IN THE MATTER OF K.C.

IN THE MATTER OF K.C.
2002 OK CIV APP 58
46 P.3d 1289
Case Number: 96365
Decided: 04/09/2002
Mandate Issued: 05/02/2002
DIVISION II
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

IN THE MATTER OF K.C., T.C., K.C., & T.C., Adjudicated Deprived Children
SHERI L. HADLEY, Appellant
v.
STATE OF OKLAHOMA, Appellee

[46 P.3d 1290]

APPEAL FROM THE DISTRICT COURT OF MCCURTAIN COUNTY, OKLAHOMA

HONORABLE DON ED PAYNE, TRIAL JUDGE

REVERSED AND REMANDED

David A. Webb, Idabel, Oklahoma, for Appellant
L. Walter Hamilton, DISTRICT ATTORNEY, Virginia D. Sanders, ASSISTANT DISTRICT ATTORNEY, Idabel, Oklahoma, for Appellee

TOM COLBERT, PRESIDING JUDGE:

¶1 Sheri L. Hadley (Mother) appeals a judgment of the trial court terminating her parental rights to her children, K.C., T.C., K.C., and T.C. (Children). The issue on appeal is whether there is sufficient evidence to support a finding that the State of Oklahoma (State) met its burden of proving by clear and convincing evidence that termination of Mother's parental rights was in Children's best interests. We find there is not, reverse the judgment, and remand for further proceedings.

BACKGROUND

¶2 In April 1999, State filed a petition to have Children adjudicated deprived. State sought the adjudication on the grounds that Mother and her youngest child1 both tested positive for methamphetamines at the time of the child's birth; that Mother's home environment had contributed to neglect of Children in that the electricity and water had been disconnected, Mother and Children had been evicted from their trailer home, Mother slept all day, stayed out late at night and left Children with inadequate supervision, and refused to get a job; and that Mother had abandoned Children by voluntarily placing them in foster care on March 31, 1999.2

¶4 On June 23, 2000, State filed a motion to terminate Mother's parental rights.

DISCUSSION

¶5 In proceedings to terminate parental rights, the paramount consideration is the health, safety, welfare, and best interests of the child.

¶6 Section 7006-1.1(A)(5) provides that a trial court may terminate parental rights upon finding that the child has been adjudicated deprived; the deprived condition is caused by or contributed to by acts or omissions of the parent; termination of parental rights is in the best interests of the child; and the parent has failed to show that the condition which led to the deprived adjudication has been corrected, although the parent has been given not less than three months to correct the condition. See also

¶7 Mother correctly points out that failure to comply with the service plan, in itself, is not a ground for termination. See J.M.,

¶8 At the hearing, the trial court acknowledged that Mother had substantially complied with certain aspects of the treatment plan. However, the court determined that termination was in order because Mother had taken too long to complete the plan. We disagree with the court's determination.

¶9 The primary condition which led to the deprived adjudication was Mother's substance abuse. The record contains a certificate of completion from Kiamichi Council on Alcoholism & Other Drug Abuse, Inc. (Kiamichi Council), reflecting that Mother completed substance abuse counseling on March 9, 2000. State argues on appeal that Mother did not complete the substance abuse counseling within ninety days. However, section 7006-1.1(A)(5) and section 7003-5.5(I)(1) provide that a parent must be given not less than three months to correct the conditions which led to the deprived adjudication. The statute does not establish a maximum time limit.

¶10 The treatment plan required that Mother attend Narcotics Anonymous meetings at a frequency to be determined by her substance abuse counselor. Mother's substance abuse counselor at Kiamichi Council, Terry Wallace, testified that he never told Mother to attend Narcotics Anonymous meetings. Although he recommended that she attend them on an "as needed" basis, he never set a number of meetings or gave any specific meeting times. On cross-examination, Wallace admitted that the common sense meaning of "as needed" was that the individual could determine when and how often to attend the meetings.

¶12 The record also reflects that Mother completed parenting skills classes on December 30, 1999. Although Burrell testified that Mother was not able to verbalize what she had learned from the classes, Mother did complete them.

¶13 Although Mother admitted that she never registered with the local employment office, she also testified that she had obtained employment on her own. Burrell admitted that, while she worked with CWS from October 1999 to June 2000, she had knowledge that Mother was employed as a bartender. However, she did not know how long Mother was employed. Mother testified that, since the fall of 1999, she had not been without a job for more than three weeks. She worked as a truck driver, bartender, and beautician, and was employed at the time of trial.

¶14 Mother sought individual counseling at Carl Albert Mental Health Center, the facility recommended by CWS. However, Burrell testified that Carl Albert informed her that Mother did not meet their criteria for counseling. Mother testified that she sought counseling at another facility but did not receive it. Burrell stated that, when she discovered that Mother was not receiving individual counseling, she gave her a list of counselors she could contact.

¶15 State bases its allegation that Mother failed to cooperate with CWS primarily upon the fact that Mother did not keep workers aware of her address and phone number. State also argues that Mother repeatedly blamed CWS for breaking up her family. As the trial court noted, parents frequently dislike being forced to cooperate with DHS. Although Mother kept CWS informed of her whereabouts on a limited basis, it is clear that, on at least one occasion, Burrell visited Mother while Mother was living with friends. When asked whether the home environment was appropriate or inappropriate, Burrell responded, "It was a home." Mother testified that she does have her own home and is ready to care for Children.

¶16 Burrell also testified that Mother missed only one visit with Children. She stated that, although some of the visits went well, others did not. However, the only negative aspects Burrell cited were that Children were sometimes "upset" after the visits and Mother often made empty promises that she would take Children home. Neither Burrell nor anyone else alleged that Mother yelled at Children or physically abused them.

¶17 Although Mother admitted that she did not pay any child support as required by

¶18 This court has often stressed that the right of a parent to the companionship, care, custody, and management of the child is a fundamental right protected by both the federal and state constitutions. See M.L.B. v. S.L.J.,

¶19 It is because of this fundamental right which parents have in the custody of their children that we are mindful of the gravity of the sanction imposed by termination. We emphasize that termination is not a matter to be taken lightly by the courts, and State must always be held to its burden of proof.

CONCLUSION

¶20 State did not clearly and convincingly show that Mother posed a harm to Children or that termination was in Children's best interests. Therefore, we reverse the order terminating Mother's parental rights and remand the case for further proceedings.

¶21 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

¶22 RAPP, J., and GOODMAN, J., concur.

FOOTNOTES

1K.C., the oldest child, was born on March 14, 1986; T.C. was born on October 21, 1988; K.C. was born on February 14, 1990; the youngest child, T.C., was born on December 22, 1998.

2The petition further alleged that Children's father did not support them or provide for their care. Mother's youngest child has a different biological father than the older three children.

3State also sought termination as to both biological fathers. However, the fathers' parental rights are not at issue here.

4In re C.G., 1981 OK 131, 637 P.2d 66, cites to 10 O.S. Supp. 1977 § 1130, an earlier version of 10 O.S. Supp. 2000 § 7006-1.1(A).

5Wallace further testified that his assessment and evaluation of a particular individual depends partially upon a substance abuse screening test known as S.A.S.S.I. Wallace did not have a record of a S.A.S.S.I. being performed on Mother. Mother testified that DHS administered the test but did not disclose the results to her.

6Mother denied having received the list of counselors prior to trial.

7Mother argues that 10 O.S. Supp. §§ 7006-1.1(A)(7) & (A)(15) are unconstitutional. We need not address this argument in light of our decision.