IN RE: C.L.M., S.M.J., & J.J.

IN RE: C.L.M., S.M.J., & J.J.
2001 OK CIV APP 3
19 P.3d 888
72 OBJ 413
Case Number: 93776
Decided: 05/12/2000
Mandate Issued: 01/24/2001
DIVISION III

IN THE MATTER OF C.L.M., S.M.J. & J.J.,minor children
WILMA JENNINGS, Appellant
v.
STATE OF OKLAHOMA, Appellee

APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY, OKLAHOMA

HONORABLE TERRY H. McBRIDE, JUDGE

AFFIRMED

Gerald Lee, Pryor, Oklahoma, for Appellant
Rebecca J. Gore, Assistant District Attorney, Pryor, Oklahoma, for Appellee

Joplin, Judge:

[19 P.3d 889]

¶1 Appellant Wilma Jennings (Mother), natural mother of the minor children, C.L.M., S.M.J. and J.J. (Children), seeks review of the trial court's order granting judgment on a jury verdict to Appellee State of Oklahoma (State) in State's action to terminate parental rights pursuant to 10 O.S. §7006-1.1 (A)(10)(a) for Mother's alleged failure to protect Children from "heinous and shocking" sexual abuse. In this appeal, Mother complains (1) inasmuch as State failed to raise the "heinous and shocking" issue at the adjudicatory stage of these "deprived child" proceedings, State may not rely on the "heinous and shocking" circumstance at jury trial in the dispositional stage of the proceedings, consequently (2) the jury verdict stands absolutely, legally flawed as based on an issue improperly submitted for determination, and (3) State failed to prove "heinous and shocking" sexual abuse.

¶2 In April 1997, State commenced the instant action alleging that Mother failed to protect C.L.M. from specifically delineated acts of sexual abuse by Mother's husband - C.L.M.'s step-father and natural father of S.M.J. and J.J. - and sought an adjudication of Children as deprived. Father ultimately plead guilty to the felony of lewd molestation for which he received a sentence of fifteen years in prison, and Mother ultimately stipulated to the allegations of State's petition as amended.

¶3 By order filed August 12, 1997, the trial court consequently adjudicated Children deprived. By order filed October 21, 1997, the trial court approved a treatment plan, to the terms and conditions of which Mother agreed to abide.

¶4 In December 1998, State filed a motion to terminate Mother's parental rights, [19 P.3d 890] alleging Mother's failure to protect Children from Father's sexual abuse, for the first time in the pleadings characterized as "heinous and shocking," the previous adjudication of Children as deprived, adoption of a treatment plan, and Mother's failure to correct the conditions leading to the adjudicated status. State consequently sought termination of Mother's parental rights pursuant to 10 O.S. §7006-1.1 (A)(5), (8) and (10). Mother demanded jury trial.

¶5 During three days of hearing, State presented the testimony of C.L.M. establishing a pattern of Father's sexual abuse, at times in Mother's presence, over a period of more than five years. State also presented evidence that although C.L.M. told Mother of the abuse, Mother failed or refused to protect C.L.M.

¶6 Prior to submission of the case to the jury, Mother moved to dismiss State's allegations of failure to protect from "heinous and shocking" sexual abuse, State having failed to raise the "heinous and shocking" issue at any time prior to the motion to terminate. The trial court denied Mother's motion to dismiss, finding some evidence, if believed by the jury, to support that allegation. The trial court subsequently instructed the jury, inter alia:

In order to terminate parental rights due to a finding in a deprived action, you must find by clear and convincing evidence that the parent has sexually abused the child or sibling of such child or failed to protect the child or sibling of such child from sexual abuse that is heinous or shocking, and that termination of parental rights is in the best interests of the child.

On consideration of the evidence, the jury found Mother's parental rights should be terminated by special verdict form "[f]inding . . . sexual abuse or failure to protect child from sexual abuse in a deprived child action."

