644 So.2d 951 (1994)
Ex parte Leonard Grady BRYANT.
(In re HOLLAR OIL COMPANY v. Leonard Grady BRYANT).
1921485.
Supreme Court of Alabama.
February 11, 1994.
As Modified on Denial of Rehearing April 8, 1994.
Leon Garmon and Michael L. Allsup, Gadsden, for petitioner.
Russell Q. Allison and Rhonda Pitts Chambers of Rives & Peterson, Birmingham, and Steve Brunson of Simmons, Brunson & McCain, Gadsden, for respondent.
HORNSBY, Chief Justice.
The circuit court awarded Leonard Bryant workers' compensation benefits. The Court of Civil Appeals reversed the judgment for Bryant. We have granted Bryant's petition for certiorari review. We reverse the judgment of the Court of Civil Appeals.
Bryant was a truck driver for Hollar Oil Company. On August 24, 1988, Bryant, then 59 years old, was injured when he slipped on some spilled diesel fuel while fueling his truck. As a result of slipping, Bryant suffered a groin-area injury. Although his right testicle was already atrophied because of a previous illness, the slip caused a testicular torsion that required removal of his right testicle. After the removal of the testicle, Bryant began to exhibit symptoms of neurosis, including panic attacks wherein he would cry and become nervous. Also, he suffered periodic episodes of sexual impotency. The impotency could be helped only with anti-anxiety and anti-depressant drugs.
In his claim for workers' compensation, Bryant contended that the fall had led to the mental disorder and that the mental disorder had left him permanently disabled. After ore tenus proceedings, the trial court found, inter alia, that Bryant did suffer a disabling neurosis and that it "directly arose" from the physical injury he had suffered while employed by Hollar Oil. Thus, it awarded benefits to Bryant.
Reversing the trial court's judgment, the Court of Civil Appeals held that Bryant had failed to establish any causal connection between his work-related accident and his disabling mental disorder. It stated:

*952 "We have thoroughly and carefully reviewed the entire voluminous record. Bryant's allegations regarding the causal connection between the August 1988 injury and his present disabling mental condition are supported only by testimony that candidly admits speculation that the two might be connected. No reasonable view of that evidence supports the trial court's finding regarding the causal connection."
Hollar Oil Co. v. Bryant, 644 So.2d 948, 950 (Ala.Civ.App.1993). Accordingly, it remanded the case for the entry of a judgment in favor of Hollar Oil.
Although Bryant raised several issues in his petition here, the Court of Civil Appeals in its opinion addressed only the issue whether the evidence was sufficient to support the circuit court's finding of a causal connection between Bryant's accident and his disabling mental disorder. Thus, this Court reviews only that issue. We must determine whether the Court of Civil Appeals improperly substituted its judgment for that of the trial court in holding that the evidence before the trial court was insufficient.
We note that the new standard of review set out in Ala.Code 1975, § 25-5-81, does not apply to this case, because this case was filed before that new standard became effective on August 1, 1992. The appropriate standard by which the judgment in this workers' compensation case, which was tried ore tenus, is to be reviewed is as follows:
"The standard of appellate review in workmen's compensation cases is a two-step process. Initially, the reviewing court will look to see if there is any legal evidence to support the trial court's findings. If such evidence is found, then the reviewing court determines whether any reasonable view of that evidence supports the trial court's judgment."
Ex parte Eastwood Foods, Inc., 575 So.2d 91, 93 (Ala.1991). In ore tenus cases, this standard of review is applicable only to the trial court's findings of fact, not to its conclusions of law. Also, in Ex parte Price, 555 So.2d 1060, 1062 (Ala.1989), this Court noted that medical causation "must be determined [by the trial court] on a case-by-case basis" and that the "trial court is authorized to draw any reasonable inference from the evidence."
To recover compensation for mental injury, the claimant must prove that the mental disorder was produced or proximately caused by an on-the-job physical trauma or injury to his body. Fruehauf Corp. v. Prater, 360 So.2d 999 (Ala.Civ.App.1978). In Abex Corp. v. Coleman, 386 So.2d 1160 (Ala. Civ.App.1980), the Court of Civil Appeals held that the mental injury suffered by the plaintiff was compensable because the evidence showed that it was caused by a physical injury incurred while the plaintiff was in the employ of the defendant. Thus, to establish medical causation, the claimant must show that the risk or hazard to which he was exposed was a factor contributing to his injury. Patterson v. Clarke County Motors, Inc., 551 So.2d 412 (Ala.Civ.App.1989).
Bryant contends that his evidence did support a finding that his mental disorder was caused by the on-the-job injury, which he said led to the loss of his testicle. Bryant provided the deposition of Dr. Pascual Herrera, who expressed the opinion that the loss of a testicle could cause a man to suffer anxiety and depression and that such a loss "might" result in Bryant's symptomatology. Dr. Herrera admitted that his opinion was speculative. However, in Ex parte Price, 555 So.2d 1060 (Ala.1989), this Court, discussing proof of medical causation, quoted Professor Larson for this proposition:
"To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so. In appropriate circumstances, awards may be made when medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent."
555 So.2d at 1061-62 (quoting 3 A. Larson, The Law of Workmen's Compensation, *953 § 79.51(a) at p. 15-426.128 (1988)). Further, in Federal Mogul Corp. v. Campbell, 494 So.2d 443, 445 (Ala.Civ.App.1986), the Court of Civil Appeals held that "an award may be made for mental disability even though the testimony relating to its existence or cause is inconclusive, or even non-existent." It follows that Dr. Herrera's opinion, although not definite, could constitute evidence of causation.
In Federal Mogul Corp., the Court of Civil Appeals recognized that nonexperts can establish causation in workers' compensation cases. It considered, as evidence of causation, testimony from lay persons who testified "that they noticed a drastic change in the claimant's mental state immediately following the accident" and "that he [had] not been his normal self since that time." 494 So.2d at 445. In this case, Bryant presented similar lay testimony as evidence of causation. Bryant's wife and daughter stated that he displayed the symptoms of his mental disorder only after the accident. The daughter specifically testified:
"On my observation, I feel that my dad would still be working [had he not been injured], that he would have worked till he was, probably, past retirement age. I know how my dad is. I know what kind of a hard worker he is and I know of talking through the years of retirement thisif this had not happened, he would still be working today."
Bryant further testified that he had not suffered the mental disorder until the removal of his testicle. This evidence, along with the doctor's opinion, supports the trial court's findings of fact, and from this evidence the trial court could have reasonably inferred causation.
The trial court "may consider all evidence, including its own observations, and interpret the evidence according to its own best judgment." Wilde v. Taco Bell Corp., 531 So.2d 918, 919 (Ala.Civ.App.1988). Although this Court has noted that in cases dealing with claims based on alleged mental disorders, there is a distinct possibility of malingering, it also has recognized that the malingering will be minimized by the vigilance of a discerning trial judge. Fruehauf Corp. v. Prater, 360 So.2d 999, 1001. There was sufficient evidence to support a finding that Bryant was not malingering. Wayne Hollar, president of Hollar Oil Company, testified that Bryant was "an excellent employee" and was dependable and honest. Hollar testified that, based on his personal knowledge of Bryant and Bryant's reputation in the community, he had no doubt about the veracity of Bryant's testimony about his inability to work. Dr. Daniel Doleys, a psychologist hired by Hollar Oil, testified on cross-examination that there was no evidence that Bryant was consciously or unconsciously malingering or "misrepresenting himself" as suffering from an anxiety or panic state. The trial court heard the testimony, observed the demeanor of Bryant, Hollar, and Doleys, and concluded that Bryant was not malingering. The record supports that conclusion.
Given the presumption of correctness to be accorded a trial court's findings of fact under the ore tenus rule, we find sufficient evidence, considering all of the testimony before the trial court, both expert and lay, to support the finding of causation. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
SHORES, KENNEDY, INGRAM and COOK, JJ., concur.
HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
I would either quash the writ or affirm the judgment of the Court of Civil Appeals.
Judge Thigpen succinctly summarized this case by holding that the evidence presented by Bryant presented only "mere possibilities that would only serve to `guess' the employer into liability." 644 So.2d at 950.
STEAGALL, J., concurs.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INELLA REDMOND,
Plaintiff-Appellant,

v.

