Humphrey v. State (In re A.H.), 118662

Citation2021 OK CIV APP 39
Decision Date15 September 2021
Docket Number118662
PartiesIN THE MATTER OF A.H., Alleged Deprived Child: PHEBE HUMPHREY, Appellant, v. STATE OF OKLAHOMA, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Mandate Issued: 10/21/2021

APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA. HONORABLE STEPHEN W. BONNER, TRIAL JUDGE

Scott T. Banks, BANKS LAW, PLLC, Norman, Oklahoma, for Appellant

Casey Crook, Amy M. Taylor, Michael Patlan, ASSISTANT DISTRICT ATTORNEYS, CLEVELAND COUNTY DISTRICT ATTORNEY'S OFFICE Norman, Oklahoma, for Appellee

Holly Iker, BIC LEGAL, PLLC, Norman, Oklahoma, for Minor Child

DEBORAH B. BARNES, JUDGE

¶1 In this termination of parental rights proceeding, Appellant Phebe Humphrey (Mother) appeals from an order of the trial court entered upon a jury verdict terminating her parental rights to her minor child, A.H. Based on our review of the appellate record, we reverse and remand for further proceedings.

BACKGROUND

¶2 Unlike many appeals concerning the termination of parental rights, Mother raises no arguments concerning the sufficiency of the evidence presented by Appellee State of Oklahoma as to the ground for termination found by the jury and the child's best interests. Mother only urges two procedural errors for reversal of the order of termination. Consequently, we abbreviate our recitation of the circumstances leading to the petition for termination.

¶3 In May 2017, A.H., born August 2013, was placed in the custody of the Department of Human Services (DHS) by emergency order. [1] Upon petition of State, A.H. was adjudicated deprived on July 12, 2017. Mother, represented by counsel, and child's attorney stipulated to the petition as amended. An Individualized Service Plan (ISP) was developed for Mother and various services were recommended. On January 17, 2020, State filed an amended motion for termination of Mother's parental rights [2] on the ground that she failed to correct the conditions that caused A.H. to be deprived pursuant to 10A O.S. § 1-4-904(B)(5). Specifically, State alleged Mother failed to correct the conditions of substance abuse, neglect, physical abuse, and "untreated mental health" though given at least three months to correct those conditions. State also filed its motion alleging termination because A.H. was placed in foster care by DHS for a period of six of the most recent twelve months preceding the motion and he cannot be safely returned to Mother pursuant to 10A O.S. § 1-4-904(B)(17). [3] State alleged it was in A.H.'s best interest that Mother's parental rights be terminated.

¶4 The matter was set for jury trial. A three-day trial was held in January 2020. The jury returned a 5-1 verdict terminating Mother's parental rights to A.H. on the ground of time spent in foster care, and on January 21, 2020, the trial court entered its order terminating Mother's parental rights. Mother appeals.

STANDARD OF REVIEW

¶5 Mother argues, in effect, that she was denied a fair trial because the trial court abused its discretion in disallowing her counsel to question the voir dire panel about State's burden of proof. "Under Oklahoma law, the manner and extent of voir dire is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." Holm-Waddle v. William D. Hawley, M.D., Inc., 1998 OK 53, ¶ 13, 967 P.2d 1180 (citation omitted).

¶6 Mother also asserts she was denied a fair trial because of an oral, "supplemental" instruction given to the jury.

We may not set aside a verdict for misdirection of the jury unless the error "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 20 O.S. 2011 § 3001.1. In a parental rights termination case challenging a jury instruction and a procedural matter, the trial court's judgment may be reversed "when error constitutes a substantial violation of a constitutional or statutory right." In re T.T.S., 2015 OK 36 ¶ 15, 373 P.3d 1022, 1028 (citing § 3001.1).

In re K.H., 2021 OK 33, ¶ 30, ___P.3d ___(footnote omitted). Accord Nicholson v. State 2018 OK CR 10, ¶ 13, 421 P.3d 890 (no error found where further written instructions to jury given after it began deliberations with consent of counsel, overruling several cases where implication was that jury must be recalled to courtroom and counsel must be present before further instructions are given (emphasis omitted)).

