Jeremiah v. State (In re T.J.), 110,016.

• Citation: 286 P.3d 659,2012 OK CIV APP 86
• Decision Date: 27 August 2012
• Docket Number: No. 110,016.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,110,016.
• Parties: In the Matter of T.J.; R.D.; R.D. and T.D., Deprived Children. Ladine Jeremiah, Appellant, v. State Of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

286 P.3d 659

2012 OK CIV APP 86

In the Matter of T.J.; R.D.; R.D. and T.D., Deprived Children.

Ladine Jeremiah, Appellant,

v.State Of Oklahoma, Appellee.

No. 110,016.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma,

Division No. 3.

Aug. 27, 2012.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Gregory J. Ryan, Trial Judge.

REVERSED AND REMANDED.

Kristie D. Scivally, Oklahoma City, Oklahoma, for Appellant.

Valier Baker, Assistant District Attorney, Oklahoma City, Oklahoma, for Appellee.

Rene Gish, Public Defenders Office, Oklahoma City, Oklahoma, for Minor Children.

WM. C. HETHERINGTON, JR., Judge.

¶ 1 Appellant Ladine Jeremiah (Mother) appeals an order terminating her parental rights to her minor children, T.J., R.D., R.D., and T.D., based upon unanimous jury verdicts each of which found Mother “failed to correct the conditions that led to the finding that a child is deprived pursuant to 10A O.S. § 1–4–904(B)(5).” We REVERSE and REMAND the order.

FACTS

¶ 2 In 1997, Mother quit high school to give birth to T.J., without marrying his biological father. She subsequently married Mr. Davis, and during their marriage three children were born, R.D., R.D., and T.D. After a single domestic violence incident in 2006, Mother and Mr. Davis separated but never dissolved their marriage.

¶ 3 On March 9, 2008, Mother had a fight at her home with her ex-boyfriend, ¹ during which the three oldest children, ages 11, 7 1/2, and 6 1/2, were playing at a neighbor's house and T.D., almost 3 years old, was napping on the sofa. After the ex-boyfriend left, he reported the incident to the police. The children were home eating supper when the police arrived at her house. After hearing both sides, the police arrested Mother and the ex-boyfriend. Mr. Davis heard about Mother's arrest and drove to her house to get the children, but was instead arrested for an outstanding warrant issued for the 2006 domestic violence charge. The children were taken into custody, and after a hearing, the trial court granted emergency custody to Oklahoma Department of Human Services (DHS).

¶ 4 On March 17, 2008, the Oklahoma County District Attorney, on behalf of the State of Oklahoma (State), filed a petition to adjudicate the children as deprived against Mother, Mr. Davis and the putative father of T.J. The allegations against Mother were (1) domestic violence in the presence of the children for which she was charged and incarcerated in Oklahoma County Jail, (2) prior domestic abuse with the father of three of the children, (3) inadequate home due to no running water, (4) currently unemployed and unable to provide for her children, (5) use of inappropriate discipline, i.e., “whoops the children with a belt, hits them with her hand and pinches their arms,” and (6) in need of anger management. Mother was still in jail when served the petition to adjudicate and summons March 19, 2008.

¶ 5 On March 26, 2008, Mother completed a pauper's affidavit, stating she was unemployed, receiving food stamps, living in Section 8 housing, and would no longer be receiving any financial assistance from her ex-boyfriend. The same day the trial court found Mother was indigent, and due to a conflict of interest with the Public Defender's office, appointed counsel to represent her.

¶ 6 On April 10, 2008, a “Summary of Facts/Stipulation to Deprived Adjudication” was filed which Mother and Mr. Davis, their counsel, State and the trial judge signed. The trial court's form Journal Entry, filed the same day, indicated by checkmarks the appearance of both parents and their counsel and that reasonable efforts had been made to prevent removal of the children. At the bottom of the same order, the trial court added, in pertinent part, “Mother and Father are stipulating.” ²

¶ 7 On April 22, 2008, DHS filed an “Individualized Service Plan (ISP) Dispositional Report,” signed by Mother and Mr. Davis. The trial court's Disposition Journal Entry was also filed, indicating adoption of the ISP “as an order of the court as is.”

¶ 8 The ISP identified the following “Conditions that need to be corrected”:

[Mother] and Mr. Davis need to provide a home for their children that is safe and free of domestic violence. [Mother] and Mr. Davis need to complete domestic abuse counseling to prevent future incidents of violence, including yelling or hitting during arguments. [Mother] and Mr. Davis need to ensure [the four children] are not harmed while in [Mother's] care.

