author: CAROL M. HANSEN, Presiding Judge: ADAMS, J.,

text:
    2003 OK CIV APP 7
    In the Matter of the ADOPTION OF D.L.A., a minor, Steven Earl French, and Merri Annette French, Petitioners/Appellees, v. Michael Patrick McKenrick, Respondent/Appellant.
    No. 97,869.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 25, 2002.

      John C. Harris, III, Tulsa, OK, for Respondent/Appellant.
    N. Scott Johnson, Sneed Lang, P.C., Tulsa, OK, for Petitioners/Appellees.
   Opinion By

CAROL M. HANSEN, Presiding Judge:

¶ 1 Appellant, Michael Patrick McKenrick, D.L.A.’s biological father, appeals from the trial courts’ order finding D.L.A. may be adopted without his consent. We find the order on appeal is not founded on clear and convincing evidence and reverse.

¶ 2 On June 6, 2001, Appellees, Steven Earl French and Merri Annette French (Mother), D.L.A.’s biological mother, filed an application in the trial court for an order determining D.L.A. eligible for adoption without the consent of Appellant MeKenrick (Father). The application alleged Father’s consent was not needed for the adoption because he had [a] willfully failed to maintain a significant relationship with D.L.A. and [b] willfully failed, refused or neglected to contribute to D.L.A.’s support, both for a period of twelve consecutive months out of the fourteen months preceding filing of the application.

¶ 3 The legal authority cited by Appellees for adoption without consent, and the authority for the trial court’s determination that Father’s consent was not necessary, is 10 O.S.2001 § 7505-4.2. In pertinent part, § 7505^4.2 provides:

B. Consent to adoption is not required from a parent who, for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child ..., has willfully failed, refused, or neglected to contribute to the support of such minor: ...
2. According to such parent’s financial ability to contribute to such minor’s support if no provision for support is provided in an order.
The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent.

¶4 Although not stated precisely, the essence of Father’s first appellate proposition is that the trial court erred in finding his failure to support D.L.A. willful under § 7505-4.2. The issue of willfulness is a question of fact. In the Matter of Adoption of Darren Todd H., 1980 OK 119, 615 P.2d 287. The burden was on Appellees to bring forth clear and convincing evidence to prove a parent’s consent may be obviated in accordance with § 7505-4.2. Id., at 288. The decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence. In re Adoption of C.D.M., 2001 OK 103, 39 P.3d 802. Section 7505-4.2, which effectively terminates parental rights, is to be strictly construed. Id., at 810.

¶ 5 The § 7505-4.2 fourteen month period here was April 2000 to June 2001, the latter being the date of Appellees’ application. Father concedes he did not provide any support to D.L.A. during that period, but argues that omission was not willful. In support of this argument, Father states he was incarcerated on a drug charge in January 1999, and was released on parole in September 2000. Thus, Father was incarcerated for approximately five of the statutory fourteen month period.

¶ 6 Section 7505-4.2(B) expressly provides that incarceration “in and of itself shall not prevent the adoption of a minor without consent.” (Emphasis added). Implicit in this language is that incarceration is nevertheless a proper consideration in determining if the section should be applied. Willfulness is a necessary element of that determination. In addressing the question of willful failure to support a child where the father was imprisoned for life, the Oklahoma Supreme Court has reasoned:

Imprisonment cannot be equated with wilful failure to contribute to the child’s support. The natural father- is not to be deemed wilful when, as here, incarceration prevents his making any contribution to the child’s support.... The evidence here does not support an inference that the father’s commission of a felony, and subsequent incarceration therefor, was for the purpose of avoiding his support obligation. Thus his incapacity to earn income and pay support may not be deemed “wilful.”

Matter of Adoption of V.A.J., 1983 OK 23, 660 P.2d 139.

¶ 7 In V.A.J., the specific issue before the Court was whether life imprisonment alone was sufficient per se to establish willful failure to support the child. The V.A.J. Court answered that question in the negative, but did consider the father’s income while imprisoned. The Court refused to consider a $25.00 monthly stipend from the father’s parents “as a resource in gauging the father’s ability to contribute”, and noting the record revealed no other source of income held, “[i]n the eyes of the law he should stand before the court as a resoureeless prisoner.”

