L.M.A. v. State

• Decision Date: 30 June 2020
• Docket Number: No. 118,136,118,136
• Citation: 466 P.3d 559
• Parties: In the MATTER OF L.M.A., K.M.A., and P.A., Adjudicated Deprived Children, Christopher F. Alfred, Appellant, v. The State of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

466 P.3d 559

In the MATTER OF L.M.A., K.M.A., and P.A., Adjudicated Deprived Children,Christopher F. Alfred, Appellant,

v.The State of Oklahoma, Appellee.

No. 118,136

Supreme Court of Oklahoma.

FILED JUNE 30, 2020

Kacey L. Huckabee, Oklahoma City, Oklahoma, for Appellant.¹

Rebecca Bauer, Assistant District Attorney, Oklahoma County, Oklahoma City, Oklahoma, for the State of Oklahoma.²

EDMONDSON, J.

¶1 This case involves three children and a trial in the District Court which determined the children were deprived and father's parental rights should be terminated. Father appealed to this Court and argues the evidence was insufficient. We hold the evidence was sufficient.

¶2 Three children were taken into emergency custody pursuant to an order of the District Court in September 2016. The ages of the three children were approximately 3 years, 2 years, and 10 months. Their mother was temporarily incarcerated at this time in a county jail. An emergency custody show cause hearing was held with both parents present and both waived a show cause hearing. The State filed a petition and alleged the home of mother and father was inadequate, dangerous, and unfit, and that the children were deprived. The petition alleged inadequate caregivers were provided, and the children suffered certain conditions of neglect. Allegations relating to the children included, but were not limited to, child developmental delays, lack of medical care, lack of hygiene, and lack of food in the home. Several other allegations were made including the unfitness of mother and father. The petition sought to terminate father's parental rights based upon 10A O.S.Supp.2015 § 1-4-904 (A) & (B) (8)(b) and father's previous conviction for two counts of rape in the first degree in a 2005 Oklahoma County case.³ The petition also referenced father's previous conviction in Alaska for assault with intent to commit a felony (sexual assault).

¶3 Mother was released from a county jail shortly after the children were taken into DHS custody. Father was arrested in January 2017 for violating the conditions of his probation, released temporarily, and again arrested and taken into custody after his domestic abuse assault and battery upon the mother of these children. Father has been incarcerated since January 2017.

¶4 The Department of Human Services (DHS), mother, and certain organizations worked for several months to achieve a reunification of mother and children as a family. Father was incarcerated during this time. After efforts for family reunification were unsuccessful, DHS recommended termination of the parental rights of mother in May 2018. Mother personally appeared in the trial court and gave her voluntary consent for termination of her parental rights. The trial court considered exhibits admitted into evidence at the hearing. The children were adjudicated deprived as to mother. The court terminated mother's parental rights, dismissed her as a party in further proceedings, and allowed her counsel to withdraw. The trial court noted at this same hearing one child had been placed with the child's maternal relative, and potential placement of a second and third child with this same relative was discussed.

¶5 Father remained incarcerated after mother's voluntary termination of her parental rights in May 2018, and the State filed an amended petition in August 2018 to terminate his parental rights. This petition alleged the children were deprived as to father, repeated the request to terminate his parental rights pursuant to 10A O.S.Supp.2015 § 1-4-904 (A) & (B) (8)(b) and added the additional claim his parental rights should be terminated pursuant to 10A O.S.Supp.2015 § 1-4-904 (A) & (B) (12) because he was incarcerated.⁴

¶6 The State requested a jury trial to terminate father's parental rights. A jury trial was held and a journal entry was entered on the verdict. The journal entry states the children were adjudicated deprived by the court.⁵ The journal entry states the father failed to provide the proper care and guardianship necessary for the children's physical and mental well-being, the home of the father was unfit due to domestic violence, the home of the father was unfit due to not providing a stable home, home of the father was unfit due to mental health, the home of the father was unfit due to threat of harm. The jury found father's parental rights should be terminated as to each of the three children. The jury relied on father's incarceration and father's conviction of first degree rape. The jury found termination of the parental rights was in the bests interests of the children. The court ruled father had a duty to support his children unless or until an adoption of the children is completed. The court ordered the children to remain wards of the court.

