing until January 30, 2001, more than thirty days after Hill received notice of the additional ground for dismissal. At the conclusion of January 30th due process hearing, the Board voted to dismiss Hill from her employment with the Stilwell School District.

¶ 7 Hill petitioned the District Court of Adair County for a trial de novo pursuant to 70 O.S.2001 § 6-101.27. After a briefing cycle, the trial court heard oral arguments at which Hill’s attorney declared that he and his client “stand on the transcript of the due process hearing.” In an order dated May 9, 2001, the trial court affirmed the Board’s decision to dismiss Hill. .

Standard of Review

¶ 8 “Because the Teachers Due Process Act statutorily modifies the common law at-will employment doctrine, we review the findings of fact of the trial court as if it were a law action tried to the court and give those findings of fact the same great deference we give those rendered by a jury.” Andrews v. Independent Sch. Dist. No. 57, 2000 OK CIV APP 103, ¶ 3, 12 P.3d 491, 493; see also Hawzipta v. Independent Sch. Dist. No. I-004. of Noble County, 2000 OK CIV APP 113, ¶ 10, 13 P.3d 98, 100-01. “We do not reweigh the trial court’s findings of evidentiary matters.... Even though the evidence may conflict, the appellate court is bound by the fact finder’s assessment of it, absent legal error. A verdict which is supported by conflicting but competent evidence will not be disturbed on appeal.” Hawzipta, ¶ 10, 13 P.3d at 101, citing Mitchell v. Ford Motor Credit Co., 1984 OK 18, 688 P.2d 42.

Analysis and Review

¶ 9 Hill asserts the Stilwell School District violated the Teacher Due Process Act, 70 O.S.2001 § 6-101.20 et seq. by: (1) failing to give her proper notice of the factual basis for its termination recommendation; (2) failing to admonish her and/or provide a reasonable amount of time for her to improve; (3) failing to give her sufficient time to respond to the charge of moral turpitude; and, (4) denying her a fair due process hearing by allowing testimony regarding certain facts pertaining to her husband’s alleged misconduct during her hearing and by permitting the Superintendent’s attorney to be present during the school board’s deliberations. Hill further claims the evidence presented fails to support a charge of moral turpitude. In sum, Hill raises several technical due process challenges to the school board’s decision and, secondarily, challenges the sufficiency of evidence supporting a finding a moral turpitude.

¶ 10 Article VI of Oklahoma’s School Code defines a “teacher” as “a duly certified or licensed person who is employed to serve as a counselor, librarian or school nurse or in any instructional capacity.” 70 O.S.2001 § 6-101.3. Dismissal is “the discontinuance of the teaching service of an administrator or teacher during the term of a written contract,” whereas nonreemployment is “the nonrenewal of an administrator’s or teacher’s contract upon expiration of the contract.” Id. Subsection 6-101.22 of The Teacher Due Process Act of 3.990 lists willful neglect of duty and moral turpitude as two of seven grounds for dismissal or nonreemployment.

¶ 11 Subsection 6-101.26(A) of the Teacher Due Process Act provides when a superintendent recommends the dismissal of a teacher, the board of education must mail a copy of the recommendation to the teacher, specifying the statutory grounds and underlying facts supporting the recommendation, and notifying the teacher of her right to a hearing before the board. In addition, the hearing must take place no sooner than twenty days or later than sixty days after the teacher’s receipt of the notice. 70 O.S.2001 § 6-101.26(A).

¶ 12 The notice Hill received in October, 2000, stated the recommendation for her dismissal was “based upon underlying facts in that you have willfully neglected your contractual and professional duties and responsibilities in dispensation and publication of student grades.” Within ten days of the notice, Hill’s attorney received copies of the faculty committee’s two reports on the integrity of student records at the school, which set forth in detail the specific instances of transcript alterations for which Hill was allegedly responsible.