¶7 Oklahoma law has consistently permitted termination of parental rights "in a deprived child action" on clear and convincing proof and "a finding" that "the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse that is heinous or shocking to the court." 10 O.S. Supp. 1995 §7006-1.1 (A)(6) (eff. July 1, 1995). See also, 10 O.S. Supp. 1997 §7006-1.1 (A)(6) (eff. Nov. 1, 1997). Now see, 10 O.S. Supp. 1998 §7006-1.1 (A)(10) (eff. June 11, 1998). In this respect, the statute clearly conditions action on a failure-to-protect claim on a preliminary, threshold legal determination by "the court" whether the alleged sexual abuse may reasonably be regarded as "heinous and shocking" as to warrant relief; and if so, or if reasonable men could differ, then the issue should be tendered to the trier of fact to determine whether the sexual abuse, in fact, rose to that level as to result in loss of parental rights. Indeed, it appears the Supreme Court has tacitly so reviewed this mixed question of law and fact. Matter of T.R.W., 1985 OK 99, ¶28, 722 P.2d 1197, 1203.

[19 P.3d 891]

¶8 In the present case, State alleged in its original and amended petition to adjudicate Children deprived the specific acts of sexual abuse committed by Father on C.L.M., Mother's failure to intervene, and Children's consequent status as deprived; Mother stipulated to the truth of the allegations, and the trial court adjudicated Children deprived accordingly; and State relied on the same specific factual allegations as asserted at adjudication in seeking termination of Mother's parental rights for failure to protect. Further, on Mother's motion to dismiss, the trial court ultimately recognized evidence - if believed by the jury - to potentially support a finding of heinous and shocking sexual abuse. Inasmuch as (1) State's (A)(10)(a) failure to protect claim is predicated on a finding of "heinous and shocking" sexual abuse, (2) State relied on the same specific allegations of Father's sexual abuse of C.L.M. to support both adjudication and termination, and (3) the conclusion or "finding" of "heinous and shocking" sexual abuse presents an issue for determination by the jury as trier of fact, we find Mother had notice ab initio of both the factual basis for State's action and the potential for loss of her parental rights as a result of the adjudicated cause. Matter of K.L.H., 1993 OK CIV APP 127, ¶13, 858 P.2d 1296, 1298; Matter of A.D.B., 1991 OK 96, ¶10, 818 P.2d 483, 487.

¶9 We consequently conclude State's specific allegations of Father's sexual abuse raised at adjudication sufficiently raised the "heinous and shocking" circumstance for subsequent determination in the termination stage. Furthermore, having reviewed the record and absent other pure error of law, we find State's evidence both sufficient to warrant submission of the "heinous and shocking" sexual abuse issue to the jury, and competent to support the jury's implicit affirmative finding on the issue. Matter of T.R.W., 1985 OK 99, ¶¶28, 29, 722 P.2d at 1203.

¶10 Mother nevertheless argues in this appeal, first, the Legislature inserted the "heinous and shocking" provision in 1983 to permit termination of parental rights at the "adjudicatory" stage of deprived child proceedings where necessary to protect the child(ren) from immediate harm as the legislative response to a then-recent Oklahoma Supreme Court decision in essence so holding. In the Matter of Jerry L., 1983 OK 43, ¶8, 662 P.2d 1372, 1374

¶11 Mother secondly argues State may not "bootstrap" the termination proceeding onto the existence of the prior adjudication, asserting State must essentially commence a new action by petition and summons setting forth actionable grounds for termination. In the Matter of Ernest James C., 1978 OK 51, ¶4, 578 P.2d 352, 357 (Doolin, J., dissenting); In the Matter of Keyes, 1977 OK 246, ¶21, 574 P.2d 1026, 1033 (Doolin and Simms, J.J., dissenting); J.V. v. State of Oklahoma, Dept. of Institutions, Social and Rehabilitative Services, etc., 1977 OK 224, ¶¶10, 16, 41, 572 P.2d 1283, 1289, 1290, 1293 (Simms, J., dissenting) (overruled on other grounds, A.E. v. State, 1987 OK 76, 743 P.2d 1041). However, we reject this argument for a number of reasons.

¶12 First, the cited cases represent only a minority view of the Oklahoma Supreme Court decided under predecessor versions of §7006-1.1(A)(10). Second, the substantive provisions and procedures of the Oklahoma Children's Code, 10 O.S. §§7001-1.1 et seq., for commencement and prosecution of deprived child actions and ancillary parental-rights-termination proceedings have changed substantially since rendition of those opinions as to render the dissenters' analysis cited by Mother inapplicable. Third, even under the predecessor versions of §7006-1.1(A)(10), State could rely on the same incident of sexual abuse in both the adjudicatory stage and the dispositional, termination stage of proceedings. Matter of T.R.W., 1985 OK 99, ¶28, 722 P.2d at 1203, fn. 14; In the Matter of Jerry L., 1983 OK 43, ¶8, 662 P.2d at 1377-1374. Fourth, we have recognized the allegations of State's original and amended petition as sufficiently alleging facts ab initio to impart notice to Mother of both the basis for State's complaint and the potential for loss of her parental rights as a result, as well as evidence which, if believed by the trier of fact, established sexual abuse that is heinous and shocking.