AVALON INDUSTRIES, INCORPORATED,
                                                                   No. 97-1207
Defendant-Appellee,

BALTIMORE COMMUNITY RELATIONS
COMMISSION,
Party-in-interest.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CA-95-1343-K)

Submitted: October 21, 1997

Decided: November 17, 1997

Before HALL and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mark E. Herman, WILLIAM G. KOLODNER, P.A., Baltimore,
Maryland, for Appellant. Carl R. Gold, Maureen Walsh David, Tow-
son, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Inella Redmond appeals from the district court order granting sum-
mary judgment in favor of the Defendant, Avalon, on her claim of
employment discrimination in violation of the Age Discrimination in
Employment Act. We affirm.

We note initially, as did the district court, that Redmond appears
to be advancing two separate theories or incidents of age discrimina-
tion: (1) that she was denied the position for which she applied on the
basis of her age; and (2) that she was denied the opportunity to com-
pete for later available positions on the basis of her age. As to her first
claim, we agree with the district court's determination that Redmond
cannot establish a prima facie case of age discrimination because the
position for which she was applying was no longer open as of the date
of her application. Turning to her second claim, we also agree with
the district court's determination that Redmond cannot establish a
prima facie case because she is unable to demonstrate that she meets
the employer's job qualifications--recent commercial or factory sew-
ing experience--or that anyone who was hired for the position of
stitcher did not at the very least come closer to achieving these quali-
fications than she did.

While Redmond offers a statement made by one of Avalon's repre-
sentatives to the effect that Redmond was older than the candidate
Avalon was looking for, Redmond states that this comment was made
by an individual named Jackie. The only Jackie present at Avalon at
the time Redmond visited to tender her application was a receptionist
who had no impact in the decision-making process. In fact, the only
individual responsible for making hiring decisions at that time was
out of the office. Although this representative arranged for someone
else to meet with Redmond in his absence, it is uncontroverted that
this individual did not have hiring authority at the time in question.

                     2
We thus find there to be an insufficient nexus between the statement
and the decision-making process. See EEOC v. Clay Printing Co., 955
F.2d 936, 942 (4th Cir. 1992) (explaining nexus requirement); see
also Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479
(10th Cir. 1996) (suggesting that remark must be made by someone
with role in the decisional process); Cone v. Longmont United Hosp.
Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (stating that age-related
comments made by non-decision-makers are not material in showing
action was based on age discrimination). Finally, we note that Ava-
lon's employee data reveals that they have several employees of an
age covered by the ADEA. Among these, one employee is in her sev-
enties (as was Redmond), another was in his sixties, and two more
were in their fifties. Given the entirety of this information, we agree
that even if Redmond could establish a prima facie case, she could not
carry the burden of overcoming Avalon's legitimate nondiscrimina-
tory reason and establishing that its failure to hire her was the result
of unlawful age discrimination. We therefore affirm. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

                    3


		IN RE AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS FOR JUVENILE CASES

		Skip to Main Content
		Accessibility Statement

Help
Contact Us

e-payments
Careers

Home
Courts
Decisions
Programs
News
Legal Research
Court Records
Quick Links

OSCN Found Document:IN RE AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS FOR JUVENILE CASES

						Previous Case

						Top Of Index

						This Point in Index

						Citationize

						Next Case

						Print Only

IN RE AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS FOR JUVENILE CASES2018 OK 10Decided: 01/30/2018THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2018 OK 10, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS FOR JUVENILE CASES

ORDER ADOPTING REVISED
OKLAHOMA UNIFORM JURY INSTRUCTIONS
AND VERDICT FORMS FOR JUVENILE CASES

¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Jury Instructions for Juvenile Cases to adopt proposed amendments to existing jury instructions and to add a new jury instruction codified as Instruction No. 3.19A. The Court finds that the revisions to the OUJI-JUV Instructions, Statutory Authority, Committee Comments, and Notes on Use should be adopted.
¶2 It is therefore ordered, adjudged and decreed that the instructions shall be available for access via the Internet from the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts should notify the Judges of the District Courts of the State of Oklahoma regarding our adoption of the instructions set forth herein. Further, the District Courts of the State of Oklahoma are directed to implement these instructions effective January 30, 2018.
¶3 It is therefore ordered, adjudged, and decreed that the proposed amendments to OUJI-JUV Nos. 2.7, 2.7A, 3.4, 3.6, 3.11, 3.13, 3.14, 3.19 and 3.23, their Statutory Authority, Committee Comments, and Notes on Use, and the new proposed Instruction, OUJI-JUV No. 3.19A, its Statutory Authority, and Notes on Use, as set out and attached to this Order, are hereby adopted. The Court authorizes the attached OUJI-JUV instructions to be published.
¶4 The Court declines to relinquish its constitutional and statutory authority to review the legal correctness of these authorized instructions or verdict forms when it is called upon to afford corrective relief.
¶5 The amended OUJI-JUV instructions shall be effective January 30, 2018.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 29th DAY OF JANUARY, 2018.

/S/CHIEF JUSTICE

Combs, C.J., Gurich, V.C.J., Kauger, Edmondson, Colbert, Reif, and Wyrick, JJ., concur.
Winchester, J., not voting.

