| (Cite
as: 71 P.3d 43)
Court
of Civil Appeals of Oklahoma,
Division
No. 2.
In
the Matter of T.L. and L.N., Deprived Children.
State
of Oklahoma, Plaintiff/Appellee,
v.
D.N.,
Natural Mother, Defendant/Appellant.
No.
97,308.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. 2.
April 29, 2003.
*44 Appeal
from the District Court of Muskogee County, Oklahoma; Honorable Thomas
H. Alford, Trial Judge.
AFFIRMED
AND REMANDED WITH INSTRUCTION.
Jeffery J. Sheridan,
Assistant District Attorney, Muskogee, OK, for Plaintiff/Appellee.
J. Eric Jones, Muskogee,
OK, for Defendant/Appellant.
Opinion by JOE C. TAYLOR,
Presiding Judge:
¶ 1 Natural mother,
Debra Newton (Mother), seeks review of a judgment on a jury verdict terminating
her parental rights to two minor children, T.L. and L.N. (Children). A
third child, A.N., was originally a subject of this proceeding, but while
the action was pending, reached the age of majority and has been dismissed
from the case. The two issues raised by Mother on appeal are (1) whether
the State of Oklahoma (State) presented evidence sufficient to sustain
its burden of proving beyond a reasonable doubt that Mother's parental
rights should be terminated; and (2) whether the trial court erred in
admitting evidence concerning the conditions that existed when Children
were adjudicated deprived. Based on our review of the record, the parties'
briefs, and the applicable law, we answer the first question in the affirmative
and the second in the negative. We find, however, the termination order
is defective in that it does not contain certain mandatory findings required
by Rule 8.2, Rules
for District Courts of Oklahoma, 12 O.S.2001, ch. 2, app. We therefore
affirm the judgment of termination but remand with instructions to enter
a corrected final order that complies with Rule 8.2.
¶ 2 In July 1998,
A.N., then age 16, T.L., age four, and L.N., age two, were taken into
emergency protective custody based on allegations of sexual abuse of A.N.,
a genital injury to T.L., and general neglect and endangerment.
[FN1] State petitioned for adjudication *45
of all three children as deprived on grounds that they did not receive
proper parental care and guardianship, that their home was "filthy
and unsafe for young children," and that the two youngest children
appeared malnourished. The petition also alleged the rape of A.N., and
the injury to T.L., and Mother's failure to protect the children. Mother
stipulated to the allegations of the petition, and, in August 1998, the
court entered an order adjudicating the children deprived. The Cherokee
Nation later was permitted to intervene, and it is undisputed that Children
are Indian children as defined by the Indian Child Welfare Act, 25 U.S.C.
§ 1903(4).
FN1.
An affidavit from a Department of Human Services child welfare worker
in support of the emergency order recites that A.N., who was then age
16, had reported being touched inappropriately by her stepfather, and
that she had been raped by a man who had been living in her home after
the stepfather gave the man "permission" to have intercourse
with A.N. In addition,
T.L., who was four years old at the time, was reported to have an injury
to his penis, which the stepfather admitted inflicting. The affidavit
also recited dangerous conditions present at the home, and stated there
were numerous people living in the home, including four adults, two teenagers,
and two small children, but only three beds. Since the date these proceedings
were filed, A.N. has reached the age of majority, and State did not seek
to terminate Mother's parental rights as to her.
¶ 3 The Department
of Human Services' (DHS) initial report to the court (and other reports
thereafter) indicated Mother had "a history of living with abusive
men" and that DHS had previously received referrals--some of which
were confirmed, while others were ruled out--on the family. The initial
report also stated Mother neglected the children, failed to protect them,
and failed to provide proper medical care. It stated Mother was living
with a female friend at the time of the report, and had not visited A.N.
at all, but had regularly visited the two younger children, both of whom
were (and are) in foster care.
[FN2]
FN2.
Later reports indicated Mother had settled her differences with A.N.,
however, and resumed visitation. A.N. reached age 18 in March 2000 and
was dismissed from the case. By the time of trial in July 2001, she apparently
was again living in the same house with Mother.
