IN MATTER OF TH, 100822

• Decision Date: 06 December 2004
• Docket Number: No. 100822,100822
• Citation: 105 P.3d 354,2005 OK CIV APP 5
• Parties: IN THE MATTER OF T.H., M.B., and J.M.B., Alleged Deprived Children. CARRIE BUSENBARK, Appellant, v. STATE OF OKLAHOMA, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2005 OK CIV APP 5

105 P.3d 354

IN THE MATTER OF T.H., M.B., and J.M.B., Alleged Deprived Children.

CARRIE BUSENBARK, Appellant, v. STATE OF OKLAHOMA, Appellee.

No. 100822

Court of Civil Appeals of Oklahoma, Division I

Decided: December 6, 2004.

Mandate Issued: January 12, 2004

Henry Herbst, Norman, Oklahoma, for Appellant,

Robin K. Wilson, Assistant District Attorney, Norman, Oklahoma, for Appellee.

KENNETH L. BUETTNER, PRESIDING JUDGE:

¶1 Appellant Carrie Busenbark appeals from the trial court's order terminating her parental rights in her children, T.H., M.B., and J.M.B. (Children). The State sought immediate termination of Busenbark's parental rights pursuant to 10 O.S.2001 §7006-1.1(A)(10), alleging Busenbark failed to protect the Children from heinous and shocking physical abuse. At trial, the court found that the Children were subject to the Indian Child Welfare Act (ICWA) and that the State had met the requirements of ICWA. The trial court found the State had shown beyond a reasonable doubt that termination of Busenbark's parental rights was in the best interests of the Children. The court therefore terminated Busenbark's parental rights. We affirm.

¶2 In a case subject to ICWA, the State must prove the grounds for termination beyond a reasonable doubt. 25 U.S.C. §1912(f). Our task on appeal is to determine if the state presented sufficient evidence to meet that burden.

¶3 Busenbark testified she met James Hudson, the father of the Children, in 1996 in Texas. When Busenbark met Hudson, he had been charged with abusing his son. Busenbark attended Hudson's trial while she was pregnant with T.H. and heard the evidence against him.¹ While Hudson was incarcerated in Texas, Busenbark continued correspondence with him. T.H. was born May 31, 1997.

¶4 When T.H. was two years old, Hudson lived with Busenbark briefly and during that time, Texas Family Services removed T.H. from the home for six months. During the Texas deprived proceeding involving T.H., Busenbark was put on a treatment plan and attended required parenting classes. The Texas court ordered Busenbark to stay away from Hudson.

¶5 In June, 2001, Busenbark and T.H. moved to Norman, Oklahoma.² Hudson later came to Norman and Busenbark became pregnant with M.B., who was born March 13, 2002. On June 25, 2002, Busenbark left M.B. with Hudson while she went to a work training class required for TANF recipients.³

¶6 When Busenbark arrived home that day, M.B. had a large bruise on her head and she was limp. Busenbark took the baby to Norman Regional Hospital. She left there about an hour later, after telling the hospital she needed to pick up T.H. from daycare. Busenbark testified that after she had retrieved T.H., she planned to go home and ask Hudson to go with her to the hospital because she had decided Hudson's story about how M.B. was injured did not make sense. Busenbark arrived home to find Hudson gone. She concluded he had gone to Texas and she took T.H. to Texas to try to find Hudson. Busenbark explained that she fled because she did not want to "take the fall" for what Hudson did to M.B. She also testified she believed that if she found him she could then explain to the authorities that she did not injure M.B.

¶7 Because of the severity of her injuries, M.B. was moved to Children's Hospital. Busenbark never called to check on the condition of her injured three-month old. In August 2002, Texas authorities discovered Hudson, Busenbark, and T.H. hiding in a closet in a home in Texas.⁴ They were returned to Oklahoma, where T.H. was placed in foster care and Hudson and Busenbark faced felony child abuse charges for injuring M.B. J.M.B. was born April 15, 2003. Shortly after his birth, the Children were placed together in one foster home where they remained at the time of trial.

¶8 Hudson relinquished his parental rights in the Children before trial. Busenbark testified she was convicted of committing injury to M.B. and was sentenced to "three years in, seven years out." Busenbark testified she will first be eligible for parole in May 2005. Busenbark agreed she made a mistake leaving M.B. in Hudson's care, but at that time, she did not believe he was a violent person.

