K. H. v. State, Case Number: 118035 Comp. w/118078

• Decision Date: 08 June 2021
• Docket Number: Case Number: 118035 Comp. w/118078
• Citation: 2021 OK 33
• Parties: IN THE MATTER OF K. H., C. H., E. H., and C. H., Deprived Children: TAYLOR HUDSON, Respondent/Appellant, v. STATE OF OKLAHOMA, Petitioner/Appellee. CODY HUDSON, Respondent/Appellant, v. STATE OF OKLAHOMA, Petitioner/Appellee.
• Court: Oklahoma Supreme Court

2021 OK 33

IN THE MATTER OF K. H., C. H., E. H., and C. H., Deprived Children:

TAYLOR HUDSON, Respondent/Appellant, v. STATE OF OKLAHOMA, Petitioner/Appellee.

CODY HUDSON, Respondent/Appellant, v. STATE OF OKLAHOMA, Petitioner/Appellee.

Case Number: 118035 Comp. w/118078

SUPREME COURT OF THE STATE OF OKLAHOMA

Decided: June 8, 2021

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

Honorable Cassandra M. Williams, Trial Judge

¶0 Parents seek reversal of judgments terminating their parental rights for heinous and shocking physical abuse following jury verdicts entered in Oklahoma County. They challenge the admission of evidence of their pending criminal child abuse charges and the inclusion of the charges in a jury instruction. Parents argue the evidence was irrelevant, highly prejudicial and violated their right to a fair trial. We hold the trial court committed reversible error by admitting the evidence, and we remand for a new trial.

MATTER PREVIOUSLY RETAINED FOR DISPOSITION;

REHEARING GRANTED;

OPINION OF THE COURT ISSUED MAY 12, 2020 IS WITHDRAWN AND THIS

OPINION ORDERED SUBSTITUTED THEREFOR;

JUDGMENT OF THE DISTRICT COURT REVERSED;

NEW TRIAL GRANTED.

Phillip P. Owens II, OWENS LAW OFFICE, PC, Oklahoma City, Oklahoma, for Appellant Taylor Hudson,

Stephanie Marston Younge, YOUNGE LAW FIRM, Oklahoma City, Oklahoma, for Appellant Cody Hudson,

Jaclyn Rivera, Assistant District Attorney, Oklahoma City, Oklahoma, for Respondent State of Oklahoma,

Tracey Jordan Esaw, Assistant Public Defender, Oklahoma City, Oklahoma, for the Children.

ROWE, J.:

¶1 Appellants Taylor Hudson (Mother) and Cody Hudson (Father) appeal the trial court's judgments terminating their parental rights to their biological children, K.H., C.H., E.H., and C.H. Both judgments were entered on separate jury verdicts finding that clear and convincing evidence supported each parent's heinous and shocking physical abuse on another child of Father. After review on rehearing, this Court holds that 1) admitting evidence of State's pending criminal child abuse charges against Parents; and 2) giving a jury instruction that listed the criminal charges to support State's amended petition for immediate termination of parental rights was so inherently prejudicial that it violated Parents' right to a fair trial. The judgments are reversed, and the matter is remanded for a new trial.

BACKGROUND

¶2 Father has two sons, R.H. and B.H., from a prior relationship that ended without a legal custody agreement. Father's relationship with Mother, then Taylor Ainsworth, began in 2012 while they lived in Tulsa. R.H. and B.H. visited with them one or two weekends per month.

¶3 In January 2015, Father and Mother (collectively, Parents) had a son, C.H. Parents moved to Oklahoma City in October 2015, and in December 2015, their daughter, E.H., was born prematurely with heart problems that required surgery. R.H. and B.H. were visiting with Parents during Spring Break when Parents were notified about E.H.'s surgery. Father's calls to the boys' mother were unanswered, so he drove them to stay with their maternal aunt in Tulsa. Upon arriving, Parents were greeted by the boys' mother, who displayed anger with Father in front of the boys. Thereafter, R.H. and B.H.'s visits and communications with Father decreased.

¶4 Parents had a second son, C.H., in November 2017. The following month, R.H. and B.H.'s maternal grandmother called Father to inform him about R.H.'s disclosure of sexual abuse by a friend and that their mother was being evicted from her apartment.

¶5 In February 2018, the maternal aunt contacted Father concerned with the boys' health and safety while living with their mother, who had used money for her electric bill to buy drugs. Parents agreed to let the boys live with them again and leased a house in Midwest City, Oklahoma.