¶ 8 Here, Father had a prison income of $7.25 per month, out of which he had to buy his own personal use items. Father’s testimony that he had no other income or assets is uncontroverted. While there is some evidence his family voluntarily attempted to help Father with child support, the family’s efforts may not be properly considered in determining the question of Father’s willfulness under § 7505^4.2. Matter of Adoption of V.A.J., P.2d at 141; In re Adoption of R.A.D., 1999 OK CIV APP 119, 992 P.2d 929.

¶ 9 The V.A.J. Court, excluding the $25.00 monthly family stipend to the incarcerated father, found the father had no resources with which to support the child. The V.A.J. Court’s majority did not consider the issue presented here, i.e., whether a de minimis income would constitute Father a “resource-less person” for the purpose of determining ability to provide support. Vice Chief Justice Simms, however, in his specially concurring opinion, did consider that issue, and while we recognize it is not precedential, we find his reasoning instructive.

¶ 10 Vice Chief Justice Simms would have considered the $25.00 family stipend within the “totality of resources” available to the father, but went on to note “it is the negligible amount of the income, not its source which takes the failure [to support] outside the statute.” Vice Chief Justice Simms further reasoned:

The income is simply not sufficient to afford any meaningful contribution toward the child’s support. Justus’ “financial ability” under the statute is virtually nonexistent.
... all parents are also entitled to invoke defenses against the reach of the statute which requires a “wilful” failure to contribute as ordered or according to financial ability ...., it is a defense to be unable to comply in a meaningful way. (Citation omitted).
... there is considerable room for debate about the dollar figure which, under any particular facts, would show an inability to contribute or comply, as opposed to simply a diminished ability which would still require some contribution. Nevertheless, there clearly is a point at which reasonable men would agree that a parent’s income is so limited that any meaningful contribution cannot be made. Additionally, that to require a payment of a portion of that limited resource, such as a dime a month, simply to stave off this type of action ... celebrates form over substance.
If a father who was not in prison was able to garner monthly resources of only $25, would he be subject to the sanction of losing his children under [§ 7505-4.2]. I do not believe so, for in such a case we would undoubtedly find the failure is not wilful.

¶ 11 Appellees have produced no evidence that Father had any income while incarcerated other than his $7.25 prison pay. We find this is, as Vice Chief Justice Simms posited, a point at which reasonable men would agree Father had no financial ability to make a meaningful contribution to D.L.A.’s support. Vice Chief Justice Simms remarked, in response to a comment by the V.A.J. trial court, that the contribution of “one thin dime” would have been an “empty gesture” which would “mock the purpose of support statutes.” Similarly, demanding that Father make some meaningless contribution to D.L.A. out of his de minimis income just to avoid the application of § 7505-4.2(B) would not further the purpose of that statute. Applying the requisite standard of strict construction, we cannot find the Legislature would have intended such a result.

¶ 12 As we set forth above, § 7505-4.2(B) demands that the willful failure to provide support be “for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing” of the adoption petition. Under the facts present here, there is not clear and convincing evidence that Father had any financial ability to contribute to D.L.A.’s support during five of those fourteen months. In fact, it seems apparent from the trial court’s concluding remarks from the bench that its decision was based on the “nine months between the release and the filing of the Petition for Adoption.” That period does not satisfy the twelve consecutive month requirement.

¶ 13 Even if not for the above determination, we would not have been persuaded there was clear and convincing evidence Father’s failure to support D.L.A. was willful. In a perfect world, Father possibly could have made more significant efforts to somehow get some support to D.L.A. The record here however reveals far from perfect circumstances.

¶ 14 Remarking on relations between Mother and Father, the trial court commented, “the war has raged ... since 1997.” That animosity extended to both their families. Father obtained a protective order in 1997 against Mother and her parents. He testified he believed that order prohibited him from contacting Mother also. Mother testified she was scared of Father, and “did not ever want [Father] to ever know where I lived.” She further testified that her mother and sister would not have told Father where she lived. The court-appointed special advocate in D.L.A.’s deprived child case testified Mother did not want Father, “or anyone in the paternal family” to know where she lived.

¶ 15 While he was in prison, Mother had moved from the house she had shared with Father. Her telephone number was not listed. Mother testified she had given D.L.A.’s paternal grandmother her telephone number because the grandmother had visitation with D.L.A. during the deprived child ease, but the last contact was in November 1999 while Father was incarcerated. Father and his sister testified their mother had not told them she had Mother’s telephone number until they were preparing for Father to file a motion to set visitation and child support in April 2001. The present action was filed shortly after Father had filed his motion.

