428 P.3d 881 (Okla. 2018), 116,465, In re J.L.O., IV

Docket Nº:116,465
Citation:428 P.3d 881, 2018 OK 77
Opinion Judge:DARBY, J.:
Party Name:In the MATTER OF: J.L.O., IV, a Child Under 18 Years of Age, Carolyn Dougherty, Appellant, v. State of Oklahoma, Appellee.
Attorney:Isaiah Parsons, Charles Graham, and Matthew D. Day, PARSONS, GRAHAM & DAY, LLC, Tulsa, OK, for Appellant. Kyle Felty, Assistant District Attorney, Tulsa County District Attorney’s Office, Tulsa, OK, for Appellee. Sal R. Munoz, Assistant Public Defender, Tulsa, OK, for Minor Child.
Judge Panel:Combs, C.J., Gurich, V.C.J., Winchester, Edmondson, Colbert, Reif, Darby, JJ., concur; Kauger, J., concurs in result; Wyrick, J., concurs in judgment.
Case Date:September 25, 2018
Court:Supreme Court of Oklahoma
 
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428 P.3d 881 (Okla. 2018)

2018 OK 77

In the MATTER OF: J.L.O., IV, a Child Under 18 Years of Age, Carolyn Dougherty, Appellant,

v.

State of Oklahoma, Appellee.

No. 116,465

Supreme Court of Oklahoma

September 25, 2018

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA; HONORABLE RODNEY SPARKMAN, SPECIAL JUDGE

[¶ 0] Carolyn Dougherty (Mother), appeals the judgment of the Tulsa County District Court terminating her parental rights to J.L.O., IV (Child). We find the district court did not err in judgment.

ORDER OF THE DISTRICT COURT IS AFFIRMED.

Isaiah Parsons, Charles Graham, and Matthew D. Day, PARSONS, GRAHAM & DAY, LLC, Tulsa, OK, for Appellant.

Kyle Felty, Assistant District Attorney, Tulsa County District Attorney’s Office, Tulsa, OK, for Appellee.

Sal R. Munoz, Assistant Public Defender, Tulsa, OK, for Minor Child.

OPINION

DARBY, J.:

[¶ 1] The questions presented to this Court are whether 1) the district court abused its discretion by denying Mother’s motion to continue and allowing her waiver of jury trial; 2) a witness testifying telephonically violated Mother’s right to procedural due process; 3) the State presented clear and convincing evidence to support the termination of parental rights; and 4) Mother’s trial counsel provided effective assistance. We answer the first two questions in the negative and the last two in the affirmative.

I. BACKGROUND AND PROCEDURAL HISTORY

[ ¶ 2] Mother gave birth to Child on June 6, 2016. On June 17, 2016, when Child was less than two (2) weeks old, the Oklahoma Department of Human Services (DHS) removed Child from Mother’s custody. On June 28, 2016, the State filed a petition in Tulsa County District Court requesting that the court adjudicate Child deprived because of the following facts: On June 13, 2016, Tulsa Police pulled over Child’s natural parents for expired tags. During the impound inventory, Tulsa Police found multiple items containing brown residue which the searching officer confirmed as heroin, via field test. Mother admitted to using heroin previously, but claimed that she had quit after learning she was pregnant. While Child was in the NICU for weight loss, hospital staff observed Mother with symptoms of continued heroin use including: passing out on a toilet, falling asleep with Child on her chest, and dozing off while standing up. The State alleged that Mother’s actions in the above-described conditions constituted "neglect, failure to provide a safe and stable home, threat of harm, and substance abuse by [the] caretaker."

[¶ 3] On September 8, 2016, Mother failed to appear for the hearing and the Tulsa County District Court adjudicated Child deprived by consent due to 1) lack of proper parental care or guardianship; 2) abuse, neglect, or dependence; and 3) drug endangerment. The court also imposed an individualized service plan (ISP) by consent, requiring Mother to correct conditions of neglect, failure to provide safe and stable home, threat of harm, and substance abuse. On March 2, 2017, the State filed a Motion to Terminate Mother’s parental rights to Child under Title 10A, Sections 1-4-904(B)(5), (7), and (17), alleging Mother had failed to correct the conditions that led to Child being adjudicated deprived. After Mother appeared three (3) hours late to the previously scheduled June 2017 permanency hearing, the district court scheduled a jury trial for August 28, 2017, on the motion to terminate parental rights.

