In re M.C.M.
| Decision Date | 15 November 2007 |
| Docket Number | No. 104,075. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,104,075. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. |
| Citation | 2008 OK CIV APP 29,180 P.3d 688 |
| Parties | In the Matter of M.C.M., J.K.M., and P.M.F., Adjudicated Deprived Children. State of Oklahoma, Petitioner/Appellee, v. Victoria McGann, Respondent/Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Pottawatomie County, Oklahoma, John D. Gardner, Judge.
Greg S. Wilson, Wilson Law Firm, Shawnee, OK, for Appellant.
Carrie Hixon, Assistant District Attorney, Shawnee, OK, for Appellee.
AFFIRMED AND REMANDED
¶ 1 Respondent/Appellant Victoria McGann (Mother) seeks review of the trial court's order granting judgment on a jury verdict to terminate her parental rights in and to M.C.M., J.K.M., and P.M.F., Adjudicated Deprived Children (Children) on the petition of Petitioner/Appellee State of Oklahoma (State). In this appeal, Mother challenges (1) the trial court's refusal to admit evidence of Children's guardianship, offering a less restrictive permanency plan without termination of her parental rights, (2) the termination of her parental rights under 10 O.S. § 7006-1.1(A)(5), rather than § 7006-1.1(A)(13), and (3) the jury's verdict (a) as contrary to the evidence demonstrating her compliance with the court-ordered treatment plan, and (b) absent evidence of harm to Children resulting from her continued custody.
¶ 2 In June 2005, State filed a petition to adjudicate Children as deprived on allegations of unclean living conditions, and the inadequate care and supervision of Children, subject to the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq., and the Oklahoma Indian Child Welfare Act, 10 O.S. § 40, et seq. On June 24, 2005, the parties appeared with counsel, and, upon their stipulations, the trial court adjudicated Children deprived by order filed July 5. On July 19, 2005, the parties appeared with counsel for disposition, and, by order filed August 16, the trial court adopted a treatment plan for Mother's correction of the underlying conditions.
¶ 3 In June 2006, State filed a Motion to Terminate Parental Rights, and alleged Mother's failure to correct conditions as to warrant termination of her parental rights under 10 O.S. § 7006-1.1(A)(5). On the September trial date, Mother appeared and expressed her willingness to consent to appointment of her sister as Children's guardian. The trial court appointed sister temporary guardian, and continued trial to permit the parties to explore the possibility of a permanent guardianship. Sister subsequently declined to be appointed Children's permanent guardian.
¶ 4 Over two days in November 2006, the parties appeared for jury trial on the merits. State offered evidence concerning the conditions of the home which prompted commencement of this action, and the adjudication of Children as deprived.
Seminole Nation testified. The D.H.S. caseworker opined that, notwithstanding Mother's partial compliance with the treatment plan, considering Mother's multiple hospitalizations for treatment of her mental health issues, together with her failure to complete parenting classes, to attend counseling with Children, and to exercise regular visitation as ordered, Children were at risk of long-term mental, physical and emotional damage if returned to Mother's custody, and continuation of Mother's parental rights was not in Children's best interests. The tribal caseworker testified concerning the active, but unsuccessful, efforts undertaken to maintain the family unit, and opined that continuation of Mother's parental rights and return of custody to her would subject Children to the risk of serious emotional and physical harm.
¶ 6 Mother offered for admission evidence of her quest for appointment of a guardian for Children. State objected, arguing the evidence was irrelevant and more prejudicial than probative. The trial court sustained State's objection, and refused to admit the evidence.
¶ 7 Mother testified that her husband, the father of M.C.M. and J.K.M., died in April 2005, and that, as a result, she suffered a nervous breakdown. Mother also testified that, for treatment of her condition, she had been hospitalized six times, she had received group and individual counseling, and she had been prescribed medication.
¶ 8 Mother admitted she had no permanent residence. Mother also admitted she had failed to obtain a psychological evaluation, to attend all sessions of the ordered parenting class, to attend counseling with Children, and to exercise regular visitation as prescribed by the treatment plan, but attributed such failures to her hospitalizations, her lack of transportation and the lack of cooperation by the D.H.S. caseworker.