Juvenile Instruction No. 2.7
Instructions for Verdict Forms
[Use for cases where only one ground for termination is alleged.] If you find that the State has proved by clear and convincing evidence that the parental rights of the parent, [NAME], to the child, [NAME], should be terminated on the statutory ground that [Set forth ground for termination -- E.g., the rights of the parent to another child have been terminated, and the conditions that led to the prior termination of parental rights have not been corrected], you should sign and return the verdict form entitled Terminate Parental Rights for that parent and that child. Otherwise, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.
OR
[Use for cases where multiple grounds for termination are alleged.] If you find that the State has proved by clear and convincing evidence that the parental rights of the parent, [NAME], to the child, [NAME], should be terminated on one or more statutory grounds, you should sign and return the verdict form entitled Terminate Parental Rights for every such statutory ground for that parent and that child. It is not necessary that the same five people sign each verdict form. If you find that the State has not proved by clear and convincing evidence that the parental rights of the parent, [NAME], to the child, [NAME], should be terminated on any statutory ground, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.
Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.
Notes on Use
If the petition or motion for termination of parental rights was filed by the child's attorney, rather than the district attorney, under 10A O.S.Supp.2014 § 1-4-901(A), this Instruction should be modified accordingly. If any of the alleged grounds for termination is the failure of the parent to correct a condition that led to the deprived adjudication of the child, Juvenile Instruction No. 2.7A should be used instead of or in addition to this Instruction, along with the verdict form in Juvenile Instruction No. 2.8A.
Committee Comments
Okla. Const. art. VII, § 15 provides that "no law . . . shall require the court to direct the jury to make findings of particular questions of fact." The Oklahoma Supreme Court addressed the application of Okla. Const. art. VII, § 15 to Oklahoma's comparative negligence statutes in Smith v. Gizzi, 1977 OK 91, 564 P.2d 1009. The Supreme Court held that the comparative negligence statutes did not violate art. VII, § 15, because they did not require a special verdict. The Supreme Court reasoned that under a general verdict, the jury must know the effect of its answers to special findings, and that if the jury did not know the effect of its answers, the verdict would be a special verdict that would violate Okla. Const. art. VII, § 15. 1977 OK 91, ¶¶ 11-12, 564 P.2d 1009, 1012-13. Under Smith v. Gizzi, a verdict that specified the grounds for termination of parental rights, would be constitutional as long as the jury knew the effect of its answers to special findings regarding the specific grounds for termination. A number of Oklahoma Court of Civil Appeals cases have decided that it is necessary for the trial judge to specify the grounds for termination of parental rights in the journal entry of judgment in order to facilitate appellate review. See In re C.T., 2003 OK CIV APP 107, ¶ 6, 82 P.3d 123, 125; Bales v. State ex rel. Dep't of Human Services, 1999 OK CIV APP 96, ¶ 8, 990 P.2d 309, 311. See also Matter of S.B.C., 2002 OK 83, ¶ 7, 64 P.3d 1080, 1083 (appellate court must find clear and convincing proof of grounds for termination of parental rights to affirm). Having the jury specify in its verdict the grounds it finds for termination of parental rights will facilitate the trial judge's preparation of the journal entry of judgment.
There is also a line of Oklahoma Court of Civil Appeals cases that have decided that when termination is ordered under 10 O.S. Supp. 2014, § 1-4-904(5) on the ground of failure to correct a condition that led to the deprived adjudication of the child the jury instruction and verdict forms must specify each condition that the parent failed to correct. See In re B.W., 2012 OK CIV APP 104, ¶ 37, 293 P.3d 986, 996; In re T.J., 2012 OK CIV APP 86, ¶ 48, 286 P.3d 659, 72; In re R.A., 2012 OK CIV APP 65, ¶ 17, 280 P.3d 366, 372. See also In re A.F.K., 2014 OK CIV APP 6, ¶ 7 & n.5, 317 P.3d 221, 225 (commending trial court for providing verdict forms that included lines for checkmarks for the jury to identify each condition that the parent failed to correct); In re J.K.T., 2013 OK CIV APP 70, ¶ 4 & n.3, 308 P.3d 183, 185 (affirming termination order where verdict form included lines for checkmarks that the jury used to identify each condition that the parent failed to correct). But see In re L.S., 2013 OK CIV APP 21, ¶ 10, 298 P.3d 544, 547 (affirming termination order neither the verdict nor order listed the conditions that the parent failed to correct but the jury instructions listed the conditions). The Committee recommends that in cases where termination is sought on the ground of failure of the parent to correct conditions, the trial court should provide verdict forms that include lines for checkmarks for the jury to use to identify each condition that the parent failed to correct.
___________________________________
Juvenile Instruction No. 2.7A
Instructions for Verdict Forms for Failure to Correct Conditions
If you find that the State has proved by clear and convincing evidence that the parental rights of the parent to the child should be terminated on the statutory ground that the parent has failed to correct one or more conditions that led to the finding that the child was deprived after the parent had been given at least three (3) months to correct the conditions, you must indicate this finding by putting a check mark on the line next to each uncorrected condition on the verdict form entitled Terminate Parental Rights for that parent and that child given to you, and then sign and return the verdict form. Otherwise, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.
Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.
Notes on Use
This Instruction should be used if any of the alleged grounds for termination is the failure of the parent to correct a condition that led to the deprived adjudication of the child. The trial judge should prepare a verdict form that identifies one or more conditions that the parent is alleged to have failed to correct and directs the jury to check the applicable condition or conditions that the parent failed to correct. An example of such a verdict form for failure to correct one or more conditions is found at Juvenile Instruction No. 2.8A, infra.
Committee Comments
See Committee Comments to Juvenile Instruction No. 2.7, supra. The Oklahoma Supreme Court held in In re T.T.S., 2015 OK 36, 373 P.3d 1022, that the jury instructions, verdict forms, and the final journal entry of judgment in termination actions for failure to correct conditions which led to the deprived adjudication of a child must "identify, with particularity, those conditions which a parent failed to correct." Id. ¶ 20, 373 P.3d at 1030 (emphasis in original). Prior to the T.T.S. case, there had been a split of authority among the different divisions of the Oklahoma Court of Civil of Appeals over whether it was necessary to specify the conditions that a parent failed to correct. Id. ¶ 13, 373 P.3d at 1027 ("This issue has been resolved inconsistently by several panels of COCA.").
___________________________________
Juvenile Instruction No. 3.4
Failure to Correct Conditions
The State seeks to terminate the parent's rights on the basis of failure to correct the condition/conditions that led to the finding that a child is deprived. The State alleges that the following condition/conditions has/have not been corrected:
a. [Specify condition, e.g., exposure to substance abuse];
b. [Specify condition, e.g., exposure to domestic violence]; and
c. [Specify condition, e.g., failure to provide a safe and stable home].
In order to terminate parental rights on this basis, the State must prove by clear and convincing evidence each of the following elements:
1. The child has been adjudicated to be deprived;
2. The parent has failed to correct the condition/conditions that caused the child to be deprived;
3. The parent has had at least three months to correct the condition/conditions; and,
4. Termination of parental rights is in the best interests of the child.
___________________________________
Statutory Authority: 10A O.S.Supp. 20102016 § 1-4-904(B)(5).
Notes on Use
The trial judge should give Juvenile Instruction No. 3.5, infra, along with this Instruction.
Committee Comments
The Oklahoma Supreme Court held in In re T.T.S., 2015 OK 36, 373 P.3d 1022, that the jury instructions, verdict forms, and the final journal entry of judgment in termination actions for failure to correct conditions which led to the deprived adjudication of a child must "identify, with particularity, those conditions which a parent failed to correct." Id. ¶ 20, 373 P.3d at 1030 (emphasis in original). Prior to the T.T.S. case, there had been a split of authority among the different divisions of the Oklahoma Court of Civil of Appeals over whether it was necessary to specify the conditions that a parent failed to correct. Id. ¶ 13, 373 P.3d at 1027 ("This issue has been resolved inconsistently by several panels of COCA.").
___________________________________
Juvenile Instruction No. 3.6
Previous Termination of Rights to Another Child
The State seeks to terminate the parent's rights on the basis that a child has been born to a parent whose parental rights to another child have already been terminated before. In order to terminate parental rights on this basis, the State must prove by clear and convincing evidence each of the following elements:
1. The child has been adjudicated to be deprived;
2. The parent's parental rights to another child have been terminated before;
3. The conditions which led to the prior termination of parental rights have not been corrected; and,
4. Termination of parental rights is in the best interests of the child.
The State alleges that the following condition/conditions has/have not been corrected:
a. [Specify condition, e.g., exposure to substance abuse];
b. [Specify condition, e.g., exposure to domestic violence]; and
c. [Specify condition, e.g., failure to provide a safe and stable home].
___________________________________
Statutory Authority: 10A O.S.2011 § 1-4-904(B)(6).
Notes on Use
The trial judge should modify the jury instruction in Juvenile Instruction No. 2.7A, supra, and the verdict form in Juvenile Instruction No. 2.8A, supra, to refer to the basis that a child has been born to a parent whose parental rights to another child have already been terminated before, instead of a failure to correct conditions, and give the modified versions of Juvenile Instruction Nos. 2.7A and 2.8A along with this Instruction.
___________________________________
Juvenile Instruction No. 3.11
Definition of Heinous and Shocking Abuse
"Heinous and shocking abuse" includes, but is not limited to, aggravated physical abuse that results in serious bodily, mental, or emotional injury. "Serious bodily injury" means injury that involves:
a. a substantial risk of death,
b. extreme physical pain,
c. protracted disfigurement,
d. a loss or impairment of the function of a body member, organ, or mental faculty,
e. an injury to an internal or external organ or the body,
f. a bone fracture,
g. sexual abuse or sexual exploitation,
h. chronic abuse including, but not limited to, physical, emotional, or sexual abuse, or sexual exploitation which is repeated or continuing,
i. torture that includes, but is not limited to, inflicting, participating in or assisting in inflicting intense physical or emotional pain upon a child repeatedly over a period of time for the purpose of coercing or terrorizing a child or for the purpose of satisfying the craven, cruel, or prurient desires of the perpetrator or another person, or
j. any other similar aggravated circumstance.
___________________________________
Statutory Authority: 10A O.S.Supp.20102016 § 1-1-105(3133).
___________________________________
Juvenile Instruction No. 3.13
Definition of Neglect
"Neglect" means:
a. the failure or omission to provide any of the following:

(1) adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education,
(2) medical, dental, or behavioral health care,
(3) supervision or appropriate caretakers, or
(4) special care made necessary by the physical or mental condition of the child,
b. the failure or omission to protect a child from exposure to any of the following:
(1) the use, possession, sale, or manufacture of illegal drugs,
(2) illegal activities, or
(3) sexual acts or materials that are not age-appropriate, or
c. abandonment.