¶ 13 While Hill claims that these communications were not specific enough to comply with 70 O.S.2001 § 6-101.26(A), she fails to allege how she was in any way prejudiced thereby. To the contrary, the notice, with the reports that followed several days later were very specific. Hill’s attorney had ample opportunity to interview whomever he wanted and review any and all pertinent documents in preparing his client’s defense.

¶ 14 As for the subsequent moral turpitude charge, it was based on the same facts as the willful neglect of duty charge. Hill has failed to show how she was prejudiced by the lack of specificity in the notice of the additional charge. The moral turpitude charge did not require any further discovery. Even if it had, the school board agreed to postpone the hearing date from January 10, 2001, to January 30, 2001, thereby providing Hill with more time than- the twenty-day statutory minimum during which to prepare her defense. Without evidence of prejudice, these facts simply do not support Hill’s claim that the Stilwell School District violated the Teacher Due Process Act by failing to supply her with adequate notice of the underlying facts or give her sufficient time in which to prepare her defense.

¶ 15 Hill next claims Stilwell School District violated subsection 6-101.24(D) of the Teacher Due Process Act by failing to admonish her and give her time for improvement prior to recommending her dismissal. The Act provides that school administrators who identify the sort of poor performance on the part of a teacher that could lead to a termination recommendation for willful neglect of duty shall “[ajdmonish the teacher, in writing, and make a reasonable effort to assist the teacher in correcting the poor performance or conduct” and “[establish a reasonable time for improvement, not to exceed two (2) months, taking into consideration the nature and gravity of the teacher’s performance or conduct.” 70 O.S.2001 § 6-101.24(A). “The purposes of the admonishment statute are to prevent arbitrary and unreasonable teacher evaluations by principals and to provide assistance for teachers with remedia[ble] classroom problems.” Jackson v. Independent Sch. Dist. No. 16 of Payne County, Okla., 1982 OK 74, ¶ 4, 648 P.2d 26, 29.

¶ 16 It is well-settled that career teachers who are found to have committed acts demonstrating moral turpitude are not entitled to the admonishment and reasonable time for improvement provided for in 70 O.S.2001 § 6-101.24. House v. Independent Sch. Dist. 1-29 of Muskogee County, 1997 OK 35, ¶ 16, 939 P.2d 1127, 1131 (noting that moral turpitude is not one of the five grounds for dismissal listed in the admonishment statute). While teachers who have remediable teaching performance problems that could result in dismissal for willful neglect of duty are entitled to admonishment, those whose dismissals are based on specific, irremediable instances of misconduct are not. See Harjo v. Board of Ed. of Ind. Sch. Dist. No. 7, 1999 OK CIV APP 35, 976 P.2d 1096 (a probationary teacher who was terminated for misconduct including altercations with parents, breach of student confidentiality, use of profane, sexist language, and intimidation of both faculty and students was not entitled to an admonishment and time for improvement because his dismissal was based on misconduct, not teaching problems). Although the Harjo case involved a probationary teacher, the reasoning applies to career teachers as well.

¶ 17 Given that Hill served as a guidance counselor at Stilwell High School, her dismissal was not based on teaching deficiencies or other remediable classroom problems. Rather, it was supported by discrete instances of misconduct, namely, altering students’ transcripts. Hill’s acts exhibited dishonesty, a lack of respect for the sanctity of school records, and a tendency toward favoritism.

¶ 18 The Supreme Court has recognized “the nature of the problems may well have a definite bearing on what can reasonably be expected from the administration in the way of assistance,” and that certain problems do not “lend themselves to assistance or to a program for improvement.” Childers v. Independent Sch. Dist. No. 1 of Bryan County, 1981 OK 123, ¶ 14, 645 P.2d 992, 995. It is doubtful that dishonesty and favoritism are the type of performance deficiencies the legislature envisioned in drafting the admonishment statute. Furthermore, where a career teacher’s misconduct qualifies both as willful neglect of duty (which typically requires admonishment) and as moral turpitude (which does not), it was surely not the intention of the legislature to hamper a school’s ability to dismiss a deceitful teacher by forcing it first to go through the pointless act of admonishment and assistance toward improvement. For these reasons, Hill’s claim that the Stil-well School District violated the Teacher Due Process Act by failing to admonish her consistent with 70 O.S. § 101.24 is without merit.

