State ex rel. Dep't of Human Servs. v. Jones (In re T.T.S.)

• Decision Date: 09 June 2015
• Docket Number: No. 113326.,113326.
• Citation: 2015 OK 36,373 P.3d 1022
• Parties: In the Matter of T.T.S., an alleged deprived child under the age of 18 years. State of Oklahoma ex rel., Department of Human Services, Appellee, v. Kelly D. Jones, Appellant.
• Court: Oklahoma Supreme Court

373 P.3d 1022

2015 OK 36

In the Matter of T.T.S., an alleged deprived child under the age of 18 years.State of Oklahoma ex rel., Department of Human Services, Appellee,

v.Kelly D. Jones, Appellant.

No. 113326.

Supreme Court of Oklahoma.

June 9, 2015.

Chris D. Jones, Jones Law, P.C., Durant, OK, for Appellant.

Whitney Kerr, Bryan County District Attorney, Durant, OK, for Appellee.

GURICH

, J.

Facts & Procedural History

¶ 1 Kelly D. Jones is the biological mother of T.T.S. On July 26, 2011, the State of Oklahoma filed a petition seeking to adjudicate T.T.S. as a deprived child. The petition alleged T.T.S. lacked “appropriate parental care” and had been “placed in threat of harm” through mother's actions. Specifically, the state maintained mother was a drug user and provided an unfit home environment for the child. In addition, the petition asserted that following a drug binge, mother was discovered by a law enforcement officer asleep with her boyfriend in a parking lot. Nearby, T.T.S. slept, unsupervised, in mother's car. Two windows had been broken on the vehicle and pieces of glass were located in T.T.S.' child safety seat.¹ There were no physical injuries to T.T.S. The goal, according to the State's petition, was reunification of T.T.S. with mother. Throughout the pendency of this case, T.T.S. has resided with foster parents.

¶ 2 On August 8, 2011, the trial court appointed Jena Newman to serve as mother's counsel. On August 23, 2011, mother stipulated to the state's petition, and the trial court entered an adjudication order finding T.T.S. was a deprived child. On September 9, 2011, the Oklahoma Department of Human Services submitted a proposed Individualized Service Plan, which noted that mother “appear[ed] to be progressing well.”² Specifically, DHS reported that mother had been actively seeking employment and was participating in counseling services. The ISP acknowledged that “Worker has received progress reports from service providers showing [mother's] progress is good. [Mother] appears to be motivated to have [T.T.S.] back with her.”

¶ 3 According to the ISP, DHS recommended mother satisfy a number of conditions prior to reunification with T.T.S. The requirements set forth by DHS fell under a number of different headings within the ISP. The first section provided as follows:

Condition(s) which need to be corrected:

Parents will need to be drug free. Parent will have a safe, stable and routine environment with the child's basic needs consistently provided. Child will reside in a home free of alcohol and drug abuse without threat of harm. Needs [sic] parents which are able to protect and provide a safe home free from all forms of domestic violence. Parents [sic] needs to maintain medical and pursue ongoing medical and physical related to his needs and development.

The ISP also contained a section termed “Desired Result(s),” which read as follows:

Desired Result(s):

Parent will demonstrate ability to provide a safe, stable and routine environment with all basic needs including but not limited to physical, medical, and developmental needs being met. He will reside in a home that is free from domestic violence, free of drugs, and any concerns related to substance abuse. Mother will not be in a position for threat of harm to happen to him.

Additionally, the ISP form contained a “To–Do” checklist, which contained conditions for mother to abide by:

• Ms. Jones will provide transportation, make and maintain all necessary appointments for the child's medical needs, including immunizations and any other medical needs that arises [sic].

• Ms. Jones will ensure a safe, stable and routine environment, free from threat of harm or exposure to domestic violence. If necessary, Ms. Jones will attend counseling for domestic violence.

• Ms. Jones will develop a plan and follow through to provide for the child's basic needs including shelter, proper nutrition, clothing for the season and utilities. Mother will be able to manage her finances available [sic] to maintain all basic needs for the child.

• [Ms. Jones] will have an assessment by a substance abuse treatment center. She will follow all recommendations which may include entrance of a treatment center. Ms. Jones will demonstrate the ability to remain substance free which includes alcohol, illegal and non-prescription drug usage. She [sic] be able to demonstrate written and verbalizing [sic] her relapse prevention plan. She will work with her counselor on what triggers her substance abuse and provide it in writing to DHS. She will work with her counselor on the effects of substance abuse to children and what has brought her to this point in her life.