¶ 4 The court approved
a treatment plan requiring Mother to provide a home free of physical,
emotional, and sexual abuse; attend parenting skills classes and obtain
certain psychological assessments and counseling; recognize and take care
of the children's medical needs in a timely manner, including all immunizations;
support the children financially; maintain a clean and safe home for at
least six months; and provide adequate amounts of appropriate food for
the children. Regular, periodic review hearings reiterated these requirements.
It is undisputed that Mother was aware of these requirements and understood
them.
¶ 5 In February
2000, at State's recommendation, the court found that efforts to reunite
the family had failed. State filed a petition to terminate Mother's parental
rights in January 2001, alleging Mother failed to correct the conditions
leading to the adjudication of Children as deprived; she abandoned Children;
she willfully failed to contribute to Children's support; Children had
been in foster care for 15 of the most recent 22 months; and termination
was in Children's best interests.
¶ 6 The matter was
tried over a two-day period in July 2001. State called six witnesses,
including a State DHS investigator whose investigation led to the children
being removed from Mother's home in 1998; the children's primary DHS caseworker
and permanency planning worker from Muskogee County; a DHS case and permanency
planning worker from Sequoyah County, where Mother moved after leaving
Muskogee County; a caseworker from the Cherokee Nation Indian Child Welfare
Agency; and Children's current foster mother.
¶ 7 The testimony
in general showed that Mother was very slow to initiate work on the requirements
of her treatment plan after it was entered, and that she brought progress
on the plan to a complete halt in November 1999 when she abruptly decided
to move from Muskogee to Sequoyah County. Mother told caseworkers she
made the move in order to get married and take care of her ill mother,
but even assuming the truth of that rationale the move resulted in a dramatic
decrease in her visitation with Children, as well as the loss of her job
and discontinuation of the minimal individual counseling services in which
she had participated up to that time. *46
Further, within a few months of making the move, Mother and her new husband
had separated, and Mother began living with another man in another town.
Mother had had another child in May 1999, and the new child was with her
as well.
¶ 8 By the time
of trial, according to the testimony, Mother was living in a "one
and one-half to two-bedroom" house littered with debris (inside and
out) and shared by Mother, Mother's new boyfriend, Mother's own mother,
Mother's brother, Mother's new baby, and A.N. (who, as previously noted,
had reached age 18 and been dismissed from these proceedings). According
to the DHS workers, not
only were Mother's living accommodations inadequate and unsafe for the
return of Children to Mother's care, but Mother had failed to complete
almost all of the other requirements of her treatment plan. She had lived
independently and supported herself for fewer than six weeks out of the
previous three years. Moreover, according to a DHS court report and testimony
by one of the workers, the one time Mother had been reunited with Children
for more than just a few hours of visitation--during a two-week period
when Mother was living at a county shelter after the new baby was born,
and Children were also at the shelter because they were between foster
homes--Mother complained about what a "handful" Children were
and wondered how much longer it would be before they would be placed in
another foster home.
¶ 9 The DHS caseworkers
testified Mother was still living in substantially the same manner and
engaging in substantially the same behavior that led to the adjudication
of Children as deprived in 1998. They stated that returning Children to
Mother's care was not in Children's best interests and recommended termination.
A social worker from the Cherokee Nation who was involved in the case
from its inception also testified that she had advised Mother on numerous
occasions of the free or subsidized services available to Mother and encouraged
Mother to pursue them, but that Mother had not followed the worker's advice
or attempted to take advantage of any of the services until after State
moved to terminate her parental rights. The Cherokee Nation worker also
recommended that Mother's rights be terminated.
¶ 10 State rested
after presenting its final witness, Children's foster mother, who testified
that Children were doing well in her family's care, and that the foster
family was willing to retain custody of Children. Mother demurred to State's
evidence and moved to dismiss, which the trial court denied. Mother then
rested without putting on any evidence. The jury returned a verdict making
specific findings that Mother had failed to correct the conditions leading
to the deprived adjudication; Mother had been given at least three months
to correct the conditions but failed to do so; and termination of Mother's
parental rights was in Children's best interests. The jury further determined
that Children had been in foster care for 15 of the most recent 22 months,
and that termination was in their best interests. The trial court entered
judgment on the jury's verdict, and Mother appeals.