¶ 19 Hill further argues the Stilwell School District denied her a fair due process hearing when it “unfairly combined [her hearing] with that of her husband who was being terminated as principal of Stilwell High School” and allegedly allowed the school board’s attorney to sit in on the closed meeting in which the decision to dismiss Hill was made. First, the school board did not combine Hill’s hearing with that of her husband, but held them consecutively on the same day. This schedule was the result of Hill’s request to postpone the January 10, 2001 hearing so she would have more time in which to prepare her defense. Second, Hill’s claim that the board allowed testimony at her hearing pertaining to her husband’s alleged misconduct is insufficient to show a denial of due process. The testimony to which Hill points involved her own misdeeds and only peripherally touched on her husband. Third, Hill offers no proof whatsoever in support of her claim that the attorney for the school board sat in on its closed meeting, and no legal support for why or how such an action would be improper.

¶20 Finally, any due process com cerns Hill may have had regarding her hearing before the school board were cured by the de novo review of the trial court. See Cooper v. Williamson County Bd. of Ed., 746 S.W.2d 176, 183-84 (Tenn.1987) (“any arbitrariness or capriciousness on the part of board is cured by the trial de novo in which the trial court “redetermines the merits of the charges and decides whether a board’s actions were justified by the evidence” and “readjudicatefs] the matter in a neutral forum”). Indeed, a trial de novo means “trial of entire case anew, as if no action had been instituted in a court below.” Prudential Ins. Co. of America v. Prudential Life and Casualty Co., 1962 OK 184, ¶47, 377 P.2d 556, 564. Accordingly, Hill’s allegations of technical violations of the Teacher Due Process Act are without merit.

¶ 21 Hill’s last point of error is that there was insufficient evidence to support the charge of moral turpitude against her. “Moral turpitude broadly defined is any conduct contrary to justice, honesty, and good morals. Moral turpitude implies something immoral in itself regardless of whether it is punishable by law. The doing of the act itself, and not its prohibition by statute determines the moral turpitude. The elements of intent and knowledge are regarded as important, and if the wrong is unintentional or if the act is made improper by statute without regard to the mental element, it is not moral turpitude.” Kelley v. City of Tulsa, 1977 OK 160, ¶ 5, 569 P.2d 455, 457.

¶ 22 The trial court found that Hill’s falsification of student records, favoritism toward her daughter, and failure to maintain the integrity of the official student records of the Stilwell High School constitute lawful cause to dismiss Hill on moral turpitude grounds. We agree. Her conduct clearly fits the definition of moral turpitude. That conduct was also irremediable; the damage already done. Mindful of the great deference with which we review the trial court’s findings of fact, and the absence of any legal error herein, we find the trial court’s conclusion that Hill was properly dismissed for moral turpitude well supported by competent evidence.

¶ 23 As a final matter, we note Hill’s filing of an Appendix to the Brief of the Appellant, as well as the Supreme Court’s March 22, 2002 Order directing Hill to show cause why such Appendix should not be stricken pursuant to Oklahoma Supreme Court Rules, Tit. 12, Ch. 15, App. 1, Rule 1.11. Because Hill failed to respond and show cause as directed by the Supreme Court s order, we have not considered Hill s Appendix in rendering this decision.

¶ 24 AFFIRMED.

HANSEN, P.J. and ADAMS, J., concur.

