Matter of BTW, 106

• Decision Date: 14 October 2010
• Docket Number: 865.,No. 106,106
• Citation: 241 P.3d 199,2010 OK 69
• Parties: In the Matter of BTW, Deprived child under the age of eighteen (18) years.
• Court: Oklahoma Supreme Court

241 P.3d 199

2010 OK 69

In the Matter of BTW, Deprived child under the age of eighteen (18) years.

No. 106,865.

Supreme Court of Oklahoma.

Oct. 5, 2010.

As Revised Oct. 14, 2010.

COPYRIGHT MATERIAL OMITTED.

APPEAL FROM THE DISTRICT COURT OF WOODWARD COUNTY

¶ 0 The mother appeals from a post-appeal permanency/review hearing order of the District Court, Woodward County, Rick Bozarth, Judge, that provides: (1) the child is to remain in the care of the foster parent (2) for supervised visitation by the mother with child and (3) a permanency plan of long-term out-of-home placement for the child.

AFFIRMED

Jami J. Fenner, Lester, Loving & Davies, P.C., Edmond, OK, for the mother.

Susan K. Meinders, Office of the District Attorney of Woodward County, for the State of Oklahoma.

Careylyn Stuckey Talley, Foard, Talley & Stake, P.L.L.C., Woodward, OK, for the child.

D. Kent Meyers, Harvey D. Ellis, Mary H. Tolbert, Crowe & Dunlevy, P.C., Oklahoma City, OK, for the foster parent. ¹

OPALA, J.

¶ 1 This appeal presses three issues: (1) whether this court's mandate-that affirmed a 2008 trial court order-was ignored by the trial judge's 2009 decision in a post-appeal permanency/review hearing order, (2) did the trial judge abuse his discretion when he ordered (A) the child to remain in the care of the foster parent (B) supervised visitation for the mother and (C) a change of permanency plan to long-term out-of-home child placement and (3) were the mother's due process rights violated when the court ordered long-term foster care for the child. We answer all questions in the negative.

I. ANATOMY OF THE LITIGATION

¶ 2 The appeal deals with the post-decisional consequence of an earlier pronouncement by this court, In the Matter of BTW. ² That case shall be referred to as BTW I. To provide continuity and assist the reader, a brief recitation of the relevant factual and procedural history leading to our earlier decision and today's cause will be provided here. For a more complete account of the facts leading to BTW I, the reader is referred to the opinion in that cause.

Facts and Procedure Leading to BTW I

¶ 3 The mother (appellant in today's cause) adopted BTW in 1999. ³ In June 2005 the mother recognized that her physical and mental abilities to function were deteriorating and that she would need hospitalization. She sought care for BTW from the individual who currently serves as the foster mother. ⁴ Upon her return home from the hospital, mother alleged the foster mother permitted her only limited supervised visits with BTW. In response to reports of the mother's volatile behavior toward the foster mother, BTW, and a Department of Human Services (DHS) employee, DHS became involved. In May 2006 the child was adjudicated deprived and placed in DHS custody. The agency continued the child's placement with its foster mother. In August 2007, DHS unsuccessfully sought to terminate the mother's parental rights. ⁵

¶ 4 Two permanency/review hearings were held. In October 2007, following the first hearing, the trial judge ordered that a different placement be found for the child, all parties to work toward a permanency plan for the child's reunification with her mother and increased visitation with a view to allowing weekend visitations in the mother's home within thirty days. ⁶

¶ 5 Although visitation increased, DHS did not find alternative foster placement for BTW. At the second review hearing the foster parent intervened. Following the hearing the trial judge issued an order on 15 February 2008 that again directed a change of foster-home placement, reunification for the permanency plan, and visitation between the mother and her child to continue. ⁷ The state, child, and foster mother (the appellants in BTW I ) immediately filed an emergency motion for the cessation of the mother's visitation rights and a stay of portions of the order. The trial judge denied this motion. ⁸

¶ 6 On 25 February the appellants filed in this court an application to assume original jurisdiction, a petition for writ of prohibition, and an application for an emergency stay. The court stayed solely the requested change in foster placement. ⁹ It assumed original jurisdiction on 18 April and issued a writ prohibiting further proceedings in the case. ¹⁰ During this time, the appellants also filed in the district court motions for disqualification of the trial judge ¹¹ and reasonable efforts to return the child to the home no longer be required, in accordance with the terms of 10 O.S. § 7003-4.6(A). ¹²

