In re CRT

• Decision Date: 24 February 2003
• Docket Number: No. 96,753.,96,753.
• Citation: 2003 OK CIV APP 29,66 P.3d 1004
• Parties: In the Matter of C.R.T., an alleged deprived child, Gail Thomason, Plaintiff/Appellant, v. State of Oklahoma, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

66 P.3d 1004

2003 OK CIV APP 29

In the Matter of C.R.T., an alleged deprived child,

Gail Thomason, Plaintiff/Appellant, v. State of Oklahoma, Defendant/Appellee.

No. 96,753.

Court of Civil Appeals of Oklahoma, Division No. 2.

February 24, 2003.

Avery A. Eeds, Jr., Elk City, OK, for Plaintiff/Appellant.

Richard L. Dugger, District Attorney, Gina R. Farris, Assistant District Attorney, Arapaho, OK, for Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Opinion by KEITH RAPP, Judge:

¶ 1 The trial court defendant, Gail Thomason (Mother), appeals the judgment entered on a jury verdict terminating her parental rights as to her child (CRT). The termination petition was filed by the State of Oklahoma (State). This Court reverses and remands for a new trial.

BACKGROUND

¶ 2 The parties have little dispute about the facts. Mother suffers mental illness and, possibly, alcohol and drug abuse induced mental illness. CRT was placed in emergency custody of the Department of Human Services (DHS) in February 1999, and was adjudicated as a deprived child in April 1999, on the State's petition, alleging grounds based upon Mother's mental health condition. The State alleged that Mother "has severe mental problems which makes(sic) it impossible for her to provide for the needs" of CRT as its ground for the alleged state of deprivation.¹ Among other items, the Mother's mental health treatment plan required her to contact, maintain contact, and follow the directions of unnamed mental health services.

¶ 3 CRT has been in foster care since that time. CRT's Father's parental rights have been terminated and that is not an aspect of this case.

¶ 4 The State filed an amended petition to terminate Mother's parental rights on June 4, 2001. The grounds alleged CRT had been in foster care for 15 of the last 22 months, Mother's failure to complete treatment plan, Mother's failure to correct the conditions leading to the deprived status adjudication, and that it was in CRT's best interest to terminate Mother's parental rights. The appropriate subsections, not stated in the petition, are 10 O.S. Supp.2000, § 7006-1.1(5) and (15).² The State did not specifically allege as grounds for termination the mental illness provisions of 10 O.S. Supp.2000, § 7006-1.1(A)(13), although its petition contained the non-specific catchall "et seq."³

¶ 5 Mother demanded, and was provided, a jury trial. At the close of the evidence, the trial court instructed the jury as to the State's theory under subsections 5 and 15. The court also instructed the jury, at Mother's request, as to the elements of subsection 13.⁴ The jury's verdict was general and did not specify whether its decision encompassed one or all of State's theories.

¶ 6 However, the trial court's judgment recited that termination was based upon remaining in foster care for the requisite period of time and for Mother's failure to complete the treatment plan and failure to correct the conditions leading to the deprivation adjudication. Mother appeals.

STANDARD OF REVIEW

¶ 7 In at least three cases, the appeals Court has defined the function of the appellate review as a thorough review of the record in light of the elements to be proven and to affirm the trial court if it is not contrary to the weight of the evidence. In re T.H.L., 1981 OK 103, ¶ 7, 636 P.2d 330, 333; In re Christopher H., 1978 OK 50, ¶ 19, 577 P.2d 1292, 1293; In re C.T., C.T. and A.T., 1999 OK CIV APP 55, ¶ 6, 983 P.2d 523, 525. On the other hand, Oklahoma jurisprudence has long been committed to the principle that jury verdicts will be upheld if supported by competent evidence. See In re T.R.W., 1985 OK 99, 722 P.2d 1197,

(an adjudication of deprivation by a jury, citing Hames v. Anderson, 1977 OK 191, 571 P.2d 831, a tort case); see also, In re M.B., C.B. and T.B., 2000 OK CIV APP 56, 6 P.3d 1072, (where the evidence was not only clear and convincing but also substantially undisputed), and, In re C.C., 1995 OK CIV APP 127, 907 P.2d 241, (a parental termination case decided by a jury, citing Doyle v. Kelly, 1990 OK 119, 801 P.2d 717, a contract dispute case). Language in this latter line of authority indicates that if there is any competent evidence, including the reasonable inferences from the evidence before the trier of fact, tending to support the verdict, then the judgment will not be disturbed on appeal.⁵

In re T.R.W., 1985 OK 99 at ¶ 13, 722 P.2d at 1200; In re J.M., 1993 OK CIV APP 121, ¶ 5, 858 P.2d 118, 120-21. Initially, these lines of authority suggest a conflict in the standard of review.

