IN THE MATTER OF C.R.T.

IN THE MATTER OF C.R.T.
2003 OK CIV APP 29
66 P.3d 1004
Case Number: 96753
Decided: 02/24/2003
Mandate Issued: 03/21/2003
DIVISION II
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

IN THE MATTER OF C.R.T., an alleged deprived child,
GAIL THOMASON, Plaintiff/Appellant,
v.
STATE OF OKLAHOMA, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF CUSTER COUNTY, OKLAHOMA

HONORABLE WINFORD MIKE WARREN, TRIAL JUDGE

REVERSED AND REMANDED FOR A NEW TRIAL

Avery A. Eeds, Jr., Elk City, Oklahoma, for Plaintiff/Appellant
Richard L. Dugger, District Attorney, Gina R. Farris, Assistant District Attorney, Arapaho, Oklahoma, for Defendant/Appellee

KEITH RAPP, Judge

¶1 The trial court defendant, Gail Thomason (Mother), appeals the judgment entered on a jury verdict terminating her parental rights as to her child (CRT). The termination petition was filed by the State of  Oklahoma (State). This Court reverses and remands for a new trial.

BACKGROUND

¶2 The parties have little dispute about the facts. Mother suffers mental illness and, possibly, alcohol and drug abuse induced mental illness. CRT was placed in emergency custody of the Department of Human Services (DHS) in February 1999, and was adjudicated as a deprived child in April 1999, on the State's petition, alleging grounds based upon Mother's mental health condition. The State alleged that Mother "has severe mental problems which makes(sic) it impossible for her to provide for the needs" of CRT as its ground for the alleged state of deprivation.

¶3 CRT has been in foster care since that time. CRT's Father's parental rights have been terminated and that is not an aspect of this case.

¶4 The State filed an amended petition to terminate Mother's parental rights on June 4, 2001. The grounds alleged CRT had been in foster care for 15 of the last 22 months, Mother's failure to complete treatment plan, Mother's failure to correct the conditions leading to the deprived status adjudication, and that it was in CRT's best interest to terminate Mother's parental rights. The appropriate subsections, not stated in the petition, are

¶5 Mother demanded, and was provided, a jury trial. At the close of the evidence, the trial court instructed the jury as to the State's theory under subsections 5 and 15. The court also instructed the jury, at Mother's request, as to the elements of subsection 13.

¶6 However, the trial court's judgment recited that termination was based upon remaining in foster care for the requisite period of time and for Mother's failure to complete the treatment plan and failure to correct the conditions leading to the deprivation adjudication. Mother appeals.

STANDARD OF REVIEW

¶7 In at least three cases, the appeals Court has defined the function of the appellate review as a thorough review of the record in light of the elements to be proven and to affirm the trial court if it is not contrary to the weight of the evidence. In re T.H.L.,

¶8 This Court, after review of cases, concludes that there is no conflict and that the decision to terminate parental rights must pass muster under the more stringent test where this Court reviews the weight of the evidence to support the decision to terminate.

The interest of children in a wholesome environment has a constitutional dimension no less compelling than that the parents have in the preservation of family integrity. In the hierarchy of constitutionally protected values both interests rank as fundamental and must hence be shielded with equal vigor and solicitude.

In re T.H.L.

¶9 The strict standard of review follows from the reasoning of the Court in Santosky v. Kramer,

¶10 The Court examined and characterized the nature of the proceedings to reach its conclusion in light of the factors set out in Matthews v. Eldridge,

¶11 The Santosky Court noted that appellate review is not a "curative for an inadequate burden of proof." Santosky,

¶12 Moreover, here the more stringent standard of review is also triggered by the fact that the State shifted its position from an original action of a mental health matter to one involving a failure to correct a condition, after the cause began and had proceeded well into the process.

¶13 Therefore, the standard of review here requires this Court to conduct a thorough review of the record in light of the elements to be proven. This Court, in conformity with this standard, has examined the evidence to ascertain whether it is competent, that is, whether all of the evidence for or all of the evidence against a requirement is relevant and material to the issue.

¶14 In addition, Mother has challenged legal rulings made by the trial court. A pivotal issue here involves the selection of the correct ground by the State to pursue termination under the facts of the case. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp.,

ANALYSIS AND REVIEW

Subsection 13 vis-¡-vis Subsection 5

¶15 Mother maintains that the State should have proceeded solely on allegations under subsection 13. Thus, Mother argues that the petition was insufficient as notice and that the jury instructions were broader than necessary because they included subsection 5 as a ground for termination of her parental rights. Mother concludes by asserting that subsection 13 is a special and specific statute and thus controls over any broader, or general, provisions pertaining to termination.