A. Request for Continuance

[¶ 4] Mother appeared for jury trial on August 28, 2017, and orally requested that the district court grant her a continuance. She stated that she had begun to make progress on correcting the conditions that led to Child being adjudicated deprived and she wanted more time to achieve success. Mother explained that she had suffered from unaddressed depression that had set her back on her ISP. Mother offered that she would be

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willing to waive her right to a jury trial in order to be scheduled for a non-jury trial at a later date. Because Child’s biological father is a member of the Choctaw tribe, Mother also requested that the court find out whether the State had secured tribal testimony for her originally scheduled jury trial.

[¶ 5] The State objected to a continuance, stating that they were prepared to proceed. Child agreed with the State’s objection and argued that without compelling reasons, due to Child’s young age and the length of time he had been kept in protective custody, the court should deny a continuance. Based on Mother’s request, the district court recessed briefly to inquire whether tribal testimony would be available, if the court continued the trial. Before receiving an answer from the tribe, however, the court denied Mother’s motion for a continuance due to the length of time the case had been pending.

B. Waiver of Jury Trial

[¶ 6] After unequivocally denying the motion for continuance, the district court clarified that Mother was still scheduled for a jury trial that day. The court then asked Mother, "is it your desire to waive your right to have a jury trial on the request for termination issue?" Mother replied affirmatively. The court then reviewed the form waiver of jury trial with Mother: THE COURT: It says here that you do wish to waive your right to have a jury trial. Is that your request at this time, ma’am?

[MOTHER]: Yes, Your Honor.

THE COURT: Did you make that decision voluntarily? Is it - - did anyone force you, coerce you or promise - -

[MOTHER]: No, Your Honor.

THE COURT: - - you anything of value to waive your right to have a hearing by jury?

[MOTHER]: No, Your Honor.

THE COURT: Ma’am, you realize by doing this the issue of whether or not to terminate your parental rights will be coming to me. I’ll hear all the evidence on both sides of the case and decide whether or not the State has met their burden. Is that your understanding of how you want to proceed?

[MOTHER]: Yes, Your Honor.

THE COURT: Ma’am, are you currently under the influence of any substance that could affect your ability to understand what we’re doing today?

[MOTHER]: No

THE COURT: Okay. Are you currently taking or prescribed any type of medication?

[MOTHER]: I am prescribed methadone.

THE COURT: Methadone?

[MOTHER]: Uh-huh.

THE COURT: Okay. And are you taking it as prescribed by a physician and following all of those regulations --

[MOTHER]: Yes, Your Honor.

THE COURT: Okay. And, ma’am, on this back page this form is filled out and there’s a signature. Is that your signature up at the top line?

[MOTHER]: Yes, Your Honor.

THE COURT: Okay. At this time I will make the following findings that the mother was - - actually, ma’am, I need to swear you in. I’m sorry. Please raise your right hand. Ma’am, do you swear or affirm to tell the truth, the whole truth and nothing but the truth, so help you God?

[MOTHER]: I do.

THE COURT: Okay. Ma’am, the answers to my questions I just asked you on the record, are those answers true and correct?

[MOTHER]: Yes, they are.

THE COURT: Okay. Thank you, ma’am.

So I’ll find that the mother was sworn and responded to the questions under oath, that she understands the nature, purpose and consequence of this proceeding, that her waiver of jury trial was knowingly and voluntarily entered and the Court will accept that at this time and at this time the Court finds that she is competent for the purposes of making that decision. So at this point the Court will show the mother has waived her right to have a jury trial. At this point since we have not heard from

Page 886 the Choctaw Nation, any objection to my taking the issue of the father’s consent and the mother’s non[-]jury trial to tomorrow morning at 9:00?

Trial Tr. 15:13-17:20, In re J.L.O., JD-16-303, Aug. 28, 2017. With no objections, the district court continued the non-jury trial until the next morning.

C. Non-Jury Trial

[¶ 7] On August 29, 2017, the Tulsa County District Court held the non-jury trial on termination of Mother’s parental rights to Child. At trial, Mother testified that she did not finish the assigned parenting classes because of transportation issues and emotional distress over Child’s father being arrested. Although assigned to attend substance abuse counseling once a week, Mother admitted she attended only five (5) to fifteen (15) sessions over the course of ten (10) months and was eventually dismissed for her continued lack of attendance. Mother took no action to resume counseling.

[¶ 8] Furthermore, the evidence showed that Mother...

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