      . At Stillwell High School each class is worth .5 credits per semester. Letter grades are assigned a numerical value, and a student's grade point average is determined by dividing the total numerical value of the grades earned by the number of course "credits”. A student who receives a grade in a class but no "credit” for that class will have an advantage over her classmates in calculating grade point average, because the student’s total numerical grade will be divided by a smaller number of earned credits, thus generating a higher grade point average.

      . Hill does not challenge the sufficiency of evidence supporting the board and trial court's conclusion that she willfully neglected her duties.

      . The Supreme Court has defined willful neglect of duty as "a 'knowingly and purposeful' violation” of a teacher’s duties. Childers v. Independent Sch. Dist. No. I of Bryan County, 1981 OK 123, ¶ 19, 645 P.2d 992, 996.

      . To the extent Hill objects that the January 10th or 30th due process hearings violate subsection 6-101.26(A) of the Teacher Due Process Act because they occurred more than sixty days after Hill's receipt of the October 30, 2000 willful neglect of duty charge, such objection is waived. The board scheduled the hearing for January 10, 2001 to accommodate the schedule of Hill's attorney. It would thus be disingenuous at best for Hill to attempt to rely on the delayed hearing date as a basis for appeal.

      . As discussed infra, there is ample evidence to support the finding of both the board and the trial court that Hill's actions amounted to moral turpitude. Career teachers charged with moral turpitude are not entitled to admonishment and time for improvement. House, V 16, 939 P.2d at 1131.


text:
    2002 OK CIV APP 106
    John R. GILLETTE, Plaintiff/Appellee, v. Tammy Jo GILLETTE, now Duvall, Defendant/Appellant.
    No. 96,724.
    Court of Civil Appeals of Oklahoma, Division 3.
    Sept. 30, 2002.

      Gary A. Taylor, Stan Foster, John W. Turner, Legal Aid Services of Oklahoma, Inc., Oklahoma City, for Defendant/Appellant.
    Phillip J. Tucker, Noel K. Tucker, Roxane Gautreaux-Carte, Kayla Lawson Yanda, The Tucker Law Firm, Edmond, for Plaintiff/Ap-pellee.
   MITCHELL, J.

¶ 1- Tammy Jo Gillette, now Duvall, Defendant/Appellant or “Mother”, seeks review of an order denying her motion to modify or, alternatively, petition to vacate an earlier order which permanently relinquished her “future care, custody and control” of her minor child. The trial court based its order on 10 O.S.1991 § 27 (since amended and renumbered as 10 O.S. Supp.2000 § 21.4). The order was entered following trial on a motion to terminate Mother’s parental rights filed by John R. Gillette, Plaintiff/Appellee or “Father”, the former husband of Mother and the minor child’s father. On appeal, Mother contends the order permanently relinquishing her custody to her minor child is void as a matter of law.

¶ 2 Father and Mother were divorced in 1991. As part of that divorce, Mother was given custody of the parties’ minor child. In a 1994 agreed order, custody was modified to give Father custody of the minor child, with Mother granted visitation and ordered to pay child support. In 1996, Father brought a “private” action seeking to terminate the parental rights of Mother. He alleged Mother had willfully failed to pay child support for more than twelve months preceding the filing of the petition. Mother denied the allegation.

¶ 3 After a hearing, the trial court refused to terminate Mother’s parental rights finding that Father failed to establish by clear and convincing evidence that Mother ■willfully failed to pay the ordered child support for the one year immediately preceding the filing of his termination application. However, the trial court did find that Mother “failed to contribute to the support of the ... child”, and “failed to establish any significant relationship with this child”. The court ordered Mother’s “right to the permanent care, custody or control of this child be relinquished in and to Plaintiff [Father], as authorized by 10 O.S. § 27” (emphasis added). The trial court granted a judgment for Father in the amount of the past due child support and Mother was also ordered to pay future child support. She was allowed visitation. The order was filed in April, 1998.

