State ex rel. Dept. of Human Services v. Colclazier

• Decision Date: 28 October 1997
• Docket Number: No. 89356,89356
• Citation: 1997 OK 134,950 P.2d 824
• Parties: STATE of Oklahoma, ex rel, DEPARTMENT OF HUMAN SERVICES, Petitioner, v. The Honorable Jerry COLCLAZIER, District Judge, McClain County, State of Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 824

950 P.2d 824

1997 OK 134

STATE of Oklahoma, ex rel, DEPARTMENT OF HUMAN SERVICES, Petitioner, v. The Honorable Jerry COLCLAZIER, District Judge, McClain

County, State of Oklahoma, Respondent.

No. 89356.

Supreme Court of Oklahoma.

Oct. 28, 1997.

As Corrected Nov. 10, 1997.

Rehearing Denied Jan. 21, 1998.

Diane File, Assistant General Counsel, Oklahoma City, for petitioner.

Carl Franklin, Norman, for the mother.

Charles N. Gray, Purcell, for the deprived child.

Lori Ann Puckett, Assistant District Attorney, Purcell, for respondent.

ALMA WILSON, Justice.

¶1 We grant petitioner's application to assume original jurisdiction to address two questions: 1) Whether the district court may direct changes in the placement, care and treatment of a child adjudicated deprived and placed in the custody of the Department of Human Services under the Oklahoma Children's Code; ¹ and, 2) Whether the district court may direct the Department of Human Services to provide foster care payments for a child adjudicated deprived who is not in the custody of the Department. We hold that, pursuant to the Oklahoma Children's Code, the district court in McClain County had the power to order the Department of Human Services to modify its placement of the subject deprived child, according to the best interests of the child standard. We further hold that upon removal of custody of the subject child from the Department of Human Services the district court in McClain County should have determined, after a proper hearing, whether the Department has the responsibility to provide foster care payments for the child.

¶2 In this original proceeding, petitioner, the Department of Human Services (DHS), seeks relief from two separate orders entered by the Honorable Jerry Colclazier, District Judge, District Court in McClain County, Oklahoma, in a juvenile proceeding styled In the Matter of J.U., An Alleged Deprived Child, No. JFJ-95-63. The orders direct DHS to move the deprived child from the care of foster parents who reside some 100 miles away from the child's home and place the child in another foster home nearer in proximity to her home and to pay foster care expenses.

¶3 The juvenile proceedings below began when J.U. was removed from her mother's custody by DHS in August, 1995, because her mother was hospitalized for mental health reasons. J.U., an alleged deprived child, was placed in a foster home where she remained until December, 1996, when DHS placed J.U. and her new-born brother in a foster-adoptive home at a location more than 100 miles away. ² In March, 1997, at the conclusion of a three-day non-jury trial, the district court denied the state's request to terminate the parental rights of J.U.'s mother and ordered immediate visitation with the mother and a program of therapy to assist in the goal of reunification. ³

¶4 At the disposition hearing had on April 16, 1997, attorneys for the mother, the child, and the state, jointly, requested that five year old J.U. be removed from the foster-adoptive home as soon as the move could be effected with the least amount of anxiety to J.U. The court heard evidence tending to show that the foster-adoptive parents' behavior was not supportive of the ordered visitation and reunification plan and that the foster-adoptive parents had refused to transport J.U. for psychiatric and therapy services ordered by the court, and expert testimony that a change in placement is warranted where the foster home environment is contrary to reunification efforts, even though change in placement increases the risk of attachment disorders. The court determined that removal from the remote foster-adoptive home to a foster home located in McClain County or Cleveland County would be in the best interest of J.U. The court ordered DHS to change the foster home placement and approved a treatment plan designed to meet the goal of reunification of J.U. and her mother as required by statute.

¶5 On April 22, 1997, the district court granted a stay of its April 16th order. Upon a subsequent hearing, the court dissolved the stay and ordered that DHS place J.U. in a foster home within a forty-mile radius of the courthouse by Friday, May 2, 1997. On May 2, 1997, DHS filed this original proceeding. This Court entered an emergency stay order on May 12, 1997, suspending the effectiveness of the ordered change in foster home placement. Thereafter, the district court revoked the custody of DHS ⁴ and specified the placement of J.U. ⁵ DHS canceled J.U.'s medical card for medical, psychological, and social services under the Medicaid system and terminated foster-care payments and clothing vouchers for J.U. On May 29, 1997, the district court ordered DHS to provide foster care payments and clothing vouchers for J.U. By supplemental filing herein, DHS also seeks relief from the May 29th order to make provision for foster care expenses.

