Matter of M.A.G.,

Matter of M.A.G.,
1996 OK CIV APP 103
924 P.2d 795
67 OBJ 3055
Case Number: 86763
Decided: 08/27/1996

In the MATTER of M.A.G., an adjudicated deprived child.
Mack GRAHAM, Appellant,
v.
STATE of Oklahoma, Appellee.
Appeal from the District Court of Leflore County; Honorable Ted A. Knight, Trial Judge.

REVERSED.

Shelley A. Cundiff, Poteau, for Appellant.
Jeffrey C. Smith, Poteau, for Appellee.

OPINION

HANSEN, Presiding Judge

¶1 Appellant, Mack Graham ("Father"), seeks review of the trial court's October 31, 1995, Order of Adjudication based on a jury verdict which determined his daughter, M.A.G. ("Daughter"), "Deprived" under the Oklahoma Children's Code,

¶2 On April 19, 1995, the District Attorney for LeFlore County, Oklahoma filed a petition in district court, alleging Daughter should be adjudicated deprived because "she was not receiving the proper parental care and guardianship due to repeated neglect of programs designed to meet her special needs." On August 16, 1995, the D.A. filed an amended petition alleging Daughter was deprived for the same reason listed in the first petition and also because "she is a child who is in need of special care and treatment because of a physical and mental condition whose parent is unable to provide said special care and treatment and is also the subject of neglect as defined in

¶3 On appeal, Father contends the trial court erred in admitting hearsay testimony during the trial and that the admission thereof violated his due process rights and resulted in prejudice requiring reversal of the judgment. Specifically, Father maintains certain testimony by D.H.S. caseworker Lincoln concerning certain reports or documents Lincoln received from M.A.G.'s therapists should not have been admitted. He also argues it was reversible error to allow D.H.S. caseworker Benefield to testify regarding a doctor's report on M.A.G.

¶4 Generally, the injection of irrelevant or otherwise inadmissible evidence is not grounds to reverse a jury verdict unless the error was prejudicial. James v. Midkiff,

¶5 The monthly reports of M.A.G.'s therapists were not admitted as evidence. With regard to Lincoln's testimony that he received reports from M.A.G.'s therapists, the record shows Father failed to object to such testimony. Failure to object to alleged errors in the admission of testimony waives review of such errors in this Court. Sarkeys v. Haas,

¶6 "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

¶7 Lincoln's testimony regarding the content of these "monthly reports" is hearsay and the trial court erred in allowing Lincoln to testify regarding them. However, we conclude Father has not shown prejudice which requires reversal because of this testimony. The transcript shows Father explained in detail his scheduling problems with HTSs for M.A.G., most of which were due to the fact that Father's home is rural and the HTSs did not live nearby, Father lacks reliable transportation and the fact that he did not have a phone at home. In addition, the D.H.S. caseworker stated he blamed the first two HTSs for their leaving Father's employ.

¶8 We hold, however, that the hearsay testimony of DHS caseworker Benefield regarding the contents of a doctor's report was prejudicial and the Order of Adjudication must be reversed.

"a referral saying that there were several bruises. And in my investigation, I noticed these bruises and had her taken into protective custody. After having a doctor's examination, these bruises, he confirmed in his report that we have in the file that they were not consistent with the statement. . . ."

Father objected on the grounds of hearsay and the trial court overruled the objection. Benefield continued:

"In this report, he stated that these bruises did not consis [sic] with the statement that Mack made about why these bruises were there, 80 we took her into protective

¶9 Benefield then stated M.A.G. was taken into custody on the basis of neglect and physical abuse but that they could not confirm physical abuse. She further stated the amended petition is based upon allegations of both abuse and neglect. During cross-examination of Father, he was questioned regarding the "reports of bruises that are unexplained". Father stated the bruises were explained and Appellee's counsel responded "Not to the satisfaction of Dr. Spear." Father's counsel objected to this questioning noting "Dr. Spears is not here." Dr. Spears did not testify at trial, nor was the report regarding the bruises offered into evidence.

