IN RE: BTW (2010)

¶ 1 This appeal presses three issues: (1) whether this court's mandate-that affirmed a 2008 trial court order-was ignored by the trial judge's 2009 decision in a post-appeal permanency/review hearing order, (2) did the trial judge abuse his discretion when he ordered (A) the child to remain in the care of the foster parent (B) supervised visitation for the mother and (C) a change of permanency plan to long-term out-of-home child placement and (3) were the mother's due process rights violated when the court ordered long-term foster care for the child. We answer all questions in the negative.

I.

ANATOMY OF THE LITIGATION

¶ 2 The appeal deals with the post-decisional consequence of an earlier pronouncement by this court, In the Matter of BTW.² That case shall be referred to as BTW I. To provide continuity and assist the reader, a brief recitation of the relevant factual and procedural history leading to our earlier decision and today's cause will be provided here. For a more complete account of the facts leading to BTW I, the reader is referred to the opinion in that cause.

Facts and Procedure Leading to BTW I

¶ 3 The mother (appellant in today's cause) adopted BTW in 1999 .³ In June 2005 the mother recognized that her physical and mental abilities to function were deteriorating and that she would need hospitalization. She sought care for BTW from the individual who currently serves as the foster mother.⁴ Upon her return home from the hospital, mother alleged the foster mother permitted her only limited supervised visits with BTW. In response to reports of the mother's volatile behavior toward the foster mother, BTW, and a Department of Human Services (DHS) employee, DHS became involved. In May 2006 the child was adjudicated deprived and placed in DHS custody. The agency continued the child's placement with its foster mother. In August 2007, DHS unsuccessfully sought to terminate the mother's parental rights.⁵

¶ 4 Two permanency/review hearings were held. In October 2007, following the first hearing, the trial judge ordered that a different placement be found for the child, all parties to work toward a permanency plan for the child's reunification with her mother and increased visitation with a view to allowing weekend visitations in the mother's home within thirty days.⁶

¶ 5 Although visitation increased, DHS did not find alternative foster placement for BTW. At the second review hearing the foster parent intervened. Following the hearing the trial judge issued an order on 15 February 2008 that again directed a change of foster-home placement, reunification for the permanency plan, and visitation between the mother and her child to continue.⁷ The state, child, and foster mother (the appellants in BTW I ) immediately filed an emergency motion for the cessation of the mother's visitation rights and a stay of portions of the order. The trial judge denied this motion.⁸

¶ 6 On 25 February the appellants filed in this court an application to assume original jurisdiction, a petition for writ of prohibition, and an application for an emergency stay. The court stayed solely the requested change in foster placement.⁹ It assumed original jurisdiction on 18 April and issued a writ prohibiting further proceedings in the case.¹⁰ During this time, the appellants also filed in the district court motions for disqualification of the trial judge¹¹ and reasonable efforts to return the child to the home no longer be required, in accordance with the terms of 10 O.S. § 7003-4.6(A).¹²

¶ 7 On 21 April the appellants sought a request to clarify whether the court's writ of prohibition prevents the enforcement of the trial court's order for visitation.¹³ Three days later DHS suspended all visitation and appellants filed an emergency motion requesting the court to construe the writ of prohibition as preventing enforcement of the visitation order. This motion was bottomed on reports of the child becoming physically sick following the most recent visitation and allegations that the mother threatened to strangle the child on an earlier weekend visit.¹⁴ The court responded by an order to permit the district court to place for hearing before a disinterested judge the appellants' motion to discontinue visitation. Following a two-day hearing, a newly-appointed judge ruled supervised visitation to take place not more than once a week.¹⁵ The trial judge's 19 June order noted the incidents leading to the hearing on visitation “were not as horrible as characterized by the child and her supporters nor were they as noncontroversial as was characterized by mother.”¹⁶ The court's decision in BTW I that affirmed the district court order was issued on 16 September 2008.

Facts and Proceedings Following BTW I

¶ 8 Before mandate issued in BTW I,¹⁷ DHS, the child, and foster parent (collectively to be known here as appellees or state) filed an emergency motion to discontinue visitation and request that disclosures of the court's opinion to the child be limited.¹⁸ This motion was bottomed on a 3 October 2008 report provided by the child's counselor who recommended that visitation with the mother be discontinued because of the child's increased anxiety and deterioration.¹⁹ He also opined to the child's attorney that informing BTW of the court's decision would be harmful to the child.²⁰ The parties further disagreed on visitation and on which order controlled during this period.²¹ Mother sought a contempt citation against DHS, alleging the latter failed to obey the order affirmed by this court.²²

¶ 9 The trial judge set 25 November for a regular review hearing and to entertain: (1) the state's emergency motion to discontinue visitation and (2) its earlier motion pursuant to 10 O.S. § 7003-4.6(A). The trial judge denied the movants' latter motion sans hearing.²³ On 9 February, following a three-day hearing, he ordered (1) the child to remain in the care of the foster parent (2) supervised visitation for mother and child and (3) a change in permanency plan from being promotive of reunification to long-term out-of-home placement. The mother appeals from this order.

