L.C., Matter of

• Decision Date: 02 June 1998
• Docket Number: No. 90559,No. 3,No. III,90559,III,3
• Citation: 1998 OK CIV APP 96,962 P.2d 29
• Parties: 1998 OK CIV APP 96 In the Matter of L.C. and P.C., alleged deprived children, Margo P. CHERNEY, Appellant, v. The STATE of Oklahoma, Appellee. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 29

962 P.2d 29

1998 OK CIV APP 96

In the Matter of L.C. and P.C., alleged deprived children,

Margo P. CHERNEY, Appellant, v. The STATE of Oklahoma, Appellee.

No. 90559.

Released for Publication by Order of the Court

of Civil Appeals of Oklahoma, Division No. III.

Court of Civil Appeals of Oklahoma,

Division No. 3.

June 2, 1998.

Appeal from the District Court of Pontotoc County; Martha Kilgore, Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

David L. Morris, Ada, for Appellant.

William N. Peterson, District Attorney, and Chris L. Ross, Assistant District Attorney, Ada, for Appellee.

MEMORANDUM OPINION

ADAMS, Judge.

¶1 Appellant Margo P. Cherney (Mother) appeals a trial court order determining that L.C. and P.C. are deprived children and terminating her parental rights to the minor children. The parental rights of Scott Cherney (Father) were also terminated in the order, but he is not a party to this appeal.

¶2 The facts are summarized as follows: On information supplied by friends of parents' neighbor suspecting L.C. had been sexually abused, the Department of Human Services (DHS) removed L.C. and her brother, P.C., from their parents' home. The State of Oklahoma (State) investigated the matter and filed a petition alleging, inter alia, that the children were deprived by reason of the sexual abuse of L.C. by Father. Thereafter, State amended the petition to include an ¶3 After a two day hearing, the trial court filed an order simultaneously adjudicating L.C. and P.C. to be deprived children based on numerous findings and terminating the parental rights of Father and Mother to both children pursuant to 10 O.S.Supp.1995 § 7006-1.1(A)(6)(a). ¹ The latter action was based on the trial court's specific findings that the sexual abuse by Father was "heinous and shocking," that Mother had failed to protect L.C. from such abuse, and that P.C. was L.C.'s sibling.

allegation that Mother had failed to protect L.C. from the abuse and moved for immediate termination of the parental rights of Mother and Father because the sexual abuse was heinous and shocking.

¶4 For reversal, Mother argues that State failed to prove, by clear and convincing evidence, that (1) both children were deprived as defined by Oklahoma law and that (2) she failed to protect her children. In addition, Mother argues two procedural errors by the trial court entitle her to a new trial: (1) failing to apply the Rules of Civil Procedure; and (2) allowing the admission of State's exhibits and the testimony of numerous witnesses. ² We begin our review with the procedural errors.

PROCEDURAL ERRORS

¶5 Mother contends the trial court should have granted her request for a formal pretrial conference and scheduling order. According to Mother, the absence of these procedures resulted in a denial of due process. According to Mother, deprived child/parental termination actions are civil in nature, and therefore, the statutes and rules governing civil procedure, including those relating to pre-trials, scheduling orders and discovery must apply. Mother cites no authority holding these types of proceedings are civil proceedings. However, the Court in Stratton v. Steele, 1974 OK 10, p 12, 519 P.2d 468, 471, held that "actions under the Dependent, Delinquent and Neglected Children's Act are in the nature of special proceedings, partaking of the elements of civil and criminal procedures ... and we do not believe that it was intended that the strict rules of pleading and practice should obtain to same." (Emphasis added). See also In the Matter of C.C., 1995 OK CIV APP 127, 907 P.2d 241.

¶6 Moreover, Mother admits in her brief that "most of the requested information was supplied by [State] shortly after the October 31st deadline. This delay was due to an illness in the family of the Ass't District Attorney, and was certainly acceptable." Thereafter, Mother fails to specify the information she claims she did not receive. Mother has not demonstrated any error of law or how the trial court's denial of her motion resulted in prejudice.

¶7 In addition, Mother contends her constitutional and due process rights were violated when the trial court granted State's ex parte Motion to Endorse Additional Witnesses filed on November 4, 1997, after imposing an October 31, 1997 deadline for State to provide the parties with a list of trial witnesses and a list of exhibits, and then allowed the admission of those exhibits and the testimony of those witnesses at trial.