Neglect does not include the parent's selecting and depending upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of a child.
___________________________________
Statutory Authority: 10A O.S.Supp.20102016 § 1-1-105(46 47).
___________________________________
Juvenile Instruction No. 3.14
Definition of Heinous and Shocking Neglect
"Heinous and shocking neglect" includes, but is not limited to:
a. chronic neglect that includes, but is not limited to, a persistent pattern of family functioning in which the caregiver has not met or sustained the basic needs of a child which results in harm to the child,
b. neglect that has resulted in a diagnosis of the child as a failure to thrive,
c. an act or failure to act by a parent that results in the death or near death of a child or sibling, serious physical or emotional harm, sexual abuse, sexual exploitation, or presents an imminent risk of serious harm to a child, or
d. any other similar aggravating circumstance.
"Sexual abuse" includes, but is not limited to, rape, incest and lewd or indecent acts or proposals made to a child, as defined by law.
"Sexual exploitation" includes but is not limited to, allowing, permitting, or encouraging a child to engage in prostitution, as defined by law, by a person responsible for the health, safety, or welfare of a child, or allowing, permitting, encouraging, or engaging in the lewd, obscene, or pornographic, as defined by law, photographing, filming, or depicting of a child in those acts.
___________________________________
Statutory Authority: 10A O.S.Supp.20102016 § 1-1-105(2)(b)-(c), (3234).
___________________________________
Juvenile Instruction No. 3.19
Abuse Subsequent to Previous Abuse or Neglect
The State seeks to terminate the parent's rights on the basis of abuse subsequent to previous abuse/neglect of the child or a sibling of the child. In order to terminate parental rights on the basis of abuse subsequent to previous abuse/neglect, the State must prove by clear and convincing evidence each of the following elements:
1. The child has been adjudicated to be deprived;
2. The parent has previously abused/neglected the child or a sibling of the child or failed to protect the child or a sibling of the child from abuse/neglect that the parent knew or reasonably should have known of;
3. After the previous abuse/neglect, the parent has abused the child or a sibling of the child or failed to protect the child or a sibling of the child from abuse that the parent knew or reasonably should have known of; and,
4. Termination of parental rights is in the best interests of the child.
___________________________________
Statutory Authority: 10A O.S.Supp.20102016 §§ 1-4-904(B)(10), 1-1-105(2), 1-1-105(46).
Notes on Use
The trial court should select the appropriate definitions or parts of the definitions that are supported by the evidence.
___________________________________
Juvenile Instruction No. 3.19A
Definition of Failure to Protect
Failure to protect a child from abuse or neglect means the failure to take reasonable action to remedy or prevent child abuse or neglect.
Failure to protect a child from abuse or neglect includes the conduct of a non-abusing parent/guardian who:
1. Knew the identity of the abuser/(person who neglected the child) but (lied about)/concealed/(failed to report) the child abuse/neglect; or
2. Otherwise failed to take reasonable action to end the abuse/neglect.
___________________________________
Statutory Authority: 10A O.S.Supp.2016 § 1-1-105(25).
Notes on Use
The trial judge should give this Instruction along with Juvenile Instruction Nos. 3.11 and 3.14 through 3.19, when the State seeks to terminate the parent's rights on the basis of the parent's failure to protect the child from heinous and shocking abuse or neglect.
___________________________________
Juvenile Instruction No. 3.23
Conditions from Previous Deprived Adjudication Have Occurred Again
The State seeks to terminate the parent's rights on the basis that the condition/conditions that led to a previous deprived adjudication of (the child)/(a sibling of the child) has/have occurred again. In order to terminate parental rights on this basis, the State must prove by clear and convincing evidence each of the following elements:
1. The child has been adjudicated to be deprived in this case;
2. There has been a previous deprived adjudication of (the child)/(a sibling of the child);
3. The condition/conditions that led to the deprived adjudication in this case was/were the subject of the previous deprived adjudication, and the parent was given an opportunity to correct the condition/conditions in the previous case; and,
4. Termination of parental rights is in the best interests of the child.
The State alleges that the following condition/conditions has/have not been corrected:
a. [Specify condition, e.g., exposure to substance abuse];
b. [Specify condition, e.g., exposure to domestic violence]; and
c. [Specify condition, e.g., failure to provide a safe and stable home].
___________________________________
Statutory Authority: 10A O.S.Supp.2016 § 1-4-904(B)(14).
Notes on Use
The trial judge should modify the jury instruction in Juvenile Instruction No. 2.7A, supra, and the verdict form in Juvenile Instruction No. 2.8A, supra, to refer to the basis that the conditions which led to a previous deprived adjudication of the child have occurred again, instead of a failure to correct conditions, and give the modified versions of Juvenile Instruction Nos. 2.7A and 2.8A along with this Instruction.
___________________________________

Citationizer© Summary of Documents Citing This Document

Cite
Name
Level

Oklahoma Jury Instructions- Juvenile
 CiteNameLevel
 INSTRUCTIONS FOR VERDICT FORMSCited
 INSTRUCTIONS FOR VERDICT FORMS FOR FAILURE TO CORRECT CONDITIONSCited
 FAILURE TO CORRECT CONDITIONSCited
 PREVIOUS TERMINATION OF RIGHTS TO ANOTHER CHILDCited
 DEFINITION OF HEINOUS AND SHOCKING ABUSECited
 DEFINITION OF NEGLECTCited
 DEFINITION OF HEINOUS AND SHOCKING NEGLECTCited
 ABUSE SUBSEQUENT TO PREVIOUS ABUSE OR NEGLECTCited
 DEFINITION OF FAILURE TO PROTECTCited
 CONDITIONS FROM PREVIOUS DEPRIVED ADJUDICATION HAVE OCCURRED AGAINCited

Citationizer: Table of Authority

Cite
Name
Level

None Found.

oscn

				EMAIL: webmaster@oscn.net
				Oklahoma Judicial Center
				2100 N Lincoln Blvd.
				Oklahoma City, OK 73105

courts

Supreme Court of Oklahoma
Court of Criminal Appeals
Court of Civil Appeals
District Courts

decisions

New Decisions
Supreme Court of Oklahoma
Court of Criminal Appeals
Court of Civil Appeals

programs

The Sovereignty Symposium
Alternative Dispute Resolution
Early Settlement Mediation
Children's Court Improvement Program (CIP)
Judicial Nominating Commission
Certified Courtroom Interpreters
Certified Shorthand Reporters
Accessibility ADA

Contact Us
Careers
Accessibility ADA


     [NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit

No. 00-2483

                  JOSE JIMENEZ COLON ET AL.,

                    Plaintiffs, Appellants,

                              v.

                   BLACK & DECKER (PR) LLC,

                     Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

        [Hon. Héctor M. Laffitte, U.S. District Judge]

                            Before

                    Selya, Lynch and Lipez,

                        Circuit Judges.