II.

THE FEBRUARY 2008 ORDER WAS SUBJECT TO REVIEW AND MODIFICATION IF CONDITIONS WARRANT ITS CHANGE

¶ 10 Mother first urges the trial judge erred in his 9 February 2009 order when he failed to enforce this court's 27 October 2008 mandate that affirmed the 2008 trial court's ruling. According to mother, the latter order-that directed a change in foster placement, unsupervised visitation, and the goal of family reunification-was never implemented.²⁴ Mother asserts this court's order dissolved the temporary stay “instanter.” Neither did the intervening 19 June 2008 order-that provides for supervised visitation between mother and child once a week-relieve the trial court of its obligation to comply with this court's decision. According to the mother, the settled-law-of-the-case doctrine-that precludes review of issues decided by an appellate court that have become final in a previous appeal-is applicable to child welfare cases.²⁵ She urges the continued litigation is due to the appellees' dissatisfaction with the earlier trial judge's ruling²⁶ and the February 2009 order renders this appellate review meaningless.

¶ 11 The appellees respond the February 2008 order was never more than an interlocutory order. It is hence subject to modification at any time in accordance with the terms of 10 O.S. § 7003-6.1.²⁷

¶ 12 The goal of inquiry into the meaning of a statutory enactment is to ascertain and give effect to the intent of the legislature.²⁸ It is presumed that the law-making body has expressed its intent in a statute's language and that it intended what it so expressed.²⁹ If the meaning of a statute is plain and unambiguous, it will not be subjected to interpretation by reference to rules of judicial construction but will instead receive the effect its language dictates.³⁰ Only if legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation to be invoked and employed.³¹ The determination of legislative intent controls statutory interpretation by the judiciary.³² When possible, different provisions must be construed together to effect a harmonious whole.³³

¶ 13 The district court's continuing authority over children whose status stands adjudicated as deprived is implicit in the scheme of the Oklahoma Children's Code.³⁴ The terms of § 7003-6.1 are explicit.³⁵ A decree or order made pursuant to the Oklahoma Children's Code may be modified by the court at any time. An order dealing with termination of parental rights is not modifiable. Further, the legislature has directed that a district court must review every disposition order concerning a child adjudicated as deprived at least every six months.³⁶ Review hearings may be set at any time upon a motion by any party.³⁷ The Oklahoma Children's Code, 10 O.S. § 7001-1.1 et seq., is to be liberally construed to carry out its purpose, which includes unifying and strengthening family ties whenever possible in children's best interest and for the safety and health of children.³⁸

¶ 14 The terms of § 7003-6.1³⁹ are clear and unambiguous. An order made pursuant to the Oklahoma Children's Code that does not decree parental-rights termination may be modified at any time. The 2009 order appealed from here did not effect termination of parental rights. That order was made in a review hearing in accordance with the terms of § 7003-5.6(C).⁴⁰ The state's quest for termination of visitation was sufficient to invoke the court's jurisdiction. The February 2008 order entered by the trial judge and affirmed here was hence subject to review and modifiable if conditions should warrant its alteration.

III.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ORDERED NO CHANGE IN THE CHILD'S FOSTER HOME PLACEMENT, A LONG-TERM OUT-OF-HOME PERMANENCY PLAN, AND SUPERVISED VISITATION WITH THE MOTHERA.Foster-Home Placement

¶ 15 The mother next urges the trial judge abused his discretion when he failed to order a change of foster placement, changed the permanency plan from reunification to long-term out-of-home placement, and ordered supervised visitation. According to the mother, the foster mother's failure to support reunification, the lack of assistance from DHS, and the unflagging litigation brought by the appellants is the primary cause of BTW's anger towards, fear of, and alienation from her. This has served to undermine her relationship with BTW and efforts toward successful visitation and reunification with the child.⁴¹ Motivated by these thoughts, she now urges the trial judge erred when he found the foster mother is acting in the best interest of the child, DHS has attempted to make reunification work, and supervised visitation was proper. The appellees respond there is sufficient evidence to support the trial court's findings.

