In re Btw

• Citation: 2008 OK 80,195 P.3d 896
• Decision Date: 16 September 2008
• Docket Number: No. 105,671.,105,671.
• Parties: In the Matter of BTW, Deprived child under the age of eighteen (18) years.
• Court: Supreme Court of Oklahoma

195 P.3d 896

2008 OK 80

In the Matter of BTW, Deprived child under the age of eighteen (18) years.

No. 105,671.

Supreme Court of Oklahoma.

September 16, 2008.

As Corrected September 24, 2008.

Rehearing Denied October 27, 2008.

Appeal from the District Court of Woodward County.

¶ 0 The appellants, district attorney, the deprived child (BTW/child), and the foster parent, join in the appeal of orders of the district court entered on February 15 and 25, 2008: 1) directing a change of placement from the foster home; 2) ordering a plan of reunification with the mother; and 3) denying the appellants' emergency motion to discontinue visitations with the mother. We hold that the trial court did not abuse its discretion either by ordering continued visitation with the mother, the goal being reunification, or by directing a change of placement from the foster home whose environment does not foster reunification.

AFFIRMED.

Susan K. Meinders, Office of the District Attorney of Woodward County, Woodward, OK, for the State of Oklahoma.

Jean L. Foard, Carelyn Stuckey Talley, Foard, Talley & Stake, P.L.L.C., Woodward, OK, for the child.

D. Kent Meyers, Harvey D. Ellis, Jr., Mary H. Tolbert, Wade Gungoll, Crowe & Dunlevy, Oklahoma City, OK, for the foster parent.

Jami J. Fenner, Lester, Loving & Davies, P.C., Edmond, OK, for the mother.

WATT, J.

¶ 1 The appeal¹ of the district court orders of February 15² and 25,³ 2008, respectively, involves visitation and placement matters relating to the child and will be resolved by a single opinion in the instant appeal,⁴ retained by the Court sua sponte. We are asked to determine⁵ whether the trial court abused its discretion in ordering visitation with the goal of reunification and in directing a change in placement.

¶ 2 The record contains facts in support of both sides of the controversy on the visitation and custody issues. Nevertheless, a review of the record and the transcripts reveal substantial evidence in support of the trial court's rulings. Because the trial court is better equipped to determine controversial evidence by its observation of the parties, the witnesses, and their demeanor⁶ and because the judgment entered is not against the clear weight of the evidence,⁷ we determine that the trial court did not abuse its discretion either by ordering continued visitation with the mother, the goal being reunification, or by directing a change of placement from the foster home whose environment does not promote reunification.

CONTROVERTED FACTS AND PROCEDURAL HISTORY

¶ 3 The facts of the cause are highly disputed. Additionally, the record contains at least some evidence to support all arguments made by each of the parties. Finally, the litigation has been long and complex.

¶ 4 After the child was placed in the mother's⁸ home in a fostering situation, DHS supported the mother's adoption of the child in August of 1999. At that time, DHS had knowledge of the mother's background and medical conditions, including a history of mental illness.⁹ No problems were reported in the home until 2005. At that time, the mother's condition deteriorated, apparently due to a misdiagnosis and the prescribing of medications which were detrimental to the mother's physical and psychological health.¹⁰ At the same time, the child began to experience difficulties. School officials reported a change in the child's demeanor. BTW exhibited signs of stress, suffered hair loss,¹¹ and expressed fear of the mother.¹²

¶ 5 On April 25, 2005, DHS received information alleging that the child was being neglected.¹³ The allegations of abuse arose from observations of the child's school counselor.¹⁴ DHS did not find evidence of neglect nor did it recommend legal action to the district attorney. Instead, a "services recommended" finding was entered indicating the need for the mother to place the child in counseling on a regular basis.¹⁵ The investigation was closed by June 20, 2005.

¶ 6 Also during June, the circumstances leading up to the instant controversy were set in motion. Realizing that she was having difficulties both mentally and physically after beginning on the seizure medications, the mother sought additional treatment at a facility in Texas. Knowing she would be hospitalized for a period of time, the mother contacted the foster parent whom she met through her attendance at the Assembly of God Church. She informed the foster parent that she was facing an extended hospitalization and that the child's grandmother was unavailable to care for the child due to her husband's illness. Before agreeing to take the child into her home, the foster parent allegedly requested to be appointed as guardian. DHS was notified that the guardianship had been granted as of June 23, 2005.