¶13 Moreover, we believe any other construction of the statute both strains the statutory plain language and renders the provisions of §7006-1.1(A)(10) unworkable.

¶14 Second, it seems equally apparent to us that to require the pleading, proof and determination of existence of "sexual abuse that is heinous and shocking to the court" at the adjudication stage would potentially restrict both State's prosecution of deprived child actions on allegations of sexual abuse, and the trial court's power either to direct [19 P.3d 893] further investigation into the allegations, or to adopt a treatment plan for the correction of the underlying cause for adjudication. While allegations of sexual abuse might be judged sufficient to warrant prosecution of a deprived child action for purposes of the child's adjudication, further investigation might or might not reveal circumstances warranting termination of parental rights, particularly where the charged parent successfully corrects the conditions leading to adjudication. Surely, the Legislature did not intend to restrict the power of the State and the state courts in deprived child actions to protect abused children by appropriate means at the appropriate time according to the circumstances of the particular case.

¶15 We therefore hold that in deprived child actions, §7006-1.1(A)(10) permits termination of parental rights for the parent's proven failure to protect the adjudicated child(ren) or sibling(s) of the adjudicated child(ren) from sexual abuse that is heinous and shocking based on the same set of facts relied on at the deprived adjudication. In the present case, State relied on the same set of operative facts at the time of both adjudication and termination. Inasmuch as State's (A)(10)(a) failure to protect claim is predicated on a factual conclusion and finding of "heinous and shocking" sexual abuse, Mother had notice ab initio of both the factual basis for State's action and the potential for loss of her parental rights as a result of the adjudicated cause. Under these circumstances, Mother cannot now be heard to complain of reversible surprise or prejudice.

¶16 The order of the trial court in the present case granting judgment on jury verdict and terminating Mother's parental rights is consequently AFFIRMED.

¶17 ADAMS, J., concurs; HANSEN, V.C.J., dissents with separate opinion.

CAROL M. HANSEN, Vice-Chief Judge, dissenting:

¶1 The majority decries any restriction on State's prosecution of deprived child actions based on allegations of sexual abuse, seeking to preserve flexibility where "further investigation might or might not reveal circumstances warranting termination of parental rights, particularly where the charged parent successfully completes the treatment plan and/or corrects the conditions leading adjudication." Here, Mother did successfully complete the treatment plan and correct the condition leading to adjudication, then was blind-sided by State's pursuit of termination of her parental rights based on the original condition leading to adjudication, to wit, her failure to protect her daughter from sexual abuse.

¶2 The oldest child, C.L.M., was sexually abused by her stepfather, James Jennings. Jennings pled guilty to felony lewd molestation and was sentenced to 15 years. State petitioned to have the children, C.L.M., S.M.J., and J.J., adjudicated deprived based on Jennings' sexual abuse of C.L.M. and Mother's failure to protect her from sexual abuse. Mother stipulated to the petition.

¶3 Mother agreed to a treatment plan on October 21, 1997, and the trial court approved it. Periodic review hearings revealed Mother divorced Jennings, attended counseling, held a job, paid child support, and underwent psychological evaluation. At the July 28, 1998 review hearing, Mother's attorney asked Wendi Bighorse, the Department of Human Services (DHS) caseworker, if there was any particular objective in the treatment plan that Mother had performed unsatisfactorily. She responded, "My impression is she has tried very hard to do everything asked of her to the best of her ability. Outwardly she has complied as well as could be expected with the treatment plan." Bighorse then expressed her concern Mother's compliance was motivated by a need to please the Court and not by an understanding of what was necessary to protect her daughter.