¶ 9 The trial court overruled Mother's demurrer to the evidence and denied her Motion for Directed Verdict. Without objection, the trial court instructed the jury on termination under § 7006-1.1(A)(5) only. On consideration of the evidence, a unanimous jury returned a verdict to terminate Mother's parental rights, and, by order filed December 11, 2006, the trial court entered judgment on the jury's verdict.
¶ 10 In her first proposition, Mother asserts the jury's verdict determining her failure to correct conditions stands contrary to her testimony, and the testimony of the D.H.S. caseworker, that she had substantially complied with, and completed, some of the requirements of the treatment plan at the time State filed the motion to terminate. State responds, arguing that, regardless of the degree of Mother's compliance with the treatment plan, the jury heard competent evidence demonstrating Mother's failure to correct the underlying conditions as to justify termination of her parental rights under § 7006-1.1(A)(5).
¶ 11 Section 7006-1.1(A)(5) permits the termination of parental rights when "the child has been adjudicated to be deprived, and such condition is caused by or contributed to by acts or omissions of the parent, and termination of parental rights is in the best interests of the child, and the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than [three months] to correct the condition." 10 O.S. § 7006-1.1(A)(5)(a-d). State bears the burden of proof, by clear and convincing evidence, of each of the § 7006-1.1(A)(5) elements for termination of parental rights. See, e.g., In the Matter of K.C., 2002 OK CIV APP 58, 46 P.3d 1289; In the Matter of C.G., 1981 OK 131, 637 P.2d 66; In the Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884. Once shown, the burden shifts to the parent(s) to demonstrate the conditions which led to the deprived adjudication have been corrected. In the Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118; In the Matter of Christopher H., 1978 OK 50, 577 P.2d 1292.
¶ 12 "[F]ailure to comply with the service plan, in itself, is not a ground for termination." K.C., 2002 OK CIV APP 58, ¶ 7, 46 P.3d at 1291; J.M., 1993 OK CIV APP 121, ¶ 4, 858 P.2d at 120. Rather, "[t]he State uses noncompliance with the plan as evidence that parental rights should be terminated because the conditions which led to the deprived adjudication have not been corrected, and parents use compliance with the plan to show that the conditions which led to the deprived adjudication have been corrected." K.C., 2002 OK CIV APP 58, ¶ 7, 46 P.3d at 1291.
¶ 13 On appeal, we review to determine whether the judgment is supported by the requisite clear and convincing evidence. See, e.g., In the Matter of S.B.C., 2002 OK 83, 64 P.3d 1080. In the present case, State introduced clear and convincing evidence demonstrating that Mother had neither a home, transportation, nor employment. Although it appears Mother had attended most of the parenting skills classes at the time State filed its Motion to Terminate, Mother admitted she had not completed the parenting class, had not exercised regular visitation with Children, had not participated in counseling with Children, and had not obtained a psychological evaluation, all as ordered in the treatment plan and fundamental to correction of the conditions which led to the adjudication of Children as deprived. The record contains competent, clear and convincing evidence to support the jury's verdict.
¶ 14 In her second proposition, Mother complains the trial court erred in refusing to admit the evidence of her sister's temporary guardianship of the Children, arguing that, in parental rights termination cases, "`the trial court must ... determine whether the termination of parental rights to each child is permitted by the statute, is the least restrictive means to protect that child, and is in that child's manifest best interests.'" In the Matter of T.C., 2004 OK CIV APP 65, ¶ 10, 96 P.3d 811, 814. (Emphasis added.) (Citation omitted.) So, says Mother, she was improperly denied the opportunity to demonstrate a "less restrictive alternative" to termination of her parental rights.
¶ 15 In our view, however, T.C. does not support Mother's position. First, the quoted section is drawn from a Florida case, where the intermediate appellate court referred to the "least restrictive means to protect the child" from the risk of harm posed by reunification:
Before parental rights to a child can be permanently and involuntarily severed, there must be clear and convincing evidence that termination is the least restrictive means to protect the child; in other words, that reunification with the parent poses a substantial risk of significant harm to the child.
In re K.A., 880 So.2d 705, 709 (Fla.App.2004). (Emphasis added.) Protection of a child from harm is at the core of Oklahoma parental-rights-termination law. See, e.g., In the Matter of Baby Girl L., 2002 OK 9, ¶ 22, 51...
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