¶8 However, Mother did not object to the testimony of the witnesses at trial and has waived any error in this regard. Bane v. Anderson, Bryant & Co., 1989 OK 140, 786 P.2d 1230; In the Matter of C.A.R., 1994 OK CIV APP 124, 882 P.2d 582. Mother did object to the admission of one exhibit, a report prepared by one of the witnesses endorsed after the trial court's deadline. However, her objection was based upon hearsay, an argument she does not repeat on appeal as to that exhibit. Mother never objected to the exhibit based on the belated endorsment of the witness who prepared it. She cannot complain about the admission of evidence to which she lodged no specific objection on the ground she argues on appeal. 12 O.S.1991 § 2104(A)(1).

¶9 Mother also complains her rights were violated because (1) the trial court improperly allowed the child to be examined by State's medical expert without following the correct procedure, (2) a DHS employee allegedly asked two individuals to search her home to collect evidence, and (3) State witnesses allegedly violated the rule of sequestration. However, Mother never objected to the doctor's testimony or to the testimony of the witnesses allegedly violating the rule of sequestration. Moreover, there is nothing in the record to indicate that any evidence was obtained in the "search" about which Mother complains. Mother has not demonstrated how any of these alleged violations of her rights prejudiced her ability to receive a fair trial.

¶10 Finally, Mother argues that the trial court improperly admitted statements by the child made to State's medical expert and to another witness. Mother never objected to the admission of the child's statement made to the medical expert and therefore may not obtain reversal on that basis. Mother did object to the statement made to the other witness, but the statement only tended to prove that the child had been sexually abused. This fact was never in dispute, and the error, if any, in admitting that statement was harmless.

ADJUDICATION OF L.C. AND P.C. TO BE DEPRIVED

¶11 The trial court found that L.C. and P.C. were deprived because "they do not have proper parental care and their home is an unfit place for the children by reason of neglect, abuse, cruelty, and depravity on the part of the children's parents." (Emphasis added). This decision was based on the following findings: (1) L.C. had been sexually abused by Father; (2) L.C. and P.C. had been subjected to drug and alcohol abuse by both parents in the home; (3) parents had permitted L.C. and P.C. to be cared for extensively by neighbors who used drugs in the children's presence and who bathed L.C. often and may also have sexually abused her; (4) parents failed to provide adequate care for P.C., causing him to be in a failure to thrive condition; and (5) parents failed to provide an adequate home environment for L.C. and P.C.

¶12 Mother correctly points out that State had the burden to prove by clear and convincing evidence that both children are deprived. In the Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118. For reversal, she argues that State failed to carry this burden, claiming that every one of State's witnesses, excluding their employees, testified that she was a good mother, capable of taking care of her two children, and that no one had ever seen her do anything to harm her children. She further argues that, at the very best, State's witnesses indicated that the two minor children were "sometimes dirty."

¶13 Considering the term "deprived child," as provided by 10 O.S.Supp.1997 § 7001-1.3(10)(a)(2), means a child "who does not have the proper parental care or guardianship or whose home is an unfit place for the child by reason of neglect, abuse, cruelty, or depravity on the part of the child's parents," (emphasis added), we must disagree with Mother's characterization of the evidence. Mother's argument fails to consider: (1) the evidence that Father sexually abused L.C. was undisputed; (2) her own testimony concerning Father's drug and alcohol abuse and her abuse of methamphetamine ten months before the children were removed from the home; (3) the testimony of numerous witnesses that L.C. was frequently dirty; and (4) the testimony that P.C.'s failure to thrive condition was caused by a lack of calories and social stimulation. The record contains evidence from which the factfinder could reasonably conclude that there was clear and convincing evidence not only that L.C. and P.C. did not have "proper parental care," but also that their "home was an unfit place for the children by reason of neglect and abuse on the part of the children's parents." Accordingly, we affirm the part of the trial court order adjudicating both L.C. and P.C. to be deprived.

IMMEDIATE TERMINATION OF MOTHER'S PARENTAL RIGHTS PURSUANT TO § 7006-1.1(A)(6)(a)

¶14 Once the trier of fact determines that a child is deprived by reason of physical or sexual abuse, § 7006-1.1(A)(6)(a) authorizes immediate termination of parental rights only if the abuse is heinous and shocking. In the Matter of S.T.G., 1991 OK 11, 806 P.2d 636; In the Matter of D.D.F., 1990 OK 89, 801 P.2d 703. Terminations based on heinous and shocking abuse must be proven by clear and convincing evidence. In the Matter of D.D.F., 1990 OK 89, 801 P.2d 703; In the Matter of the T.R.W., 1985 OK 99, 722 P.2d 1197. In this case, State's ability to immediately terminate Mother's parental rights also required clear and convincing...