| (Cite
as: 959 P.2d 23)
Court
of Civil Appeals of Oklahoma,
Division
No. 1.
In
the Matter of L.A.Y., a child under the age of
eighteen,
Jennifer
YOST, Appellant,
v.
The
STATE of Oklahoma, Appellee.
No.
90497.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. I.
May 8, 1998.
*24
Appeal from the District Court of Logan County; Honorable Larry R. Brooks,
Judge.
AFFIRMED.
Larry Monard, Oklahoma
City, for Appellant.
Connie S. Pope, Asst.
District Attorney, Guthrie, for Appellee.
James D. Bennett, Enid,
for Child, L.A.Y.
OPINION
CARL B. JONES, Vice Chief Judge.
¶ 1 The mother of
L.A.Y., a three-year old boy, appeals a judgment on jury verdict terminating
her parental rights. L.A.Y. had been in DHS custody since he was 2 1/2
months old. At an adjudication hearing in January, 1996, mother stipulated
to allegations in the State's petition and L.A.Y. was adjudicated "deprived".
The dispositional order with service plan was also entered at *25
that hearing. In July, 1996, an amended service plan was accepted and
adopted by the trial court. The plan set forth several conditions or standards
of conduct with which mother was ordered to comply.
[FN1] Mother's failure to comply with the plan, however, led the state
seven months later, in February, 1997, to file its Application to Terminate
her Parental Rights. Jury trial was held on October 21, 1997, resulting
in a verdict
that mother's parental rights be terminated.
FN1.
The service plan required that mother:
(1)
Receive a drug/alcohol assessment from a qualified drug/alcohol counselor
to determine the extent of her addiction;
(2)
Attend and successfully complete the evening treatment program at the
Logan County Youth and Family Services;
(3)
Attend infant parenting classes once a week for a period of twelve weeks
to learn how to appropriately parent her infant child;
(4)
Have visitation with the child, L.A.Y., on a weekly basis with supervision
by the Department of Human Services;
(5)
Submit to random urinalysis testing as directed by the Department of Human
Services;
(6)
When she has tested negative for drugs and alcohol for six consecutive
weeks and completed at least four sessions of parenting classes, the minor
child shall be placed back into her care.
¶ 2 Mother received
a drug and alcohol assessment which found her to be dependent on drugs
in December, 1995. A later assessment was done, in March, 1997, which
showed that her dependency had progressed or gotten worse.
¶ 3 The Logan County
Youth and Family Services evening treatment program was described
as an intensive twelve week out-patient program. Despite being given more
than twice the normally allowed absences, mother quit going and did not
complete the program. Mother attempted the program again, but after having
five absences in the first three weeks she was dropped from the program.
¶ 4 The service
plan also required parenting classes which mother began at the Logan County
Youth and Family Services. Out of the minimum of twelve classes required
for successful completion, mother attended seven. She just quit attending
without explanation.
¶ 5 The visitation
she was allowed with her child was only infrequently exercised. Because
of mother's drug use an additional requirement was imposed by DHS and
the court that she show a negative drug screening test before she would
be permitted visitation with the minor child. Mother's first DHS child
welfare specialist, Mr. Shipman, testified that he talked with mother
40 or 50 times about getting her drug problem under control and that she
clearly understood that drug use was the root of her problems. Mr. Shipman
was succeeded by Mr. Southerland in February, 1997. Mr. Southerland testified
that since he took over the case, mother had not submitted to any drug
testing nor had she attempted to exercise any visitation with the child.
They had also had a very difficult time locating her.
¶ 6 Pursuant to 10
O.S. Supp.1995 § 7006-1.1, in order to terminate parental rights,
the state must show, by clear and convincing evidence, that (a)
the child is deprived; (b) such condition is caused or contributed to
by acts or omissions of his parent; and, (c) termination of parental rights
is in the best interests of the child. The burden of evidence or persuasion
then shifts to the parent to show by clear weight of the evidence that
conditions have changed and have been corrected since the adjudication
of the deprived child. Matter
of C.G., 1981
OK 131, 637 P.2d 66, 71.