¶ 11 Because this
is a case involving Indian children, the proceedings must comply with
the provisions of both the federal ICWA, 25 U.S.C. §§ 1901 through
1963, and its Oklahoma counterpart, the Oklahoma ICWA, 10 O.S.2001 §§
40 through 40.9. See
In re J.W.,
1987 OK CIV APP 60, 742 P.2d 1171. Mother does not contend State failed
to comply with these Acts. Rather, she alleges as error the trial court's
failure to sustain Mother's demurrer to State's evidence as to the sufficiency
of the evidence and as to the length of time Children had been in foster
care before termination proceedings
were filed. Mother also asserts the trial court erred by admitting evidence
concerning the conditions existing when Children were taken into protective
custody.
¶
12 The statutory grounds for termination of parental rights are found
at 10 O.S.2001 § 7006-1.1. Ordinarily, the State's burden is to prove
one or more of these grounds by "clear and convincing" evidence.
However, in ICWA cases, State must prove "beyond a reasonable doubt"
that continued custody by the parent is likely to result in serious emotional
or physical damage to the child. 25 U.S.C. § 1912(f); In
re J.W., 1987
OK CIV APP 60, ¶ 15, 742 P.2d 1171, 1175; *47
In re M.D.R.,
2002 OK CIV APP 75, ¶ 6, 50 P.3d 1160, 1161. Appellate review of
the evidence is thus directed toward assuring the evidence adduced by
State, if believed, would support a conclusion by any rational trier of
the facts that the State's evidence demonstrated beyond a reasonable doubt
that continued custody by Mother would result in serious damage to Children.
State has met its burden here.
¶ 13 As discussed
above, State presented evidence by six witnesses, whose testimony was
unrefuted and demonstrated a long-term familiarity with Mother's and Children's
situations. The testimony clearly supported State's characterization of
Mother as unable or unwilling to care for Children and of having a history
of being involved with abusive partners to whom Mother turned over responsibility
for Children's discipline. Mother's living situation when Children
were adjudicated deprived was abhorrent. Her current situation is not
much better and is certainly inadequate to accommodate two additional
children of elementary school age. There is ample evidence indicating
that Mother made little or no effort to improve herself or her situation
during most of the time period that Children have been in foster care,
and no evidence indicating Mother has any desire of her own to make such
efforts now; in fact, one DHS worker testified that she had communicated
more with Mother's current boyfriend about the case than she had with
Mother.
¶ 14 We also note
that Children had been in foster care for more than 28 consecutive months
at the time State filed its termination petition--a period considerably
longer than the statutory limit of "fifteen (15) of the most recent
twenty-two (22) months preceding the filing of the petition" for
termination under 10 O.S.2001 § 7006-1.1(15). There is no evidence
that the chief reason for foster care placement of this length of time
was "the delay attendant to [Mother's] exercise of [her] constitutional
right to a jury trial," In
re M.C., 1999
OK CIV APP 128, ¶ 7, 993 P.2d 137, 139, and we, therefore, find no
basis for Mother's argument that State's evidence on this issue was somehow
deficient.
¶ 15 Accordingly,
we find that State's evidence was sufficient to convince a rational juror
beyond a reasonable doubt that Mother failed to correct the conditions
leading to the deprived adjudication, that Children had been in foster
care for 15 of the 22 months immediately preceding the filing of the termination
proceedings, and that Children's emotional or physical safety and security
would be jeopardized if Children were returned to Mother's custody. We
therefore reject Mother's proposition of error on the ground of insufficient
evidence.
¶ 16 Mother next
alleges the trial court committed reversible error by admitting evidence
related to the conditions existing when Children were adjudicated deprived.