¶9 Francie Roughface, the Indian Child Welfare Coordinator for the Pawnee Nation, testified that due to changes in the Pawnee Nation's blood quantum requirement, the Children are now considered Indian children subject to ICWA. The trial court recognized Roughface as an expert witness for purposes of ICWA. Roughface testified that she had not met the Children, but she kept up with the case through the DHS caseworker, Michele Bellamy. Roughface testified the Children's rights under ICWA had been protected in this case. Roughface agreed with the State's decision to seek termination because the tribe does not condone child abuse. Roughface believed physical harm would come to the Children if they were returned to Busenbark's custody. Roughface testified that permanency is the tribe's priority for the Children. Roughface explained that the tribe recommended termination of Busenbark's parental rights, and she indicated the tribe would stay involved with the Children until permanency had been established. Roughface testified to her belief that a treatment plan and rehabilitative efforts would not be effective in this case, and to her belief that immediate termination was in the Children's best interests.

¶10 The DHS caseworker, Michele Bellamy, had been involved with the Children since July 2002. Bellamy explained that DHS became involved when M.B. was taken to the hospital June 25, 2002, where she was diagnosed with shaken baby syndrome. Bellamy explained that M.B. had severe bruising and subdural hematomas. T.H. was placed in DHS custody after she was found with Hudson and Busenbark in Texas on August 21, 2002. During the two months between M.B. being injured and the arrests of Hudson and Busenbark, neither parent contacted DHS. J.M.B, who was born while Busenbark was incarcerated, was placed in DHS custody soon after his birth.

¶11 Bellamy explained that in October 2002, the maternal grandmother had custody of T.H. and M.B. for two weeks, but she returned them to DHS after deciding she could not care for them. Bellamy explained that the maternal grandfather and his wife considered taking the Children, but they were concerned that M.B. would have long-term injuries and they did not want to care for her. Bellamy explained that T.H. has behavioral problems, but no medical problems. M.B. was being tested for hearing loss at the time of trial. Bellamy testified T.H. had expressed no desire to return to Busenbark's care, and M.B. and J.M.B. have no memory of Busenbark because they were small infants when they were removed from her care.

¶12 Bellamy had reviewed the Texas child welfare proceedings involving T.H. Bellamy concluded that rehabilitative efforts would not be appropriate in this case because Busenbark had previously gone through a parenting class in Texas. Bellamy also testified that based on the history of this case, DHS could not propose a treatment plan which would be effective or lead to reunification or provide for the safety of the Children. Bellamy concluded from Busenbark's history that she would continue to expose the Children to risk and that the Children would never be safe in Busenbark's care. Bellamy testified that in addition to the risks to the Children's safety presented by Busenbark, another factor in her recommendation of termination was the lack of any bond between the Children and Busenbark. Bellamy testified that termination of parental rights was in the Children's best interests.

¶13 The State filed its Petition July 5, 2002, while M.B. remained hospitalized and T.H. remained hidden in Texas with Busenbark. The State sought termination under 10 O.S.2001 §7006-1.1(A)(10), based on Busenbark's failure to protect the Children from heinous and shocking physical abuse.⁵ At trial, the parties disputed whether the Indian Child Welfare Act (ICWA) applied. The trial court ultimately decided ICWA did apply to the Children in this case. At the conclusion of trial, the court announced its finding that the State had met its burden of proving the grounds for termination beyond a reasonable doubt. In its Order Terminating Parental Rights, the trial court found that Busenbark wholly failed to protect M.B. from heinous and shocking physical abuse, and that T.H. and J.M.B. are at risk due to Busenbark's failure to protect them from physical abuse. The court found that efforts to reunite the family were not feasible and that termination of Busenbark's parental rights was in the Children's best interests. The trial court also found that termination was consistent with the preservation and protection of the interests of the Indian children, Indian tribe, and Indian family.

¶14 We address Busenbark's last allegation of error first. She contends that the trial court erred in finding her actions heinous and shocking because she was not the perpetrator of the abuse to M.B. and was not present when M.B. was abused June 25, 2002. This argument is wholly without merit. Section 7006-1.1(A)(10)(a) provides that parental rights may be terminated for failure to protect a child from heinous and shocking abuse. Nothing in the statute requires that Busenbark be the actual physical abuser. Busenbark's own testimony shows that she was on notice, beginning before T.H. was born, that Hudson was capable of severe and violent abuse to his children. Busenbark had been ordered by the Texas courts to stay away from Hudson and she had previously lost custody of T.H. because she exposed T.H. to Hudson. Busenbark's testimony also shows that after the abuse to M.B., Busenbark was more concerned with staying out of prison than she was with the health of her three month old baby. Busenbark's testimony showed a complete lack of interest in protecting her children from abuse that was heinous and...