Mother was instructed to attend and complete domestic violence classes at the YWCA ³ and parenting classes with another provider, and prior to reunification, she was required to permit home based services. She was also required to visit her children as ordered by the court, sign releases to persons or agencies providing services to her, maintain contact with caseworker, attend, participate, and complete the requirements of all plan services, and attend permanency hearings and permanency planning reviews.

¶ 9 Two days later, the trial court filed a Child Support Order, which indicated Mother's appearance, without counsel. “Being informed by evidence presented and hearing from the parties and counsel,” the trial court found it had jurisdiction and ordered Mother to pay $345.50/month in child support beginning September 1, 2008, which obligation was “set in accordance to the guidelines without deviation.” ⁴

¶ 10 Mother, who was still unemployed but DHS reported as “actively looking,” quickly completed her parenting class, but was delayed starting the domestic violence class at the YWCA until December 2008. The record reveals the delay resulted from the YWCA's first assessment indicating Mother did not need any services, and DHS's requirement for reassessment.⁵ On January 9, 2009, Mother pleaded guilty and was sentenced in her criminal misdemeanor case, part of which included a 52–week Batterer's Intervention Program with STAT Court Services (“the STAT class”).

¶ 11 Although Mother had just started the STAT class in February, DHS recommended termination of Mother's parental rights in its March 9, 2009 ISP progress report, because she had lost her Section 8 housing due to nonpayment of her gas bill.⁶ The trial court approved its request, and State filed a termination petition against Mother on March 25, 2009, alleging that she failed to correct the conditions which led to the deprived adjudication, 10 O.S. Supp. § 7006–1.1(A)(5). In June 2009, DHS withdrew its recommendation to terminate, reported Mother had completed 10 out of 11 STAT classes, and requested a trial reunification with Mother “once an apartment is obtained and inspected.”

¶ 12 In July 2009, DHS again recommended termination of Mother's parental rights because she had yet to obtain a home with working utilities and had missed 3 weeks of the STAT class.⁷ DHS subsequently gave Mother another chance upon learning, inter alia, she had restarted her STAT class and was pursuing a GED.

¶ 13 Mr. Davis' parental rights to the three youngest children were terminated in February of 2010. On March 12, 2010, State amended its petition, seeking to terminate Mother's parental rights pursuant to “10A O.S. § 1–9–904(A) and (B)(5)” for “failure to correct the conditions.” The next month, the trial court gave Mother a final warning to start complying.⁸ Over the next year, Mother continued to work on her GED and learning computer skills, and the foster parents of her children helped with temporary housing, making a resume, and transportation.⁹ Due to struggles with her finances, Mother stopped attending the STAT class, and State filed a motion to revoke her suspended sentence.¹⁰ The revocation hearing was continued for several months,¹¹ and by September 2010, DHS reported it had not been able to verify Mother's reports that she had been approved for Section 8 housing, restarted her STAT class, and obtained employment at a motel, because she was not keeping regular contact with the caseworker. Its request for a termination trial in January 2010 was based on her “failure to correct the conditions which brought the children into care,” including refusing to maintain contact with her worker and a stable job to support her children.

¶ 14 A newly assigned judge presided over the termination trial held April 6–7, 2011. State presented two witnesses in its case-in-chief, the DHS caseworker and Mother, and admitted 6 exhibits. The children's attorney and Mother's attorney cross-examined each witness, and the children's attorney admitted an exhibit when questioning the caseworker. After State rested, the children's attorney announced it had no other evidence and also rested. Mother demurred to the evidence, arguing “there's not sufficient evidence to terminate parental rights” and moved “for a directed verdict to the contrary.” The trial court overruled Mother's demurrer and denied her directed verdict motion. Mother announced she had no witnesses to present and rested.

¶ 15 The jury returned four unanimous verdicts, one for each child, stating:

We, the jury, empaneled and sworn in the above entitled cause, do upon our oath, find by clear and convincing evidence that the parental rights of the parent, LADINE JEREMIAH, to the child, [child's initials], SHOULD BE TERMINATED on the statutory ground of:

Failure to correct the conditions that led to the finding that a child is deprived pursuant to 10A O.S. 1–9–904(B)(5).

(Bold in original.) Based on each of the jury's verdicts, the trial court filed its journal entry of judgment, which ordered termination of Mother's parental rights to her four children who would remain wards of the court.

¶ 16 The termination order, approved as to form by counsel for State, the children and Mother, was filed August 4, 2011. Mother filed an appeal from that order October 24, 2011, alleging she did not receive notice of the filing of the termination order until September...