¶ 4 More than three years later, in May, 2001, Mother filed a motion to modify or, alternatively, petition to vacate. She contended 10 O.S.1991 § 27, relied upon by the trial court three years earlier, did not provide the authority to order permanent relinquishment of her right to have or seek custody of her child. Such order was therefore void as a matter of law and subject to being vacated at any time under 12 O.S. Supp.1993 § 1038. She argued the purpose of 10 O.S. 1991 § 27 is to allow a parent to relinquish custody in good faith because he or she is temporarily unable to provide for a child. Later, the parent should be able to regain custody when the condition which required the relinquishment has been resolved. Mother relied on Olinghouse v. Olinghouse, 1995 OK CIV APP 104, 908 P.2d 280, where a voluntary relinquishment of custody to an aunt was held properly vacated when the mother sought a return of custody. The relinquishment there was not irrevocable and did not terminate the mother’s parental rights. Mother here also alleged there had been a substantial change of condition which affected the minor child and it would be in the best interests of the child for Mother to have a more active role in the child’s life.

¶ 5 Father responded, contending the trial court had jurisdiction to make the order of permanent relinquishment; Mother’s motion/petition was time barred; and, the motion/petition was vague in requesting a “more active role” in the child’s life and should be stricken. After hearing, the trial court denied Mother’s motion/petition, specifically finding that Olinghouse, supra, was not applicable “for several reasons”, including that the dispute there “was between an aunt and a parent with a relinquishment done by the agreement of the parents without the benefit of an evidentiary hearing.”

¶ 6 The question on review is one of statutory interpretation of 10 O.S.1991 § 27, and whether the trial court had the power under that statute to “permanently relinquish” Mother’s right to permanent care, custody and control of her minor child. The facts here are uncontroverted. The issue is solely one of law, therefore our standard of review is de novo. “Because the issue on review, how to interpret a statute, is one of law, we will examine the trial court’s ruling independently and without deference to the trial court’s ruling.” Fink v. State ex rel. Dept, of Public Safety, 1992 OK CIV APP 169, 852 P.2d 774, 776, citing Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). “Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court’s legal rulings.” Kluver v. Weatherford Hosp. Authority, 1993 OK 85, 859 P.2d 1081, 1084, citing Salve Regina College v. Russell, supra.

¶ 7 The United States Supreme Court has held the relationship between a parent and a child is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978). Likewise, in Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219, 1226, the Oklahoma Supreme Court stated: “Unquestionably, the relationship of a parent to a child is a constitutionally protected right.” A parent has a basic fundamental right, which is protected by the United States and Oklahoma Constitutions, to the companionship, care, custody and management of his/her child. Leake v. Grissom, 1980 OK 114, 614 P.2d 1107, 1109-10. A fundamental and constitutionally protected right cannot be infringed upon, absent a compelling state interest such as protecting a child from harm. See, e.g., In the Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884, 888; see generally, In re Herbst, 1998 OK 100, 971 P.2d 395.

¶8 This state has enacted legislation, here 10 O.S. Supp.1995 § 7006-1.1, which allows the compelling state interest of protecting a child from harm to be advanced. Father attempted to use 10 O.S. Supp.1995 § 7006-1.1 to terminate Mother’s parental rights due to her willful failure to pay child support. The trial court found Father did not meet his burden of clear-and-eonvincing evidence to show “willful” failure as required by § 7006-1.1(A)(7); therefore Mother’s parental rights could not be terminated. Father did not appeal and no other remedy is offered under § 7006-1.1 when the statutory burden is not met.

¶ 9 Title 10 O.S.1991 § 27, the statute relied upon by the trial court, is simply not applicable here. Section 27 merely provides an avenue for voluntary relinquishment of child custody by a parent (or another) unable to care for a child, such as when a parent is called for active military duty or has some type of infirmity. To that extent, Olinghouse addresses the temporary, voluntary nature of 10 O.S. § 27:

The rule with regard to temporary conditional relinquishment is that:

... as a matter of public policy, a parent who, in the best interest of the child, relinquishes custody in good faith because he/ she is temporarily unable to provide for the child should be able to regain custody by proving that the condition which required relinquishment has been resolved. A parent who is unable to care for his/her children should be encouraged to relinquish custody if he/she is unable to adequately provide for the child. A mother/father would be most reluctant to give up his/her child if he/she knew that custody could not be regained.

