Hensley v. State (In re E.H.)

Decision Date19 October 2018
Docket NumberCase No. 116,930
Citation429 P.3d 1003
Parties In the MATTER OF E.H. and J.H., Adjudicated Deprived Children: Amber Hensley, Appellant, v. State of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Dan Medlock, DAN MEDLOCK, PLLC, Muskogee, Oklahoma, for Appellant,

Morgan Muzljakovich, Assistant District Attorney, Muskogee, Oklahoma, for Appellee.

OPINION BY BRIAN JACK GOREE, VICE-CHIEF JUDGE:

¶ 1 The State filed its petition to adjudicate children deprived and to immediately seek termination of mother's parental rights due to mother's failure to protect her children from heinous and shocking sexual abuse by the father. The record on appeal contains clear and convincing evidence that the mother failed to take reasonable action to prevent the abuse, including agreeing to withdraw the protective order and to the father's unsupervised visitation of the children. Further, the jury trial held two years after the removal of the children in violation of 10A O.S. § 1-4-601 did not violate the due process clauses of the United States or Oklahoma Constitutions because the mother had a meaningful and fair opportunity to defend, and the risk of erroneous deprivation posed by the procedure employed by the trial court is outweighed by the risk of substantial harm to the children.

I. FACTS AND PROCEDURAL BACKGROUND

¶ 2 Amber Hensley (Mother) appeals the trial court order adjudicating her children, E.H. and J.H., deprived and terminating her parental rights pursuant to 10A O.S. § 1-4-904(B)(9). We affirm the trial court's order.

¶ 3 In August 2015, E.H. disclosed to Mother that her father was sexually abusing her. After the disclosure, Mother sought the assistance of medical personnel, police, DHS and other social service organizations for counseling and parenting classes. At the time of the initial disclosure, E.H. did not have a medical exam. In September 2015, Mother filed for an emergency protective order from the father. Later that month, DHS ruled out the threat of harm due to Mother's securing a protective order. In November 2015, the father filed a paternity petition. In December 2015, Mother and father appeared for the hearing on the protective order and paternity petition. At the hearing, the judge directed the parties to speak with one other. While discussing whether the parties could reach an agreement in a separate room from the courtroom, Mother allowed her children to be around the father and allowed them to sit on his lap. After this discussion, the parties reached an agreement and the court entered its order dissolving the protective order, providing unsupervised visitation for the father, and setting an amount for child support. Around Christmas time 2015, after Mother withdrew the protective order, the father had visitation with the children.

¶ 4 In March 2016, DHS received a new referral regarding abuse of E.H. and J.H. from a disciplinary/spanking incident by Mother. The DHS worker conducted an investigation and interviewed E.H. and Mother. E.H. disclosed to the DHS worker that Mother hit her with a belt and hanger, and that father sexually abused her and her sister. Mother disclosed to the DHS worker several things, including that the children had seen the father the day before, that E.H. had disclosed sexual abuse, that the children were acting out in a sexual manner, and that E.H. could describe father's sexual anatomy. On March 7, 2016, a forensic interviewer spoke with E.H. At the interview, E.H. made disclosures regarding the sexual abuse by the father as to both E.H. and J.H. When asked if E.H. told Mother, E.H. replied that Mother told her "[d]addies just do that sometimes.

All daddies put their fingers in there." On March 8, 2016, a nurse conducted a sexual assault examination of E.H. and J.H. The nurse found E.H. had injuries consistent with sexual abuse. The nurse examined J.H. but found no physical findings. That same day, E.H. and J.H. were removed by DHS by way of a Temporary Emergency Custody Order. A show cause hearing was held on March 9, 2016.

¶ 5 On March 23, 2016, the State of Oklahoma (State) filed a petition alleging E.H. and J.H. to be deprived children as to their mother and sought immediate termination of Mother's parental rights to both children due to shocking and heinous neglect or abuse. The State alleged the natural father sexually abused the children, Mother knew the children were sexually abused by the father and others, and Mother permitted the father to have unsupervised visitation in exchange for monthly support.