¶ 16 Abuse of discretion is the standard of review for the conclusion we reach here. When reduced to articulate and meaningful simplicity, abuse of discretion-as a legal standard of appellate review-means exceeding the outer range of permissible judicial choice-making.⁴² A trial court's findings concerning visitation and placement of a child previously adjudicated as deprived are matters of equitable cognizance.⁴³ Its paramount consideration is the best interest of the child.⁴⁴ While an appellate court will examine and weigh the record proof, it must abide by the law's presumption that the nisi prius decision is legally correct.⁴⁵ It is beyond the appellate court's power to disturb that decision unless it is found to be clearly contrary to the weight of the evidence or to some governing principle of applicable law.⁴⁶

¶ 17 The record in this appeal is lengthy. Divergent views of the situation and its cause are again pressed by the parties. There is evidence to support the mother's contention. The child, when initially placed with the foster mother, loved and missed her mother .⁴⁷ It was shortly thereafter that BTW began to express a fear of her. The court in BTW I noted the record evidence supported the mother's contention that the foster mother interferes with the mother-child relationship and does not promote reunification.⁴⁸ The court-appointed guardian ad litem has consistently held this view ever since her appointment in that capacity in 2005.⁴⁹ She has and continues to urge the child be removed from the current foster home because of this factor.⁵⁰ Indeed, the close attachment of the foster mother to the child and the impact of this relationship upon reunification efforts was noted by the current trial tribunal in its June order regarding visitation.⁵¹

¶ 18 Until the recent visits, upon which the April 2008 emergency motion to terminate visitation was based, the child has been unable to provide specific information about what is stressful about her visits with her mother.⁵² BTW has and continues to express her desire that visitations stop and she be allowed to continue to live with her foster mother.⁵³

¶ 19 The record further reveals the most recent reports and testimony of the two treating psychologists-one who works jointly with mother and child and one who works solely with BTW. The child's counselor, although originally concerned about the foster mother's negative impact on the child's relationship with her mother, has since the May/June 2008 hearing on visitation testified that he doesn't now believe the foster mother tries to harm the child's relationship with her mother.⁵⁴ The psychologist who jointly treats mother and child, when queried whether this was a case of parental alienation, testified he did not have sufficient information to make that determination.⁵⁵

¶ 20 According to both counselors, BTW has a genuine fear of her mother and of being returned to the latter's care.⁵⁶ Her adamant opposition to visitation and possible reunification with her mother impacts their interactions.⁵⁷ According to the family counselor, the mother, while having made earnest efforts to moderate her behavior and improve the situation, believes BTW's fears of her are more displays for effect and not genuine concerns.⁵⁸ She is unable to find an effective means of responding to or handling the child's behavior.⁵⁹ Her anger and foul language frighten the child.⁶⁰ The child's therapist recommends that efforts toward reunification cease.⁶¹ The counselor for mother and child reports the current therapeutic efforts are unproductive.⁶² Because of the deficiencies in the parent-child bond, less far-reaching goals would currently be more appropriate.⁶³

¶ 21 A district court has the duty to remove a child from foster care when the circumstances do not promote an opportunity for reunification.⁶⁴ Although there is conflicting evidence here concerning whether the foster mother supports family reunification, we cannot say the trial tribunal's decision to continue the child's placement in the current foster-home was clearly contrary to the weight of the evidence. The mother and child have attended joint and individual counseling sessions for almost a year. Unfortunately, little progress towards establishing a healthy parent-child bond has been made. Both counselors believe the child's fear of the mother is genuine. Further, they now advise that to continue the current therapeutic efforts may be injurious to the child's functioning.⁶⁵ Additionally, testimony from teachers and the child's school counselor support the notion that the child is progressing well in school and socially.⁶⁶ She feels secure in her current foster-home placement.⁶⁷ In light of record evidence, we cannot hold that the trial court abused its discretion when it ordered no change in foster-home placement.

B.

Permanency Plan

¶ 22 The mother next urges the trial judge abused his discretion when he changed the permanency plan from reunification to long-term, out-of-home placement. According to the mother, the trial judge erred when he determined the state has made reasonable efforts to reunify this family.⁶⁸ She asserts there has been no legitimate opportunity for reunification because of improper foster placement, obstructive and delayed actions by DHS, and inadequate visitation, at times limited to one hour per week. Further, DHS has and continues to interfere with her rights to make educational, healthcare, and religious-training decisions for BTW, and the only reunification services it is providing are foster care and visitation.