On the same page as the “To–Do” list, DHS listed further guidelines for mother to observe. These included attending visits with T.T.S. in a timely manner; signing releases to allow DHS to share information with third parties providing services to mother in connection with her case; contacting the assigned caseworker monthly; informing DHS of any changes to address, workplace, person(s) living in the same household, or progress on the ISP; providing proof of completing tasks under the ISP, such as certificates, reports, etc.; following all recommendations of service providers; and, attending all court hearings and family team meetings.

¶ 4 A subsequent DHS progress report, filed with the trial court on February 9, 2012, disclosed that mother had been arrested and was incarcerated in the Grayson County Jail in Sherman, Texas. The case was set for review on April 10, 2012. A court minute filed after the review hearing suggested DHS intended to pursue termination of parental rights.³ On August 7, 2012, the State filed its Application for Termination of Parental Rights of Kelly Jones. Paragraph four of the application read as follows:

4. That the parental rights of [mother] and [father] in and to [T.T.S.] should be terminated pursuant to 10A O.S. § 1–4–904(B)(5)

for the following reason:

That the parents have failed to correct the conditions that led to the finding of deprivation even though they have had over three months to do so. (emphasis added).

The State's application did not specify what particular conditions mother had failed to correct. A hearing on the matter was scheduled for October 23, 2012. The biological father's parental rights were subsequently terminated at the October hearing. An amended application to terminate mother's parental rights was filed by the State on October 31, 2012. Hearing on the second application to terminate mother's parental rights was scheduled for January 22, 2013.

¶ 5 A letter from mother filed on January 7, 2013, expressly requested an order to have her transported to Bryan County for the upcoming trial proceedings. Mother also urged the court to appoint counsel on her behalf. On January 16, 2013, mother submitted another written request seeking transportation to Bryan County for the hearing on the State's application to terminate her parental rights. According to a court minute dated January 22, 2013, Jena Newman was re-appointed to serve as mother's attorney.⁴ Once more the matter was continued for a review hearing to be held on February 26, 2013. In response to mother's inquiry about attending the termination hearing, the State prepared an application requesting the issuance of a bench warrant and an accompanying order. The order issuing the bench warrant was then forwarded directly to mother via the Texas Department of Corrections.

¶ 6 Over the next eighteen months, the matter was continued multiple times.⁵ At a February 25, 2014 review hearing, the trial court scheduled a jury trial on the State's application to terminate mother's parental rights for May 1, 2014. Mother sent a letter to the court on March 11, 2014, reiterating her request for transportation to Oklahoma for trial proceedings. In response, the State secured a second bench warrant, this time delivering it to the Bryan County Sherriff. A copy of the warrant reflects it was subsequently withdrawn. On March 21, 2014, the District Attorney filed a second amended application to terminate mother's rights. No proof of service appears in the record.

¶ 7 On May 1, 2014, the trial on the application to terminate mother's rights was stricken at the request of the State. It was rescheduled for September 22, 2014. According to a court minute, the State was “to pursue the transport of the mother from Texas for her jury trial.”⁶ On July 21, 2014, Jena Newman again sought to withdraw from representing mother in the termination case. An order allowing her withdrawal was approved and filed the same day, finding “[c]ourt sustains attorney's motion to withdraw, contrary to child's best interests.”⁷ Following her receipt of the order, mother mailed correspondence to the court, worried about her lack of representation for the upcoming September trial. Mother also reiterated her desire to be physically present for trial proceedings. On August 7, 2014, the trial judge entered an order reappointing Ms. Newman as counsel for mother. Another court minute was entered simultaneously, appointing new counsel for T.T.S.⁸

¶ 8 Mother forwarded another letter to the court on August 19, 2014, expressing concern about being unrepresented and re-urging her request for transportation to the upcoming jury trial.⁹ Pre-trial conference was held on August 28, 2014. During this hearing, the trial court issued a court minute which indicated “the state has followed all possible procedure [and] protocol attempting to procure [mother's] attendance at trial.”¹⁰ Further the trial court issued the following statement in its court minute:

It is in the child's best interest that [the] trial proceed in abstentia if necessary. Counsel has been advised that any communications with [respondent] mother will require [a] “collect call” from [Texas Department of Criminal Justice] which this court is not [authorized] to accept.... It is the [Respondent] mother's responsibility to make herself

...