Knight v. State (In re A.F.K.)

• Decision Date: 05 December 2013
• Docket Number: Case Number: 111622; Cons. w/111625
• Citation: 2014 OK CIV APP 6
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Parties: IN THE MATTER OF A.F.K.; M.J.K. and M.A.K., DEPRIVED CHILDREN: DENISE KNIGHT, Appellant, v. STATE OF OKLAHOMA, Appellee.

2014 OK CIV APP 6

IN THE MATTER OF A.F.K.; M.J.K. and M.A.K., DEPRIVED CHILDREN:DENISE KNIGHT, Appellant,

v. STATE OF OKLAHOMA, Appellee.

Case Number: 111622; Cons. w/111625

COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

Decided: December 5, 2013

Mandate Issued: January 3, 2014

APPEAL FROM THE DISTRICT COURT OF

LINCOLN COUNTY, OKLAHOMA

HONORABLE SHEILA KIRK, TRIAL JUDGE

AFFIRMED

Mathew Thomas, STUART, CLOVER, DURAN, THOMAS & VORNDRAN, Shawnee, Oklahoma, for Appellant Mother,

Russ B. Haskins, Shawnee, Oklahoma, for Appellant Father,

Tracy L. McDaniel, Lincoln County District Attorney's Office, Chandler, Oklahoma, for Appellee,

Traci L. Soderstrom, Del City, Oklahoma, for Minor Children.

BRIAN JACK GOREE, Judge:

¶1 This is an appeal of an order terminating parental rights following a jury trial. The State of Oklahoma alleged the parents failed to correct the conditions which led to the finding that their children were deprived. The parents were given notice of the conditions that needed to be corrected in September of 2011 and the State's motion to terminate parental rights, based on those same conditions, was filed in December of 2012. Six verdict forms were completed by the jury, one for each parent as to each of their three children. The verdict forms contain special interrogatories, and the jury specified the precise conditions they found the parents had failed to correct. The termination order includes findings that the parents were permitted not less than three months to correct the conditions, that termination is in the best interest of the children, and that the conditions alleged in the Petition were not corrected. The order does not specifically identify the conditions that were not corrected. But neither parent seeks reversal based on an objection to the form of the termination order.¹

¶2 Three issues are presented for our review: (1) whether the State presented clear and convincing evidence to support the verdicts, (2) whether the State made reasonable efforts to return the children to their home, and (3) whether an indigent parent received effective assistance of counsel. For the reasons that follow, we affirm.

¶3 On June 16, 2011, State filed a petition alleging M.A.K., M.J.K., and A.F.K. (Children) were deprived because of (1) exposure to domestic violence, (2) exposure to substance abuse, (3) lack of a permanent residence, and (4) being left [with] or being exposed to inappropriate care givers. The petition identified the parents as Denise Knight (Mother) and Levi Knight (Father).

¶4 On August 22, 2011, the case came on for adjudication and both parents stipulated to the allegations in the petition. On September 22, 2011, Mother appeared personally and Father appeared by his counsel at a disposition hearing. The Disposition Order adopted an Individualized Service Plan (ISP) and advised Mother and Father "that failure to comply with any requirements of the treatment plan or any requirements of the Court including failing to appear at any court hearing may result in the loss of custody of the children or the termination of parental rights to the children." The September 2011 ISP was given to both parents. Below the section entitled, "Conditions or Behaviors which need to be changed or corrected" the ISP states: "Parents need to not engage in domestic violence in the home. Parents need to protect their children from dangerous people. Parents need to not abuse substances. Parents need to have a stable home." We observe that the allegations of the Petition which led to the adjudication that Children were deprived are consistent with the conditions set forth in the ISP that parents needed to correct.²

¶5 The ISP required each Parent to attend domestic violence classes, attend drug and alcohol education groups, submit to random drug testing, obtain legal and verifiable means of income, obtain adequate stable housing, follow through with medical professionals to assure M.A.K.'s medical needs are met,³ complete a parenting course, visit Children as ordered by the trial court or by the DHS worker, contact DHS worker at least once a month or as ordered by the trial court, attend any scheduled court hearings, and pay child support as ordered by the trial court.

