McElroy v. State

2000 OK CIV APP 65, 6 P.3d 1087, 71 O.B.A.J. 1645, 2000 Okla. Civ. App. LEXIS 15
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 21, 2000
DocketNo. 93,412
StatusPublished
Cited by1 cases

This text of 2000 OK CIV APP 65 (McElroy v. State) 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
McElroy v. State, 2000 OK CIV APP 65, 6 P.3d 1087, 71 O.B.A.J. 1645, 2000 Okla. Civ. App. LEXIS 15 (Okla. Ct. App. 2000).

Opinions

BUETTNER, Judge:

T1 Appellant Tammy McElroy (Mother) appeals from judgment entered on a jury verdict which terminated Mother's parental rights in her children TM., A.M. and A.M. (children). Appellee State of Oklahoma (State) filed its petition seeking to have the children adjudicated deprived June 18, 1997. The petition was based on allegations that the father had sexually abused the oldest child, T.M. Mother stipulated to the deprived adjudication. Father was prosecuted for sexual abuse of TM. and is now serving a life [1090]*1090sentence.1 The State then filed its Motion to Terminate Parental Rights as to Mother and a jury trial was held. Mother asserts as errors in the trial on the motion to terminate: 1) the addition of a ground for termination not included in the petition to adjudicate deprived; 2) the statutory provision allowing termination of parental rights upon the children being in foster care for 15 of the preceding 22 months is unconstitutional as an ex post facto law; 3) lack of competent evidence to support a finding that Mother failed to correct the conditions leading to the deprived adjudication, and 4) fundamental error in the failure to file an individual treatment and service plan. Finding no error, we affirm the order of termination of parental rights.

[ 2 Children were removed from their parents' home and placed in foster care following an allegation that the father sexually abused the oldest child, T.M., then 8 years old. T.M. alleged that Father foreed her to submit to sexual intercourse over the course of several months. T.M. also alleged that Mother knew of this abuse and did nothing to stop it. The petition to adjudicate Children deprived was filed June 13, 1997. It alleged that Children were deprived based on: 1) sexual abuse of T.M. by Father dating back to November 1996; 2) Mother's denial of the sexual abuse; 3) Mother's report that she was sexually abused by her step-father coupled with Mother allowing her step-father access to Children; and 4) a family history of domestic violence. Specifically, the petition charged Mother with failure to protect Children from abuse. Mother stipulated to the deprived adjudication September 4, 1997.

8 The first court report from a disposi-tional hearing was filed October 16, 1997.2 In that report, Mother was first warned that failure to complete the standards of conduct may result in the termination of her parental rights. Additionally, a similar warning was placed at the end of the standards which were attached to the court report.

14 The same warning is included in the treatment plan, also attached to the court report. The first document in the record indicating Mother witnessed at least one occasion of sexual abuse of TM. is the court report filed January 16, 1998, following a court review held January 14, 1998. That document noted that TM. had reported that Mother entered the room while Father was sexually abusing TM. and Mother turned around and walked out.

1 5 A report filed by the Oklahoma Center for Play Therapy, filed January 80, 1998, indicates that A.M. reported that Mother knew that Father was sexually abusing TM. but "didn't want her to tell." A full disposition order following the October 15, 1997 disposition hearing was filed March 11, 1998. It included the standards of conduct agreed to by Mother. These standards included payment of child support, maintaining employment, completion of a parenting skills program, providing a safe, stable home free from fear of sexual abuse, visitation with Children, maintaining contact with the assigned social worker, completion of the non-perpetrator specific counseling program Phases I and II at Family and Children's Services, submission to a psychological evaluation, and completion of counseling for codependency, domestic violence and sexual abuse issues. This document also contained the warning that failure to correct the conditions could result in termination of parental rights.

T6 Another court review hearing was held September 9, 1998. The hearing report filed September 17, 1998 again notes T.M.'s allegation that Mother witnessed the sexual abuse by Father. A court report made by the Oklahoma Center for Play Therapy filed January 15, 1999, includes the first mention of Mother leaving a stick of gum for TM. upon witnessing the sexual abuse. A psychological evaluation of TM. made in November 1998 and filed January 25, 1999 also mentions the stick of gum episode. A letter written by TM. after the adjudication of deprived status includes T.M.'s statement that Mother walked into T.M.'s bedroom while the father was sexually abusing TM. and left a stick of [1091]*1091gum for T.M. and walked out,. Mother raises the issue of the "stick of gum" allegation in her appeal and that objection will be discussed below.

T 7 The State filed its Motion to Terminate Parental Rights March 11, 1999. The Motion alleged that Children had been adjudicated deprived September 83, 1997 and that Mother had failed to correct the conditions leading to the deprived adjudication after being given at least three months in which to correct the conditions, citing 10 O.8.Supp. 1998 § 7006-1.1(A)(5). The motion further alleged that Mother had failed to support Children, citing 10 O.S8.Supp.1998 § 7006-1.1(A)(7). The motion next asserted that Mother failed to protect Children from physical or sexual abuse which is heinous and shocking or which has caused Children to suffer severe harm or injury, citing 10 O.S.8upp.1998 § 7006-1.1(A)(10)(b). Finally, the State alleged that it is in Children's best interest to terminate Mother's parental rights.

18 Jury trial was held June 15 and 16, 1999, resulting in a verdict terminating Mother's parental rights. On appeal, Mother first argues that the addition of the ground that she failed to protect Children from abuse that is shocking and heinous in the Motion to Terminate essentially effected a readjudication of the deprived status on a new ground because that ground was not included in the original petition to adjudicate deprived. Mother also challenges the admission of the "stick of gum" letter to prove Mother knew of the sexual abuse and failed to protect Children. Mother asserts that this "new" evidence was not before the court at the time of the adjudication of deprived status. However, Mother has failed to present authority that evidence gained between the time of the deprived adjudication and the trial on the motion to terminate may not be admitted. TM. testified at trial about the incident in which Mother walked into her bedroom while the father was sexually abusing TM. Additionally, we note that failure to protect from abuse was listed as a ground in the petition to adjudicate deprived. Finally, the statutory provision for termination of parental rights based on failure to protect from physical or sexual abuse which is heinous or shocking does not require a prior adjudication of deprived status. See 10 ©.8.Supp.1998 § 7006-1.1(A)(10). That seetion provides:

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:
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10. A finding in a deprived child action either that:
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Related

In Re TM
2000 OK CIV APP 65 (Court of Civil Appeals of Oklahoma, 2000)

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Bluebook (online)
2000 OK CIV APP 65, 6 P.3d 1087, 71 O.B.A.J. 1645, 2000 Okla. Civ. App. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelroy-v-state-oklacivapp-2000.