¶7 Father appealed and this Court retained the appeal. His four assignments of error in his appellate brief⁶ are: (1) The evidence was insufficient to show the children were deprived. (2) The evidence was insufficient to terminate father's parental rights due to incarceration because the State did not show father's parental rights would cause harm to the children. (3) The evidence was insufficient to show the children would be neglected or abused in the father's custody. (4) Trial court committed an abuse of discretion by allowing prejudicial evidence presented to the jury.

I. The Trial

¶8 The first witness was a Child Welfare Specialist and foster care worker, formerly in Child Protective Services and having investigated allegations relating to safety of children. His employment required a bachelor's degree and specialized training. He testified that in father's case a joint response occurred with the Oklahoma City police department and the "overnight unit" and he reviewed the reports the next day. This same day two child safety meetings were held for the purpose of determining whether a plan could be put in place without taking the children into custody. He stated he was concerned due to the lack of food for the children and father leaving the children with inappropriate caregivers while father was at work.

¶9 He stated some of his concerns such as the two oldest children not being able to walk in shoes and the middle child's lack of speaking. He testified concerning father's conviction, registration as a sex offender, probation status, and prior referrals for the family. A record of immunizations for the children could not be determined. He recommended the children be placed in DHS custody because they were not adequately supervised, the living conditions in the home, and because they were not receiving medical attention.

¶10 On cross examination the witness stated he had not been personally present in the home to observe the lack of food or an inappropriate caregiver. He also testified the father told him the children were left by father with "prostitutes and junkies" to care for the children while the father was at work. He explained the father gave this information at one of the two child safety meetings in response to a question by a facilitator at the meeting asking why a concern was raised about the babysitters.

¶11 The child welfare specialist testified when the children were taken into custody the father provided clothing for the children which "did not fit," "smelled of urine," and was "unclean." He was asked how he personally knew the clothes did not fit and smelled of urine. He testified he knew about the clothing because "the clothes in the bag were so pungent that we had to move them to a different spot because they were overpowering, the smell of urine was overpowering." He testified clothes for the children from their home were brought to the meeting in two bags, one by father and one by the initial case worker, and both smelled of urine.

¶12 The second witness was a DHS employee who testified that the oldest child, a three-year-old, would not speak and would make sounds but no words. This child communicated by using hands for pointing. During DHS custody she received, and was continuing to receive, therapy she needed. By the time of father's trial this child was speaking and attending kindergarten, although using fewer words than typical for her age. The witness testified the middle child had self-harming, talking, and other issues. She testified on the individual needs of the children and "the amount of therapy that they receive is extensive." Testimony and the record on appeal show counseling, therapy, and participation in different programs for the children was started shortly after being taken into custody and continued in various forms. The children had family counseling with their mother before she relinquished her parental rights. At the time of trial the youngest child was exhibiting normal behavior for the child's age.

¶13 Counsel for father questioned whether testing had been performed on both mother and father. The witness said the evaluation of mother had been requested but not completed prior to her relinquishment of her parental rights, and "Dad wouldn't attend ... for us to find out if there was anything we needed to do, if there was any other issues." Counsel then pressed: "Now, let's be realistic. You all were never going to do an FFA because you were going to terminate. So if you were not going to allow him to do any services, you were never going to do an FFA." The witness testified: "There were some scheduled that he never showed up for." The witness also explained: "We have service plans on individuals who are on a termination case plan goal." The witness was questioned whether the children have ever had an evaluation to determine the reason why they are having behavioral issues and whether such is a result of being in the home or in DHS custody. The witness replied "yes," but then explained that the evaluations were based upon the services and therapy the children needed at that time and not to determine a first or ultimate cause of a behavioral issue.

¶14 Counsel for father...