¶16 This Court holds that the trial court erred by instructing the jury on subsection 5. There are two reasons for this ruling. First, the uncorrected "condition" referenced in subsection 5 necessarily means a condition the nature of which is subject to correction by the parent's efforts. It is well recognized that mental illness is a condition entirely distinct from other conditions leading to a deprived child status and may be caused by a number of factors, including organic deficiencies, not the fault of the person. Second, subsection 13 does qualify as a special statutory provision that prevails over the more general provision of subsection 5.

¶17 The judgment of termination of Mother's parental rights reached below must be reversed because the nature of the "condition" existing here is such that it is not correctable solely through the efforts of Mother. It would be patently unfair, if not also a violation of Substantative Due Process, to permit termination of the parental relationship for failure to correct a condition which cannot be remedied by the parent without medical, psychiatric, and psychological intervention. Moreover, the evidence here shows that Mother's failures to take medications and her denials that she has a problem are manifestations of the illness rather than culpable recalcitrance on her part.

¶18 Thus, this Court holds that subsection 5 "conditions" are those which the parent has the ability to correct and which do not include a propensity to fail correction of the condition as a component of or manifestation of the "condition." Subsection 13, as a special provision, deals with a different form of condition, one requiring medical, psychiatric, and psychological intervention, or a combination thereof, because the condition is essentially outside the control of the parent. Moreover, subsection 13 contemplates a person's inability to correct the condition because of language dealing with contingencies where the condition does not respond to treatment through no overt fault of the person and medical opinion concludes that the condition will not substantially improve. See In re R.S.,

¶19 The parties here agree that Mother suffers from mental illness of the nature contemplated by subsection 13. Her initial court commitment admission to mental health treatment at Western State Psychiatric Center (WSPC) occurred when she exhibited bizarre behavior and hallucinations. Her initial diagnosis was Substance Induced Psychotic Disorder With Hallucinations and Delusions and possible paranoid schizophrenia.

¶20 However, at trial, the treating psychiatrist could not say that her symptoms were drug induced. He stated that the present diagnosis was paranoia schizophrenia and that it was manageable through treatment but did not state the form or intensity of treatment required.

¶21Here, the "condition" is mental illness. Mental illness was the basis for the deprived child adjudication and remained as Mother's problem to the time of trial. This is the condition that must be corrected. In addition, the overwhelming evidence here shows that the alleged failure to correct the condition follows and flows directly from the condition itself.

¶22 The temptation to ask a rhetorical question is here likewise overwhelming: How is it possible in the State of Oklahoma that a governmental agency could seek to terminate a fundamental, constitutionally-protected relationship for failure to correct a mental condition when such failure is part of the mental condition itself? The answer is, of course, that it is not possible. The reason it is not possible is that Substantative Due Process of Law, separately from procedural safeguards, imposes the requirement that all government actions not be arbitrary; that the actions have a fair and reasonable impact on the life, liberty, and property of the person affected; and, that the means selected shall have a reasonable and substantial relation to the objective being sought. City of Edmond v. Wakefield, 1975 OK 96, ¶6, 537 P.2d 1211, 1213; Williams v. State ex rel. Dept. of Public Safety, 1990 OK CIV APP 27, ¶14, 791 P.2d 120, 124. Under this Court's construction, the statute does not violate this proscription.

¶23 This case began and was handled initially as a mental health problem and remained so through trial. However, sometime after the initiation of the case, the State then filed its initial petition, and then an amended one, seeking termination based upon subsection 5, failure to correct the condition leading to the deprived child adjudication without consideration of the Mother's inability to correct her mental condition. The reason for this action to separate the Mother and child by termination is not a part of the record. However, the State concedes that a case for termination cannot be made on subsection 13 grounds of failure to respond to treatment, or mental illness that will not substantially improve after treatment. Moreover, subsection 5 is not available under the facts of this case.

¶24 Mother then concludes by correctly arguing that subsection 13 is a special provision and specific statute and thus controls over any broader, or general, provisions pertaining to termination governing the facts here.16 In re L.S., 1990 OK CIV APP 94, ¶21, 805 P.2d 120, 125. The State disclaims subsection 13 by its argument that a case under that subsection could not be proven, but this misses the point.17

¶25 The statutes did not address mental health as it related to parental rights and children prior to 1987, when subsection 13 was enacted.

