State v. Black (In re V.D.), Case Number: 116959

• Decision Date: 16 November 2018
• Docket Number: Case Number: 116959
• Citation: 431 P.3d 381
• Parties: In the MATTER OF V.D., B.J., E.B., A.B., S.R.D., and G.R.D., Alleged Deprived Children: State of Oklahoma, Petitioner/Appellee, v. Patricia Black, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

431 P.3d 381

In the MATTER OF V.D., B.J., E.B., A.B., S.R.D., and G.R.D., Alleged Deprived Children:State of Oklahoma, Petitioner/Appellee,

v.Patricia Black, Respondent/Appellant.

Case Number: 116959

Court of Civil Appeals of Oklahoma, Division No. 3.

Decided: November 16, 2018

Mandate Issued: December 12, 2018

Madison N. Holder, PITTSBURG COUNTY DISTRICT ATTORNEY'S OFFICE, McAlester, Oklahoma, for Petitioner/Appellee,

John Constantikes, McAlester, Oklahoma, for Respondent/Appellant.

Bay Mitchell, Judge:

¶ 1 Respondent/Appellant Patricia Black (Mother) appeals from an order terminating her parental rights to her children, V.D., B.J., E.B., A.B., S.R.D., and G.R.D. after a jury trial. On appeal, Mother challenges the adequacy of the services offered by the Department of Human Services to aid her in correcting the conditions that led to the children's being adjudicated deprived. Specifically, Mother contends she was not given adequate trauma-informed care to address her history of severe trauma. Mother also argues the State failed to prove beyond a reasonable doubt through the testimony of an expert that continued custody by Mother would result in serious emotional or physical damage to the children. We find the State showed clearly and convincingly that the services offered to Mother were adequate; we further find the State met its burden of proof regarding the threat of potential damage to the children. We affirm.

¶ 2 Mother has six children, ranging in age from one to twelve. The children's fathers' rights have all been previously terminated or were pending termination at the time of Mother's trial; none of the fathers are a part of this appeal. Following a suicide attempt while Mother was pregnant with her fifth child, the four older children were adjudicated deprived on November 19, 2015 due to lack of proper care, exposure to domestic violence, substance abuse/addiction, threat of harm, and lack of appropriate housing, among other things. A treatment plan was ordered for Mother on December 17, 2015. The fifth child, S.R.D., was born on December 23, 2015 and remained in Mother's custody. The sixth child, G.R.D., was born in February 2017 and also remained in Mother's custody.

¶ 3 One month after G.R.D.'s birth, B.J. and E.B. were placed with Mother in an extended thirty-day visit in anticipation of a second trial reunification, which was recommended to start in April 2017.¹ However, when DHS workers visited the home during the extended visit, they found several unknown people in the home with Mother and the children. One of the men had a criminal history, including sex-related charges involving a sixteen-year-old. The DHS workers found another man, who also had a lengthy criminal history, hiding in Mother's closet. Mother claimed she did not know he was there. DHS was concerned Mother was either unaware or unconcerned that people with criminal histories were in her home and around her children. DHS also suspected that Mother had relapsed on drugs. Although Mother passed a urinalysis drug screening, DHS ended the visit and sought a deprived petition for the two younger children. Two days later, the court ordered another drug test. Mother stated that she would not be able to pass it because she had done methamphetamine after the children were removed.

¶ 4 The two younger girls were adjudicated deprived and two additional ISPs were ordered for Mother. Mother made little progress on her treatment plans, and the State filed petitions to terminate Mother's rights to all the children on December 21, 2017. The cases were combined for trial. The jury unanimously found that Mother's parental rights should be terminated.

¶ 5 Where Indian children are involved, the proceedings must comply with the provisions of both the federal Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. and its Oklahoma counterpart, the Oklahoma Indian Child Welfare Act, 10 O.S. § 40, et seq. B.J., E.B., and A.B. are not Indian children and, therefore, are not subject to either act. V.D., S.R.D., and G.R.D., however, are Indian children subject to the acts. Before parental rights can be terminated in cases involving Indian children, ICWA requires the State to show "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. § 1912(d). In cases not involving Indian children, "reasonable efforts" must be exercised by DHS to return children to their home. In re E.P.F.L., Jr. , 2011 OK CIV APP 112, ¶ 25, 265 P.3d 764, 769 ; see also 10A O.S. Supp. 2015 § 1-4-807(D)(1)(g) (requiring the court to determine at each periodic review hearing "whether reasonable efforts have been made to provide for the safe return of the child to the child's own home.").

¶ 6 Mother's first claim on appeal is that the State failed to show, by clear and convincing evidence, that she was provided adequate services to help her correct the conditions which caused the children to be adjudicated deprived. Specifically, Mother contends DHS failed to provide her with trauma-informed care to address Mother's history of severe trauma, which, Mother argues, is the basis for her substance abuse, depression, and other issues. Although not stated in these exact words, Mother essentially argues the State failed to prove DHS provided active or reasonable efforts to reunite her with her children.² What comprises "active" or "reasonable" efforts must be decided on a case-by-case basis. See In re E.P.F.L, Jr. , 2011 OK CIV APP 112, ¶ 25, 265 P.3d at 769. We review the record to determine whether the State provided clear and convincing evidence that adequate efforts were expended. See In re J.S. , 2008 OK CIV APP 15, ¶ 4, 177 P.3d 590, 591 (holding that ICWA's beyond a reasonable doubt standard of proof applies only to the factual determination required in ICWA termination cases "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," whereas the lesser standard of "clear and convincing" evidence is applicable to all other state law requirements for termination.).

¶ 7 In her Brief-in-Chief, Mother reviews her long history of trauma and notes that her original treatment plan specified that she was to "focus on her underlying issues such as her past trauma, as well as her children's." Mother contends DHS did not do enough to help her address her traumatic past. Mother faults DHS for not connecting Mother with a counselor who specialized in trauma and for waiting until September 2017 to have a psychological evaluation of Mother.

¶ 8 The record shows, however, that DHS made significant steps to help Mother with her mental health issues. Mother was seeing her own licensed professional counselor, Brenda Polansky, with whom Mother had a previous relationship from working with her children. When asked whether she ever tried to find a different mental health provider who would be more tailored to her needs, Mother stated, "[N]o, because ... I felt like Brenda was pretty specific to what I needed[.]" The DHS permanency planning caseworker, Christie Young, stated she had concerns about Mother's therapist meeting Mother's needs and had spoken to Mother about it but Mother repeatedly refused to change providers. Ms. Young testified that she contacted a mental health consultant regarding Mother's therapeutic needs and how to work with Mother's current therapist; she stated she sent questions to Mother's counselor regarding Mother's treatment but never got a response. Ms. Young also made an appointment for Mother at Caring Hands for a mental health assessment and treatment. However, when Ms. Young arrived to give Mother a ride to the appointment, Mother would not come to the door, and Ms. Young was unable to get Mother to reschedule the appointment. Mother also admitted to missing an initial mental health appointment at Carl Albert, stating that she...