¶ 7 On 21 April the appellants sought a request to clarify whether the court's writ of prohibition prevents the enforcement of the trial court's order for visitation. ¹³ Three days later DHS suspended all visitation and appellants filed an emergency motion requesting the court to construe the writ of prohibition as preventing enforcement of the visitation order. This motion was bottomed on reports of the child becoming physically sick following the most recent visitation and allegations that the mother threatened to strangle the child on an earlier weekend visit. ¹⁴ The court responded by an order to permit the district court to place for hearing before a disinterested judge the appellants' motion to discontinue visitation. Following a two-day hearing, a newly-appointed judge ruled supervised visitation to take place not more than once a week. ¹⁵ The trial judge's 19 June order noted the incidents leading to the hearing on visitation “were not as horrible as characterized by the child and her supporters nor were they as noncontroversial as was characterized by mother.” ¹⁶ The court's decision in BTW I that affirmed the district court order was issued on 16 September 2008.

Facts and Proceedings Following BTW I

¶ 8 Before mandate issued in BTW I, ¹⁷ DHS, the child, and foster parent (collectively to be known here as appellees or state) filed an emergency motion to discontinue visitation and request that disclosures of the court's opinion to the child be limited. ¹⁸ This motion was bottomed on a 3 October 2008 report provided by the child's counselor who recommended that visitation with the mother be discontinued because of the child's increased anxiety and deterioration. ¹⁹ He also opined to the child's attorney that informing BTW of the court's decision would be harmful to the child. ²⁰ The parties further disagreed on visitation and on which order controlled during this period. ²¹ Mother sought a contempt citation against DHS, alleging the latter failed to obey the order affirmed by this court. ²²

¶ 9 The trial judge set 25 November for a regular review hearing and to entertain: (1) the state's emergency motion to discontinue visitation and (2) its earlier motion pursuant to 10 O.S. § 7003-4.6(A). The trial judge denied the movants' latter motion sans hearing. ²³ On 9 February, following a three-day hearing, he ordered (1) the child to remain in the care of the foster parent (2) supervised visitation for mother and child and (3) a change in permanency plan from being promotive of reunification to long-term out-of-home placement. The mother appeals from this order.

II. THE FEBRUARY 2008 ORDER WAS SUBJECT TO REVIEW AND MODIFICATION IF CONDITIONS WARRANT ITS CHANGE

[1] [2] ¶ 10 Mother first urges the trial judge erred in his 9 February 2009 order when he failed to enforce this court's 27 October 2008 mandate that affirmed the 2008 trial court's ruling. According to mother, the latter order-that directed a change in foster placement, unsupervised visitation, and the goal of family reunification-was never implemented. ²⁴ Mother asserts this court's order dissolved the temporary stay “instanter.” Neither did the intervening 19 June 2008 order-that provides for supervised visitation between mother and child once a week-relieve the trial court of its obligation to comply with this court's decision. According to the mother, the settled-law-of-the-case doctrine-that precludes review of issues decided by an appellate court that have become final in a previous appeal-is applicable to child welfare cases. ²⁵ She urges the continued litigation is due to the appellees' dissatisfaction with the earlier trial judge's ruling ²⁶ and the February 2009 order renders this appellate review meaningless.

¶ 11 The appellees respond the February 2008 order was never more than an interlocutory order. It is hence subject to modification at any time in accordance with the terms of 10 O.S. § 7003-6.1. ²⁷

[3] [4] [5] [6] [7] [8] [9] ¶ 12 The goal of inquiry into the meaning of a statutory enactment is to ascertain and give effect to the intent of the legislature. ²⁸ It is presumed that the law-making body has expressed its intent in a statute's language and that it intended what it so expressed. ²⁹ If the meaning of a statute is plain and unambiguous, it will not be subjected to interpretation by reference to rules of judicial construction but will instead receive the effect its language dictates. ³⁰ Only if legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation to be invoked and employed. ³¹ The determination of legislative intent controls statutory interpretation by the judiciary. ³² When possible, different provisions must be construed together to effect a harmonious whole. ³³

[10] ¶ 13 The district court's continuing authority over children whose status stands adjudicated as deprived is implicit in the scheme of the Oklahoma Children's Code. ³⁴ The terms of § 7003-6.1 are explicit. ³⁵ A decree or order made pursuant to the Oklahoma Children's Code may be modified by the court at any time. An order dealing with termination of parental rights is not modifiable. Further, the legislature has directed that a district court must review every disposition order concerning a child adjudicated as deprived at least every six months. ³⁶ Review hearings may be set at any time upon a motion by...