The mother's argument must fail in light of the record before us. The trial judge's February 2009 order does reflect some tension exists between the mother and DHS staff. “[I]t is the position of the court that the DHS should make every effort to facilitate visitation that is more successful than in the past and supervised by persons and in places that are more conducive to pleasant circumstances.” (9 February 2009 order, p. 5) Although the mother asserts efforts by DHS dealing with reunification are meager, she does not identify any required services the state has failed to provide her. The evidence reveals the state is providing foster care, conducting monthly visits of the foster home, arranging and supervising visitation sessions, talking with providers, and facilitating some transportation for the child's visits with her mother. 69 Further, the mother and child have attended court-ordered counseling. We cannot say the trial judge abused his discretion when he found the state had made reasonable efforts toward reunification.70

¶ 23 The mother further urges that it was error for the trial judge to fail to order a modification in the treatment and service plan following the November/December 2008 review hearing, in conformity to the terms of 10 O.S. § 7003-5.6(F)(6).⁷¹ Neither was a new treatment plan filed nor did the court provide the mother with a description of conduct that is expected of her to alleviate the conditions that resulted in the child's removal from her home in conformity to the terms of §§ 7003-5.3(B)⁷² and 7003-5.3(D)(5)(d).⁷³

¶ 24 The § 7003-5.3 terms deal with the initial service plan implemented by the district court. It is subject to modification by the § 7003-5.6 terms that deal with periodic review hearings.⁷⁴ Our review of the § 7003-5.6(F)(6) terms reveals that it is within the trial tribunal's discretion to modify the existing treatment plan. It is not mandatory that the plan be changed at each hearing but it stands subject to modification as the court determines to be in the best interests of the child. When this is so, a new plan is not required. We hence cannot say the trial judge's failure to order a modification of the existing treatment plan constitutes reversible error.

¶ 25 Lastly, the mother contends the trial judge violated her due process rights when he changed the permanency plan from family reunification to long-term, out-of-home placement.⁷⁵ According to mother, an order providing for long-term foster care and limited supervised visitation is a significant restriction of her parental rights.⁷⁶ The mother relies on In the Matter of Baby Girl L.⁷⁷ and asserts that because the alleged harm here is psychological in nature, it is “serious psychological harm” to the child that must be shown before her parental rights may be restricted.⁷⁸

¶ 26 The mother's reliance on Matter of Baby Girl L is mistaken. That cause dealt with the return of a child to its biological parents after a failed adoption. The court there held that prospective adoptive parents should be allowed to make a showing of serious psychological harm to a child resulting from a change in custody from adoptive parents to the biological parent after a lengthy period of a failed adoption. If this showing has been made, a trial court may award custody to a party other than a biological parent. The court's decision there was bottomed on the state's adoption statutes.⁷⁹ It is inapplicable here.⁸⁰

¶ 27 In that cause the court reiterated that concern about actual or imminent harm to the child is the legislature's standard in terminating or restricting parental rights.⁸¹ The mother urges the trial tribunal made no finding that the mother's actions would result in harm to BTW. According to the mother, by restricting her rights without this finding the trial court denied her due process. There is evidence here that reveals the child's functioning has deteriorated and if efforts toward reunification were to continue further deterioration may result in the child's mental health functioning.⁸² This finding is sufficient as a basis for actual or imminent harm. The mother's due process rights were hence not violated when the trial judge ruled long-term out-of-home placement of the child was proper.

C.

Visitation

¶ 28 The mother's final claim to error is that no factual basis exists to deny her unsupervised visitation. Neither is there evidence that suggests BTW will be harmed by the mother or by unsupervised visitation. Further, she urges her fear that has already been instilled in BTW will only be reinforced by requiring supervised visitation. Although there is evidence to support each side's position on appeal, we cannot say the trial tribunal erred when it ordered supervised visitation of the mother with the child. The counselors have testified that the child's fear of her mother is genuine. One counselor has recommended that visitations cease and the other questions the advisability of unsupervised interactions between the mother and child.⁸³ The trial judge did not hence err when he ordered supervised visitation.

IV.

SUMMARY

¶ 29 We review the trial court's resolution of fact issues under the centuries-old equitable standard. It is our duty to affirm the trial court's decree if it is not clearly contrary to the weight of the evidence. Our careful review of the massive record reveals that although there is conflicting evidence, we cannot say the trial judge abused his discretion (or that his findings are clearly contrary to the weight of the evidence) when he ordered the child to remain in her current foster-home environment as a long-term, out-of-home placement and permanency plan, and enjoy supervised visitation with her mother. The trial court's order must be and hence is affirmed.

OPALA, J.

¶ 30 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, WINCHESTER AND REIF, JJ., CONCUR. ¶ 31 COLBERT, J, CONCURS IN PART AND DISSENTS IN PART.