¶ 16 Father testified he had tried, through the Department of Corrections and the Department of Human Services (DHS), to get some part of his $7.25 prison pay sent for D.L.A.’s support but had no success. While this was before the statutory fourteen month period in controversy, it has relevance in that it would have discouraged further such efforts in that period. Father asked his mother and sister to send support for D.L.A. through DHS, but he stated the money was rejected by DHS. Additionally, Father did file his motion to set visitation and child support during the fourteen month period. That motion demonstrates Father’s willingness to provide support.

¶ 17 Father’s sister testified she had assisted him in trying to find Mother and D.L.A. from the time of his release from incarceration. DHS would not provide the information. She checked telephone directories and internet sources with no success. She knew where Mother’s sister lived because she had picked up D.L.A. there for visitation during Father’s incarceration, but testified she did try to locate Mother through her family because she was “99.9 percent sure” they would not have helped. She eventually located Mother in April 2001 through court records on the Oklahoma State Courts Network on the internet. Father filed his visitation and child support motion shortly after that.

¶ 18 There is some evidence that Father could have sent support, at times when he may have had the financial ability to do so, by letters through Mother’s relatives. The trial court recognized this as speculative and we agree, particularly in view of the apparent animosity between the families. In view of these, at best, strained relations, Father’s attempt to resolve the matter of support through court action was not unreasonable. He initiated that action in a timely manner after discovery of Mother’s whereabouts.

¶ 19 The Oklahoma Supreme Court in V.A.J., at 141, restated the well established principle that:

Parents have a fundamental, constitutionally-protected interest in the continuity of the legal bond between themselves and their children. The integrity of familial status is a value to be regarded with great solicitude.

¶ 20 Because of the gravity of the decision, we hold those who “seek to destroy the parental status” to a high standard of proof— clear and convincing evidence. V.A.J., at 141. We find Appellees have not met that burden. The trial court’s order is REVERSED.

ADAMS, J., dissents with separate opinion; MITCHELL, J., concurs.

ADAMS, J.,

dissenting.

¶ 1 Because the majority sentences the child in this case to being forever legally tied to a parent who would not give up any of his de minimis income to demonstrate any commitment to assuming responsibility for his child, I dissent. The conclusion reached by the majority is contrary to Presiding Judge Hansen’s decision in Matter of the Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 and is based on an inaccurate view of the purpose of Oklahoma’s adoption statutes.

¶2 In C.D.M., in which I concurred, we reversed a trial court order determining the child eligible for adoption without the father’s consent because the trial court had improperly considered gifts of approximately $60.00 monthly in determining whether the father had wilfully refused to support the child in accordance with his ability to do so. In doing so, we followed the rule adopted by the Oklahoma Supreme Court in Matter of the Adoption of V.A.J., 1983 OK 23, 660 P.2d 139.

¶ 3 However, C.D.M.’s incarcerated father had monthly prison income of only $7.25 per month, without the considering the gifts. Rather than holding such a de minimis income could not form the basis for a finding of wilful failure to support, we remanded the ease to the trial court to consider whether the statutory criteria had been satisfied, in effect, holding that on those facts it was a question for the exercise of the trial court’s discretion. Now, based on evidence of the same level of income, the majority rejects that conclusion and determines as a matter of law that the trial court has no such discretion.

¶ 4 To support that conclusion, the majority relies primarily on then Vice Chief Justice Simms’ specially concurring opinion in V.A.J., 1983 OK 23, ¶ 1-12, 660 P.2d at 144-145. That opinion is based upon the assumption that the primary purpose of Oklahoma’s statutory approach to allowing children to be adopted without a parent’s consent, where the parent has wilfully failed to support the child in accordance with their ability to do so, is to ensure that children receive an appropriate level of support. I disagree.

¶ 5 In my opinion, the statutory language, “according to such parent’s financial ability,” contained in 10 O.S.2001 § 7505-4.2(B)(2) evinces a Legislative intent to require parents to demonstrate a willingness to accept the responsibility of being a parent by contributing to the support of the child consistent with their ability to do so no matter how small that contribution may be. This policy is not adopted for punishment of the parent, as the majority’s focus on the de minimis impact a small contribution would have had on D.L.A. seems to suggest, but it is about allowing children born to a parent who is unwilling to deprive himself or herself of even “one thin dime” for his or her child to have a parental relationship with a person who is voluntarily assuming the responsibility to nurture, love, and support that child. On this record, I do not believe Oklahoma law deprives D.L.A. of that potential.

