dissent">RAPP, C.J.,

dissenting:

¶ 1 I dissent.

¶ 2 Before the State may terminate Mother's parental rights pursuant to Section 7006-1.1(A)(18), the State must show by clear and convincing evidence that her mental illness will not respond to treatment and will not substantially improve. Here, the competent medical opinion did not reach the conclusion required by the statute. Under the evidence presented, the finding that Mother's illness is not treatable or that she will not substantially improve is not based upon medical science, but rather on economic reasons of the expense associated with the treatment. The language of the statute is clear and unambiguous and does not include a financial component.

¶ 3 The Section 7006-1.1(A)(18)(e) finding here rests upon a presumption or inference, which lacks a foundation based on sound medical evidence. Moreover, the inferred or presumed finding does not necessarily follow from the evidence presented. This raises the issue of whether Mother has been denied *791Due Process of Law. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); see In re Wright, 1974 OK 84, 524 P.2d 790. The termination by presumption may be efficient but the "Constitution recognizes higher values than speed and efficiency." Stanley, 405 U.S. at 656, 92 S.Ct. at 1215.

{4 Thus, I find an absence of clear and convincing evidence as to the Section 7006-1.1(A)(13)(e) component of the State's burden. I would hold it to be error to terminate Mother's parental rights pursuant to Section 7006.1.1(A)(18).

{5 In Father's case, the Majority has overlooked the fact that Father was to be released from prison in February 2007, or less than five months from the date of the appellate briefs. The duration of incarceration is a factor to be considered. 10 O.S. 2001, § 7006-1.1(A)(12)(d). There is no evidence in the record of Father being unable to care for the children. Therefore, it was error to terminate Father's parental rights.

Citation profile

Relationships

How this case has been treated — in progress