     Peter Díaz Santiago, with whom Woods & Woods was on brief,
for appellants.
     Carl Schuster, with whom María Santiago Ramos and Schuster,
Usera, Aguilló & Santiago LLP were on brief, for appellee.

                         June 13, 2001
           Per Curiam.     In this case, the principal plaintiff, a

former managerial employee who ostensibly lost his post with

Black & Decker (PR) as part of a reduction in force, claims that

his age was the real reason behind his ouster.                 The plaintiffs

— the former employee, his wife, and their conjugal partnership

— sued under, inter alia, the Age Discrimination in Employment

Act, 29 U.S.C. § 621 et seq., and in due course, the employer

moved   for   summary   judgment,    Fed.    R.   Civ.    P.    56(c).    The

plaintiffs failed to file an opposition.               The district court

nonetheless studied the matter, wrote a thoughtful opinion, and

granted the motion for brevis disposition.               Jimenez Colon v.

Black & Decker (PR) LLC, Civ. No. 99-1871 (D.P.R. Aug. 9, 2000).

           Shortly thereafter, the plaintiffs filed a motion for

relief from judgment, Fed. R. Civ. P. 60(b), in which they

invoked   subsection    (1)   of   the    rule   and   claimed    that   their

failure to oppose the summary judgment motion resulted from

excusable neglect.      They averred that they (mistakenly) believed

that they had filed a motion to reopen discovery — the motion

had, in fact, been filed in a different case — and that this

motion would have assured deferral of any consideration of

summary judgment.       The defendant objected to the Rule 60(b)

motion.

                                    -3-
           The district court wrote a second opinion, finding

neglect,     but   also   finding     an    absence   of   excusatory

circumstances.     Jimenez Colon v. Black & Decker (PR) LLC, Civ.

No. 99-1871 (D.P.R. Oct. 3, 2000).         For that reason, the court

refused to set aside its earlier judgment.       See id.   This appeal

ensued.    In it, the plaintiffs challenge only the court's denial

of their Rule 60(b) motion.

           We need not tarry.       We previously have acknowledged

that when a trial judge adroitly takes the measure of a case,

applies correct legal standards, and formulates a convincing

rationale, "an appellate court should refrain from writing at

length to no other end than to hear its own words resonate."

Lawton v. State Mut. Life Assur. Co., 101 F.3d 218, 220 (1st

Cir. 1996); accord Cruz-Ramos v. Puerto Rico Sun Oil Co., 202

F.3d 381, 383 (1st Cir. 2000); Ayala v. Union de Tronquistas,

Local 901, 74 F.3d 344, 345 (1st Cir. 1996); Holders Capital

Corp. v. California Union Ins. Co. (In re San Juan Dupont Plaza

Hotel Fire Litig.), 989 F.2d 36, 38 (1st Cir. 1993).          This is

such an instance.    The district court's lucid opinion refusing

to relieve the plaintiffs from the judgment is unimpugnable.

Consequently, we affirm the judgment below substantially on the

basis of that opinion.

                                -4-
           We add only a few brief comments.        First, contrary to

the plaintiffs' importunings, the district court followed the

appropriate    legal   regime,   see    Pioneer   Inv.   Servs.   Co.   v.

Brunswick Assocs. Ltd. P'shp, 507 U.S. 380, 393-94 (1993);

Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 630-31 (1st Cir. 2000),

and, for aught that appears, applied that regime in a sensible

fashion.   Second, given the many shortcomings in the plaintiffs'

position — they took a lackadaisical approach toward discovery;

sat for several weeks on the documents that they now say justify

further discovery; filed nothing within the allotted period for

responding to the defendant's summary judgment motion; and, when

they belatedly prepared the motion to reopen discovery, failed

to file it in the papers of this case — we scarcely can fault

the district court's conclusion that the plaintiffs' neglect was

inexcusable.

           If more were needed — and we doubt that it is — the

standard of review applicable to the denial of a motion which

invokes Rule 60(b)(1) is for abuse of discretion.             Lepore v.

Vidockler, 792 F.2d 272, 273-74 (1st Cir. 1986).          In this area,

the scope of the court's discretion is considerable.              Even if

one concedes, favorably to the plaintiffs, that a factfinder

might consider their neglect pardonable, there is nothing in the

record that either compels such a finding or that undermines the

                                  -5-
district court's contrary assessment.      There was, therefore, no

abuse of the court's wide discretion.

            We need go no further.    The plaintiffs have not shown

an entitlement to relief from the judgment.      The order appealed

from is, therefore, affirmed.

Affirmed.

                                -6-


378 So.2d 685 (1979)
The MEDICAL SERVICES ADMINISTRATION of the State of Alabama et al.
v.
Henry Patrick DUKE et al.
78-45.
Supreme Court of Alabama.
September 28, 1979.
Rehearing Denied December 7, 1979.
*686 Charles A. Graddick, Atty. Gen., Joseph M. Carlton, Jr., Asst. Atty. Gen., for appellants.
Nicholas T. Braswell, III, Montgomery, for appellees.
PER CURIAM.
The issue before us on this appeal is whether the trial court erred in determining that the administrative hearing of November 22, 1977, as reconvened on November 29, 1977, was unconstitutionally conducted and of no effect and, in determining that Duke was due to be reinstated as a "Medicaid provider." We conclude that the trial judge did not err and that his judgment should be affirmed.
Specifically, the trial judge concluded that Duke was not given adequate notice of the "fair hearing," was not adequately informed of the charges made against him, was denied the opportunity to fully cross-examine the witnesses against him, and was not allowed to see or examine documentary evidence used against him.
We need only consider the first finding of the trial court, namely, whether Duke was given adequate notice of the "fair hearing" in order to satisfy the requirements of due process. We agree with the trial court that Duke was not given adequate notice of the "fair hearing" and was not adequately informed of the charges made against him.
It is, of course, well-settled law in this jurisdiction that due process must be observed by all boards, as well as by all courts. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968); Katz v. Alabama State Bd. of Medical Examiners, 351 So.2d 890 (Ala.1977). "Procedural due process in this respect requires at a minimum an orderly proceeding appropriate to the case or adapted to its nature, just to the parties affected, and adapted to the ends to be attained; one in which a person has an opportunity to be heard, and to defend, enforce, and protect his rights before a competent and impartial tribunal legally constituted to determine the right involved; representation by counsel; procedure at the hearing consistent with the essentials of a fair trial according to established rules which do not violate fundamental rights, and in conformity to statutes and rules, conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed; revelation of the evidence on which a disputed order is based and opportunity to explore that evidence, and a conclusion based on the evidence and reason. * * *" 2 Am.Jur.2d, Administrative Law, § 353, quoted with approval in Katz v. Alabama State Bd. of Medical Examiners, supra.
To like effect is the Court of Civil Appeals' decision in Parducci v. Payne, 360 So.2d 1023 (Ala.Civ.App.1978), where it was held that "one charged with an offense to be tried at an adjudicatory administrative hearing is entitled to procedural due process. Such due process includes adequate notice of the complaint against him and a reasonable opportunity to prepare a defense with assistance of counsel." 360 So.2d at 1024.
It is contended by Medical Services Administration that the following letter comports with an adequate notice of a "fair hearing," viz:

