Lane v. State (In re E.P.F.L.), No. 108,747.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtJANE P. WISEMAN
Citation2011 OK CIV APP 112,265 P.3d 764
PartiesIn the Matter of E.P.F.L., JR., H.R.S.L. and J.J.L., Deprived Children.Erik Lane, Appellant, v. State of Oklahoma, Appellee.
Docket NumberDivision No. 2.,No. 108,747.Released for Publication by Order of the Court of Civil Appeals of Oklahoma
Decision Date14 September 2011

2011 OK CIV APP 112
265 P.3d 764

In the Matter of E.P.F.L., JR., H.R.S.L. and J.J.L., Deprived Children.Erik Lane, Appellant,
v.
State of Oklahoma, Appellee.

No. 108,747.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

Sept. 14, 2011.


[265 P.3d 765]

Appeal from the District Court of Mayes County, Oklahoma; Honorable Terry H. McBride, Trial Judge.AFFIRMED.

Lisa M. Bohannan, The Bohannan Law Office, P.C., Pryor, Oklahoma, for Appellant.

Charles A. Ramsey, Assistant District Attorney, Pryor, Oklahoma, for Appellee.

Terry D. Allen, Jr., Terry D. Allen, Jr., Attorney at Law, PLLC, Pryor, Oklahoma, for the Children.JANE P. WISEMAN, Judge.

¶ 1 Erik Lane, Sr. (Father), appeals from an order of the trial court upon jury verdict terminating his parental rights to his minor children, EPFL, Jr., HRSL, and JJL (the Children). Father raises the following issues on appeal: (1) whether the trial court erred in overruling his demurrer and finding that the State of Oklahoma met its burden to prove that active efforts had been made to prevent the breakup of this Indian family, and (2) whether the trial court erred by refusing to invoke the rule of sequestration.1 After reviewing the record and applicable law, we find the trial court did not err in overruling the demurrer or in refusing to invoke the rule of sequestration as to an expert witness. Accordingly, we affirm the order of the trial court.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On August 17, 2009, State filed a petition alleging EPFL, Jr., HRSL, and JJL “became deprived by reason the children do not have the proper parental care or guardianship.” State alleged that Father and Jimy Rabbit (Mother) “had been in a physical altercation whereby both sustained injury.” The petition stated, “Both parents consume alcohol to the point of intoxication. [Father] has a pending case involving violence towards [Mother] and is currently on a deferred sentence for Assault and Battery with a Dangerous weapon involving [Mother].” State also claimed Mother had suicidal thoughts and she was in the hospital because she was detained as a person who was “in need of mental health treatment.” The children's home was in deplorable condition because of cockroaches, dirty dishes, rotting food, and a strong foul odor. State alleged that the Children had previously been adjudicated deprived “for similar issues including inadequate housing and physical violence between the parents.” Both Father and Mother stipulated to the State's allegations on October 13, 2009, and the court adjudicated the children deprived.

¶ 3 The court set a dispositional hearing for November 24, 2009. At the time of the dispositional hearing, Father was in jail. Father had been in jail since October 22, 2009, for charges relating to domestic violence against Mother. At the November 24th hearing, Father and Mother signed a treatment plan. The treatment plan required Father to complete a substance abuse assessment, follow the recommendations made in the assessment, submit to random UAs, and sign necessary releases to the Department of Human Services (DHS) so it could communicate with the agency providing services to Father regarding his progress.

¶ 4 The plan also required Father to complete a domestic violence assessment, follow all recommendations made in the assessment, and sign any necessary releases so that DHS could track his progress. Father was also required to complete the recommendations of his mental health review, provide a safe home for the children, provide financially for the children through legal means, complete a budgeting class, and prepare and submit a budget to DHS. In the event the children were returned home, the plan required Father to actively participate in a home-based services program. Father was also required to comply with a visitation schedule and keep in contact with his DHS worker.

[265 P.3d 766]

¶ 5 On May 10, 2010, State filed a motion to terminate Father's parental rights on the ground that Father failed to correct the conditions which led to the deprived adjudication after he had been given at least three months to correct those conditions. Mother had previously relinquished her parental rights. A trial was held on August 3 and 4, 2010.