¶ 6 The record contains abundant evidence that during the requisite statutory period, Father had the wherewithal to contribute at some level to D.L.A. He does not deny that. While incarcerated, Father’s basic physical needs were provided by the State of Oklahoma, and after his release, he testified he was saving money. The trial court observed the witnesses and was in the best position to judge whether Father’s claim that he tried to pay support but could not because he did not know D.L.A.’s location, which was unsubstantiated by any other evidence, was credible.

¶ 7 I would affirm the trial court’s order and remand the case for an appropriate hearing concerning whether this adoption is in D.L.A.’s best interest, including the impact of Father’s belated attempts to assume responsibility for D.L.A. I respectfully dissent.

      . The applicants erroneously cited "Okla. Stat. tit. 10, § 60.6”, but that section was recodified as § 7505-4.2 in November 1997. Laws 1997, c. 366, § 58, eff. Nov. 1, 1997.

      . But see, In the Matter of Adoption of A.W.H., 1998 OK 61, 967 P.2d 1178 (appears to, without differentiation, direct use of both the “clear and convincing” and "clear weight of the evidence” standards.)

      .There is no evidence Father's incarceration resulted from an intent to avoid the support duty imposed by law. In re Adoption of C.D.M., 39 P.3d at 808.


source: Caselaw Access Project

author: CARL B. JONES, Judge:

license: Public Domain

text:
    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.
    Dec. 12, 2002.

      L. Wayne Woodyard, Pawhuska, OK, for Appellant.
    Keith Sims, Assistant District Attorney, Pawhuska, OK, for Appellee.
   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. 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 the deprived child adjudication. The trial coui't 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-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) 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 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.

¶ 11 Father next asserts he attempted to comply with the requirement for individual and offenders counseling, but was unable to do so because he would haye had to admit to his guilt; waive his constitutional right to remain silent under the 5th Amendment of the United States Constitution; and subject himself to criminal prosecution. Father urges his parental rights should not be terminated simply because 'he refused to waive his 5th Amendment rights. Father’s premise is based on Matter of J.M., 1993 OK CIV APP 121, 858 P.2d 118. There, the court held the trial court’s finding that parental rights should be terminated because neither parent attended the required sex offenders program on a regular basis was unsupported by competent evidence. In Matter of J.M., the parents stipulated to the facts behind the deprived children adjudication; they stipulated they could not or would not improve the sanitary condition in their home and were unable to meet the emotional, developmental and physical needs of their children. There was no stipulation or admission of the allegation that the father sexually molested his daughter, J.M., and the record presented no competent evidence of sexual abuse. Notwithstanding, the treatment plan required the parents to attend Bethesda, a private agency for counseling in the area of child sexual abuse. The record revealed Bethesda unilaterally terminated the parents’ counseling without seeking modification of the court order, knowing attendance at the program was part of the court ordered plan; knowing there were no local alternative programs which accepted indigent clients; and knowing that termination of parents from the program could result in parents losing their parental rights. As a result, the court stated:

Because it is clear that Bethesda was the only game in town for indigent people, in this instance, Bethesda is impermissibly imbued with powers greater than the Constitution. If Mr. M. were guilty of sexual abuse, then his admission would amount to an involuntary relinquishment of his 5th Amendment right against self-incrimination because Bethesda is required to report such crimes to the authorities. If he is, or is not, guilty of such conduct, and denies the conduct, he is terminated from the program and risks the loss of his parental rights to his children. The integrity of the family is recognized as having constitutional dimension.

Id. at ¶7, 858 P.2d at 121 (citation omitted).