"October 20, 1977

"CERTIFIED MAIL "Mr. Henry Patrick Duke Duke Drug Center 121 North Street Talladega, Alabama 35160 "Dear Mr. Duke:
"I am in receipt of information which substantially reflects apparent abuse of the Alabama Medicaid Program by Duke Drug Center. This information indicates that comparison of numerous original prescriptions and drug drafts submitted *687 by your pharmacy to Medicaid for these prescriptions disclosed that your pharmacy billed Medicaid for drugs other than those dispensed or identified on the prescription. This information further indicates that this abuse resulted in an overcharge to the program for non-valid charges.
"Because of the substantial evidence supporting your abuse of the Medicaid Program, I am offering you a fair hearing to determine whether you should be terminated as a Medicaid provider. The hearing has been scheduled for Wednesday, November 9, 1977, at 1:30 p. m. in the Medical Services Administration Conference Room located in Building 1 at 2500 Fairlane Drive, Montgomery, Alabama. Your failure to respond to this offer of a fair hearing within fourteen days after the date of this letter will indicate that you do not wish a fair hearing, and you will be terminated as an Alabama Medicaid provider without further action.
"If you do accept the offer of a fair hearing, you are expected to be present at the scheduled time. You may have legal representation to assist you, call witnesses in your behalf, and introduce documentary material. You are also permitted to examine material pertinent to the case at the offices of Medical Services Administration between the hours of 8:00 a. m. and 5:00 p. m. and/or at the time of the hearing.
"If you indicate your desire for a fair hearing, the hearing officer will prepare a written report of the proceedings to include his findings and recommendation. I will use this record in reaching a decision. You will receive written notification of my decision on the action to be taken.
"Regards, "Jack E. Worthington (signature) "Jack E. Worthington, Commissioner "Medical Assistance "JEW:STH:kt "cc: Sam T. Hardin, R. Ph."
We cannot agree that this letter constitutes adequate notice of a "fair hearing," a concomitant of "procedural due process."
The evidence shows that Duke had issued some 15,000 Medicaid prescriptions in the two fiscal years 1976 and 1977. According to the testimony, Medical Services Administration had examined and reviewed approximately 180 prescriptions and determined that some 170 were "extremely suspect." Of these latter, approximately 10 or 15 were "selected" for presentation at the fair hearing.
Surely, at a minimum, notice of a "fair hearing" should have accorded this plaintiff some indication of the specific prescriptions, dates, and amounts, which Medical Services Administration contended constituted Medicaid fraud or double billing. Even the hearing examiner Mr. Robert Crumpler stated, just prior to beginning the examination of the first witness, "I really don't know what you are charged with either. . . Mr. Duke . . . ."
In State v. Becker, 326 Mo. 1193, 34 S.W.2d 27 (1930) the Missouri Commission of Securities sought a hearing to revoke Becker's securities license. In prohibiting the hearing because of lack of "reasonable notice," the Missouri Supreme Court held, viz:
"The notice is a double-barreled effort. It orders the production of books and papers and orders relators to show cause why their licenses should not be revoked under section 23 for causes named in paragraphs 1, 3, and 5 of said section. It contains no charges, and the commissioner did not furnish such information. How could they show cause without official information as to the charges? A hearing presupposes the existence of charges. There could be no hearing without charges. Therefore, it seems clear that the Legislature intended `reasonable notice' to include information as to the charges. If the words `reasonable notice' as used do not include such information, then the section is in violation of the due process clause of the Constitution." [Citations omitted.]
To like effect is Greco v. State Police Merit Board, 105 Ill.App.2d 186, 245 N.E.2d *688 99 (1969). There, a state trooper filed an action in circuit court seeking an administrative review of the decision of the State Police Merit Board discharging him from the Illinois State Police. The lower court affirmed the Board's decision. The appellate court reversed, holding:
"[T]he complaint before the Merit Board alleged that plaintiff was guilty of committing one or more of seventeen different `acts, failures to act, courses of conduct, or things' which violate one or more of thirty-two various statutes, oaths of office, rules and regulations, general orders or job descriptions. The complaint did not contain the names of any individuals against whom `acts, failures to act, courses of conduct, or things' were committed. Nor were there any times, dates, places or specific description of plaintiff's alleged misconduct.
The State Highway Police Act in the section dealing with removal, demotion and suspension states:
`* * * the accused policeman shall be afforded full opportunity to be heard in his own defense and to produce proof in his defense.' Ill.Rev. Stat., 1961, ch. 121, § 307.14. [Emphasis added.]
When a policeman is not sufficiently informed of the charges against him it becomes impossible for him to `produce proof in his defense'; and he certainly is not `afforded full opportunity' to do so. It is true that charges in an administrative proceeding need not be drawn with the same nice refinements and subtleties as pleadings in a court of record, but the charges must be sufficiently clear and specific to allow the preparation of a defense. Sudduth v. Board of Fire & Police Com'rs, 48 Ill.App.2d 194, 198 N.E.2d 705. We find that the complaint before the Merit Board did not sufficiently apprise the officer of the charges and that action of the Board in denying his demand for a Bill of Particulars was reversible error."
Thus, as the Missouri Supreme Court and the Illinois appellate court concluded, we conclude here, there was a total lack of specificity in the so-called adequate notice of the fair hearing.
But, Medical Services Administration contends that whether the written notice was adequate or not, there was oral notification of the charges against Mr. Duke which did supply the requirements of adequate notice, citing NLRB v. Roure-DuPont Mfg., 199 F.2d 631 (2d Cir. 1952). The answer to this contention is twofold. First, in that case the board, and the court, found as a matter of fact that effective oral notification of the charges against Roure-DuPont had been given. Second, the trial court in the case at bar found just the opposite.
We have carefully examined the record and find that there were factual disputes between Mr. Braswell and Mr. Carlton, Duke's attorney and Medical Services Administration's attorney, respectively, as to whether Mr. Braswell had been given copies of Medical Services Administration's exhibits upon which it would rely at the hearing and as to whether he had been told what Medical Services Administration's theory of its case was. Under the ore tenus rule the resolution of these differences was for the trial court.
In sum, we find that the trial court should be affirmed on his finding and conclusion that the letter of October 20, 1977, did not constitute due process in that it did not sufficiently or adequately inform Duke of the charges against him in order to enable him to prepare his defense. Resolution of this issue was a matter of law which addressed itself to the trial court. As to the question of whether there was adequate oral notification of the charges sufficient to supply deficiencies of the letter, the trial court's finding on this disputed issue must also be affirmed, under the ore tenus rule. We do not find the trial court's finding to be clearly and palpably erroneous. Terry v. Buttram, 368 So.2d 859 (Ala.1979).
In view of the result we reach, it is unnecessary that we consider the other contentions as to whether Duke was denied opportunity to fully cross-examine witnesses *689 against him and whether he was properly denied the right to see certain documentary evidence.
It may be that our affirmance does not preclude the administrative agency from further proceedings in this cause. See 2 Am.Jur.2d, Administrative Law, § 765, p. 665; Katz v. Alabama State Board of Medical Examiners, supra. We do not decide that issue now.
AFFIRMED.
BLOODWORTH, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
TORBERT, C. J., and MADDOX and FAULKNER, JJ., dissent.
FAULKNER, Justice (dissenting).
I dissent. The majority, by affirming the Circuit Court of Montgomery County reinstating Henry Patrick Duke and Duke Drug Center as Medicaid providers, misapplies constitutional principles of procedural due process in administrative hearings.
