Khanpher v. State (In re L.S.)

• Citation: 298 P.3d 544
• Decision Date: 08 February 2013
• Docket Number: No. 110,551.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,110,551.
• Parties: In the Matter of L.S., an Alleged Deprived Child. Abdel G. Khanpher, Appellant, v. State of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

298 P.3d 544

In the Matter of L.S., an Alleged Deprived Child.Abdel G. Khanpher, Appellant,

v.State of Oklahoma, Appellee.

No. 110,551.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

Feb. 8, 2013.

Appeal from the District Court of Carter County, Oklahoma; Honorable Dennis Morris, Judge.

AFFIRMED

Edward Frock, Ardmore, Oklahoma, for Appellant.

Kimberly Tressler, Assistant District Attorney, Ardmore, Oklahoma, for Appellee.

Andrew Harlow, Ardmore, Oklahoma, for the Child.

LARRY JOPLIN, Chief Judge.

¶ 1 Appellant/Father, Abdel G. Khanpher, seeks review of the jury's verdict and the trial court's corresponding order terminating his parental rights to his child, L.S., born July 5, 2010. The State sought termination of Father's parental rights after the parental rights of the biological mother had previously been terminated, because the child was born testing positive for amphetamines, the mother was homeless at the time of the child's birth and Father was incarcerated on drug related charges at the time L.S. was born, affecting his ability to properly care for the child after the biological mother was unable to care for the child.

¶ 2 The State alleged Father failed to correct the conditions which led to L.S. being adjudicated a deprived child, despite having been given more than three months to correct the conditions. 10A O.S. Supp.2009 § 1–4–904(B)(5)(a)–(b). The State also alleged termination of Father's parental rights was in the best interests of the child who had been previously adjudicated to be a deprived child. 10A O.S. Supp.2009 § 1–4–904(A)(1)–(2).

¶ 3 L.S. was born on July 5, 2010 and was placed in D.H.S. custody on that day, due to testing positive for amphetamines. At the time, Father was incarcerated. Mother's parental rights with respect to L.S. were eventually terminated. Thereafter, an application to terminate the parental rights of Appellant/Father was set for hearing on June 7, 2011. Father was no longer in custody and was present for this hearing. The court conducted a disposition hearing on July 12, 2011, rendering an order of disposition which contained six standards of conduct Father was required to meet in order to correct the conditions which led to the deprived adjudication of L.S. These conditions were memorialized in Father's Individualized Service Plan (ISP): a) to provide a safe, stable, hygienic, appropriately-furnished home; b) demonstrate the ability to provide the necessary guidance and support to meet the child's emotional, medical and educational needs; c) complete an approved parental skills counseling course and put learned skills into practice; d) obtain employment sufficient to meet the needs of the child; e) complete a D.H.S. approved drug assessment and program; and f) pay child support of $100/month.

¶ 4 Six months later, January 11, 2012, the State filed an application to terminate Father's parental rights, alleging he had failed to correct the conditions that led to L.S. being adjudicated deprived and he had been given at least three months to do so. 10A O.S. Supp.2009 § 1–4–904(B)(5). Father made some progress in correcting the conditions demanded by D.H.S., but ultimately did not fully comply with the ISP. Father demanded a jury trial, which was held on February 7, 2012. The jury returned a verdict to terminate Father's parental rights, finding L.S. had been adjudicated deprived, Father had caused or contributed to such adjudication, Father had failed to correct the conditions which led to the adjudication of the child, although he had been given more than three months to do so, and it was in the child's best interests that his parental rights be terminated. Thereafter, the trial court entered an order terminating Father's parentalrights to L.S. in accordance with the jury's verdict.

¶ 5 Father asserts on appeal that the order terminating his parental rights is fundamentally deficient, because it fails to identify the specific statutory basis upon which the State relied in order to terminate his parental rights; did not make specific findings as required by statute, and did not identify the conditions Father failed to correct which led to the order of adjudication. Father also asserts the State failed to present clear and convincing evidence in support of the termination of his parental rights; Father's right to due process was violated when his parental rights were terminated; The Oklahoma Department of Human Services failed to provide a viable ISP and created obstacles to Father's successful completion of the plan. And Father asserts he was unfairly prejudiced by improper evidence and testimony introduced before the jury.