¶6 On December 5, 2012, more than one year after Children were removed from Parents' custody, State filed a Motion to Terminate Parental Rights seeking termination of both Parents' parental rights. It alleged, pursuant to 10A O.S. Supp. 2009 §1-4-904(B)(5), Parents failed to correct the conditions which led to Children being adjudicated deprived, despite having been given more than three months to correct the conditions. It also alleged it was in the best interest of Children to terminate Parents' parental rights.⁴

¶7 Each of the verdict forms provided:

We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find that the parental rights of [Parent] should be terminated on the statutory ground that after being permitted a period of time not less than three (3) months to correct the conditions which led to the finding that the child is a deprived child, [Parent] has failed to do so. The conditions that have not been corrected which led to the finding that the child is a deprived child are:

___ Domestic Violence

___ Protect your children and refrain from exposing yourself and your children to dangerous or inappropriate individuals

___ Substance Abuse

___ Maintain a safe and stable home

All six verdict forms bear check marks next to each of the conditions.⁵

¶8 On February 27, 2013, the trial court entered an Order terminating Parents' parental rights to Children in accordance with the verdicts. Mother appeals (Case No. 111,622) and Father appeals (Case No. 111,625). The appeals were consolidated pursuant to Okla. Sup. Ct. R. 1.27(d) under the surviving Case No. 111,622.

¶9 Appellate review of parental termination decisions must be based upon the clear-and-convincing evidence standard. Matter of S.B.C., 2002 OK 83, ¶6, 64 P.3d 1080, 1082. The factual findings must rest on clear and convincing proof. State ex rel. A.W., 2011 OK CIV APP 27, ¶7, 250 P.3d 343, 346.

Safe and Stable Home

¶10 According to the ISP, one reason the Department of Human Services intervened was that Father and Mother moved with the children from one home to another within a period of a few months or even weeks. In March of 2012, six months before the State filed its motion to terminate, Parents acquired some land near Sparks, Oklahoma and they were given the shell of a used mobile home.

¶11 A child welfare specialist testified for the State. She stated the home was unsafe because it did not have skirting around the base, thereby permitting children to access the area under the home which included wiring that was hanging down and could be dangerous. She also testified there was trash lying around, as though a bag of household garbage had been emptied onto the yard. There were piles of tires, mattresses, bottles, and paper. There was a depression in the yard where a child could fall two or three feet. The stairs leading to the front door were too high and there was no handrail. The wiring to the front porch light was partially exposed. The child welfare specialist stated she did not observe the inside of the home.

¶12 Father testified that when he was given the trailer, it was gutted. It was one big open area with no walls, poor flooring, no light switches, no wall plugs, no water heater, and no toilet. It was an empty shell. He has 15 years of experience in construction and knows how to build houses.

¶13 He built walls to create a living room, hallway, and bedrooms. He added a stove and microwave in the kitchen and installed plumbing items including a new toilet, bathtub, shower, and hot water tank. He replaced the floor with new plywood. He applied sealant to the new floors, painted the new walls, and installed some carpet. He then installed a service pole for the electricity and relied on the expertise of a licensed electrician to inspect the wiring and perform the final connections before turning on the power.

¶14 When Father and Mother bought the property, it included an old foundation of a home that had burned and the basement was exposed. They filled it in with multiple loads of pea gravel but a portion is still below grade, which explains the depression the child welfare worker described. Father agreed the home is not finished after eleven months of work. He also conceded it is still not safe for the children, but he is working on it. Mother argues their efforts to make the home an appropriate residence for their children constitutes evidence of a corrected condition. The record contains 16 photographs depicting the condition of the land and the mobile home. The photos are consistent with the testimony of Father as well as the DHS worker, except they do not show trash in the yard.

¶15 Father and Mother made significant progress in building a suitable dwelling from the time they acquired their property in March of 2012 to the date the State filed its motion to terminate their parental rights in December of 2012. The unsafe conditions identified by the State can be corrected within a short period of time when compared to the work they have already invested in their home. For example, the metal skirting would deter the children from being exposed to dangerous conditions underneath a mobile home. Father testified he has the missing skirt material on hand and it would take him one week to replace it. We believe the other deficiencies of the home identified by the state can also be corrected in a relatively short time period. We acknowledge Father's candid admission that the house is not yet safe for his children. The jury found that both parents failed to correct the condition of maintaining a safe and stable home. We hold that the order terminating Father and Mother's parental rights, insofar as it is based upon failure to correct the condition of...