From 1970 to October, 1977, the Medical Services Administration (MSA) utilized the Medicaid Pharmacy Draft System to provide prescription drugs to Medicaid recipients. Under that system retail drug stores, such as Duke Drug Center, which had a contract with MSA were reimbursed for drugs on an approved Medicaid list which were dispensed pursuant to a doctor's prescription and received a fixed dispensing fee less a small sum paid by the Medicaid recipient. The drafts, submitted for MSA approval, contained the appropriate drug number, recipient's name and number, number of pills dispensed, pharmacist's signature and identification number, and recipient's signature. MSA regulations did not allow a pharmacist to charge for larger quantities or different drugs than the doctor prescribed. Quantities or types of drugs prescribed were not to be arbitrarily changed by a drug provider except as authorized either by the prescribing doctor or by the MSA committee in Montgomery.
Computer exception print-outs indicated Duke Drug Center had billed in duplicate or charged MSA twice for the same service. A complaint was filed in early June, 1977, with the Program Integrity Section of MSA. That section then followed up the complaint by sending investigators to conduct an on-site review in Duke's place of business. As a result of two such inspections, a search warrant was issued in Talladega County to obtain additional pharmacy drafts.
On October 20, 1977, Jack Worthington, Commissioner of Medical Assistants, sent Patrick Duke the letter notice provided for in the MSA regulations informing him of the offer of a fair hearing to determine whether he should be terminated as a Medicaid provider because of alleged abuses found in the inspections. Duke requested a fair hearing which was begun on November 22, 1977, before Robert Crumpler, hearing officer, and was reconvened on November 29, 1977. Prior to that hearing, Duke's attorneys had examined every transaction to be considered at the hearing and received copies of all evidence expected to be presented. After hearing testimony and receiving exhibits, Mr. Crumpler submitted findings and a recommendation that Duke Drug Center and Patrick Duke be terminated as a pharmacy provider. The recommendation was approved by Commissioner Worthington. An appeal was taken by Duke from the fair hearing to the Provider Termination Appeals Committee who reviewed the record and upheld the hearing officer as to Duke's termination.
On June 14, 1978, Duke filed a complaint in Montgomery County Circuit Court requesting declaratory and injunctive relief to overturn the decision of the Commissioner of MSA that Duke had abused the Medicaid program and was thus terminated as a Medicaid provider. After a hearing without a jury, the trial judge determined that Duke was not given adequate notice of the fair hearing, and was not adequately informed of the charges against Duke Drug Center and himself, that the administrative hearings were unconstitutionally conducted, and that Patrick Duke and Duke Drug Center should be reinstated as Medicaid providers. *690 The majority agrees and affirms the trial court.
MSA asserts on appeal that Duke was given adequate notice of the charges against him by the letter of October 20, 1977, a review and copies of evidence to be presented and oral communications concerning MSA's contentions. They also contend that the trial court erred in declaring the administrative hearing unconstitutionally conducted because cross-examination was limited and certain written statements in possession of the State were not made part of the record of the administrative proceeding.
Notice in an administrative hearing sufficient to meet the requirements of procedural due process has been furnished if the party proceeded against understood the issues involved and was given a full opportunity to justify his conduct. Golden Grain Macaroni Co. v. Federal Trade Commission, 472 F.2d 882 (9th Cir. 1972), cert. den. 412 U.S. 918, 93 S.Ct. 2730, 37 L.Ed.2d 144 (1973); White v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368 (1971); Department of Revenue v. JAMB Discount, 13 Ill.App.3d 430, 301 N.E.2d 23 (1973). Nothing in the record shows that Duke did not understand the issues. He was given an opportunity to justify his conduct. The charges set forth in the pleadings must be sufficiently clear and specific to allow the preparation of a defense. Greco v. State Police Merit Board, 105 Ill. App.2d 186, 245 N.E.2d 99 (1969). Adequacy of the notice furnished will vary with the circumstances of each case. Bernstein v. Board of Education of Prince George's County, 245 Md. 464, 226 A.2d 243 (1967). Deficiencies in the pleading submitted for an administrative hearing may be cured by informal communication, by formal amendment, by a bill of particulars, by pre-hearing conferences, or by ample continuances at the hearing. K. Davis, Administrative Law Text ¶ 8.04 at p. 149 (1957).
Patrick Duke was sent a letter, dated October 20, 1977, by Commissioner Worthington of MSA, which stated in part:
"This information [in the Commissioner's possession] indicates that comparison of numerous original prescriptions and drug drafts submitted by your pharmacy to Medicaid for these prescriptions disclosed that your pharmacy billed Medicaid for drugs other than those dispensed or identified on the prescription. This information further indicates that this abuse resulted in an overcharge to the program for the non-valid charges."
This letter notice, required by MSA regulations, was sufficient to notify Duke that the issue to be contested at the fair hearing was whether or not he had billed Medicaid for drugs other than those dispensed or identified on the prescription. Mr. Duke indicated subsequently in his testimony in the circuit court that he understood MSA procedure for dispensing drugs and that a pharmacist could not charge Medicaid for amounts of or types of drugs that a doctor did not prescribe. One of Mr. Duke's attorneys and an attorney for and representatives of MSA met several weeks prior to the hearing and at that time MSA's contentions and copies of the prescriptions and drafts to be used at the fair hearing were presented to Duke's attorney. There was testimony in the circuit court that the discrepancies between the Medicaid drafts and the doctors' prescriptions had been pointed out to Duke's attorney prior to the fair hearing and that the attorney appeared to understand MSA's contentions. The requirements of procedural due process were complied with by the MSA in the fair hearing in question.
Furthermore, MSA's letter notice along with provision of material evidence to be used by MSA at the fair hearing have been held to comply with due process requirements. In Robinson v. Worthington, No. 77-487-N (M.D.Ala., Mar. 13, 1978), letter notice to Dr. Robinson of his alleged overutilization of Medicaid claims and thus possible dismissal as a Medicaid provider, along with provision with the material evidence to be used against the doctor and information that a certain witness would be called to testify on the reports to be offered, were furnished to Dr. Robinson. The U. S. District Court concluded as a matter of law that due process was met.
*691 The range of cross-examination and requirements for the production of witness statements in an administrative hearing are not the same as in a trial. Wide latitude is allowed in the admission of evidence in administrative proceedings. See, Matter of Protest of Miller, 88 N.M. 492, 542 P.2d 1182, cert. den. sub nom. Dale Bellamah Land Co., Inc. v. County Assessor of Bernalillo County, 89 N.M. 5, 546 P.2d 70 (1975). In Reilly v. Pinkus, 338 U.S. 269, 276, 70 S.Ct. 110, 114, 94 L.Ed. 63 (1949), the Supreme Court stated: "The power to refuse enforcement of orders for error in regard to evidence should be sparingly exercised. A large amount of discretion in the conduct of a hearing is necessarily reposed in an administrative agency."
The hearing officer limited the cross-examination of an MSA investigator, Jim Mustrove, regarding certain witness statements used to obtain the search warrant in Talladega County on the ground of relevance. He refused to require MSA to produce as additional exhibits those witness statements because they were outside the scope of the exhibits originally agreed to be the bases of the hearing and contained nothing substantially different from the 14 exhibits the Duke attorneys were allowed to see and cross-examine on. In view of the large amount of discretion regarding admission of evidence in an administrative hearing, the circuit court should not have held that the hearing was unconstitutionally conducted because cross-examination was limited and certain witness statements were not made a part of the record.
The majority affirms primarily because of the ore tenus rule. This is not an ore tenus case, in its strict sense. Notice was a question of law. In my opinion in this case, notice was sufficient, and Duke was not denied due process. This Court should not hold an administrative hearing to the strict standards applied to a judicial hearing.
The judgment of the circuit court should be reversed. Duke should be terminated from the Medicaid program.
TORBERT, C. J., and MADDOX, J., concur.