¶ 6 At trial, State introduced evidence that it filed a petition to adjudicate the Children deprived in January 2007. In the first deprived petition, State alleged the children did not have proper parental care because Mother and Father were under the influence of alcohol while caring for them. Mother and Father “got into a physical altercation in the children's presence such that both parties received injury.” The petition noted Father had been previously arrested for domestic violence and, at the time the petition was filed, Father had a pending case involving domestic violence towards Mother. The petition alleged the Children's home was an unfit place to live because it was dirty, had broken plates and glass within reach of the children, and the refrigerator was broken and had rotting food in it. Also, “the children were dirty, unkempt, and had a foul odor about their person.”

¶ 7 Mother and Father stipulated to the first deprived petition and the Children were adjudicated deprived on February 22, 2007. Mother and Father signed a treatment plan on March 6, 2007. The plan required Father to obtain psychological, domestic violence, and drug and alcohol assessments and follow all recommendations; attend and complete parenting classes; make sure the Children had adequate food, proper clothing, and housing; participate in home-based services; follow a visitation plan; sign releases to allow DHS to share information with other agencies; and keep in contact with his case worker.

¶ 8 Scott Oliver, a permanency planner for DHS, testified he was assigned to Father's and Mother's case in February 2007. In regard to the first treatment plan, Oliver referred Father to Safenet for a domestic violence assessment, but as far as he knows, Father did not complete the assessment. Father did complete a drug and alcohol assessment. Although Father attended parenting classes, he did not complete them. Father and Mother did obtain adequate housing, food, and clothing for the Children. Father obtained a psychological evaluation in July or August 2007. The Children were not returned to Father and Mother while Oliver had the case because they had not completed the treatment plan. Father and Mother continued to have issues with alcohol and domestic violence. Oliver stated that he “knew of at least two times that [Father] was arrested for public intox, [and] another time where [Mother and Father] were arrested for domestic violence and public intox during the six months” he was their permanency planner. Oliver testified Father was still receiving alcohol treatment while he had the case.

¶ 9 Debra Morgan, also a permanency planner for DHS, received Father's and Mother's case in January 2008. When Morgan received the case, Father was in jail for domestic battery and assault with a dangerous weapon on Mother. Morgan did not know when Father was placed in jail, but he was released on April 1, 2008. Father received the required drug and alcohol assessment on February 13, 2007, which resulted in a recommendation that Father obtain 12 weeks of “drug and alcohol services and a deferred six-week[s]of anger management and if ... domestic abuse happened, then he would complete the six weeks.” Father did not complete the recommended services. Although Father had the opportunity to attend the drug and alcohol classes at People, Inc., he did not do so. Father had another substance abuse assessment on April 30, 2008, which recommended 12 weeks of substance abuse group therapy and 12 weeks of self-help group therapy. Father did complete the second set of recommendations. Father also completed parenting classes at Safenet. Morgan stated Father did not have a house of his own but he helped Mother provide a home for the Children.

¶ 10 The Children were returned to Mother on June 17, 2008, because she had completed her treatment plan. Father was not living with Mother at that time because “[h]e still had items to complete on his treatment plan.” Although the Children were returned

[265 P.3d 767]

in June 2008, the deprived child case was not closed until April 2009. Morgan stated that she was going to close the case earlier, but Mother had a public intoxication charge in December 2008. Morgan again attempted to close the case early in 2009, but when she made an unannounced visit to Mother's home, Father was there watching the Children and the home was dirty. Morgan told Father he needed to clean up the home. When Morgan came back the next week, the home was cleaner than on her previous visit. Morgan stated Father had completed all of the items on his treatment plan except for the anger management requirement.

¶ 11 Although the Children were returned to Mother in 2008 and the case was closed in April 2009, they were soon back in DHS custody. DHS took the Children back into its custody on August 10, 2009. Father testified the Children were removed because their “house was a mess” and Mother and Father were in a fight the night before and they both sustained injuries.

