In re W.P., 120074

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtSTACIE L. HIXON, JUDGE
PartiesIN THE MATTER OF W.P., Alleged Deprived Child,
Docket Number120074
Decision Date21 July 2022

2022 OK CIV APP 31

IN THE MATTER OF W.P., Alleged Deprived Child,

No. 120074

Court of Appeals of Oklahoma, Division IV

July 21, 2022


Mandate Issued: 08/17/2022

APPEAL FROM THE DISTRICT COURT OF OKFUSKEE COUNTY, OKLAHOMA HONORABLE MAXEY P. REILLY, TRIAL JUDGE

AFFIRMED

Robert L. Irby, THE IRBY LAW FIRM, PLLC, Holdenville, Oklahoma, for Appellant

Max Cook, OKFUSKEE COUNTY DISTRICT ATTORNEY, Albert Kelly, ASSISTANT DISTRICT ATTORNEY, Okemah, Oklahoma, for Appellee

STACIE L. HIXON, JUDGE

¶1 Appellant, Billy Zane Deo (Father) appeals a final order terminating parental rights to minor child, W.P., based on the length of time W.P. was placed in foster care, pursuant to 10A O.S.2015 Supp., § 1-4-904(B)(17). [1] Father has never had custody of W.P. and was incarcerated at the time of his birth and through trial. Father is a member of the Muscogee (Creek) Nation (Nation), and the Oklahoma and Indian Child Welfare Acts (ICWA) apply. Father contends that evidence was insufficient to demonstrate that the Department of Human Services (DHS) made active efforts to prevent the breakup of an Indian family, and that the evidence was insufficient to support a finding that continued custody with Father was likely to result in serious emotional or physical damage to the child. On review of the record and the briefs on appeal, we affirm the trial court's order of November 24, 2021 terminating Father's parental rights.

BACKGROUND

¶2 Windi Postoak (Mother) gave birth to W.P. in July 2019. Mother, a member of the Seminole Nation, tested positive for drugs at the hospital and W.P. was taken into emergency custody when he was a few days old. W.P. was placed in an ICWA-compliant kinship placement with Mother's great-aunt, Martha Basquez (Foster Mother), who has adopted W.P.'s half-brother.

¶3 State filed a Petition to adjudicate W.P. deprived as to Mother. [2] DHS obtained genetic testing of potential fathers, and confirmed Father's paternity, who was a member of the Nation. He was incarcerated, serving a ten-year sentence for false impersonation. State filed an Amended Petition on September 23, 2019 to adjudicate W.P. deprived as to Father on grounds that W.P. was neglected and the home was unfit because Father failed or omitted to provide adequate food, shelter and hygiene and failed or omitted to provide proper supervision.

¶4 On June 5, 2020, the trial court adjudicated W.P. deprived as to Father and ordered Father to complete an Individualized Service Plan (ISP). State later filed a Petition to terminate Father's rights on November 18, 2020, alleging Father failed to correct conditions within 90 days and that W.P. had been out of the home six out of the twelve months prior to that filing, pursuant to 10A O.S. § 1-4-904(B)(17). Jury trial was initially set in May 2021, but was continued after the Nation objected that it was not satisfied active efforts had been made to prevent the breakup of an Indian family.

¶5 Termination of Father's parental rights was set for jury trial in October 2021. At the trial court's active efforts hearing preceding trial, the Nation testified it was satisfied with DHS's active efforts, and the trial court determined the State's obligation had been met. Trial on termination of Father's parental rights proceeded on two proposed grounds, failure to correct conditions leading W.P. to be adjudicated deprived and the length of time W.P. had been in foster care.

¶6 But for his first few days, W.P. had resided with Foster Mother and his brother for the entirety of his 27 months. Father testified that he never had a relationship with Mother, and was unaware Mother had become pregnant until DHS sought him out while he was incarcerated. Father remained incarcerated at the time of trial. Father testified he had an upcoming parole hearing, but did not know if it would be granted. If not, he would be required to serve at least 13 more months. Father also testified to an unrelated pending criminal matter, which carried the possibility that he could be incarcerated for another ten years. [3] Father hoped he would be enrolled in a reintegration program on release, but did not know if W.P. would be allowed to live there. If he were released, Father testified he would take W.P. wherever he could get a job.