¶6 After the boys' relocation, B.H. began threatening to harm himself and others. During a DHS visit with the boys in June 2018, DHS reported a bruise on B.H.'s side and dark circles under his eyes. A child abuse pediatrician evaluated R.H. and B.H., concluding in her report they had been psychologically abused while living with their mother in Tulsa and that B.H.'s bruising was consistent with the boys' explanations.¹ In July 2018, Father discussed B.H.'s continued behavior with the maternal aunt and maternal grandmother, who agreed B.H. should live with them in Tulsa. R.H. remained in Midwest City with Father and Father's other children--the children subject to this action.

¶7 On August 27, 2018, the Midwest City police received a report of possible child abuse to R.H. and went to Parents' house to check on him. The officers were told R.H. was not home. After confirming R.H.'s absence, the officers left and contacted the person who reported the abuse to verify R.H.'s reported location. During a recheck of Parents' house, officers found R.H. wrapped in a blanket in the dryer where Father had placed him when the officers first arrived. Father was arrested and jailed.

¶8 Following R.H.'s forensic evaluation, Mother, then six months pregnant, was arrested and jailed on or about August 28, 2018. The same day, State petitioned for emergency custody of C.H., E.H., and C.H., which the trial court approved after a hearing on August 29, 2018.

¶9 On or about September 6, 2018, Parents were legally married. Six days later, State filed its initial petition against Parents for adjudication of C.H., E.H. and C.H. as deprived children and for immediate termination of parental rights based on shocking and heinous physical abuse to the children's half-sibling, R.H.²

¶10 Mother gave birth to Parents' fourth child, K.H., on December 6, 2018, after which DHS immediately took the newborn into custody. State filed an amended petition on December 18, 2018, adding K.H. as an alleged deprived child.³ On January 24, 2019, Father entered a no contest stipulation to the amended petition's deprived allegations, and the trial court adjudicated the children deprived as to Father only.

¶11 The jury trial was held May 7-10, 2019, on the issues of the children's deprived status as to Mother and for termination of Mother's and Father's parental rights.⁴ At the close of State's case-in-chief, the trial court found sufficient evidence to adjudicate the children deprived as to Mother. After the trial court denied Parents' demurrer to the evidence, Mother presented her defense, in which only she and Father testified. Father called no witnesses in his defense, but introduced numerous exhibits that the court admitted into evidence.

¶12 The jury rendered separate verdicts for each child, finding that clear and convincing evidence supported termination of each parent's parental rights due to heinous and shocking physical abuse to the child or a sibling of the child (R.H.). Two judgments terminating each parent's rights to K.H., C.H., E.H., and C.H. were entered on May 10, 2019. By order of this Court, Parents' separate appeals were consolidated and retained for disposition.

ISSUES RAISED BY PARENTS

¶13 On appeal, Parents assert the trial court abused its discretion by admitting evidence of pending criminal charges, which included an exhibit of the State's criminal information for child abuse filed against them.⁵ They also assert the trial court abused its discretion by giving Jury Instruction No. 8, which refers to the criminal child abuse charges.⁶ Parents argue the evidence of the criminal charges was irrelevant to the issues to be decided by the jury, highly prejudicial, and prevented their right to a fair trial. Parents also assert insufficiency of the evidence to support the jury's verdicts based on heinous and shocking physical abuse on a sibling.

¶14 Three facts distinguish this parental rights termination proceeding from this Court's prior parental rights termination decisions. First, the challenged criminal child abuse charges arise out of the same facts on which State's amended petition is based -- and was offered against Parents prior to conviction.⁷ Second, State's petitions seek to adjudicate the children deprived concurrently with termination of parental rights based on heinous and shocking physical abuse against their sibling.⁸ Third, over Parents' objections, evidence of the pending criminal charges was admitted during the termination jury trial.

CHALLENGED EVIDENTIARY RULING

¶15 The hearing for Mother's motion in limine commenced the first day of the trial, May 7, 2019, at which Father joined her motion.⁹ Parents argued the pending criminal charges against them were not relevant to any of the elements the jury would decide in the parental rights termination case. They further argued that, even if evidence of the charges was relevant, it was highly prejudicial and inadmissible.

¶16 State contended the filing of criminal charges, as alleged in its amended petition was a fact that State needed to prove for deprived adjudication. Parents disagreed, asserting that status is determined by the trial court, not the jury.

¶17 Because almost every witness in the case would testify about Parents' arrest and resulting criminal charges, State argued the evidence was relevant, had probative value, and exclusion of such facts would confuse or mislead the jury. Mother agreed the law enforcement's investigation could be relevant, but argued testimony should stop short of the arrest. Even if evidence of the arrest was allowed, she argued the criminal charges were neither relevant nor probative and could be easily left out.

¶18 The trial judge concluded the criminal charge against each parent "is a neutral piece of evidence" and "just a fact" that, in her opinion, "would not lead the jury to conclude the abuse was heinous and shocking."¹⁰ The trial judge denied Parents' motion to limit State from offering evidence about their arrest and criminal charges, finding both sides...