M.A., Matter of
| Decision Date | 12 May 1992 |
| Docket Number | No. 75983,No. 2,75983,2 |
| Citation | 832 P.2d 437 |
| Parties | 1992 OK CIV APP 61 In the Matter of M.A. and E.A., alleged Deprived Children. Annette Atkins BLACK, Appellant, 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 |
Appeal from the District Court of Washington County; Janice P. Dreiling, Trial Judge.
Action to terminate parental rights of natural mother and father for failure to comply with court-ordered service plan. Trial court entered termination order in accordance with jury verdict. Mother appeals. REVERSED AND REMANDED WITH INSTRUCTIONS
David B. King, Brewer, Worten, Robinett, Johnson, Worten & King, Bartlesville, for appellant.
Craig D. Corgan, Dist. Atty., Bartlesville, for appellee.
Did reversible error permeate the jury trial culminating in a judgment on a verdict terminating the mother's parental rights to her two minor children?
We hold it did and reverse the judgment.
The operative facts are these. On August 20, 1984, the State of Oklahoma, acting on the recommendation of the Department of Human Services (DHS), filed a petition seeking custody of four-year-old M.A. and one-year-old E.A., the minor children of Annette Atkins Black and Timothy Atkins, based on the allegation that the children were deprived.
The parents appeared through their court-appointed counsel at an adjudicatory hearing held October 19, 1984. At that time the court found the children to be deprived, made them wards of the court, and placed them in the custody of DHS pending a dispositional hearing set for November 20, 1984. In the meantime the children were placed in a foster home. The dispositional hearing was not held, however, until November 30, 1984, at which time an order was entered placing the children in the custody of DHS and establishing some seven conditions to be met by the parents. Summarized they were: (1) earn an adequate income; (2) maintain a stable and clean home environment; (3) attend counseling sessions; (4) attend parenting skills classes; (5) receive instruction in the areas of nutrition, medical care, sanitation, and child discipline; (6) visit with the children regularly; and (7) maintain regular contact with their DHS social worker.
During the months that followed, several review hearings were held. Then in July of 1985, the mother and father separated and the mother moved to Arizona where her parents lived. The evidence is that at this point the mother began to make more progress in terms of complying with the court-ordered "conditions" or service plan. Consequently, in preparation for a review hearing to be held June 27, 1986, DHS filed a report with the court that stated, in substance, that the mother had complied with the service plan and recommended that physical custody of the children be restored to her. Accordingly, on June 27, 1986, the trial court issued an order granting the mother physical custody of the children effective June 30, 1986, but left legal custody of the children with DHS.
The next two review hearings also produced positive reports as to the mother's progress. On September 25, 1987, this prompted the foster care review board to recommend terminating the children's dependency status and dismissing the state's petition. For this purpose a review hearing was set for December 18, 1987.
On November 17, 1987, DHS filed a report with the trial court which included a recommendation by the Arizona Department of Economic Security-Administration for Children, Youth, and Families (ADESA) that the children be permanently placed with the mother and the dependency proceeding be terminated and the case dismissed.
The trial court did not dismiss the proceedings, however, but held the matter over for further review February 2, 1988. On that date the mother's attorney was not present but the children's former foster mother was. She objected to the dismissal, requested a six month delay in the proceedings, and reported to the court that E.A. had been involved in some kind of an accident in April 1987--a minor matter as it turned out--and that the mother was pregnant with the "baby due 2/88." The judge granted the request for a further continuance out of what she called "an abundance of caution due to extraordinary developmental problems of the above named children and in consideration of the pending birth of a new sibling," and ordered DHS to "request the State of Arizona to conduct at least one more visit following the birth of the expected sibling ... to determine if the needs of [M.A. and E.A.] are still being met."
On November 22, 1988, another review hearing was held, this time on the oral motion of the state for an order that M.A. and E.A., who were then in the physical custody of ADESA, be held for return to DHS in Oklahoma, based on allegations of "extreme neglect by their mother." The motion was sustained and the requested order was issued. On April 17, 1989, the trial court issued a second service plan--consisting of eight conditions--with which the mother and her new husband were to comply.
Finally, on November 21, 1989, the state filed a motion to terminate the parental rights of both the father and mother. A two-day jury trial was commenced June 18, 1990. The jury returned a general verdict finding that the parental rights of both parents should be terminated. Judgment was entered accordingly.
The father did not challenge the termination of his rights, but the mother attacks the order as it pertains to her. She appeals.
The first assignment of error advanced by the mother is that the verdict is not supported by any competent evidence.
The argument is that the verdict and the judgment rest on inadmissible hearsay evidence which was erroneously admitted over the mother's objection.
We agree. It should be noted at the outset that this termination proceeding is brought pursuant to the provisions of 10 O.S.1991 § 1130(A)(3) and it is clear that it is adjudicatory in nature entitling the mother to the protection of the "full panoply of constitutional rights." 1
The sole evidence offered by the state in support of its motion to terminate was a DHS report, the testimony of a Bartlesville DHS caseworker based on the manual reporting of her understanding of telephonic conversations between herself and some ADESA people in Arizona, and a home study report allegedly produced by ADESA. All of this tendered evidence was received by the trial court over the objection of the mother. 2
The mother contends that the admission of this prejudicial hearsay evidence deprived her of a fair trial by "effectively preventing [her] from cross-examining the source of the primary evidence against her." The state's response is that the Arizona home study report was admissible as both a nonhearsay oral assertion as well as a business record exception to the hearsay rule. See 12 O.S.1981 § 2801(3); 12 O.S.1991 § 2803(6). The state further argues that whatever error occurred as a result of the admission of the foregoing evidence "was cured by the later testimony of [former foster mother] Susan Earhart wherein she detailed the deterioration of the children while in the custody of their mother."
We agree with the mother that DHS caseworker Wallace's testimony concerning the children's home environment in Arizona while in the mother's custody was rank hearsay and the admission of such evidence deprived the mother of her fundamental constitutional and statutory rights to due process, i.e., her right to cross-examine all adverse witnesses. See 10 O.S.1981 § 1111(C); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Because the mother was denied her right to cross-examine the preparer of the reports, neither they nor testimony concerning their contents should have been admitted. Accord Watson v. Watson, 507 P.2d 1122 (Colo.1973).
With respect to foster mother Earhart's testimony, we find nothing in it which provides a foundation for finding noncompliance with the second eight-point service plan. Ms. Earhart testified that she went to Arizona to pick up the children because the designated DHS caseworker had been injured in a car accident and was unable to go. The children met the foster mother at the airport. She recounted how M.A. leaped up on her and was excited about being able to go on the airplane. E.A. was also apparently excited about the plane ride but he ran around the airport for awhile before coming over and talking to the foster mother. And although she did opine that she thought the children had "regressed," her description of their conduct and activities did not demonstrate a failure on the part of the mother to comply with the conditions laid down by the trial court and cannot be said to have "cured" the obviously prejudicial effect of the admission of incompetent evidence.
The state in effect sought, through the mouth of the Oklahoma caseworker, to get the alleged testimony of Arizona caseworkers into evidence as a means of proving that the mother, while living in Arizona, had committed acts of commission or omission which were detrimental to her children and did not comply with the norms of conduct set forth in the amended service plan. It borders on a legal absurdity for the state to assume it could bear its heavy burden of proof in such a serious proceeding by offering a written report into evidence only for the limited purpose of explaining that an amended service plan had been ordered after the children's return to Oklahoma. In the first place, there was no disputed issue about the nature of the amended service plan. It was in an order located in the court file! In the second place, it is elementary that evidence of subsequent actions based solely on hearsay statements is inadmissible. Louisville & N. Ry. v. Murphy, 150 Ky. 176, 150 S.W. 79 (1912).
Moreover, hearsay evidence admitted under § 2803(6) is largely restricted...
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