In the Matter of A.M

1998 OK CIV APP 186, 970 P.2d 1198, 70 O.B.A.J. 204, 1998 Okla. Civ. App. LEXIS 159
CourtCourt of Civil Appeals of Oklahoma
DecidedNovember 18, 1998
DocketNo. 91,521
StatusPublished
Cited by2 cases

This text of 1998 OK CIV APP 186 (In the Matter of A.M) 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 the Matter of A.M, 1998 OK CIV APP 186, 970 P.2d 1198, 70 O.B.A.J. 204, 1998 Okla. Civ. App. LEXIS 159 (Okla. Ct. App. 1998).

Opinion

MEMORANDUM OPINION

HANSEN, Judge.

¶ 1 Appellant, Kristy Mills (Mother), mother of the child A.M., seeks review of the trial court’s order adjudicating A.M. as deprived and placing A.M. in the custody of the Department of Human Services (DHS). We find the evidence supports the trial court’s adjudication, and, in the absence of legal error, affirm.

¶2 Appellee, State of Oklahoma (State), filed a Petition on November 17,1997, asking the trial court to adjudicate A.M. as “deprived for appropriate placement.” State alleged A.M. was deprived due to neglect by her parents, such neglect consisting of inadequate shelter and protection. The petition further alleged specific facts in support of its claims of neglect and lack of protection. The petition noted A.M. was in custody of DHS through a emergency temporary custody order.

¶ 3 An initial hearing was held on February 19, 1998. At that time, A.M.’s father (Father) stipulated to the facts in the petition and A.M. was adjudicated deprived as to the father. Mother denied the allegations in the petition. Non-jury adjudication was set for Mother. A.M. remained in DHS’s custody. The trial court appointed counsel to represent A.M., who was a year old at the time of trial.

¶4 After the matter had been twice reset, hearing was held on June 2,1998. State, A.M. and Mother all put on testimony. The trial court found it was in the best interest of A.M. to adjudicate her deprived. Mother appeals from the trial court’s adjudication.

¶ 5 In a deprived adjudication, it is State’s burden to demonstrate to the trial court, by the clear weight of the evidence, that adjudication is warranted. Matter of G.C., 1996 OK CIV APP 131, 928 P.2d 974. In our review of such actions, which are triable to a jury, we will affirm the trial court’s adjudication if it is supported by any competent evidence. See, Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118; 10 O.S.Supp.1997 § 7003-3.8. Where, as here, the trial court is sitting without a jury, its findings are entitled to the same weight that would be given a verdict by a jury. Matter of J.M., at 121.

¶ 6 Mother contends the trial court erred in adjudicating A.M. deprived because of [1] [1200]*1200reversible errors of law regarding evidentia-ry rulings, and [2] inadequate proof. We will first consider the assertions of error in admitting or excluding evidence.

¶ 7 Mother contends the trial court erred in allowing evidence of another case involving A.M.’s older sister, K.M. We are unpersuaded by this contention. Mother does not contest that K.M. was, in fact, in DHS custody, or that the reason for the case involving K.M. was Father’s violence toward Mother in K.M.’s presence. What Mother argues is that the evidence was improperly allowed as proof of her bad character in violation of 12 O.S.1991 § 2404, which prohibits evidence of a person’s character “for the purpose of proving action in conformity therewith on a particular occasion.”

¶ 8 Presuming § 2404 is even applicable here, it provides for exceptions, including, inter alia, use of evidence of other wrongs or acts to prove intent or knowledge. The facts of K.M.’s case are directly relevant to the allegations of Mother’s failure to protect A.M. The controverted evidence shows Mother knew Father was capable of violence, that Father’s violent actions could be harmful to A.M., and that she was also aware of the legal consequences of allowing A.M. to be exposed to Father. The trial court did not err in allowing this testimony.

¶ 9 As her next proposition of alleged trial court error, Mother asserts the trial court should have allowed Carol Thomas to testify on her behalf. Carol Thomas was Mother’s former attorney. However, when the trial court denied Mother’s request to have Ms. Thomas testify, Mother made no offer of proof as to what the testimony would have been. Error may not be based on a ruling excluding evidence unless:

... the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

12 O.S.1991 § 2104(A)(2).

¶ 10 The record shows Mother made no offer of proof, nor was the substance of the proposed testimony apparent from the context within which it was offered. Error cannot therefor be based on exclusion of Ms. Thomas’ testimony.

¶ 11 We also note the exclusion of Ms. Thomas’ testimony was based on State’s objection that Mother had not “endorsed” her as a witness. Mother complains exclusion on this basis was erroneous. However, shortly before Mother called Ms. Thomas, a witness called by A.M. had been excluded based on Mother’s objection, which was on the same grounds she now claims to be erroneous. Mother is not permitted to secure a reversal by assuming a position which is inconsistent with that taken in the trial court. Samedan Oil Corp. v. Corporation Commission of State of Oklahoma, 1988 OK 56, 755 P.2d 664. For either of the two foregoing reasons, Mother’s contention has no merit.

¶ 12 Mother contends the trial court erred in allowing A.M.’s foster mother, Donna Merritt, to testify over her objection. The testimony to which Mother objects was elicited when Ms. Merritt was recalled by A.M.’s appointed counsel after State and A.M. had rested. Mother argues she “was denied her right to a fair trial due to the fact that she was double-teamed by State’s attorney and the child’s attorney and as such the Court should not have allowed the child’s attorney to play the role of a special prosecutor in this case.”

¶ 13 Mother concedes in her appellate brief, “[i]t is clear from the statute that the child’s attorney is appointed to watch out and protect the child’s interest in the case.” The statutory authority for appointment of a separate attorney to represent the child is set forth in 10 O.S.Supp.1997 § 7003-3.7(A). Mother fails to point out, however, how A.M.’s appointed counsel could protect her interest if he is barred or inhibited, merely by his status, from actively participating in the adjudication hearing. Mother further fails to show how the testimony A.M.’s counsel elicited from Ms. Merritt was “for the state or against the parent”, as Mother alleges. We find the actions of A.M.’s counsel [1201]*1201were consistent with both the authority set forth in § 7003-8.7, and the express paramount consideration in proceedings concerning a child alleged to be deprived — the best interests of the child. 10 O.S.Supp.1997 § 7001-1.2.

¶ 14 Mother asserts the evidence was insufficient to prove A.M. deprived. As we noted above, the trial court’s adjudication is to be affirmed if it is supported by any competent evidence. Matter of J.M., 858 P.2d at 121. The petition alleged Mother [1] kept A.M. in a home with inadequate heat even though A.M. was ill, and [2] maintained a relationship with Father, even though Mother’s other two children had been removed from her custody because of Father’s history of violence toward her.

¶ 15 An investigator for DHS testified she received a referral, concerning inadequate shelter for Mother’s family, on November 10, 1997. That day, when she went to the address given in McAlester, there was no response, but she heard a radio playing inside. She left a letter for Mother. She found no one home the next day, and on November 12th found only Father at the house.

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West v. State
2000 OK CIV APP 110 (Court of Civil Appeals of Oklahoma, 2000)
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2000 OK CIV APP 110 (Court of Civil Appeals of Oklahoma, 2000)

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Bluebook (online)
1998 OK CIV APP 186, 970 P.2d 1198, 70 O.B.A.J. 204, 1998 Okla. Civ. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-am-oklacivapp-1998.