In Re TM

2002 OK CIV APP 129, 62 P.3d 802, 2003 WL 152328
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 12, 2002
Docket96,092
StatusPublished

This text of 2002 OK CIV APP 129 (In Re TM) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re TM, 2002 OK CIV APP 129, 62 P.3d 802, 2003 WL 152328 (Okla. Ct. App. 2002).

Opinion

62 P.3d 802 (2002)
2002 OK CIV APP 129

In the Matter of T.M., an alleged deprived child.
State of Oklahoma, Appellee,
v.
Lawrence Kirkpatrick, Appellant.

No. 96,092.

Court of Civil Appeals of Oklahoma, Division No. 1.

December 12, 2002.

L. Wayne Woodyard, Pawhuska, OK, for Appellant.

Keith Sims, Assistant District Attorney, Pawhuska, OK, for Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

*803 OPINION

CARL B. JONES, Judge:

¶ 1 Lawrence Kirkpatrick (Father) appeals the trial court's judgment terminating his parental rights to his child, T.M. (Child). Father contends the State of Oklahoma (State) failed to sustain its burden of proving with clear and convincing evidence that Father's parental rights should be terminated. This Court finds the trial court's judgment terminating Father's parental rights is supported by clear and convincing evidence and affirm.

¶ 2 On March 6, 1996, the State filed a petition to have Child adjudicated deprived on the grounds that Father placed his mouth upon Child's privates, and the mother failed to protect Child. After a trial held July 19 and 20, 1996, the jury returned a verdict finding that Child was deprived. The trial court entered its order of adjudication and no appeal was taken from that order.

¶ 3 On August 7, 1996, the trial court entered a disposition order and adopted a six point treatment plan.[1] The treatment plan was thereafter amended to incorporate the following three points recommended in a psychological evaluation of Father: Father was required to 1) successfully attend and complete an offenders group and follow all recommendations made by the individual conducting the group; the individual must be a licensed professional specializing in offenders groups; 2) successfully attend and complete individual counseling by a licensed psychologist; and 3) pay child support as assessed by the court.

¶ 4 On October 16, 1998, Father sought modification of the treatment plan to remove the condition that he attend offenders therapy because he denied he sexually molested Child and he refused to admit he committed any sexual abuse as required by the offenders classes; therefore, he would not be credited with completing the counseling and could be subjected to a motion to terminate his parental rights. Father's motion to modify was denied on October 10, 1999.

¶ 5 On October 27, 1999, State filed a motion to terminate Father's parental rights. State alleged Father failed, refused and neglected to perform the conditions ordered by the court and Father failed to show the conditions which led to Child's deprived adjudication have been corrected even though Father has been given in excess of three (3) months to correct the conditions. The State also urged the termination was in Child's best interests. Thereafter, the mother's parental rights to Child were terminated; however, the mother's parental rights are not at issue here.

¶ 6 A non-jury trial was conducted on December 5, 2000, January 8, 2001 and February 26, 2001. Evidence revealed Father did not complete the requirements for individual counseling and the offenders group therapy. On February 26, 2001, the trial court found the primary condition which led to the deprived adjudication was Father's sexual abuse of Child. And, Father's refusal to complete the requirements for offenders group therapy and individual counseling was clear and convincing evidence that Father failed to correct the conditions which led to *804 the deprived child adjudication. The trial court also found it was in Child's best interest to terminate Father's parental rights because evidence revealed that Child has not bonded with and does not desire to see Father.

¶ 7 In proceedings to terminate parental rights, the paramount consideration is the health, safety, welfare and best interests of the child. 10 O.S. Supp.1998 § 7006-1.1(A). The presumption is that a child's best interest lies in preserving family integrity; thus, the State must show the elements required for the termination of parental rights under § 7006-1.1(A)[2] with clear and convincing evidence. In re K.C., 2002 OK CIV APP 58, ¶ 5, 46 P.3d 1289, 1291. The burden of persuasion then shifts to the parent to show conditions have changed and have been corrected since the deprived child adjudication. In re T.M., 2000 OK CIV APP 65, ¶ 18, 6 P.3d 1087, 1094.

¶ 8 In order to affirm the trial court's findings in its termination order, "appellate review in a parental-bond-severance proceeding must demonstrate the presence of clear-and-convincing evidence to support the first-instance decision." In the Matter of S.B.C., 2002 OK 83, ¶ 7, 64 P.3d 1080, ¶ 7. Previously, the legal standard of appellate review applied by this Court when reviewing the findings of a trial court sitting without a jury was whether there is any competent evidence reasonably tending to support the trial court's findings, and if so, this Court will not disturb the trial court's judgment terminating parental rights. See Bradley v. Clark, 1990 OK 73, ¶ 3, 804 P.2d 425, 427 (In a common-law case where the jury is waived, the trial judge's determination of the facts bears the force of a verdict rendered by a well-instructed jury. It must be affirmed if supported by any competent evidence.) Granted, the State has the burden to prove that termination is in the best interests of the child by clear and convincing evidence. In re T.M., 2000 OK CIV APP 65 at ¶ 18, 6 P.3d at 1094. However, the ruling in In the Matter of S.B.C., supra, now requires this Court to serve as the 13th juror to re-weigh the evidence and determine again whether there was clear and convincing evidence — a task which is difficult to undertake when faced only with the printed words of the cold appellate record.

¶ 9 This Court has examined the evidence before the trial court and determines the trial court's findings that Father failed to correct the conditions which led to the deprived child adjudication are supported by clear and convincing evidence.

¶ 10 Father first urges that he substantially complied with the valid conditions imposed upon him by the treatment plan but admits he did not comply with the requirement that he obtain offenders therapy. Father contends this condition never became operative and thus was not a valid condition. Father bases this argument on his psychological evaluation which stated "[i]f the child maintains some inappropriate *805 touching happened, then Mr. Kirkpatrick should be referred to Family and Children's Services Offenders Group." Father urges since the offenders therapy was conditioned upon Child maintaining some inappropriate touching occurred and since he presented evidence in the termination proceeding that Child made inconsistent statements with regard to whether the touching occurred, he did not have to comply with this condition. This Court is unpersuaded by Father's position. Due to the nature of this termination proceeding which follows a deprived child adjudication based solely on the allegation of Father's inappropriate behavior, this Court is unwilling to adopt Father's position that court ordered offenders group therapy is inoperative unless Child continually affirms the inappropriate behavior occurred. To impose such a requirement would not be in Child's best interest.

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Related

Matter of Baby Girl Williams
1979 OK 150 (Supreme Court of Oklahoma, 1979)
Bradley v. Clark
1990 OK 73 (Supreme Court of Oklahoma, 1990)
State v. Kirkpatrick
2002 OK CIV APP 129 (Court of Civil Appeals of Oklahoma, 2002)
J.M. v. State
1993 OK CIV APP 121 (Court of Civil Appeals of Oklahoma, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
2002 OK CIV APP 129, 62 P.3d 802, 2003 WL 152328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tm-oklacivapp-2002.