ANALYSIS

¶7 Mother asserts the following three propositions of error on appeal: the trial court erred and abused its discretion (1) in disallowing her to question the voir dire panel on the specific burden of proof to be applied in the case; (2) in giving its supplemental instruction to the jury when the jury stated it was deadlocked; and, thus, (3) in coercing the jury to terminate her parental rights. We treat the second and third propositions together.

I. Questioning the Voir Dire Panel on State's Burden of Proof

¶8 Mother argues the trial court abused its discretion in disallowing her counsel to question the panel on what it thinks clear and convincing evidence means, disallowing him to define the burden, and requiring him to keep his inquiry regarding the State's burden "vague." The trial court stated, "You can't ask them. You have to be careful where you are at at this particular point in time because the Court is going to read the instructions on what that is." Mother's counsel argued the panel should have that definition during voir dire and be asked whether they can hold State to that burden. Mother argues on appeal that her counsel "was denied the ability to inquire about the clear and convincing evidence standard and whether or not the jurors could grasp the concept and apply it to the current case even though [State] brought up [the] burden of proof in [its] own voir dire."

¶9 State's counsel did inform the panel that State's burden of proof is clear and convincing evidence, but further stated, "The Judge will tell you about that later." State's counsel continued, stating, "I'm not going to talk about what that burden is. But once you get the definition, do you all promise that you will apply that definition to the facts and evidence you hear today and come to a verdict?" State's counsel informed the panel that State had to prove the allegations and that it was not Mother's burden to disprove them. She stated, "once you guys find out the burden, you might want a different burden, but will you apply the law that the Judge gives you?" Upon a question from a prospective juror asking what State's counsel meant, counsel replied:

So there are different burdens of proof in the law and I can't get into what this one is. The Judge will tell you that later. But you might want it to be a higher burden or a lower burden. And I'm asking if you will follow the law that's given to you to reach that burden?

The panel agreed to do so. State's counsel again later asked the panel if it could terminate Mother's parental rights if "State does what it needs to do and proves by beyond -- not beyond a reasonable doubt, but by clear and convincing evidence that... each element is met?" The panel responded, "Yes." Thus, while State referenced the burden, it did not attempt to define it or to question the panel members about what they thought the burden of proof entailed.

¶10 Pursuant to Rule 6 of the Rules for the District Courts, 12 O.S. 2011 & Supp. 2013, ch. 2, app.:

The judge shall initiate the voir dire examination of jurors by identifying the parties and their respective counsel. [The judge] may outline the nature of the case, the issues of fact and law to be tried, and may then put to the jurors any questions regarding their qualifications to serve as jurors in the cause on trial. The parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination.

Although counsel for State referred in her voir dire to State's burden of proof for termination as "clear and convincing evidence," the trial court prohibited Mother's counsel from advising the jury what that meant, even after a prospective juror specifically asked State's counsel what she meant by that phrase. For the following reasons, we conclude this prohibition was an abuse of discretion that must be corrected on remand.

¶11 Without explanation, the trial court prohibited defining "clear and convincing evidence" for the jury [4] until after the evidence was concluded. Oklahoma Uniform Jury Instruction-Juvenile No. 2.5, "Burden of Proof for Termination of Parental Rights," [5] has expressed State's burden governing termination proceedings of this kind for a considerable time, harkening back to In re C.G., 1981 OK 131, 637 P.2d 66. In C.G., the Court said:

Although the precise issue before us remains unsettled by federal case law, we believe that a § 1130 [6] parental-status termination calls for such an extreme public-law redress that due process under Art. 2 § 7, Okl. Const. requires of the state proof more substantial than that afforded by the standard of the clear weight of the evidence. The law's policy must demonstrate the very same solicitude in guarding against a mistaken parental-bond severance as it does in its vigilant protection against wrongful mental health commitments. The clear-and-convincing standard balances the parents' fundamental freedom from family disruption with the state's duty to protect children within its borders. It places an appropriately heavy burden upon the § 1130 petitioner (termination-seeking party) to overcome the law's policy which identifies the child's best interest with that of its natural parents. We hence hold that in § 1130 litigation the termination-seeking claimant must prove by clear-and-convincing evidence parental
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