Olinghouse, supra at 287, quoting Carter v. Carter, 1982 OK 123, 653 P.2d 207, 208-09.

¶ 10 Section 27 allows voluntary relinquishment of child custody to a parent or relative within the 4th degree. Such relinquishment of custody to anyone else must be authorized by a court order in an ancillary proceeding or otherwise executed in writing where permitted by statute. There is no language in this statute giving courts the power to make an order forcing a parent to relinquish his or her rights to a child.

¶ 11 Father contends the trial court had subject matter jurisdiction and jurisdiction of the parties, therefore the order relinquishing Mother’s custody was proper. Assuming, ar-guendo, the trial court had such jurisdiction, the court did not have the power to create a new vehicle to relieve a parent of custody forever. That domain belongs exclusively to the legislature which created the statutes dealing with termination. OK. CONST, art. 4, § 1; art. 5, § 1.

¶ 12 Here, the trial court found insufficient evidence to order termination of Mother’s parental rights under the termination statute. It then erroneously attempted to limit her rights pursuant to 10 O.S. § 27. The trial court did not have the judicial power to enter the 1998 order. That order was clearly void.

¶ 13 REVERSED AND REMANDED.

HANSEN, P.J., and ADAMS, J., concur.

      . 10 O.S.1991 § 27 provides in pertinent part:
      No person may assign, relinquish, or otherwise transfer to another his rights or duties with respect to the permanent care or custody of a child, except to the parents, or to the relatives within the fourth degree, of the child concerned, unless specifically authorized or required so to do by an order or judgment of a court of competent jurisdiction or unless by a relinquishment executed in writing in accordance with the provisions of this act...

      . Father apparently brought his termination action under the authority of 10 O.S. Supp.1995 § 7006-1.1 (since amended, with changes not material here) which provides in pertinent part:
      A. Pursuant to the provisions of the Oklahoma Children’s Code, the finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations; provided, however, the paramount consideration in proceedings concerning termination of parental rights shall be the health, safety or welfare and best interests of the child:

      7. A finding that a parent who does not have custody of the child has for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for termination of parental rights, willfully failed, refused or neglected to contribute to the support of such child:
      a. in substantial compliance with an order entered by a court of competent jurisdiction adjudicating the duty, amount and manner of support, ...

      . In 1985, The Oklahoma Supreme Court in Davis v. Davis, 1985 OK 85, 708 P.2d 1102, held that actions to terminate parental rights could not be brought by a private individual under the authority of 10 O.S. § 1130, the forerunner of 10 O.S.2001 § 7006-1.1, the termination statute in effect today. In 1986, the legislature amended § 1130 adding paragraph D which specifically provided that a parent or guardian of a child may bring an action to terminate a parent’s parental rights. 10 O.S. Supp.1986 § 1130(D). Minor changes were made to the statute in 1987, 1993, 1994 and 1995. In 1997, the statute, renumbered as 10 O.S. § 7006-1.1, was again amended making it applicable only where there was also a state action to have the child's deprive status adjudicated. § 7006-l.l(C). In 2000, paragraph D was added providing that a petition for termination of parental rights may be filed by the district attorney or the attorney for the child. § 7006-1.1(D).

      . 12 O.S. Supp 1993 § 1038 provides in pertinent part: "A void judgment, decree or order may be vacated at any time, on motion of a party, or any person affected thereby.”

      . The termination-seeking claimant must prove its case by clear-and-convincing evidence to overcome the law's presumption that a child’s best interest is to be in the custody of its natural parents. Matter of C.G., 1981 OK 131, 637 P.2d 66, 70-71.