¶ 6 The State responded, arguing that Appellant was not entitled to a verdict that specifically stated the statutory reasons for the termination, the court's order was supported by clear and convincing evidence, Father was properly advised of the conditions which led to L.S.'s deprived adjudication and advised regarding what conditions he needed to correct in order to meet the demands of the ISP and avoid termination of his parental rights. The State also asserted Father's constitutional and due process rights as a parent had been fully protected and Father was not improperly prejudiced by the evidence presented to the jury.

¶ 7 A parent's right to their offspring is fundamental and requires a higher level of protection. In the Matter of S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080, 1083. As a result, to affirm the lower court's decision, appellate review in termination of parental rights proceedings “must demonstrate the presence of clear-and-convincing evidence to support the first-instance decision.” Id. Legal errors in a termination of parental rights proceeding are reviewed by the appellate court under a de novo standard of review. In the Matter of M.D.R., 2002 OK CIV APP 75, ¶ 6, 50 P.3d 1160, 1161.

¶ 8 Appellant's first proposition of error asserts that the appealed from order is fundamentally deficient and must be vacated, because it lacks mandated predicatory findings. Father cited several cases in support of this proposition, including, In the Matter of M.D.R., 50 P.3d at 1161–62, and In the Matter of E.M., 1999 OK CIV APP 32, 976 P.2d 1098.

¶ 9 In In the Matter of E.M., 976 P.2d at 1101–02, the appellate court found the trial court's order terminating the incarcerated father's parental rights was legally insufficient to support the court's decision:

In its termination order, however, the trial court did not specify the authority upon which it relied, but found simply that “the State of Oklahoma has shown by clear and convincing evidence that the parental rights of [the father] should be terminated, and that it is in the best interest of the child that parental rights be terminated.” Neither finding is legally consistent with, or supportive of, any of the statutorily mandated predicatory findings recited above. See In re L.S., 1990 OK CIV APP 94, ¶ 16, 805 P.2d 120, 123–4.

...

Termination of parental rights can be sanctioned only upon a finding which strictly comports with a specific statutory basis for the termination. In the absence of a clear statement by the trial court as to what that authority was, and what conditions which led to the deprived adjudication the parent has failed to correct, “we are effectively precluded from determining if the trial court acted properly in terminating ... parental rights.” In re B.M.O., 1992 OK CIV APP 89, ¶ 10, 838 P.2d 38, 40.

The appellate court made virtually the same finding in In the Matter of M.D.R., 50 P.3d at 1161–62.

¶ 10 In relevant part, the order appealed from states that “father has failed to show that the conditions, which led to the adjudication of the child, have been corrected although he has been given more than three months to correct the conditions; Termination of the father's parental rights is in the best interest of the child.” Although the verdict and corresponding order do not list the specific uncorrected conditions, the jury received instructions listing the specific conditions the State alleged Father failed to correct, mimicking the terms of the ISP. These included a) to provide a safe, stable, hygienic, appropriately-furnished home; b) demonstrate the ability to provide a stable family environment to meet child's nutritional, emotional, medical and educational needs; c) obtain employment sufficient to meet the needs of the parent and child; d) complete an inpatient approved drug program, an outpatient approved drug program and not use or unlawfully abuse controlled substances, nor associate with those who do and submit to random drug testing; and e) pay child support of $100/month.

¶ 11 As a result of having been so instructed, the appellate court can conclude the jury made the necessary findings supporting its verdict. In the Matter of B.C., 2010 OK CIV APP 103, ¶ 11, 242 P.3d 589, 592. Despite Father's contention, we can find no language in 10A O.S. Supp.2009 § 1–4–904 that requires the order of termination to list or specifically make reference to the conditions that were found to be uncorrected. Because Father was repeatedly apprised of the ISP requirements from the disposition date in July 2011 through the conclusion of the jury trial in February 2012, the jury was provided a comprehensive list of the uncorrected conditions as a part of their instructions, and we find no statutory authority for Father's assertion that the conditions need to be re-listed in the termination order itself, we find no relief is warranted upon Father's first proposition of error.

¶ 12 Father next contends the ISP is invalid because it does not contain his signature as required by 10A O.S. Supp.2009 § 1–4–704(C)(4). However, Appellee/State noted Father was present at the hearing where the ISP was adopted by the court and made no objections to the implementation of the ISP. It is...