¶4 Before the next review hearing, State filed its motion to terminate parental rights alleging Mother failed to show that the [19 P.3d 894] conditions which led to the adjudication of the children as deprived had been corrected and Mother was found to have failed to protect the child from sexual abuse that was heinous or shocking to the court. The matter was tried to a jury. At the jury instruction conference after the close of evidence, Mother's attorney "move[d] to dismiss the allegations . . . [Mother's] parental rights should be terminated for the reason that she failed to protect the child or children from sexual abuse that was heinous and shocking . . . ." He argued State should not be allowed to lie behind a log by providing a treatment plan and then raise the ground of failure to protect from heinous and shocking abuse after it had not been the focus of the proceeding for the past year and a half. The trial court denied the motion, stating "The court finds that the jury could, in fact, find that ground." It then instructed the jury,

In order to terminate parental rights due to a finding in a deprived action, you must find by clear and convincing evidence that the parent has sexually abused the child or sibling of such child or failed to protect the child or a sibling of such child from sexual abuse that heinous or shocking, and that termination of parental rights is in the best interests of the child.

¶5 The jury returned its verdict on a special verdict form listing two grounds for termination of Mother's parental rights and instructing the jury to "[c]heck all that apply." The first ground listed was "Failure to correct conditions. (Comply with service plan)"

¶6 Mother contends the jury verdict is contrary to law because there was no finding of failure to protect from sexual abuse that is heinous and shocking in the adjudication proceeding on which to base a subsequent action for termination of parental rights. The grounds for terminating parental rights are set forth in 10 O.S.Supp.1998 §7006-1.1. Subsections A(2) through (7), (12), and (13) provide for termination upon "a finding that" the specified ground exists. Subsection A(10) provides for termination upon "[a] finding in a deprived child action either that" one of five alternative grounds exists, including failure to protect the child from "physical or sexual abuse that is heinous or shocking to the court." Mother argues the Legislature enacted this section so that if heinous and shocking abuse was found in a deprived child action, the court could immediately entertain a motion to terminate without allowing the parent an opportunity to correct the situation. She argues "deprived child action" refers to the proceeding to adjudicate a child deprived, and points to 10 O.S.Supp.1998 §7003-3.1 in support. That section authorizes a petition in a deprived child proceeding to be filed by the district attorney and a petition for termination of parental rights to be filed by the district attorney or the child's attorney. State argues a "deprived child action" is not defined and "presumably" could include "adjudication, disposition or termination."

¶7 Our primary goal in construing statutes is to ascertain and follow the intention of the Legislature. Haney v. State, 1993 OK 41, 850 P.2d 1087, 1089. We must interpret statutes to give effect to every word and sentence and to avoid rendering any part superfluous or useless. Bryant v. Dept. of Public Safety, 1996 OK 134, 937 P.2d 496, 500 (Okla. 1996). The Legislature used the language "[a] finding in a deprived child action" in Subsection A(10) whereas it used "a finding" in Subsections A(2) through (7), (12), and (13). We must presume it did so [19 P.3d 895] because it intended a different meaning. The Legislature contemplated the findings required to terminate parental rights under Subsections A(2) through (7), (12), and (13) would be made in a termination proceeding. In contrast, it contemplated the findings referenced in Subsection A(10) would be made prior to the termination proceeding, in the proceeding to adjudicate the child deprived. The purpose of Subsection A(10) is to allow the court to immediately terminate parental rights when the child has suffered heinous and shocking abuse.

¶8 State cites Matter of T.R.W., 1985 OK 99, 722 P.2d 1197, as a case in which the trial court "was called upon to determine if the abuse rose to the level of heinous or shocking" after the child was adjudicated deprived and a motion to terminate was filed. In that case, the trial court entered an order based on a jury verdict finding the child deprived. When State then moved to terminate the father's parental rights, the trial court reviewed the record in the jury proceeding and granted the motion. The issue on appeal was whether there was a specific finding in the adjudication proceeding that the father failed to protect the child. The Oklahoma Supreme Court concluded the jury's verdict necessarily included such a finding. Therefore, T.R.W. supports the conclusion "a finding in a deprived child action" refers to the proceeding to determine whether a child is deprived and not the proceeding to terminate parental rights.

¶9 Here State did not seek to immediately terminate Mother's rights pursuant to Subsection A(10). There was no finding in the deprived child action that Mother failed to protect the children from physical or sexual abuse that was heinous or shocking to the court. Therefore, the trial court erred in submitting to the jury the issue of Subsection A(10) grounds for termination. I would reverse the judgment terminating Mother's parental rights.

