H.J., Matter of

H.J., Matter of
1993 OK CIV APP 72
854 P.2d 381
64 OBJ 1942
Case Number: 79276
Decided: 04/13/1993

 
IN THE MATTER OF H.J., H.J., A.H., H.P. AND B.J., ALLEGED DEPRIVED CHILDREN.
TERRI HECKATHORN, APPELLANT,
v.
STATE OF OKLAHOMA EX REL. DEPARTMENT OF HUMAN SERVICES, APPELLEE.

Appeal from the District Court of Comanche County, Allen McCall, Trial Judge.

¶0 Action to terminate mother's parental rights to minor children. Trial court entered judgments on jury's verdicts that termination would be in the children's best interest. Mother appeals.

AFFIRMED.

Dan R. Brown, Lawton, for appellant.
Jerry C. Cude, Asst. Dist. Atty., Lawton, for appellee.

BRIGHTMIRE, Judge.

¶1 Did the trial court err in entering judgment on a jury's verdicts recommending termination of the appealing mother's parental rights?

¶2 We hold it did not.

I

¶3 The orientational facts are these. The five minor children of appellant Terri Heckathorn - 8-year-old H.P.; 6-year-old B.J.; 5-year-old H.J.; 3-year-old H.J.; and 1-year-old A.H. - were taken into protective custody by the State of Oklahoma Department of Human Services in May 1988. The action was taken after school officials discovered H.P. and B.J. had head lice and were unable to locate their mother.

¶4 Shortly thereafter, on May 23, 1988, DHS filed five petitions seeking to have the children declared deprived and the mother was advised that the state "may move to terminate parental rights." Supporting allegations were that H.P. had been sexually abused "several times, by men known to her mother;" that all the children are "dependent on others for [their] care as [the] mother is frequently absent from the home;" that the children are "not properly fed, clothed or bathed;" and that the parental home "has been observed to be filthy with feces, garbage, dirty clothes and food in various stages of decay strewn throughout."

¶5 The mother stipulated to the allegations on July 27, 1988. Consequently the children were placed in foster care

¶6 A petition to terminate the mother's parental rights was filed by the State December 28, 1989, on behalf of each child. The mother resisted the actions and the matter was tried to a jury April 17, 1990. It decided the mother's parental rights should not be terminated and judgments were rendered accordingly.

¶7 The mother, however, failed to appear on May 17. The court found her to be in default and reinstated the previously ordered standards of conduct and also ordered the mother to "obtain a psychological evaluation."

¶8 Then on December 16, 1991, the State filed a second set of petitions to terminate the mother's parental rights in the five children alleging that the mother had failed to correct the conditions which led to the deprived adjudications and that termination would be in the best interest of the children.

¶9 Following this the mother moved to dismiss the petitions on the ground they unconstitutionally exposed her to double jeopardy. The motions were overruled February 5, 1992, and the matter proceeded to trial. On February 6 the jury returned its verdict recommending termination of the mother's parental rights in all five children. Judgments terminating such rights were entered February 21, 1992.

¶10 The mother appeals.

II

¶11 Her first contention is that the second series of petitions to terminate her parental rights filed in 1991 constitute double jeopardy and a collateral attack on the 1990 judgments adjudicating that such rights should not be terminated.

¶12 The argument is that the "evidence presented in the second trial was essentially identical to the first trial [because] [t]he State presented some testimony from some of the same witnesses to support their claim in both cases." As a result, concludes the mother, both the federal and state constitutional guarantees against double jeopardy have been violated.

¶13 We disagree. The double jeopardy clause

¶14 Here, however, we are not dealing with a punitive proceeding, but one aimed at achieving the correction of parental behavior and protection of five neglected youngsters.

¶15 And this is the situation here. The state has not in the past sought nor is it now seeking to punish the mother by petitioning for termination of her parental rights. Its sole goal is to protect the natural mother's five little children from the harm which they have been experiencing.

¶16 We conclude therefore that the mother's first proposition of error is without merit.

