State v. Kirkpatrick

2002 OK CIV APP 130, 62 P.3d 807, 74 O.B.A.J. 460, 2002 Okla. Civ. App. LEXIS 117
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 12, 2002
DocketNo. 96,093
StatusPublished
Cited by4 cases

This text of 2002 OK CIV APP 130 (State v. Kirkpatrick) 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
State v. Kirkpatrick, 2002 OK CIV APP 130, 62 P.3d 807, 74 O.B.A.J. 460, 2002 Okla. Civ. App. LEXIS 117 (Okla. Ct. App. 2002).

Opinion

OPINION

CARL B. JONES, Judge:

¶ 1 In the related case, In the Matter of T.M., 2002 OK CIV APP 129, 62 P.3d 802 (2002) handed down on this day, the trial court’s order terminating the parental rights of Lawrence Kirkpatrick (Father) to T.M., the sibling of J.K. (Child), was affirmed. This Court found the trial court’s termination order as to T.M. was supported by clear and convincing evidence. For the same reasons set forth in Appeal No. 96,092 and as partially reiterated hereinafter, this Court affirms the trial court’s order terminating Father’s parental rights to Child.

¶2 On June 17, 1996, the State of Oklahoma (State) filed a petition to have Child adjudicated deprived on the grounds of environmental neglect and alleged sexual abuse by Father against Child’s sibling, T.M. Earlier on March 6, 1996, the State had filed a petition in Case No. JF-96-15 In the Matter of T.M. to have T.M. adjudicated deprived on the grounds that Father placed his mouth upon T.M.’s privates and mother failed to protect T.M. After a trial in Case No. JF-96-15, held July 19 and 20, 1996, the jury returned a verdict finding T.M. was deprived. [808]*808The trial court entered its order of adjudication and no appeal was taken from that order. Thereafter, Father stipulated to the facts presented at the jury trial in Case No. JF-96-15; and, as a result, the trial court entered its order adjudicating Child as deprived based on the facts alleged in the petition. Father did not appeal that order.

¶ 3 On August 7, 1996, the trial court entered a disposition order and adopted a six point treatment plan applicable in both Case No. JF-96-15 and this case.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.

14 On October 16, 1998, Father sought modification of the treatment plan in Case No. JF-96-15 to remove the condition that he attend counseling classes for offenders because he denied he sexually molested T.M. 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 in Case No. JF-96-15 and the instant case to terminate Father’s parental rights to both T.M. and Child. The motions alleged Father failed, refused and neglected to perform the conditions ordered by the court and Father failed to show the conditions which led to T.M.’s and Child’s deprived adjudication had been corrected even though Father was given in excess of three (3) months to correct the conditions. The State also urged termination was in both children’s best interests. Thereafter, the mother’s parental rights to both T.M. and Child were terminated; however, the mother’s parental rights are not at issue here.

¶ 6 The two cases were consolidated for trial by agreement and the trial court took judicial notice of all pleadings and other matters contained in both case files. 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 Child’s deprived adjudication was Father’s sexual abuse of her sibling, T.M., 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 both T.M.’s and Child’s deprived adjudication. The trial court also found it was in both T.M.’s and Child’s best interests to terminate Father’s parental rights because evidence revealed the children have not bonded with and do not desire to see Father.

¶7 On appeal, Father urges the trial court’s termination order is not supported by clear and convincing evidence.

¶ 8 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-l.l(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 evi[809]*809dence. 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.

¶ 9 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.

¶ 10 This Court has examined the evidence before thé trial court in both Case No. 96,092 and the instant case 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.

¶ 11 Father admits he did not comply with the treatment plan’s requirements that he obtain offenders therapy and individual counseling, but urges he substantially complied with the valid conditions imposed upon him by the treatment plan; therefore, the State failed to show with clear and convincing evidence that his parental rights to Child should be terminated.

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Cite This Page — Counsel Stack

Bluebook (online)
2002 OK CIV APP 130, 62 P.3d 807, 74 O.B.A.J. 460, 2002 Okla. Civ. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kirkpatrick-oklacivapp-2002.