FOOTNOTES

1 In T.R.W., State petitioned for adjudication of Father's child as deprived for Father's failure to protect, which the trial court granted, and State subsequently moved to terminate Father's parental rights, which after jury verdict so directing, the trial court also granted. Father appealed both orders, asserting inter alia "there was no specific finding of failure to protect [child] from abuse in the proceeding leading to the adjudication of [child] as deprived on which to base the subsequent termination of appellant's parental rights under 10 O.S. Supp. 1983 §1130 (A)(5)(a)," the predecessor statute nearly identical in terms to §7006-1.1(A)(10)(a), and "that the evidence to support such a finding, if such a finding was made, was not clear and convincing." 1985 OK 99, ¶25, 722 P.2d at 1202. In rejecting both arguments, the Supreme Court first quoted §1130(A)(5)(a), then held:

Our review of the evidence in this case supports the view that the abuse inflicted on Tommy was both heinous and shocking. (Footnote omitted.)

. . .

[Moreover,] we have examined the evidence before the trial court and have determined that the evidence supports the jury verdict in the deprived action. That review has also established that the evidence presented rises to the level of clearly and convincingly supporting a finding that abuse of a heinous and shocking nature was inflicted on appellant's son and that the nature of this abuse was such that appellant had notice of its infliction and failed to protect his son.

2In Jerry L., the trial court adjudicated child deprived as a result of mother and father's physical and sexual abuse, and six months later, State petitioned to terminate mother's parental rights as a result of same abuse. From judgment terminating her parental rights, mother appealed, arguing that under the predecessor to §7006-1.1(A)(10), "parental rights can only be terminated in this case upon the second act of physical child abuse; a single incident alone will not suffice." 1983 OK 43, ¶3, 662 P.2d at 1373. The Supreme Court firmly rejected such a notion, however:

In our opinion it is clear the Legislature could not have intended to allow a child to suffer two acts of serious physical abuse before permitting the state to terminate parental rights. There can only be one finding from this court: that when the trial court finds the act of physical abuse so serious and of such an extreme nature that it must remove the child from the custody of the parents, it may then entertain a petition to terminate parental rights. To hold that the trial court may remove a child from the home under a petition alleging the child is deprived, but may not terminate parental rights until a second act of abuse occurs, is an effort in futility: a second such act normally should not occur with the child in a foster home under custody of the Department of Human Services. In this situation, however, the evidence must be clear and convincing (footnote omitted) that the physical abuse occurred and that it endangered the physical health or welfare of the child. (Citation omitted.)

1983 OK 43, ¶8, 662 P.2d at 1373-1374.

3"Once the trier of fact determines that a child is deprived by reason of physical or sexual abuse, §7006-1.1(A)(6)(a) [now, §7006-1.1(A)(10)(a)] authorizes immediate termination of parental rights . . . if the abuse is heinous and shocking. In the Matter of S.T.G., 1991 OK 11, 806 P.2d 636; In the Matter of D.D.F., 1990 OK 89, 801 P.2d 703."

4In reaching a contrary result, our dissenting colleague reasons that the Legislature specifically delimited in §7006-1.1(A)(5) - and in its subsequently reworded and renumbered variations - particular required "finding[s] in a deprived child action" in order to justify termination of parental rights, but in other juvenile proceedings authorized by state law permitted termination of parental rights under different provisions of §7006-1.1(A) on otherwise unqualified "finding[s]." From this circumstance, the dissent concludes the Legislature intended to treat the termination of parental rights ancillary to a deprived child action differently than the termination of parental rights in other cases. The dissent would consequently hold this different treatment of termination of parental rights in deprived child actions requires the pleading, proof and determination of failure to protect from "heinous or shocking" sexual abuse at the adjudicatory stage as a condition precedent to assertion of that ground for termination of parental rights in subsequent proceedings.

5The Supreme Court there said, "[i]t is the duty of this Court to reconcile the different provisions of statutes, as far as practicable, to make them not only consistent and harmonious, but also to give an intelligent effect to each," and "[i]f two constructions are possible, this Court will prefer the one that avoids conflict between the two provisions."

6Although the parties agree the children were "adjudicated deprived" in August 1997, no journal entry was filed until April 12, 1999.

7The verdict form incorrectly equates correcting the conditions which led to the child being adjudicated deprived with complying with the service plan. The appellate courts have unequivocally and repeatedly explained the difference between these concepts. E.g., Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118, 120, In re L.G., 1993 OK CIV APP 162, 864 P.2d 1301, 1303, and In re F.B., 1999 OK CIV APP 96, 990 P.2d 309, 311.