II. STANDARD OF REVIEW

¶ 6 On review Mother raises two propositions of error. First, the State failed to meet its burden of proof that she failed to protect her children from abuse or neglect. Second, the trial court's failure to set an adjudication hearing within the time limits prescribed by 10A O.S. § 1-4-601 violated mother's due process of law.

¶ 7 Before a state may sever the rights of parents to their natural child, the State must support its allegations at trial by clear and convincing evidence. In re S.B.C. , 2002 OK 83, ¶ 5, 64 P.3d 1080, 1082 citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). On review, we apply the same standard used in the district court. Id. ¶ 7. Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. In re K.C. , 2002 OK CIV APP 58, ¶ 5, 46 P.3d 1289. This standard balances the fundamental rights of parents with the State's duty to protect children within its borders. Id. In the absence of sufficient evidence that the State met its burden clearly and convincingly, an order terminating parental rights will be reversed on appeal. Id.

¶ 8 In determining whether there was a constitutional deprivation of due process, we review the timing of the trial court's adjudication hearing de novo . See In re A.M. , 2000 OK 82, ¶ 6, 13 P.3d 484, 486-87 (claims that a procedure used in a parental rights termination proceeding violated due process are reviewed de novo ). De novo review requires an independent, non-deferential re-examination of another tribunal's legal rulings. Id.

III. ANALYSIS

¶ 9 First, Mother argues the jury's determination that she failed to protect E.H. and J.H. from heinous and shocking abuse is not supported by clear and convincing evidence. Mother actually argues the evidence at trial demonstrated she took reasonable action after E.H. disclosed the abuse. Mother also asserts that there was no evidence introduced at trial that the father sexually abused the children after the court ordered him visitation.

¶ 10 In regard to this case, a trial court may not terminate parental rights of a parent to a child unless the child has been adjudicated deprived, termination of parental rights is in the best interest of the child, and a "finding that the parent ... failed to protect the child or a sibling of the child from abuse or neglect that is heinous or shocking." 10A O.S. § 1-4-904(B)(9)" ‘Failure to protect’ means failure to take reasonable action to ... prevent child abuse or neglect, and includes the conduct of a non-abusing parent ... who knows the identity of the abuser ..., but ... fails ... to take reasonable action to end the abuse or neglect." 10A O.S. § 1-1-105(26).

¶ 11 While Mother did initially take action by seeking the help of medical professionals, police and DHS, she failed to protect her children when she agreed to withdraw the protective order and give the father unsupervised visitation in exchange for monthly child support. Further, there was evidence introduced at trial that the father had sexually abused the children after visitation was granted. Mother testified she wrote social media posts stating she "granted him every other weekend with his kids unsupervised" and that she was "giv[ing] [the father] one last chance to be a part of their life."

¶ 12 Rebecca Williamson, a sexual assault nurse, testified she performed an examination of E.H. and J.H. Williamson testified E.H. had injuries consistent with sexual assault. E.H. told the nurse that "Mommy said don't talk about this stuff or Daddy will go to jail." E.H. said they had seen their daddy a couple days before the physical examination.

¶ 13 Lyndsey Stephens, a DHS permanency planning worker, testified that while the children were in their foster home placement, she visited them at least once a month and that they are doing very well. At the beginning of the placement, the children exhibited behavioral issues, but those have since subsided. Stephens testified that she kept in touch with Mother during this time and that she was aware Mother was taking classes, but was still concerned when Mother could not verbalize how to protect the girls at home should she get into another relationship. Stephens testified that the children last referred to their biological mother in November 2016 and referred to her as "fake Mom." They refer to their foster parents as "Mommy" and "Daddy." Stephens testified the girls are treated as if they were the foster parents' biological children; they are well cared for and do not want to leave their foster home.

¶ 14 In parental rights termination proceedings, the State has the burden of proof. This summary of the evidence indicates the State met its burden of proving by clear and convincing evidence Mother failed to protect her children from heinous and shocking sexual abuse and that termination of Mother's parental rights was in the best interests of the children.

¶ 15 Mother's next assignment of error is that the two-year delay in the adjudication hearing violated her due process rights guaranteed by the U.S. and Oklahoma Constitutions. Mother argues the trial court erred in not holding an adjudication hearing within the time limits mandated by statute.

¶ 16 10A O.S. § 1-4-601 provides in pertinent...

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