¶1specially concurring:
¶2I concur in Judge Brett’s opinion, but wish to clarify my position regarding 10 O.S.1981, § 1104(b), which states in relevant part: “The summons shall be served on the person who has actual custody of the child_” (emphasis added) The word “shall” makes this provision mandatory. Nickell v. State, 746 P.2d 1155, 1158 (Okla.Crim.App.1987). “Actual custody” is not defined in Section 1104, or elsewhere and, absent a statutory definition, we must assume the Legislature intended it to be understood in the ordinary sense. 25 O.S. 1981, § 1; Glass v. State, 701 P.2d 765, 768 (Okla.Crim.App.1985).
¶3The term “actual custody” is ambiguous, and susceptible to differing interpretations'. Was it intended to mean the person having legal custody or the person with whom the juvenile is residing or something else? Cf. Kan.Stat.Ann. § 38-1626(a) (1983) (summons and complaint shall be served on juvenile, the parent(s) having legal custody, the person with whom the juvenile is residing, and any other person designated by prosecutor). The Oklahoma Legislature would do well to define this term to make its intent clear. Section 1104(b) is designed to provide written notice to the parent, guardian, or person having custody or control of the juvenile, sufficiently in advance of the hearing to permit preparation. See Crandell v. State, 539 P.2d 398, 401 (Okla.Crim.App.1975). In the landmark case of In re Gault, 387 U.S. 1, 33-34, 87 S.Ct. 1428, 1447, 18 L.Ed.2d 527 (1967), writing for the Court, Justice Abe Fortas wrote: “Due process ... does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.” Appellant’s father is deceased, and his mother’s parental rights were terminated. Thus, unlike Gault, there is no question of parental rights here.
¶4The majority holds that appellant was not in the “actual custody” of his natural mother within the meaning of Section 1104(b), because (1) the natural mother’s parental rights were terminated in 1979, and (2) she was not appellant’s lawful temporary custodian. Majority, at 133. This holding is reasonable and proper under the circumstances. The term “custody” implies responsibility for the care and control of a person. See Black’s Law Dictionary 347 (5th ed. 1979). The record does not support a finding that the natural mother was responsible for the care and control of E.C., but rather that appellant was a runaway from a foster home and had been staying with his mother for an unknown period of time without the consent of the Department of Human Services, which was responsible for his care and control. The prior termination of appellant’s natural mother’s parental rights destroyed any legal right or responsibility she previously had for the custody or control of E.C. See 10 O.S.1981, § 1132.
¶5Finally, I would emphasize that our holding is limited to the facts of this case, and would not necessarily extend to approve lack of notice to a person who has lawfully assumed substantial responsibility for the care or control of a juvenile. Based on the foregoing, I concur.