¶10 We hold, however, that the hearsay testimony of DHS caseworker Benefield regarding the contents of a doctor's report was prejudicial and the Order of Adjudication must be reversed.

¶11 Father objected on the grounds of hearsay and the trial court overruled the objection. Benefield continued: "In this report, he stated that these bruises did not consis [sic] with the statement that Mack made about why these bruises were there, 80 we took her into protective custody."

¶12 Benefield then stated M.A.G. was taken into custody on the basis of neglect and physical abuse but that they could not confirm physical abuse. She further stated the amended petition is based upon allegations of both abuse and neglect. During cross-examination of Father, he was questioned regarding the "reports of bruises that are unexplained". Father stated the bruises were explained and Appellee's counsel responded "Not to the satisfaction of Dr. Spear." Father's counsel objected to this questioning noting "Dr. Spears is not here." Dr. Spears did not testify at trial, nor was the report regarding the bruises offered into evidence. Benefield's testimony describing the content of Dr. Spears' report is hearsay and should not have been admitted. The admission of this evidence deprived Father of his fundamental constitutional and statutory rights to due process, i.e. his right to cross-examine all adverse witnesses. In the Matter of M.A.,

¶13 At the time of trial, M.A.G. was almost 10 years old but functioned at about the two to three-year-old level. The record shows Father, who has had sole custody of M.A.G. since she was one year old, contacted the Developmentally Disabled Services Division (DDSD) of D.H.S. to obtain free services for M.A.G. and she received services coordinated through DDSD from September, 1993 to February, 1995. These services are provided from agencies which are not a part of D.H.S. and a parent desiring these services is responsible for securing services for their children from the agencies and for setting schedules with therapists and other workers. The services are offered based on requests from a parent and as stated by the DDSD/D.H.S. case coordinator, "the parent can fully deny any part or all of the services" and it is always in the parent's control what the child receives. Father sought physical therapy, occupational therapy, speech therapy and habilitation training specialists (HTSs) for M.A.G. and coordinated these services with M.A.G.'s individualized education plan (IEP) set by M.A.G.'s public school.

¶14 The DDSD/D.H.S. caseworker testified M.A.G.'s attendance at speech and occupational therapy was "sporadic" in that she would make it to therapy consistently for three to four months and then have a lull of two to three months. During the time school was out, for example summer, M.A.G. would not attend as many therapy sessions. The evidence shows the public school provided for M.A.G.'s transportation to school (42 miles one way) either directly or by reimbursements for transportation expenses to Father and that M.A.G.'s attendance in school was good. Father introduced M.A.G.'s May 10, 1995 school IEP Review which stated speech pathology services for M.A.G. were being reduced to one time weekly, thirty minute sessions, beginning August, 1995. Father testified he stopped her speech therapy during summer in part based on the fact the school thought M.A.G.'s need for the therapy should be reduced. Although the IEP Review indicates Father did not attend that renew meeting, the DDSD/D.H.S. caseworker stated Father had attended other reviews, including reviews on transportation issues. Although Father had utilized about five different HTS workers, the caseworker placed the blame of losing the first two workers with the first two workers. He admitted Father has had transportation problems and after one IHP (Individualized Habilitation Program) meeting which Father missed, they found him on the side of the road with his motorcycle. Benefield testified Father was "requested" by D.H.S. after the petition was filed to attend a parenting class and that he attended only one or two of the eight classes. The DDSD/D.H.S. caseworker testified although lifelong consistency is important in the treatment of special needs children, he could not confirm that in M.A.G.'s case missing a month would result in her digression of progress.

¶15 An examination of the entire record leads to the conclusion the hearsay evidence regarding the contents of a doctor's report of bruises on M.A.G. prejudiced Father in that it is likely the verdict would have been different had the error not occurred when measured by the other evidence in support of the verdict. James v. Midkiff,

JOPLIN and BUETTNER, JJ., (concur)