979 F.2d 1539
U.S.v.Baker*
NO. 92-6421
United States Court of Appeals,Eleventh Circuit.
Nov 23, 1992

1
Appeal From:  N.D.Ala.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


Opinion Issued February 19, 2008

Opinion Issued February 19,
2008

In The
Court of Appeals
For The
First District of Texas

NO. 01-08-00144-CR

WILLIAM HARRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 876384

MEMORANDUM OPINION
           William Harris filed a
motion for rehearing.  We grant rehearing and withdraw our opinion and judgment
of December 18, 2008, and issue the following in their stead.  Our disposition
of the case remains unchanged.  Harris appeals from the trial court’s denial of
his motion for post-conviction forensic DNA testing under Chapter 64 of the
Code of Criminal Procedure.  See Tex.
Code. Crim. Proc. Ann. art.
64.01–.05 (Vernon 2006 & Supp. 2008).  We affirm the trial court’s order.
Background
In September 2002, a jury
found Harris guilty of murdering his wife by strangulation and sentenced him to
sixty-five years’ confinement and a $10,000.00 fine.  The Sixth Court of
Appeals of Texas affirmed Harris’s conviction in 2004.  After his conviction,
Harris twice moved for post-conviction DNA testing in the trial court, which
denied the motions.  It is from the second denial that Harris appeals.
We summarize the facts of
the underlying case from the Sixth Court of Appeals opinion in Harris’s appeal
of his conviction.  See Harris v. State, 133 S.W.3d 760 (Tex. App.—Texarkana 2004, pet. ref’d).
In March 2001, Wenona
Harris lived in an apartment complex in Texas City with her young son Jyron.
Wenona was married to Harris, but had filed for a divorce, due to be final a
week after her death.  On March 4, police discovered a body, later identified
as Wenona Harris, behind a dumpster in north Houston.  Police later arrested
William Harris for Wenona’s murder, caused by strangulation.
Three witnesses testified
that they had seen William Harris at Wenona’s apartment complex on March 3.
The first, a neighbor, saw Harris leaving Wenona’s apartment and moments later
saw him being shown around the complex by a leasing agent.  Between 2:30 and
3:00 p.m., two women waiting to pick up a friend at the complex observed an
African-American male carrying what appeared to be a large bundle of laundry
wrapped inside either sheets or a large comforter.  One of the witnesses later
identified Harris in a police lineup.  As the witnesses watched the man, they
observed a human arm fall out of the bundle and saw a body inside the bundle.
The witnesses saw the man put the body, which they believed was that of a small
African-American or Hispanic woman or child, into a black sport-utility vehicle
and push it down so that it could not be seen.  While the witnesses watched the
vehicle drive away from the complex, they wrote down the vehicle’s license
plate number.  Later, they gave this information to the police, who determined
that the sport-utility vehicle was a black Lincoln Navigator registered to
William Harris.
 Additionally, witnesses
testified that just weeks before Wenona’s murder, Harris had checked himself
into the hospital because he said that he had been having homicidal thoughts of
killing his wife by strangling her or shooting her with a gun.  Wenona’s sister
testified that Harris had a history of family violence and injuring Wenona,
including an incident where Harris choked Wenona until she lost consciousness.
Discussion
           Harris contends that the
trial court erred in denying his motion for post-conviction DNA testing because
DNA obtained from the scene belonging to a third party would exculpate Harris.
          We apply a bifurcated standard of review to a trial court’s decision
to deny post-conviction DNA testing.  Bates v. State, 177 S.W.3d 451,
453 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Rivera v. State,
89 S.W.3d 55, 59 (Tex. Crim. App. 2002)).  Accordingly, we afford almost total
deference to the trial court’s determination of issues of historical fact and
its application of the law to fact issues that turn on an evaluation of
credibility and demeanor.  Id.  We review de novo the
application-of-law-to-fact issues, including the ultimate question of whether
the trial court was required to grant a motion for DNA testing under Chapter 64
of the Code of Criminal Procedure.  Id.
          A convicted person may move
in the trial court for a DNA analysis of evidence containing biological
material.  Tex. Code Crim. Proc. Ann. art.
64.01(a).  The motion may request DNA testing only if the evidence was in the
possession of the State during the trial of the offense, but
(1) was not previously subject to DNA
testing
(A) because DNA testing was
(i)    not available, or
(ii) available but not technologically
capable of providing probative results, or
. . . .

(B)(2)  although previously subject to
DNA testing, can be tested again with newer testing techniques that provide a
reasonable likelihood of results that are more accurate and probative than the
results of the previous test.

Tex. Code.
Crim. Proc. Ann. art.
64.01.  Further, article 64.03 of the Code of Criminal Procedure provides, in
pertinent part,
(a) A convicting court may order forensic
DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition
making DNA testing possible; and
(ii) has been subjected to a chain of
custody sufficient to establish that it has not been substituted, tampered
with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the
case; and
(2) the convicted person establishes by
a preponderance of the evidence that:
(A) the person would not have been
convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA
testing is not made to unreasonably delay the execution of sentence or
administration of justice.

Tex. Code.
Crim. Proc. Ann. art.
64.03(a).  If the trial court concludes that the defendant has met the
requirements of Article 64, then the trial court shall order DNA testing.  Id. at (c).
A convicted person must
do more than merely allege that these requirements have been met.  Dinkins
v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002).  Rather, a motion for
DNA testing must be accompanied by an affidavit, sworn to by the convicted
person, containing statements of fact that support the motion.  Id.; Tex. Code Crim. Proc. Ann. art
64.01(a).  Texas Civil Practice and Remedies Code Section 132.001 allows an
inmate in the Texas Department of Criminal Justice or in a county jail to make
an unsworn declaration in lieu of a written, sworn declaration, as long as it
meets the requirements in Section 132.002, which requires that it be in writing
and subscribed by the person making the declaration as true under the penalty
of perjury, and it be substantially in the form as set out by Section 132.003.
Tex. Civ. Prac. & Rem. Code Ann.
§§ 132.001–.003 (Vernon 2005); see Owens v. State, 763 S.W.2d 489, 490
(Tex. App.—Dallas 1988, pet. ref’d); Green v. State, 264 S.W.3d 63, 67
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).  Harris verified the facts
set forth in his pro se second motion for DNA testing in an unsworn declaration.
However, Harris failed to
meet his burden of establishing by a preponderance of the evidence that he
would not have been convicted had exculpatory results been obtained in DNA
testing.  See Dinkins, 84 S.W.3d at 643.   As in Dinkins,
here the trial court denied Harris’s motion based on the fact that Harris
failed to meet his burden to show by a preponderance of the evidence that he
would not have been convicted if exculpatory DNA results had been obtained.  A
convicted person must show that a reasonable probability exists that the DNA
tests would prove his innocence.  Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); Bates v. State, 177 S.W.3d 451, 453 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).  Harris’s affidavit offers the conclusory statement
that “the States’ Prosecuting Attorney utilized/or gave reference to over 24
exhibits” and that he would not have been convicted if DNA testing had been
done on a number of these items of evidence, namely (1) car floor mats, (2)
blood from the complainant’s carpet, linens and a pillow case, and (3) hair
fibers, fingernail scrapings, and vaginal and anal swabs retrieved from the
complainant during the investigation. The existence of another person’s DNA
found in any of these samples would not prove, however, by a preponderance of
the evidence, that Harris was wrongly convicted, because it would not exclude
Harris as the person who strangled Wenona.   The bare assertion that another
person’s DNA might be found at the crime scene, without more, is not exculpatory
evidence sufficient to find that a trial court abused its discretion in
ordering DNA testing.  See Prible v. State, 245 S.W.3d 466, 470 (Tex.
(Tex. Crim. App. 2008) (“without more, the presence of another person’s DNA at
the crime scene would not constitute affirmative evidence of the appellant’s
innocence” requiring relief under Chapter 64); Bell v. State, 90 S.W.3d
301, 306 (Tex. Crim. App. 2002) (holding that evidence of another person’s DNA,
if found on a hair, a cigarette butt and a bath mat with blood stains from the
crime scene does not constitute affirmative exculpatory evidence).  As
in Bell, here Harris “set forth only a bare assertion that the
biological samples in question might belong to someone else.  This is not
enough.”  Id.
Conclusion
We hold that the trial
court did not err in finding that Harris failed to meet his burden under
Article 64.03 of the Texas Code of Criminal Procedure to obtain DNA testing.
We therefore affirm the order of the trial court.

                                                          Jane Bland
                                                          Justice

Panel consists of Judges Jennings,
Hanks, and Bland.
Do not publish.  Tex. R. App. P. 47.4