¶ 12 Matter ofJ.M. is distinguishable from the instant case. Here, Child was adjudicated deprived because of the allegation of sexual abuse by Father and not because of environmental neglect or lack of parenting skills. Further, unlike the parents in Matter of J.M., Father was not unilaterally terminated from a offenders program which is the “only game in town.” Evidence revealed that Father completed the intake with the Parent Child Center and an initial meeting with Dr. Randy Lopp, but was not accepted by the Center and did not complete counseling with Dr. Lopp because Father denied his guilt. Thereafter, DHS provided Father with a written list of approximately ten (10) alternative programs, some of which would not require Father’s admission of guilt, from which Father could obtain the required counseling. However, Father admittedly did not utilize the list or pursue these potential counseling sources because he did not consider the offenders group therapy requirement to be valid. This Court finds there was clear and convincing evidence that Father could have complied with the treatment plan by investigating and attempting to qualify for counseling though the additional sources provided by the DHS, but he chose not to. For these reasons, this Court rejects Father’s contention that he is excused from obtaining offenders therapy because of his 5th Amendment right.

¶ 13 Next, Father urges since he substantially complied with the treatment plan requirements, his failure to complete the offenders therapy is not evidence of failure to complete the imposed conditions. This Court acknowledges Father’s failure to comply with the treatment plan in itself is not a ground for termination. Matter of J.M., 1993 OK CIV APP 121 at ¶ 4, 858 P.2d at 120. However, the test is not whether there has been “substantial compliance” with a treatment plan as urged by Father; rather, it is whether the State showed with clear and convincing evidence that Father failed to correct the condition which led to the deprived child adjudication; and, the child’s best interests are served by terminating Father’s parental rights. Id. Since the deprived child adjudication arose from an allegation of sexual abuse on Father’s part against Child, this Court finds the most substantive portions of the disposition order and treatment plan were the requirements for individual counseling and offenders group therapy. Father’s admitted failure to comply with these requirements amounts to clear and convincing evidence that he failed to correct the condition which led to Child’s deprived adjudication.

¶ 14 Father also urges his failure to obtain individual therapy does not support termination of his parental rights because he had no notice of the specific individual counseling he was required to obtain. Father contends the recommendation for individual counseling was discretionary to the extent he “needed” such counseling. He urges since no specific need was addressed and no specific counseling was identified, he had no notice of the specific counseling required. Father cites to Matter of Baby Girl Williams, 1979 OK 150, 602 P.2d 1036, as support for his position. There the court held the standards of conduct must be set out at the adjudication stage to provide the parent with notice of what he or she will be called upon to prove in a later termination hearing. And, if the parent has no notice of the standards or conditions, the trial court cannot be heard to terminate the rights of a parent for failure to correct such conditions. Id. at ¶ 17, 602 P.2d at 1040. However, the distinction between the facts in Matter of Baby Girl Williams and this case is that Father had notice of the specific conduct which led to the deprived child adjudication and of the requirement for individual counseling through a court order.

¶ 15 Father finally argues he was denied the opportunity to comply with the treatment plan requirements due to actions by DHS. He urges DHS refused to permit the recommended “joint therapy” between Father and Child and refused to change the treatment plan or make necessary referrals for Father to attend a sexual awareness class. This Court recognizes it is error for a trial court to terminate parental rights “where a parent’s failure to correct the conditions is contributed to by the agents to whom is entrusted the duty to help salvage the family relationship.” Matter of J.M., 1993 OK CIV APP 121 at ¶ 5, 858 P.2d at 121. However, this Court agrees with the trial court’s determination that DHS was not at fault in this matter. The evidence in the record reveals that DHS cooperated with Father by suggesting alternative resources for individual counseling and offenders group therapy. DHS did not refuse to make necessary referrals as urged by Father; instead, evidence reveals DHS refused to provide Father with written confirmation that he was a non-offender so that he may attend the sexual awareness class. Also, DHS did not prevent the joint therapy, but properly deferred same until Father completed individual therapy and offenders group therapy. Since Father chose not to complete these conditions, his own actions prevented the joint therapy. This Court finds DHS’s actions were consistent with the conditions set forth in Father’s treatment plan.

¶ 16 Under these circumstances, this Court finds 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. Accordingly, the judgment of the trial court terminating Father’s parental rights to Child is affirmed.

¶ 17 AFFIRMED.

JOPLIN, V.C.J., and BUETTNER, J., concur.

      . The treatment plan required Father to: 1) cooperate with the case worker assigned to the case; 2) maintain a home suitable for the rearing of Child; 3) demonstrate income which is sufficient for the rearing of said child and for taking care of Father; 4) not use, abuse or be in possession of any liquor, wine, beer or dangerous drugs or go around places where these items are kept or sold; 5) not use, abuse or be in possession of prescriptive drugs for which they do not have a prescription; and 6) obtain and complete any counseling as recommended by the Department of Human Services (DHS) and provide reports as required which show satisfactory progress in the counseling program to the DHS case worker.

