J.M., Matter of, 79502

• Decision Date: 29 June 1993
• Docket Number: No. 3,No. 79502,79502,3
• Citation: 858 P.2d 118,1993 OK CIV APP 121
• Parties: 1993 OK CIV APP 121 In the Matter of J.M. and J.M., minor children, DAVID M. and Lisa M., Appellants, v. STATE of Oklahoma, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 118

858 P.2d 118

1993 OK CIV APP 121

In the Matter of J.M. and J.M., minor children DAVID M. and Lisa M., Appellants, v. STATE of Oklahoma, Appellee.

No. 79502.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

June 29, 1993.

Appeal from the District Court of Cleveland County; Alan J. Couch, Judge.

REVERSED AND REMANDED.

Henry N. Herbst, Norman, for appellant David M.

William R. Geyer, Norman, for appellant Lisa M.

Steven D. Brinkley, Asst. Dist. Atty., Norman, for appellee.

OPINION

HUNTER, Judge:

After trial to the court, David and Lisa M.'s parental rights in their children were terminated on account of the parents' failure to satisfactorily comply with the court-ordered service plan. The parents had stipulated to the facts behind the order adjudicating their children deprived which were that they could not or would not improve the sanitary conditions in their home and that they were unable to meet the emotional, developmental and physical needs of their children because they did not understand what those needs were and how those needs could be met. The parents did not stipulate to or in any way admit the allegation that the father, David M., sexually molested the daughter, J.M. The record presented for review contains no competent evidence of sexual abuse. The doctor's report is not before us and the two statements, of the child and of one counselor, are uncorroborated hearsay. The court entered a deferred adjudication on the molestation charge. The revised service plan, which was identical for each parent and which was the standard the court used in determining that the parents rights in their children should be terminated, stated:

1. Complete the intake process at Bethesda Alternatives, Inc. If accepted into their program, s/he will attend with a 90% attendance rate following all treatment recommendations.

2. Item # 1 is struck from this service plan. Mr/s. M. shall enter into individual and/or family therapy with a qualified therapist to explore and gain a working understanding of the dynamics of sexual abuse. This understanding will include issues surrounding all aspects of sexual abuse. Attendance requirements will be determined by the service provider and be maintained at a level of 90% with progress and attendance noted by the therapist.

3. Continue participation at the Cleveland County Guidance Clinic as described in prior service plan. (note: previous plan stated goals at Cleveland Co. Guidance Center were learning parenting skills, including appropriate ways of interacting with and disciplining children. Parents were to maintain an 80% attendance rate and follow therapist's suggestions.)

4. Maintain a stable and clean home environment as described in prior service plans.

5. Maintain full time employment as described in prior service plans.

6. Continue frequent visitation with the children of at least twice per month. DCW may increase frequency of visitation. Visitations may be supervised or unsupervised upon therapists recommendations.

7. Pay monthly child support as required by the court. (note: child support during time children were in foster care was set at $40.00 per month.)

8. Maintain twice monthly contact with worker.

9. Complete scheduled intake at JSI (Juvenile Services, Inc.), in January, 1991. Mr/s. M. will follow all recommendations made by Fran Rice including weekly group sessions. The purpose of these sessions will be to assist Mr/s. M. in learning appropriate discipline and nurturing skills. Attendance shall be 90% with all attendance and progress noted in writing.

The service plan shows the parents were to attend three different private counselling organizations: Bethesda, or a like therapy, was for counsel in the area of child sexual abuse; Cleveland County Guidance Center and JSI were both listed for the purpose of providing therapy in parenting skills.

Pursuant to 10 O.S.1991 § 1130(A)(3), in order to terminate parental rights, the State must show, by clear and convincing evidence, that (a) the child is deprived; (b) such condition is caused by or contributed to by acts or omissions of his parent, and (c) termination of parental rights is in the best interests of the child In the Matter of D.D.F., 801 P.2d 703 (Okl.1990). The burden of evidence or persuasion then shifts to the parent to show conditions have changed and have been corrected since the adjudication of deprived child. In the Matter of Christopher H., 577 P.2d 1292 (Okl.1978). The service plan is most often the primary evidence used by the parties in termination actions to prove their cases. The plan, however, is nothing more than evidence used to prove the statutory elements. The State uses noncompliance with the plan as evidence that parental rights should be terminated because the bad conditions caused by or in control of the parents have not been corrected within the statutory time. The parents use compliance with the plan to show the conditions leading to the adjudication have been corrected. Failure to comply with the service plan is not, however, a ground for termination of parental rights. Because the presumption is that the child's best interests lie with family integrity, the State still must show, by clear and convincing evidence, after having clearly and convincingly met the first two elements, that the child's best interests are served by terminating his parents' parental rights. Matter of C.G., 637 P.2d 66 (Okl.1981).

Standard of Review

Termination of parental rights cases are created by statute. Matter of Christopher H., at 1293. They are triable to a jury. By analogy to common law cases where jury is waived, we must affirm a trial judge's determination of the facts because, if it is supported by any competent evidence, it bears the force of a verdict rendered by a well-instructed jury. Bradley v. Clark, 804 P.2d 425 (Okl.1990). The findings of a trial court sitting without a jury are entitled to the same weight that would be given verdict by a jury and if there is any evidence, including reasonable inferences therefrom, tending to support the findings, the trial court's judgment will not be disturbed on appeal. Maras v. Smith, 420 P.2d 483 (Okl.1966). The trial court is not justified in terminating parental rights where a parent's failure to correct the conditions is contributed to by the agents to whom is entrusted the duty to help salvage the family relationship. Matter of Christopher H., at 1295.

Findings on Review

The trial court first found that neither parent attended Bethesda at a 90% rate nor did either parent attend an alternative kind of therapy. The record is clear on this count, however, that the voluntary agent of the court, Bethesda Alternatives, Inc., a private agency dedicated to counselling sex offenders, unilaterally terminated Appellants from its program without seeking a modification of the court order, knowing that attendance at the program was part of the court-ordered plan; knowing that there were no local alternative programs which accepted indigent clients and knowing that termination of Appellants from their program could result in Appellants' losing their parental rights.

Mr. M. was first denied admission to Bethesda's sex offender program because he denied any molesting behavior. DHS and the CASA workers asked Bethesda to re-evaluate Mr. M. Finally, Mr. M. was admitted on an eight-week provisional basis. The Bethesda administrator testified that, with little deviation, Bethesda terminated clients from their services who failed to admit to sexual abuse. The administrator agreed Mr. M.'s failure to admit to sexual abuse was a contributing factor in the decision to terminate him. The administrator also testified that they were the "only game in town" and that had Mr. M. admitted to sexual abuse she would have had to inform the authorities. The administrator knew that Mr. M. had not been convicted of any crime. The administrator who testified was not the therapist during the eight-week provisional period. Over hearsay objection, the court allowed the administrator to testify and...