¶26 Consideration must be given to the statute as a whole without isolating words, phrases, or other parts. McNeill v. City of Tulsa,

¶27 Before a statute may be termed "specific" it must clearly include the subject of the general statute and provide a different rule, that is, they must be in conflict as to the identical subject matter. Tulsa County Deputy v. Board of County Commissioners,

¶28 The case of Carter v. City of Oklahoma City,

¶29 On appeal, the City argued without success that the condemnation statute in Title 66 applied, together with its proviso that the landowner had to prevail by more than ten percent over the commissioners' award. The City's argument pointed out that the statutes contained similar wording. However, the Supreme Court rejected the argument, noting that provisions in Title 66 and other statutes leading to utilization of Title 66, referred to condemnors instituting a condemnation action and not to inverse condemnation matters. Thus, because Section 12 clearly included the attorney fee subject matter, inverse condemnation, it controlled over the general condemnation statute.

¶30 Here, Section 7006-1.1 begins with the provision that "a court may terminate the rights of a parent to a child in the following situations" and then lists the fifteen instances where findings may result in termination when a child has been deter- mined to be deprived. The Legislature singled out the mental health "condition" for special treatment in subsection 13, and has thereby created a special provision controlling over the more general provision of subsection 5. Both subsections deal with the same subject-matter -- termination of parental rights involving children who are deprived. However, subsection 13 deals with a special situation and condition.

¶31 A well-settled rule of statutory construction provides that where a matter is addressed by two statutes, one specific and one general, the specific statute controls. Hall v. Globe Life and Acc. Ins. Co. of Okla.,

Subsection 13 vis-¡-vis Subsection 15

¶32 Subsection 15 antedates subsection 13, as it came into the statute in 1998. 1998 Okla. Sess. Laws, c. 414 § 20.

¶33 Thus, a parent facing termination on subsection 15 grounds is, nevertheless, entitled to receive all constitutional and procedural rights and to present all defenses available. In re M.C.,

¶34 Failure to allow for examination of the conditions causing the child to be placed in foster care for an extended period could lead to absurd results. Posit a young married couple with a small child and no other family or relatives. Father is inducted into military service and is taken prisoner during combat. Mother dies from illness or accident, leaving the child without parental care. The child would properly be placed in foster care, but if Father's "condition" of captivity extended beyond twenty-two months, and fifteen of those months included foster care, then his parental rights could be terminated simply because of the extended foster care but for a rational interpretation of the statute requiring examination of the underlying reason, or reasons, for instituting foster care. Such termination would not pass constitutional muster, as should not those of the nature here reviewed.

¶35 The Court, when construing a statute, will presume that the Legislature did not intend an absurd or wholly unreasonable result. Therefore, the Court's construction of a statute avoids such result whenever such construction will not violate legislative intent. In re Bonny Dawn Edwards Irrevocable Trust,

¶36 Therefore, the judgment of the trial court is reversed and the cause is remanded for a new trial in accordance with this Opinion.

¶37 REVERSED AND REMANDED FOR A NEW TRIAL.

COLBERT, P.J., concurs, and GOODMAN, J., concurs in result.

 
GOODMAN, J., (concurring) 

¶1 The issue of the appellate standard of review was established by the Oklahoma Supreme Court in In re S.B.C,

¶2 In any event, because an error of law of fundamental magnitude occurred below, I do not believe that the standard of appellate review is implicated. I would follow the analysis established in In re B.T.N., No. 96,960 (OK CIV APP Div. II, May 21, 2002, wherein we stated:

In In re L.S., 1990 OK CIV APP 120,

. . . .

We hold that State should have proceeded under (A)(13) because Mother's history of mental instability is well documented. Indeed, it is the unstable nature of Mother's mental condition that led to Child being placed in foster care in the first instance, and ultimately led to the determination that Child was deprived in the second instance. In many respects, under the facts of this case, the grounds for termination pled by State, i.e. (A)(5) and (A)(15), would not exist but for the mental instability of Mother. Such mental instability may serve as a basis for termination , if it presents harm to Child, as addressed in (A)(13). Mother attempted to obtain an instruction to the jury to that effect, but said motion was denied. Fundamental error thus occurred.

I would limit our review to that core issue, and simply hold that the trial court committed a fundamental error of law in refusing to instruct the jury pursuant to (A)(13). 