      . A court may terminate the rights of a parent to a child pursuant to 10 O.S. Supp.1998 § 7006-1.1(A)(5) upon a finding that: (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 three (3) months to correct the condition. Pursuant to § 7006-1.1(A)(10), a court may terminate the rights of a parent to a child upon a finding in a deprived child action either that: (a) the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse that is heinous or shocking to the court, (b) the child or sibling of such child has suffered severe harm or injury as a result of such physical or sexual abuse, (c) the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse subsequent to a previous finding that such parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling or such child from physical or sexual abuse, (d) the child has been adjudicated a deprived child, pursuant to the provisions of the Oklahoma Children’s Code, as a result of a single incident of severe sexual abuse, severe neglect or the infliction of serious bodily injury or torture to the child, a sibling of the child, or a child within the household where the child resides, by the parent of the child, or (e) the parent has inflicted chronic abuse, chronic neglect or torture on the child, a sibling of the child or another child within the household where the child resides.


text:
    2002 OK CIV APP 130
    In the Matter of J.K., an alleged deprived child. State of Oklahoma, Appellee, v. Lawrence Kirkpatrick, Appellant.
    No. 96,093.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 12, 2002.
    L. Wayne Woodyard, Pawhuska, OK, for Appellant.
    Keith Sims, Assistant District Attorney, Pawhuska, OK, for Appellee.
   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. The 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. 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) 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.

¶ 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. Father supported his contention by urging: 1) the condition that he obtain offenders therapy never became operative and was not valid; 2) he was unable to comply with the offenders therapy and individual counseling because he would have to admit to his guilt; waive his constitutional right to remain silent under the 5th Amendment of the United States Constitution; and subject himself to criminal prosecution; 3) since he substantially complied with the treatment plan requirements, his failure to complete the offenders therapy is not evidence of failure to complete the imposed conditions; 4) his failure to obtain individual therapy does not support termination of his parental rights because he had no notice of the specific individual counseling he was required to obtain; and 5) he was denied the opportunity to comply with the treatment plan requirements due to actions by DHS.

¶ 12 These very same propositions were urged by Father in Case No. 96,092. For the same reasons announced in Case No. 96,092, this Court rejects Father’s propositions of error and finds the trial court’s determination that Father failed to correct the conditions which led to J.K.’s deprived child adjudication is supported by clear and convincing evidence. Accordingly, the judgment of the trial court terminating Father’s parental rights to Child is affirmed,

¶ 23 AFFIRMED.

JOPLIN, Y.C.J., and BUETTNER, J., concur.

      . The treatment plan required Father to: 1) cooperate with the case worker assigned to the case; 2) maintain a home suitable for the rearing of Child; 3) demonstrate income which is sufficient for the rearing of said child and for taking care of Father; 4) not use, abuse or be in possession of any liquor, wine, beer or dangerous drugs or go around places where these items are kept or sold; 5) not use, abuse or be in possession of prescriptive drugs for which they do not have a prescription; and 6) obtain and complete any counseling as recommended by the Department ' of Human Services (DHS) and provide reports as required which show satisfactory progress in the counseling program to the DHS case worker.

      . A court may terminate the rights of a parent to a child pursuant to 10 O.S. Supp.1998 § 7006-1.1(A)(5) upon a finding that: (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 three (3) months to correct the condition. Pursuant to § 7006-1.1 (A)(l 0), a court may terminate the rights of a parent to a child upon a finding in a deprived child action either that: (a) the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse that is heinous or shocking to the court, (b) the child or sibling of such child has suffered severe harm or injury as a result of such physical or sexual abuse, (c) the parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse subsequent to a previous finding that such parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling or such child from physical or sexual abuse, (d) the child has been adjudicated a deprived child, pursuant to the provisions of the Oklahoma Children’s Code, as a result of a single incident of severe sexual abuse, severe neglect or the infliction of serious bodily injury or torture to the child, a sibling of the child, or a child within the household where the child resides, by the parent of the child, or (e) the parent has inflicted chronic abuse, chronic neglect or torture on the child, a sibling of the child or another child within the household where the child resides.