Mireles v. State (In re L.M.)
| Decision Date | 30 March 2012 |
| Docket Number | No. 109,290.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,109,290. |
| Citation | 276 P.3d 1088,2012 OK CIV APP 41 |
| Parties | In the Matter of L.M., an alleged Deprived Child. Rebecca Mireles and James Moody, Appellants, v. The State of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Bryan County, Oklahoma; Honorable Rocky L. Powers, Trial Judge.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
D. Michael Haggerty, II, Haggerty Law Office, PLLC, Durant, Oklahoma, for Appellant, Rebecca Mireles.
Whitney Paige Kerr, Durant, Oklahoma, for Appellant, James Moody.
Julie Cuesta Naifeh, District Attorney's Office, Durant, Oklahoma, for Appellee.
Mary Kay Nabors, Durant, Oklahoma, for Minor Child.
¶ 1 In this consolidated appeal, the biological parents of L.M. appeal a trial court judgment terminating their parental rights based on separate jury verdicts finding: (1) Rebecca Mireles (Mother) has a mental illness, and (2) both James Moody (Father) and Mother have failed to correct the condition which led to L.M.'s deprived status. The termination order as to Mother is REVERSED and REMANDED for a new trial. Because the order is supported by clear and convincing evidence, it is AFFIRMED as to Father, but REMANDED to correct a deficiency in the termination order.
¶ 2 “In parental termination cases, the State must show by clear and convincing evidence that the child's best interest is served by the termination of parental rights.” In re C.D.P.F, 2010 OK 81, ¶ 5, 243 P.3d 21, 23. This standard of proof “balances the parents' fundamental freedom from family disruption with the state's duty to protect children within its borders.” Id. Our review must find the presence of clear and convincing evidence to support the trial court's decision, which requires we canvass the record 1 to determine if the evidence is such that a fact finder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id.
¶ 3 According to testimony at trial, Mother and Father had been in an off and on relationship for numerous years when L.M. was born August 8, 2005. They continued that relationship until June 1, 2007, when the trial court granted a protective order for Mother and L.M. and ordered Father “to have no contact ... either in person or by telephone” with them until June 1, 2010. On July 5, 2007, the Department of Human Services (DHS) received its first referral of Mother's alleged substance abuse and slapping of L.M., who was almost two years old. After investigating, DHS recommended only preventative services for Mother because she and L.M. were living with the maternal grandmother.
¶ 4 On July 29, 2007, Mother, who had since moved with L.M. into a rental home, called the City of Durant Police Department to report a footprint inside her refrigerator. Upon arrival, the police found an unsanitary home with narrow trails between piles of trash and clothing, utilities shutoff from non-payment, spoiled food, cockroaches, and L.M. playing in the floor. When the Police Chief told Mother the suspected footprint was just a stain which needed to be cleaned like the rest of house, she became angry and “almost explosive.” At that point, the Police Chief told Mother he was making a report to the DHS, and both officers left.
¶ 5 Later that day, a DHS investigator and caseworker went to Mother's home to initiate preventative services. They confirmed the home's condition, found some canned goods but no clean food preparation surface, and reported Mother looked ill, appeared to be over-medicated, and demonstrated “paranoid erratic behaviors.” During the visit, Mother told the caseworker to leave, so she did. The investigator tried unsuccessfully to reason with Mother, concluded the child was not safe, and went outside to have the caseworker call authorities. Mother grabbed L.M. and tried to leave with him but her car stalled. When the police arrived, Mother handed L.M. to the caseworker and walked away. Because Father was currently in the Johnston County Jail, DHS obtained emergency custody of L.M.
¶ 6 On August 6, 2007, the Bryan County District Attorney filed a petition on behalf of the State of Oklahoma (State) against both parents, alleging L.M. was a deprived child because he One month later, DHS created an Individualized Service Plan (ISP or treatment plan), signed by both parents and filed in the deprived child proceeding October 2, 2007.
¶ 7 The “Condition(s) to be corrected” identified in the ISP were The ISP list of “To Do's” (“ISP requirements”) for Mother included:
Complete mental health and substance abuse assessments, follow all recommendations for those services including individual, group and recovery counseling; Address coping skills, anger, outbursts, and L.M.'s emotional difficulty directly related to his high level of anxiety; Maintain sobriety, complete random drug screening; Seek medical attention from one service provider to verify Mother's need for numerous medications; Keep a safe home without physical or verbal fights when child is present, attend family violence counseling, parenting skills training, and provide a stable and safe home with working utilities, adequate space and food; Meet L.M.'s daily and basic needs while remaining mentally stable and no exposure to anyone abusing mood altering substances.
Father's ISP requirements were identical except for the one physician limitation and he needed to “follow through with services ... in criminal court case” and “seek and maintain legal employment as needed to pay for fines and court cost[s].” The ISP allowed the parents bi-monthly visitation with L.M.
¶ 8 Each parent had court-appointed counsel on October 9, 2007, when they stipulated to the allegations in the deprived child petition.2 An Adjudication and Disposition Order filed October 24, 2007, found L.M. was deprived because he lacked proper parental care and guardianship, lived in an unfit home, was exposed to inadequate and dangerous shelter, had not been provided adequate nutrition and “the mother's paranoid erratic behaviors had also placed him at risk of harm.” The trial court ordered the parents to correct those conditions by following the treatment plan it expressly adopted as to each parent and warned their failure to correct the conditions may result in termination of their parental rights.
¶ 9 The ISP progress report submitted January 2008 stated Mother was making reasonableefforts to address her treatment plan and maintaining frequent contact with the child welfare worker. It also reported she has “numerous disabilities such as arthritis, bipolar disorder, post traumatic stress disorder and major depression,” was now seeing only one physician, but had denied “having another domestic violence altercation with [Father]” which “can be verified [she] had [him] arrested at Shekinah Counseling Agency.” The report stated Father had initiated counseling services, but was arrested November 20, 2007 and currently in Bryan County Jail “after being sentenced ... for Domestic Violence involving [Mother], and would be transported to Lexington in custody of Department of Corrections (DOC).” It also reported Father “currently is not receiving services” because he was in jail, and “visitation has been ceased as a result of a standing court ordered (sic) not allowing contact until 2010.”
¶ 10 Two letters from Shekinah Counseling Agency, both dated September 14, 2007, were part of the first ISP Progress Report. Father's evaluation disclosed anger management and substantial drug and alcohol abuse for which out-patient group counseling and parenting skills were recommended twice weekly for a minimum of 16 weeks. Mother's evaluation yielded moderate drug and alcohol abuse and positive tests for several prescription drugs with out-patient group counseling once weekly for sixteen weeks and random urinalysis testing recommended.
¶ 11 The parents appeared with their court-appointed counsel at the January 2008 Review Hearing. The trial court accepted DHS recommendations and report and in the “Additional Orders” section of its form order, wrote
¶ 12 Mother's mental instability was the sole issue affecting her ability to make reasonable efforts between March 2008 to March 2009,3 in which report, DHS found “Efforts to reunite has ( sic ) failed and [it] will be seeking termination.” The reports for the same period noted Father is incarcerated and “not receiving services” and that L.M. was a happy toddler with the same foster family since October 2007, his language had improved, and Mother displayed him love and attention at the DHS-monitored weekly visitations. The status quo was maintained at each review hearing, none of which Mother missed.
¶ 13 Father was released from prison May 9, 2009 and two days later reported to DHS, where his caseworker copied the treatment plan and “went through it with him step by step,” explaining he “needed to begin it as soon as possible” because L.M. had been out of the home for a total of 22 months and DHS “was looking at termination.” Father rep...
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