¶ 8 This Court, after review of cases, concludes that there is no conflict and that the decision to terminate parental rights must pass muster under the more stringent test where this Court reviews the weight of the evidence to support the decision to terminate.⁶ Moreover, the very nature of the matter demands the application of the stricter standard of review. As stated by the Oklahoma Supreme Court:

The interest of children in a wholesome environment has a constitutional dimension no less compelling than that the parents have in the preservation of family integrity. In the hierarchy of constitutionally protected values both

interests rank as fundamental and must hence be shielded with equal vigor and solicitude.

In re T.H.L., 1981 OK 103 at ¶ 3, 636 P.2d at 334.

¶ 9 The strict standard of review follows from the reasoning of the Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). There the Court decided that Due Process of Law required that the state be held to a "clear and convincing evidence" burden of proof in parental termination cases.⁷ Thus, it is readily seen that a termination of parental rights action necessarily involves the fundamental liberty interest of natural parents in the care, custody, and management of their child and protection of the family unit. Santosky, 455 U.S. at 754-55,102 S.Ct. at 1394-95. Such proceedings must be conducted using this more stringent standard of review.

¶ 10 The Court examined and characterized the nature of the proceedings to reach its conclusion in light of the factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). They are: private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest to support use of the challenged procedure. The Court's examination of the proceeding led it to conclude, as to all of the Eldridge factors, that Due Process demanded a strict burden of proof. The Court observed that the fact-finding process pitted the State against the parents with the parents alleged to be at fault and unfit so that the ultimate result, if in the State's favor, was a permanent severance of a fundamental and constitutionally protected parent-child relationship.

¶ 11 The Santosky Court noted that appellate review is not a "curative for an inadequate burden of proof." Santosky, 455 U.S. at 757 n. 9, 102 S.Ct. at 1396 n. 9. A logical extension of this point means that an appellate review utilizing a standard less strict than demanded under the circumstances, may not conclude that reversible error has occurred, even though the conclusion would be to the contrary under a stricter standard of review. Such a risk in dealing with a constitutionally protected entity cannot be allowed.

¶ 12 Moreover, here the more stringent standard of review is also triggered by the fact that the State shifted its position from an original action of a mental health matter to one involving a failure to correct a condition, after the cause began and had proceeded well into the process.⁸ The matter began when Mother became mentally ill and proceeded to an adjudication of deprivation of the child on that basis until the first, and then amended, petition to terminate her parental rights was filed utilizing a ground for termination only incidently related to the reason for the original adjudication.⁹ Extended foster care, the State's second ground for termination, also arose as a consequence of and out of Mother's original mental health problems.

¶ 13 Therefore, the standard of review here requires this Court to conduct a thorough review of the record in light of the elements to be proven. This Court, in conformity with this standard, has examined the evidence to ascertain whether it is competent, that is, whether all of the evidence for or all of the evidence against a requirement is relevant and material to the issue.¹⁰ In a parental termination case, the State has the burden of proof to show by clear and convincing evidence that grounds exist for termination. In re C.G., 1981 OK 131, ¶ 17, 637 P.2d 66, 71. This Court also examined the competent evidence for and against the requirements using a "clear and convincing" standard in order to ascertain whether the State has met its burden.¹¹ ¶ 14 In addition, Mother has challenged legal rulings made by the trial court. A pivotal issue here involves the selection of the correct ground by the State to pursue termination under the facts of the case. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1.

ANALYSIS AND REVIEW

Subsection 13 vis-á-vis Subsection 5

¶ 15 Mother maintains that the State should have proceeded solely on allegations under subsection 13. Thus, Mother argues that the petition was insufficient as notice and that the jury instructions were broader than necessary because they included subsection 5 as a ground for termination of her parental rights. Mother concludes by asserting that subsection 13 is a special and specific statute and thus controls over any broader, or general, provisions pertaining to termination.

¶ 16 This Court holds that the trial court...