¶ 7 Although the mother acknowledges that her illness might frighten her daughter,¹⁶ she alleges that when her child first went to stay with the foster parent BTW missed her and looked forward to their visitations. The mother also asserts that after she left the hospital, the foster parent would not permit her to see the child in private, allowing only short, supervised visits, separated by long intervals between contacts. The mother contends that, only after having lived in the foster parent's home, did the child become frightened in her presence and begin resisting reunification. The mother's arguments are supported by testimony in the record from the guardian ad litem¹⁷ and by BTW's school counselor¹⁸ indicating that they believed the child wanted to be with her mother early on during the guardianship and that the foster parent interfered in that relationship. In April, 2006, during the hearing on the termination of the guardianship, the trial court observed that "there has become such a personal and separate conflict between the guardian and the mother of the child that one could not reasonably expect them to rebuild the relationship with the child."¹⁹

¶ 8 In May of 2006, DHS again became involved with the child when reports of the mother's volatile behavior towards the child, the foster parent and a DHS supervisor were made.²⁰ The child was: adjudicated deprived on July 31, 2006; made a ward of the court; and placed in DHS custody. DHS allowed the child to continue to live with the foster parent. The mother asserts that DHS ignored the fact that the child's grandmother was willing and eligible to take the child into her home when the child was placed in foster care.²¹ DHS officials contend that because of the volatile nature of the relationship between the mother and the grandmother, the mother had indicated she did not trust BTW to be in the grandmother's home.²²

¶ 9 On August 31, 2006, the district court entered a disposition order adopting an individual treatment and service plan.²³ In December of the same year, DHS sought termination based on allegations that the mother failed to comply with the treatment plan. The mother contends that no evidence existed to support noncompliance. Neither party's position is entirely persuasive.²⁴

¶ 10 On June 18, 2007, DHS filed an amended motion to terminate parental rights, alleging that the mother's mental condition would not respond to treatment.²⁵ The following month, the mother filed a motion for summary judgment asking that the cause be dismissed on grounds that the child was not deprived. The trial court overruled the motion. At the end of a four-day trial, the jury returned a verdict on August 16, 2007 refusing to terminate the mother's parental rights.

¶ 11 Following the trial, DHS allowed weekly, one-hour, supervised visits between the mother and the child in its offices. On September 17, 2007, the mother filed a motion to assume full custody of the child or, in the alternative, to have the child's placement moved from the foster parent. The trial court held two permanency/review hearings, one on October 26, 2007 and a second on February 11, 2008.

¶ 12 At the first hearing, the guardian ad litem again recommended that the child be removed from the foster parent's home because of the interference in the relationship between BTW and her mother.²⁶ Contra to this opinion, the DHS caseworker believed the child should stay in placement with the foster parent and that a change in custody would be traumatic to the child.²⁷ Although the caseworker characterized the mother-child relationship as "fragile," she indicated the relationship should be fostered.²⁸ Nevertheless, she believed that visitation should continue to be supervised because of heated exchanges among BTW, the mother, and the grandmother.²⁹ At the time of the hearing, the mother was regularly attending her appointments with doctors and therapists and had become employed.³⁰ Nevertheless, DHS progress reports indicate the mother was without counseling from June 15, 2006 until January 5, 2007.³¹

¶ 13 At the close of the review hearing, the trial court ordered that a different placement be found for the child and that all parties continue to work towards reunification with the mother. The trial court also ordered that: 1) visitation be increased with a view to allowing weekend visitations in the mother's home within thirty days; 2) DHS expand its search for an appropriate temporary placement to the three county area with individuals of a different faith than that of the foster parent; 3) as well as continuing current counseling sessions, the mother and child would participate in family counseling; and 4) the mother execute a release of her medical records so that they could be reviewed and monitored.

¶ 14 During the interim between the first and second review hearings, increased visitation did occur but DHS did not find alternative placement for the child. For the first time, at the second review hearing, the foster parent intervened. DHS requested that the child remain in out-of-home placement and that reunification efforts be terminated. The request was based on testimony that the child's grades were dropping...