Dougherty v. State (In re J.L.O.)
| Decision Date | 25 September 2018 |
| Docket Number | No. 116,465,116,465 |
| Citation | 428 P.3d 881 |
| Parties | In the MATTER OF: J.L.O., IV, a Child Under 18 Years of Age, Carolyn Dougherty, Appellant, v. State of Oklahoma, Appellee. |
| Court | Oklahoma Supreme Court |
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.
¶ 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.
¶ 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.
¶ 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 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.
¶ 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:
.
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.
¶ 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 failed to submit to approximately fifty (50) required drug screenings, providing only three (3) urine samples over the course of ten (10) months. Nonetheless at trial, Mother denied having a drug problem numerous times and stated that she did not understand that a missed urine screen was considered a positive result. Mother self-reported heroin use to her probation officer in January 2017. She also tested positive for various illegal substances in February, March, June, and finally on August 25, 2017. Mother claimed that a prescription medication (she was using to treat a urinary tract infection
) was the cause of the positive result four (4) days before trial, as well as the positive in February 2017. Mother, however, had not been prescribed the blamed medication and failed to produce any evidence to show that the drug has the potential to show up on a toxicology report, as claimed.1
¶ 9 When asked if she felt she had corrected the conditions in the case, Mother stated "[n]ot all of them but most of them." Mother expounded that while she had not finished the parenting classes, rented or purchased a place of her own to live, or maintained employment; she had established a stable living environment, was seeking a job, and was sober. Mother agreed that in the past she had not demonstrated sobriety, defining "the past" as any time prior to walking into the courtroom that day.
¶ 10 Mother claimed to be sober while testifying, but stated that she had taken a prescribed dose of methadone
earlier that morning. The State asked Mother if she felt she had exhibited any unusual behavior that day in court, such as having difficulty keeping her eyes open, speaking slowly, or acting lethargically, and she answered no. When asked if she believed it would be best for Child to return to her care that day, Mother said yes, that she was ready, willing, and able to provide appropriate and safe care to Child and that there...
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