¶6 DHS contends the April 16th order requiring change in placement and the May 29th order requiring foster care payments are excessive and unwarranted exercises of judicial power and asks this Court to issue a writ of prohibition. ⁶ DHS argues that the April 16th order invades the exclusive placement authority vested in DHS pursuant to 10 O.S.Supp.1996, § 7003-7.1(B)(1). DHS also asserts that the May 29th order may be contrary to 42 U.S.C. § 672.

I. The Order of April 16, 1997

¶7 Title 10 O.S.Supp.1996, § 7003-7.1(B)(1), as amended by 1997 Okla.Sess. Laws, ch. 386, § 7, ⁷ provides:

B. 1. If the child is placed in the custody of the Department of Human Services, whether in emergency, temporary or permanent custody, the Department shall determine the appropriate placement of the child. However, under no circumstances may the Department of Human Services return a child to a parent that contributed to the child being deprived due to abuse or neglect, without prior approval of the court. Any change in the placement of a child adjudicated to be deprived shall be in accord with the provisions of subsection B of Section 7003-5.4a of this title. (Emphasis added.)

¶8 DHS relies on the emphasized language for the proposition that it has placement authority at every stage of the juvenile proceedings ⁸ and therefore, its authority is exclusive and the district court has no power to order DHS to change its placement of a child. The language clearly imposes upon DHS a duty ⁹ to determine the appropriate placement of a child placed in its custody, which includes the necessary authority to fulfill the mandatory duty. ¹⁰ It does not, however, exclude DHS' placement of an adjudicated deprived child from judicial review established in other sections of the Children's Code. Rather, the two sentences following the emphasized language clearly subjects DHS' determination to return a child to its home or to change placement to approval of the district court. Further, the following subparagraph contemplates that the care and treatment of children provided by DHS will be subject to the power of the district court. Subparagraph (B)(2) provides that the Department is entitled to notice of "all court proceedings pertaining to the care and custody of the child including ... disposition and review of disposition...." Reading the language in the context of the entire section, ¹¹ we do not ascertain an intent that the determination of appropriate placement by DHS is to be excluded from the judicial procedures established for the protection of the child.

¶9 Statutory interpretation is not necessary where legislative intent is clear from a literal reading of the statute. ¹² However when the purpose and intent is not obvious from the plain words of the statute, legislative intent will be ascertained from the whole act. ¹³ In this matter, DHS argues that the intent of § 7003-7.1(B)(1) is to exclude its determination of the appropriateness of the foster-adoptive home placement of J.U. from the reach of the juvenile court. This position is inconsistent with a broad reading of the whole of the Oklahoma Children's Code. ¹⁴ Perusal of the Oklahoma Children's Code reveals an intent that the district court has the disposition and review authority to approve, disapprove, or modify DHS' placement, care, and treatment of an adjudicated deprived child placed in its custody; and, the judicial review authority is continuing until the court places permanent custody of the child with DHS or until the child is no longer a ward of the court.

¶10 The district court's continuing authority over children adjudicated deprived is implicit in the scheme of the Children's Code: Custody orders are entered and periodically reviewed by the court guided by the "best interest of the child" standard; ¹⁵ DHS develops an individual treatment and service plan for each deprived child placed in its custody; ¹⁶ The plan must comply with the requirements of other court orders and it is subject to modification; ¹⁷ The plan must provide for placement, if outside the home, that is as close as possible in proximity to the child's home; ¹⁸ The plan must delineate services designed to improve the conditions in the home or facilitate permanent placement, focusing on the most efficient path to quick reunification or permanent placement; ¹⁹ Upon district court approval, DHS causes the individual treatment and service plan for each deprived child to be implemented; ²⁰ DHS reports periodically to the district court and makes recommendations relating to the circumstances and conditions of those wards of the court placed in its custody; ²¹ Foster parents have a right to submit reports to the court; ²² DHS may transfer any child in its custody from any authorized placement to another authorized placement that is consistent with the treatment plan and subject to notice to the court; ²³ DHS must give notice to foster parents prior to movement of a child from one location to another; ²⁴ DHS must notify the district court, the district attorney, and attorney and court-appointed...