¶ 12 David Goff, a DHS permanency planner, testified the Children were removed for “[e]ssentially the same thing as before” including “substance abuse, domestic violence ... [and] a very dirty home, [that was] unsafe for the children.” Goff testified that when he devised the second treatment plan, he did not do much differently except “[s]ort of fine-tune it somewhat, because in the previous treatment plans, it was indicated that anger management was needed instead of domestic violence.” Goff specified that “domestic violence assessments had to be completed” rather than one for anger management.

¶ 13 Goff testified that after he drafted the...

To continue reading

Request your trial
7 practice notes
  • Smith v. State (In re T.S), No. 111344.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • January 8, 2014
    ...rights termination proceeding under [315 P.3d 1047]ICWA is clear and convincing evidence. See Matter of E.P.F.L., 2011 OK CIV APP 112, 265 P.3d 764;Matter of J.S., 2008 OK CIV APP 15, 177 P.3d 590. ¶ 52 Oklahoma courts have not directly addressed the applicable burden of proof to support § ......
  • Smith v. State (In re T.S.), Case Number: 111344
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • October 31, 2013
    ...in a parental rights termination proceeding under ICWA is clear and convincing evidence. See Matter of E.P.F.L., 2011 OK CIV APP 112, 265 P.3d 764; Matter of J.S., 2008 OK CIV APP 15, 177 P.3d 590. ¶52 Oklahoma courts have not directly addressed the applicable burden of proof to support § 1......
  • Simmers v. State (In re G.V.), No. 113,934.
    • United States
    • Court of Civil Appeals of Oklahoma
    • December 16, 2015
    ...484.In re J.S., 2008 OK CIV APP 15, ¶ 5, 177 P.3d 590 (emphasis in original). See also In re E.P.F.L., Jr., 2011 OK CIV APP 112, ¶ 25, 265 P.3d 764. However, there is not a definition of what comprises "active efforts" and the issue must therefore be determined case by case. E.P.F.L., ¶ 25.......
  • Sanders v. State (In re State ex rel. K.P.), No. 108,914.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • February 17, 2012
    ...by the time of Mother's trial. 2. Mother's argument is consistent with the position of the dissent in In Re E.P.F.L. 2011 OK CIV APP 112, 265 P.3d 764, which was issued prior to the Supreme Court's opinion in G.D.J. 3. In its instructions to the jury, the trial court placed the heightened “......
  • Request a trial to view additional results
7 cases
  • Smith v. State (In re T.S), No. 111344.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • January 8, 2014
    ...rights termination proceeding under [315 P.3d 1047]ICWA is clear and convincing evidence. See Matter of E.P.F.L., 2011 OK CIV APP 112, 265 P.3d 764;Matter of J.S., 2008 OK CIV APP 15, 177 P.3d 590. ¶ 52 Oklahoma courts have not directly addressed the applicable burden of proof to support § ......
  • Smith v. State (In re T.S.), Case Number: 111344
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • October 31, 2013
    ...in a parental rights termination proceeding under ICWA is clear and convincing evidence. See Matter of E.P.F.L., 2011 OK CIV APP 112, 265 P.3d 764; Matter of J.S., 2008 OK CIV APP 15, 177 P.3d 590. ¶52 Oklahoma courts have not directly addressed the applicable burden of proof to support § 1......
  • Simmers v. State (In re G.V.), No. 113,934.
    • United States
    • Court of Civil Appeals of Oklahoma
    • December 16, 2015
    ...484.In re J.S., 2008 OK CIV APP 15, ¶ 5, 177 P.3d 590 (emphasis in original). See also In re E.P.F.L., Jr., 2011 OK CIV APP 112, ¶ 25, 265 P.3d 764. However, there is not a definition of what comprises "active efforts" and the issue must therefore be determined case by case. E.P.F.L., ¶ 25.......
  • Sanders v. State (In re State ex rel. K.P.), No. 108,914.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • February 17, 2012
    ...by the time of Mother's trial. 2. Mother's argument is consistent with the position of the dissent in In Re E.P.F.L. 2011 OK CIV APP 112, 265 P.3d 764, which was issued prior to the Supreme Court's opinion in G.D.J. 3. In its instructions to the jury, the trial court placed the heightened “......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT