Martinez-Mendoza v. State (In re C.M.)

• Decision Date: 04 December 2018
• Docket Number: No. 116,494,116,494
• Citation: 432 P.3d 763
• Parties: In the MATTER OF C.M., E.M., and R.M., Children Under 18 Years of Age, Norma Martinez-Mendoza, Appellant, v. State of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

432 P.3d 763

In the MATTER OF C.M., E.M., and R.M., Children Under 18 Years of Age,

Norma Martinez-Mendoza, Appellant,

v.State of Oklahoma, Appellee.

No. 116,494

Supreme Court of Oklahoma.

FILED December 4, 2018

Isaiah Parsons, Charles Graham, and Matthew D. Day, PARSONS, GRAHAM & DAY, LLC, Tulsa, OK, for Appellant.

Kyle Felty, Assistant District Attorney, Tulsa County District Attorney's Office, Tulsa, OK, for Appellee.

DARBY, J.:

¶ 1 The questions presented to this Court are whether 1) the Oklahoma Department of Human Services(DHS) provided reasonable efforts to reunite Mother with Children; 2) the State presented clear and convincing evidence to support the termination of parental rights; and 3) Mother's trial counsel provided effective assistance.We answer all questions in the affirmative.

I.BACKGROUND AND PROCEDURAL HISTORY

¶ 2 On August 27, 2013, DHS removed R.M., C.M., and E.M., then eight (8) years and six (6) months, six (6) years and ten (10) months, and four (4) years and ten (10) months old respectively, from Mother's custody.On September 5, 2013, the State filed a petition in Tulsa County District Court alleging that on August 25, 2013, at approximately 2 a.m., Mother and Children were at the home of some acquaintances who consumed illegal substances in their presence.At the scene, Mother and R.M. began to argue and someone called the police.Mother, who was highly intoxicated, was arrested on a complaint of child abuse for choking R.M.The State alleged in their petition that Mother's actions constituted "neglect, physical abuse, substance abuse by caretaker[,] and failure to provide a safe and stable home."The State requested that the district court adjudicate Children deprived based on the above alleged facts.

¶ 3 On January 21, 2014, Mother entered a non-jury trial stipulation to the allegations of the petition.That day, the Tulsa County District Court accepted Mother's stipulation and adjudicated Children deprived.The district court stated that the conditions to be corrected by Mother were neglect, physical abuse, exposure to substance abuse, and failure to provide a safe and stable home.On February 24, 2014, the district court imposed an individualized service plan (ISP), requiring Mother to correct the above-stated conditions.

¶ 4 On February 2, 2015, the State filed a motion to terminateMother's parental rights to Children under Title 10A, Sections 1-4-904(B)(5) and (7), alleging Mother had failed to correct the conditions that led to Children being adjudicated deprived and had not contributed to the support of Children.Also on February 2, the district court found that DHS had made reasonable efforts to reunite Mother and Children, and that those efforts had failed; therefore, the court changed the permanency plan to one for adoption.On November 9, 2015, the State filed an amended motion to terminate, again stating grounds for termination under Sections 1-4-904(B)(5) and (7) and adding grounds for termination under Section 1-4-904(B)(15), that Children had been in foster care for fifteen (15) of the most recent twenty-two (22) months.10A O.S.Supp. 2013, § 1-4-904(B)(15).

¶ 5 The week of November 15, 2016, the Tulsa County District Court held a jury trial on the amended motion to terminate.At trial, the State presented evidence that Children were insistent they did not wish to participate in therapeutic visitation with Mother.Children continued to express significant fear of Mother as well as concern that any changes made by Mother were insincere and superficial.The State also presented evidence that Children consistently made statements regarding prior abuse by Mother.

¶ 6 Children's therapist testified that Children responded to suggestions of visitation with Mother by expressing significant levels of fear in various ways such as by hiding under and behind furniture when her name was brought up, refusing to acknowledge the therapist any time she mentioned Mother, and one child banging his head on the furniture.Children's therapist testified that she read portions of a letter from Mother to Children, delivered gifts and homemade food, showed them a video Mother made, and gave them all copies of a photo of Mother and their family pet. One of the children confirmed the photo was his to do with as he wished before he crumpled it up and threw it away, while another requested a frame for the photo and then cut out Mother's image retaining only the animal's image.Only one child, R.M., ever consented to visitation, but immediately changed his mind — expressing a fear of death if exposed to Mother, even with others present.R.M. told the therapist that he requested to be baptized out of fear for his immortal soul on the chance he was required by the court to visit with Mother.

¶ 7 Children's therapist clarified that her job was not to facilitate therapeutic visitation, but rather to help Children process trauma and engage in healthy behavior.Mother's therapist explained the importance for Children to connect with Mother so they could receive new information about the changes Mother had made.Mother's therapist testified that Mother had requested phone calls between Mother and Children, but stated that the calls were not allowed due to the foster mother's inability to speak Spanish.She also testified that Mother was not allowed photographs or information about the Children through this process.As for DHS, the caseworker testified that due to Children's extreme fear and anxiety towards Mother, visitation was never safe in this case.Therefore, DHS did not provide opportunities for Mother and Children to connect and remain familiar with each other.

¶ 8 On November 18, 2016, the jury unanimously voted to terminate Mother's parental rights to Children under Section 1-4-904(B)(15) only.The district court sustained the jury's verdict and entered a formal order terminating Mother's parental rights on September 21, 2017.Mother appealed with three propositions of error: 1) DHS failed to provide reasonable efforts to reunite Mother and Children; 2) the district court committed reversible error in sustaining the State's motion to terminate as the ruling was not supported by clear and convincing evidence; and 3) ineffective assistance of counsel.We address the issues in the order of occurrence.

II.ANALYSIS

A.Reasonable Efforts to Reunite

¶ 9Mother first argues that DHS failed to provide reasonable efforts to reunite her and Children.She asserts that there was no legitimate opportunity for reunification because of the lack of visitation.Mother acknowledged that DHS provided counseling for her and Children as well as other services for her to complete her ISP; however, she felt that DHS should have done more to facilitate visitation.

¶ 10 While the record shows that Mother regularly requested visitation throughout the case, Mother's argument fails in light of the rest of the record.Mother and Children all attended extensive counseling.Throughout therapy, Children were insistent that they did not wish to participate in therapeutic visitation with Mother.Children's therapist made numerous efforts to help Children process their trauma, yet none of them were ever willing to see Mother again due to their fear and mistrust.

¶ 11 Where the agent who is entrusted with the duty to help salvage the family relationship contributes to the fact situation warranting the termination of parental rights, the court must stop short of severing the parent-child relationship.In re Christopher H. , 1978 OK 50, ¶ 18, 577 P.2d 1292, 1295(where social worker misled the parent).In the case at issue, however, no evidence was presented that DHS contributed to the circumstances which justified keeping Mother and Children apart.Instead, DHS set in motion the steps for Mother to complete her ISP within a reasonable time and assigned a caseworker fluent in Mother's native language.DHS also provided extensive therapy to Children.

¶ 12Mother does not identify any services that DHS failed to offer her other than visitation.The Oklahoma Children's Code provides that:

If the court determines that reunification services are appropriate for the child and a parent, the court shall allow reasonable visitation with the parent or legal guardian from whose custody the child was removed, unless visitation is not in the best interest of the child, taking into consideration :

(1) protection of the physical safety of the child,

(2) protection of the life of the child,

(3)protection of the child from being traumatized by contact with the parent , and

(4)the child's expressed wishes .

10A O.S.2011, § 1-4-707(A)(6)(a)(emphasis added).The State provided extensive evidence that visitation would likely traumatize Children and that Children continued to regularly express their desire to not have any contact with Mother.

¶ 13 In In the Matter of B.T.W. , the mother asserted that there was no opportunity for reunification due to the foster placement and inadequate visitation.In re B.T.W. , 2010 OK 69, ¶ 22, 241 P.3d 199, 211.Throughout the casethe mother was allowed some visitation, however, DHS suspended all visitation after B.T.W. became physically sick after a visitation, after which the mother was eventually allowed visitation once per week.Id.¶¶ 7-8, 241 P.3d at 203-204.The Court noted that the child had initially expressed loving and missing her mother, but over time began to express fearing her.Id.¶ 17, 241 P.3d at 207.B.T.W. eventually expressed desire that visitations with her mother stop and that she remain with the foster mother.Id.¶ 18, 241 P.3d at 208.

¶ 14 B.T.W. complained that her mother yelled at her, used foul language, and interfered with her participation in church activities.Id.¶ 5 n.7, 241 P.3d at 202 n.7.B.T.W. later alleged that her mother twice threatened to choke or strangle her.Id.¶ 7 nn.14, 16, 241 P.3d at 203 nn.14, 16.The district court, however, opined that the events "did not appear to be much more...