III

¶17 Her next assignment of error is that the termination of her parental rights is not supported by the evidence.

¶18 Again we disagree. In May 1990 the trial court imposed the following standards of conduct on the mother: (1) continue to visit with her children; (2) obtain employment; (3) obtain a safe and suitable home; and (4) obtain a psychological evaluation.

¶19 It is undisputed that the mother understood what the court order required of her. It is also undisputed that the mother's compliance with two of the criteria - employment and suitable housing - was not only sporadic but inadequate. The mother had not paid rent on any of the seven to twelve residences she has lived in since 1988. Accommodations for the children have either been inadequate or nonexistent. She has not worked since 1990, and before that her employment history was grossly irregular. And the evidence indicates that while she regularly visited her children, the overall effect of the visits on the children was questionable and often negative.

¶20 Though no formal, written psychological evaluation was presented to the court, the mother introduced the testimony of Dr. Hellwege, a psychologist who had seen her enough to reach this diagnosis: She had a "fairly extreme" case of "histrionic personality disorder."

¶21 We hold that sufficient competent evidence was presented to support a finding by the jury that the mother had failed to correct the conditions that led to the deprived adjudications and that the best interests of the children would be served by terminating the mother's parental rights.

¶22 The judgment appealed is affirmed.

¶23 REIF, V.C.J., and RAPP, P.J., concur.

Footnotes:

1 A review board report dated September 22, 1988, states that "[t]his was the ninth allegation on the Central Child Abuse Registry involving one or more of Terry Heckathorn's children [and] [t]his was the fifth time one or more of Terry Heckathorn's children had been placed in foster home care."

2 On November 10, 1988, custody of A.H. was placed with her legal father in Idaho where she remains. A.H.'s natural father, an Osage Indian, could not be located and the Osage Tribe declined to intervene in this matter.

3 The parental rights of the defaulting natural fathers of the children were terminated April 17, 1990, on the ground of abandonment. See 10 O.S. 1991 § 1130 (A)(2). A.H. remained in the custody of her legal father in Idaho.

4 The mother had successfully completed the court-ordered parenting class December 13, 1988.

5 The mother's motions for new trial were overruled on that same date.

6 The fifth amendment of the U.S. Constitution states in relevant part: "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." Article 2, section 21 of the Oklahoma Constitution states: "No person shall . . . be again put in jeopardy of life or liberty for that of which he has been acquitted [n]or shall any person be twice put in jeopardy of life or liberty for the same offense."

7 The state constitutional prohibition against double jeopardy is coextensive with that of the federal constitution. Edwards v. State, 815 P.2d 670, 672 (Okl.Cr. 1991). And the federal fifth amendment prohibition applies to the states via the fourteenth amendment. Garrison v. Jennings, 529 P.2d 536, 539 (Okl.Cr. 1974).

8 Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975).

9 Pickens v. State, 393 P.2d 889, 891 (Okl.Cr. 1964). See also Price v. Reed, 725 P.2d 1254, 1258 (Okl. 1986).

10 United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989).

11 See Killian v. Burnham, 191 Okl. 248, 130 P.2d 538, 539 (1942).

12 See, e.g., Matter of Sherol A.S., 581 P.2d 884, 888 (Okl. 1978).

13 Nor are the doctrines of collateral estoppel or res judicata applicable. A trial court in juvenile matters retains continuing jurisdiction to protect the best interests of its wards. The 1991 petitions were based on the mother's failure to correct the conditions which led to the deprived adjudication. Evidence of the cumulative efforts of the mother since 1988 were relevant but significantly included new evidence occurring since the first trial.

14 The mother also complains that she was prejudiced by the trial court's failure to admonish the jury to disregard improper closing argument made by the State. This proposition of error was not preserved in the mother's petition in error and thus cannot be considered on appeal. Barber v. Flynn, 628 P.2d 1151, 1153 (Okl. 1980).

15 The mother started seeing the counselor in June 1991 and continued "once a week or every other week" until October 1991.

16 The mother returned to therapy one week before the February 1992 trial.