¶
7 Mother first contends the trial court erred in instructing the jury
that her parental rights could be terminated if proof of the statutory
elements was "clear and convincing". She objected to this instruction
and argues that the "clear and convincing" standard is a violation
of the Fourteenth Amendment equal protection clause of the United States
Constitution. The basis for this argument is that the Indian Child Welfare
Act, 25 U.S.C. § 1901 et seq., provides that termination of the parental
rights of Indian parents is permitted only where "supported by evidence
beyond a reasonable doubt" that continued custody by the parents
is likely to result in serious damage to the child. 25 U.S.C. § 1912(f).
Indian parents thus have greater protection against losing parental rights
than non-Indians. The Equal *26
Protection Clause exists to assure that those persons similarly situated
with respect to a governmental action should be treated similarly. Smith
v. State, 1982
OK CR 77, 646 P.2d 1285, 1287. It "does not bar all distinctions
between classes of individuals subject to governmental action, but simply
assures that the classification made is neither arbitrary or capricious,
and that it bears a rational relationship to a legitimate governmental
interest.," Id.,
at 1288. "The goal of the Indian Child Welfare Act is to protect
Indian families against disruption, pursuant to a Congressional finding
that an alarmingly high percentage of Indian families are broken up by
unwarranted removal of Indian children from them and that 'there is no
resource that is more vital to the continued existence and integrity of
Indian tribes than their children * * *.' 25 U.S.C. § 1901(3), (4)."
In the Matter
of the Application of Angus,
60 Or.App. 546, 655 P.2d 208, 213 (1982). Angus
held that there was a rational basis between the fulfillment of Congress'
unique guardianship obligation toward the Indians and the protection of
the integrity of Indian families as provided in the Indian Child Welfare
Act. Id.
¶
8 There is a rational basis for the special protections set forth in the
Indian Child Welfare Act. Therefore, the fact that state law provides
less protection for non-Indians, such as Appellant here, is not a constitutional
violation of the equal protection clause.
¶
9 Mother next contends she was deprived of due process in that the state
did not prove that she received a copy of the service plan, agreed to
the service plan or that a hearing was held regarding the service plan.
This contention is without merit. Court records reflect that mother and
her attorney
were present in court on January 17, 1996, when the service plan was first
presented and adopted by the court. Further, when the amended service
plan was ordered and adopted on July 3, 1996, mother and her attorney
were again both present. The record is also replete with evidence that
the DHS case workers and others counseled mother repeatedly on what she
needed to do to regain custody of her child. Further, mother never testified
that she was unaware of the service plan or that she did not know what
was being required of her to regain custody.
¶
10 Mother's final proposition is that the trial court erred in failing
to instruct the jury that her parental rights could not be terminated
if the Department of Human Services had hindered her progress in complying
with the service plan. She argues that by requiring her to submit a negative
drug test as a condition for exercising visitation, DHS made it too difficult,
or even impossible, for her to exercise that visitation. The trial court
refused to give such an instruction, finding no action by DHS that thwarted
mother's ability to comply with the plan. As mother's brief notes, it
is the trial court's duty to instruct on the decisive issues of the case
as supported by the pleadings and evidence. See, e.g., Matter
of S.C., 1992
OK CIV APP 40, 830 P.2d 200, 202.
¶
11 The service plan was designed to assist mother in changing her lifestyle
in order to become a responsible and competent parent. The goal of the
plan was always reunification of mother and child. Considering the extent
of mother's drug dependency and other irresponsible behavior, the plan
was reasonable and was designed to accomplish its goal of reunification.
It was specific in what it required, yet flexible to accommodate mother.
DHS did not hinder mother's progress, rather, DHS gave mother ample time,
opportunity, and assistance to comply with the plan and its reasonable
requirements. The evidence simply did not support a jury instruction in
effect blaming DHS for mother's lack of progress in complying with the
service plan. This alleged error is also without merit.
¶
12 In a jury trial, where there is competent evidence reasonably tending
to support the verdict, the judgment based thereon will not be disturbed
on appeal. Matter
of T.R.W.,
1985 OK 99, 722 P.2d 1197, 1200. As competent evidence did support the
verdict, and as legal errors are absent *27
herefrom, the judgment of the trial court must be affirmed.
¶ 13 AFFIRMED.
JOPLIN, P.J., and GARRETT,
J., concur.
959 P.2d 23, 1998 OK
CIV APP 76
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