IN THE MATTER OF E.G.

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IN THE MATTER OF E.G.
2010 OK CIV APP 34
231 P.3d 785
Case Number: 107343
Decided: 03/05/2010
Mandate Issued: 04/02/2010
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

IN THE MATTER OF E.G., A DEPRIVED CHILD:

DARLA GILES, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE RICHARD KIRBY, JUDGE

VACATED AND REMANDED WITH INSTRUCTIONS

Sherry J. Neal, Oklahoma City, Oklahoma, for Appellant,
Jane A. Brown, Assistant District Attorney, Oklahoma City, Oklahoma, for Appellee.

BAY MITCHELL, JUDGE:

¶1 Appellant Darla Giles (Mother) appeals an Order terminating her parental rights to her minor child, E.G. upon a finding that she failed to correct the conditions leading to the adjudication of the child's deprived status pursuant to 10 O.S. 2001 §7006-1.1(A)(5).1 This Order was entered upon a unanimous jury verdict. Mother argues on appeal that the jury verdict is not supported by sufficient evidence of a failure to correct conditions (she claims she completed most of her service plan and that the trial court's Order fails to specify the conditions she failed to correct). She also contends the state failed to present competent medical expert witness testimony regarding Mother's mental deficiency.

¶2 A Petition was filed in October 20062 alleging Mother's children to be deprived because they are destitute, homeless, or abandoned; do not have the proper parental care and guardianship; their home is unfit and unsafe for children; neglect, cruelty depravity on the part of their parents or the person who cares for them; failure to protect from physical abuse of Mother's husband; Mother's mental illness; and lack of adequate shelter.

¶3 On March 12, 2007, Mother stipulated to the deprived status of her three little girls (five-year-old A.J., four-year-old K.D., and one-year-old E.G.). A treatment plan was adopted in April 2007, which ordered Mother to enroll in and successfully complete parenting skills class, complete substance abuse evaluation and follow recommendations of the services provider, attend individual and family counseling, refrain from any physical or verbal altercations with her extended family members, obtain appropriate housing, complete psychological evaluation and follow all recommendations of the psychologist, enroll in a GED program to increase her employment options, secure a legal source of income that adequately takes care of her family's financial needs, and cooperate with all worker visits from the Department of Human Services (DHS) and CASA.

¶4 Prior to trial, upon the recommendation of DHS, the court ordered custody of Mother's two older daughters be transferred to their father, who resided in Arizona.3 Thus, her parental rights only as to the youngest child, E.G., were at issue at trial.4 The trial took place in June 2009 with evidence presented pertinent to Mother's adherence to the treatment plan and correction of conditions. While the evidence demonstrated Mother's completion of some of the plan requirements, i.e., completion of parenting skills classes, evidence also demonstrated her failure to correct some of the conditions, notably the condition that she maintain stability in her housing situation.5 Additionally, the evidence shows Mother was often late and missed numerous individual counseling sessions and that she had made little progress in counseling.6

¶5 The record reflects the matter was initially scheduled for trial in December 2008, but was continued in accordance with the DHS permanency planning worker's recommendation to give Mother additional time to correct the conditions that remained uncorrected (specifically she needed to maintain housing for at least six months and maintain employment). At the conclusion of evidence and upon instructions being given, the jury entered a verdict terminating Mother's parental rights.

¶6 Section 7006-1.1(A)(5) (now renumbered as 10A Supp. 2009 §1-4-904(B)(5)) permits the termination of parental rights when a child has been adjudicated to be deprived, the parent failed to correct the condition(s) leading to the deprived adjudication, the parent has been given at least three (3) months to correct the condition(s), and termination of parental rights is in the best interests of the child. While the State bears the burden of proof by clear and convincing evidence of the elements for termination of parental rights, once they are shown, the burden shifts to the parent to demonstrate the conditions which led to the deprived adjudication have been corrected. In re M.C.M.,

¶7 Mother argues the Order on appeal is fatally defective in that it lacks specificity as to its finding of the conditions she failed to correct. She specifically complains "[t]here was no clear indication [in the termination order] of what mother failed to correct." Mother's argument is unpersuasive because there is no Oklahoma Supreme Court precedent mandating such precise detail in Orders terminating parental rights for failure to correct conditions, particularly where the record clearly demonstrates that the parent was provided adequate notice of the conditions requiring correction throughout the adjudication and termination proceeding.

¶8 The evidence clearly demonstrates Mother had failed to secure suitable housing in correction of the express condition stated in the Amended Petition "[t]hat the MOTHER has not provided a safe, suitable, fit home for the children." Although Mother insists that she has leased an apartment, her own testimony reveals that she does not live there regularly. While Mother explained she moves frequently to avoid conflict with her husband, a DHS permanency planning worker testified Mother's instability is a learned behavior based upon her own childhood experience of growing up in 27 different states. The DHS worker testified, "[I]t's unfortunate because I believe that [Mother] is caught in a cycle of repeating what she knows as being normal. She cannot maintain a place of employment, she cannot maintain a residence, there is continued family conflict." Additionally, another DHS caseworker testified that even if Mother did have a home, she would still recommend termination of Mother's parental rights because of her chaotic lifestyle.

¶9 Mother's second proposition of error is that the State failed to prove Mother's mental illness by expert medical opinion. Mother concedes the State did not seek parental rights termination on the basis of her mental illness, but argues it should have done so pursuant to 10 O.S. §7006-1.1(A)(13)

¶10 Further, from the record presented, we discern that Mother neither objected to the jury instructions for termination based upon failure to correct conditions under 10 O.S.§7006-1.1(A)(5), nor does the record disclose that she requested a jury instruction for termination under §7006-1.1(A)(13), which "is fatal to review of any complaint beyond one for fundamental error, of which we discern none." In re M.C.M.,

¶11 Although unraised, we note a fundamental deficiency in the Order, which requires correction. The Order fails to make any finding whatsoever regarding the best interests of the child. "Parental rights . . . may only be terminated or impaired upon a clear finding by the court after an evidentiary hearing that it is, in fact, in the best interests of the children to enter such an order." Bingham v. Bingham,

¶12 Our review of the record reveals that, while clear and convincing evidence supports the determination that Mother failed to correct the conditions which led to the deprived adjudication, the Order is absent a finding that termination of Mother's parental rights is in the best interests of the child. Accordingly, the Order is VACATED AND REMANDED WITH INSTRUCTIONS TO CORRECT THE DEFICIENCY DESCRIBED HEREIN.

BELL, V.C.J., concurs; JOPLIN, P.J., dissents.

JOPLIN, P.J., dissenting:

I would affirm the trial court's order.

FOOTNOTES

1 Title 10 O.S. §7006-1.1(A)(5) provides that parental rights may be terminated based on these four findings:

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 7003-5.5 of this title to correct the condition.

This statutory provision was renumbered as Title 10A §1-4-904(B)(5), effective May 21, 2009.

2 An Amended Petition, which reiterates the conditions leading to the children's deprived status, was filed April 28, 2008. The Amended Petition is expressly referenced in the Order on appeal.

3 Although Mother testified that she consented to the custody transfer of the two older girls to their father in Arizona, the record reflects she contested it.

4 E.G.'s father consented to the termination of his parental rights in this matter.

5 Mother reported to DHS eight different residences since December 2007, including a three or four month stay at a battered women's shelter. One of the residences did not have running water, another move was necessitated by fire, and another was caused by eviction. At the time of trial, she testified that although she was currently leasing her brother's apartment, she does not stay there on a regular basis. She stayed at undisclosed locations to avoid her husband's ongoing harassment and threats.