FOOTNOTES

1 District Court Record, p. 20. A separate mental health case also involved Mother.

2 See n.9.

3 The statutes have since been amended. Subsections 5, 13, and 15, in effect for this proceeding, read:

A. Pursuant to the provisions of the Oklahoma Children's Code, the finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations. The paramount consideration in proceedings concerning termination of parental rights shall be the health, safety and best interests of the child:
. . . .
5. A finding that:
a. the child has been adjudicated to be deprived, and
b. such condition is caused by or contributed to by acts or omissions of the parent, and
c. termination of parental rights is in the best interests of the child, and
d. the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by Section . . . .
. . . .
13. A finding that all of the following exist:
a. the child has been adjudicated deprived, and
b. custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member, and
c. the parent whose rights are sought to be terminated has a mental illness or mental deficiency, as defined by Section 6-201 of Title 43A of the Oklahoma Statutes, which renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities, and
d. the continuation of parental rights would result in harm or threatened harm to the child, and
e. the mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve, and
f. termination of parental rights is in the best interests of the child.
Provided, a finding that a parent has a mental illness or mental deficiency shall not in and of itself deprive the parent of his or her parental rights.
. . . .
15. A child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months. For purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of:
a. the adjudication date, or
b. the date that is sixty (60) days after the date on which the child is removed from the home.

4 Mother duly preserved objections to the instructions. 12 O.S.2001, § 578; Trial Tr. Vol. II, pp. 438-39.

5 Competent evidence has been defined by the Oklahoma Supreme Court as that which is relevant and material to the issue to be determined. Joseph A. Coy Co. v. Younger, 1943 OK 160, 136 P.2d 890, 891-92. Evidence remains "competent" under this definition even though it may be conflicting, contradictory, or lack a degree of credibility. Id. at 892; Cox v. B. F. Goodrich Co., 1989 OK CIV APP 41, ¶7, 788 P.2d 967, 968.

6 First, in all of the cases not involving purely questions of law, the appellate court did in fact review the evidence for sufficiency rather than mere existence of competent evidence. An example is In re T.R.W., 1985 OK 99 at ¶17, 722 P.2d at 1201, where the Court, after examination of the evidence, including its various interpretations, found it to be sufficient to support the verdict. Similarly, the Court in In re J.M., S.F. and J.A., 1998 OK CIV APP 141, ¶4, 964 P.2d 972, 973, also reviewed the evidence to find that it clearly supported the outcome. Second, the dissenting Opinions in In re T.H.L. and in In re Christopher H. argued for review based upon whether the State met its burden by "clear and convincing evidence." Thus, the Court in each case was unanimous on the point that the appellate court would weigh the evidence but disagreed as to the criterion involved.

7 The Court was reviewing New York's scheme, but the characterizations have universal application.

8 The State explains, as stated in its Brief, that it could not prove a case under subsection 13 because Mother's condition could improve with treatment.

9 In addition, this petition, even as amended, lacks clarity as well as allegations concerning the Indian Child Welfare Acts and the Uniform Child Welfare Act. An example of the former is found in paragraph 2 where the allegations read grammatically that the child has failed to do those things required of the parent. In addition, the language "termination is being sought under 10 O.S.7006-1.1 et seq.," leaves open which of the statutes' subsections the State intends to proceed under.

10 See n.4.

11 This conclusion conforms to the Oklahoma Supreme Court's decision in In re S.B.C., 2002 OK 83, __ P.3d __, which has not been released for publication in the present case reports. It is thus subject to revision or withdrawal.

12 State's Trial Ex. 4.

13 Id. at 33-34. Moreover, an in depth evaluation of this observation would assist in explaining why Mother was remiss in taking medication and attendance at AA meetings.

14 Transcript, pp. 364, 370-71.

15 Id. at 371.

16 Ordinarily the "specific" versus the "general" issue arises when comparing two different statutes. Some courts have addressed the issue when the issue arises within a statute. See County Bd. of Ed. of Daviess Co. v. Fiscal Court of Daviess Co., 298 S.W. 185 (Ky. 1927). Here, the issue is presented as a conflict between subsections.

17 Thus, the State says that subsection 13(e)'s requirement that competent medical evidence show that the mental condition will not substantially improve could not be proven, mainly because the evidence is to the contrary. Yet, this is the very condition used by the State and DHS to initiate these proceedings.

18 The section of the statute containing subsection 5 has since been renumbered.

19 Also in 1998, the Legislature enacted special provisions regarding children in extended period foster care up to November 1997 and provided for expedited termination of parental rights as to that class of children. 1998 Okla. Sess. Laws, c. 421 § 31; 10 O.S. 2001, § 7006-1.6.