¶7 By the time of trial, Father had seen W.P. at a court date, [4] but had never spoken to him, had never written him a letter, had never provided any means of support to him, and had developed no relationship with W.P. He did not correctly recall W.P.'s birthdate. He testified he knows W.P. likes to play outside, but did not know what he liked to play with, or to eat. Foster Mother testified that she had never received a letter or communication from Father, that he had never asked for pictures or other information, and had never asked to see W.P. [5] Father passed along one gift for W.P.--a feather box--to Foster Mother at a court proceeding.

¶8 Though Father objected to termination of his rights, he also testified that he viewed Foster Mother as W.P.'s Mother. He recognized it would be difficult for W.P. to leave Foster Mother, but contended that this did not necessarily have to occur. Father also testified he had informed his counsel that the best place for W.P. was with Foster Mother. Foster Mother wants to adopt W.P.

¶9 DHS child welfare supervisor Stacey Vass testified that W.P. was doing well in his placement with Foster Mother. She testified that, aside from safety and protection from harm, W.P. needed permanency and connection with family, which he has in his current placement. Child welfare specialist Deanna Byrd testified that it was in W.P.'s best interests for Father's rights to be terminated, and that W.P. would suffer irreparable harm if Father's rights were not terminated. The Nation's reunification and permanency case worker, Sequoya Steve Brennen, who was qualified as an expert witness, opined that returning W.P. to father would result in serious physical or emotional harm to W.P., and it would be in his best interest to terminate Father's rights.

¶10 The jury returned a verdict unanimously in favor of terminating Father's parental rights on both grounds of failure to correct and length of time in foster care. However, the jury failed to identify the conditions Father failed to correct on the verdict form. Therefore, the trial court entered judgment based only on length of time in foster care, and entered an order terminating Father's parental rights on November 24, 2021.

¶11 Father appeals.

STANDARD OF REVIEW

¶12 In a parental termination case, the State has the burden of proof to show by clear and convincing evidence that grounds exist for termination. In the Matter of C.G., 1981 OK 131, ¶ 17, 637 P.2d 66. Additionally, under Oklahoma law, as a general rule, "the State must show by clear and convincing evidence that the child's best interest is served by the termination of parental rights." In re C.D.P.F., 2010 OK 81, ¶ 5, 243 P.3d 21 (citation omitted). Clear and convincing evidence is the 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." Id. at ¶ 5.

¶13 However, because this case involves Indian children, the proceedings must comply with the provisions of the federal ICWA (25 U.S.C. §§ 1901-1963) and the Oklahoma ICWA (10 O.S. §§ 40-40.9). In the Matter of T.L., 2003 OK CIV APP 49, ¶ 11, 71 P.3d 43 (cited with approval in In the Matter of H.M.W., 2013 OK 44, ¶ 6, 304 P.3d 738).

¶14 Under the Acts, the State must prove "beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child." In the Matter of H.M.W., 2013 OK 44, at ¶ 6. State's evidence must include "testimony of qualified expert witnesses." In the Matter of V.D., 2018 OK CIV APP 72, ¶ 11, 431 P.3d 381 (citing 25 U.S.C. § 1912(f)).

¶15 Thus, we review the evidence to ensure that the evidence presented by State, if believed, would support a conclusion by any rational trier of the facts beyond a reasonable doubt that continued custody by Father would result in serious damage to the children. In the Matter of IW, 2018 OK CIV APP 6, ¶ 8, 419 P.3d 362.

¶16 However, the "beyond a reasonable doubt" standard only applies to the determination under 25 U.S.C. § 1912(f) "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). (See In the Matter of J.S., 2008 OK CIV APP 15, ¶ 4, 177 P.3d 590; In the Matter of the Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 15, 147 P.3d 306; Matter of the Adoption of G.D.J., 2011 OK 77, ¶ 37 n.25, 261 P.3d 1159; In the Matter of E.P.F.L., 2011 OK CIV APP 112, ¶ 27, 265 P.3d 764).

ANALYSIS

¶17 Father does not contest that the State met its burden to demonstrate statutory grounds for termination of his parental rights based on the length of time W.P. has been in foster care. Father also does not assert that a determination that termination of his parental rights is in W.P.'s best interest is not supported by clear and convincing evidence. He asserts two grounds on appeal, both based on IWCA--(1) that the evidence was insufficient to demonstrate a finding that active efforts were taken to prevent the breakup of an Indian family, which proved unsuccessful, and (2) that the evidence was insufficient to support a finding that Father's continued custody was likely to result in serious emotional or physical damage to the minor child.

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