The crux of Mother's argument on this point is that, because Mother stipulated
to the allegations of State's petition to adjudicate Children deprived,
testimony and other evidence admitted at trial which went to the conditions
in which Children were living when they were taken into protective custody
was rendered either irrelevant or cumulative and unduly prejudicial under
12 O.S.2001 §§ 2402 or 2403.
¶ 17 We review a
trial court's evidentiary determinations for abuse of discretion only.
"The relevance and admissibility of evidence are matters entrusted
to the sound legal discretion of the trial court." In
re J.M., 1998
OK CIV APP 141, ¶ 6, 964 P.2d 972, 973-74.
¶ 18 The evidence
to which Mother objected at trial on this issue was testimony by a DHS
investigator and a deputy sheriff who were called to the house where Mother
lived when Children were taken into protective custody. The witnesses
described the information received by DHS which led them to the home (including
information that A.N. had been raped), the house's squalid and unhealthy
condition, Children's malnourished state, and Children's and Mother's
reactions to Children being taken away.
¶ 19 Although it
is true, as Mother argues, that this evidence was highly prejudicial,
Mother's argument ignores the fact that the evidence is directly relevant
to two of the major elements that State must prove in order to terminate
Mother's parental rights: *48
that Children were adjudicated deprived because of certain conditions
which were caused or contributed to by acts or omissions of Mother, and
that Mother failed to correct those conditions despite being given time
to do so. 10 O.S.2001 § 7006-1.1(A)(5); see
also In re J.M.,
1998 OK CIV APP 141, 964 P.2d 972; In
re M.K., 1998
OK CIV APP 118, 964 P.2d 241.
¶ 20 We find inapplicable
Jones v. State,
1987 OK CR 103, 738 P.2d 525, the authority on which Mother relies to
argue that the evidence, even if relevant, was unduly prejudicial and
thus excludable under 12 O.S.2001 § 2403. Jones
is a criminal case in which the Court of Criminal Appeals held the danger
of unfair prejudice outweighed the probative value of allowing the jury
to view more than one graphic color photograph of a murder victim whose
body had been recovered from a river. The Court held that such evidence
was cumulative and unnecessary to establish certain elements of the State's
case. Id.
at ¶¶ 6-9, 738 P.2d at 527.
¶ 21 In the case at bar, however, the testimony by the DHS investigator
and deputy sheriff were needed to establish and explain to the jury an
essential element of State's case by explaining the allegations of the
adjudication petition. Without illustrating the conditions that existed
when Children were taken into custody, State could not prove that Mother
had failed to correct those conditions. The witnesses did not go into
extreme, undue, or graphic detail, and Mother was afforded a full and
fair opportunity to cross examine each witness at length. No graphic photos
or inflammatory language was used, nor were photos or other visual exhibits
introduced. We view the situation as distinguishable from Jones,
and that case provides no authority for us to find an abuse of discretion
in the trial court's decision to allow the evidence about which Mother
complains. We therefore reject Mother's argument on this proposition of
error.
¶ 22 Though not raised
by Mother on appeal, a final issue which must be addressed concerns the
final order entered by the trial court on the jury's verdict. The order
is flawed in that it does not contain the recitations required by District
Court Rule 8.2, 12 O.S.2001, ch. 2, app.: the order lacks a recitation
finding compliance with the ICWA, a finding of compliance with Oklahoma's
Uniform Child Custody Jurisdiction Act (UCCJA), and specific findings
as to Children's full legal names and birth dates. Inclusion of such findings
is mandatory, not optional, under rule 8.2. See
also In re M.D.R.,
2002 OK CIV APP 75, ¶ 9, 50 P.3d 1160, 1162. The record presented
reflects compliance with the ICWA as well as the UCCJA, and as noted above
Mother does not challenge the validity of the judgment on either of these
grounds; thus, we do not vacate or reverse the trial court's judgment
due to these defects, but instead remand the case with instructions to
the trial court to take such actions as are necessary to correct the delineated
deficiencies in the final order. The court's judgment is otherwise affirmed
in all respects.
¶ 23 AFFIRMED AND
REMANDED WITH INSTRUCTIONS.
COLBERT, V.C.J., and
STUBBLEFIELD, J., concur.
71 P.3d 43, 2003 OK CIV
APP 49
|