Sanders v. State (In re State ex rel. K.P.)

• Decision Date: 17 February 2012
• Docket Number: No. 108,914.,Division No. 2.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma,108,914.
• Citation: 275 P.3d 161,2012 OK CIV APP 32
• Parties: In the Matter of the STATE of Oklahoma IN the INTEREST of K.P. and K.P., deprived children.Karinne Sanders, Appellant, v. The State of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2012 OK CIV APP 32

275 P.3d 161

In the Matter of the STATE of Oklahoma IN the INTEREST of K.P. and K.P., deprived children.Karinne Sanders, Appellant,

v.The State of Oklahoma, Appellee.

No. 108,914.

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.

Feb. 17, 2012.

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

Terry D. Allen, Jr., Terry D. Allen, Jr., Attorney at Law, PLLC, Pryor, Oklahoma, for Appellant.

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

Lisa M. Bohannan, The Bohannan Law Office, P.C., Pryor, Oklahoma, for Minor Children.Nason N. Morton, Senior Assistant Attorney General, Tahlequah, Oklahoma, for Cherokee Nation.JOHN F. FISCHER, Chief Judge.

¶ 1 Karinne Sanders (Mother) appeals from the district court's judgment entered on jury verdict terminating her parental rights to her minor children KP and KP. Both children are members of the Cherokee Nation. The Cherokee Nation had notice of and participated in the proceedings as required by the state and federal Indian Child Welfare Acts.

BACKGROUND

¶ 2 Mother tested positive for opiates at the time of her younger child's birth at Hastings Indian Medical Center on October 3, 2008. The Cherokee Nation investigated and offered Mother such services as parenting education and counseling for substance abuse and domestic violence, to be provided at her home. Although Mother agreed to participate in the program, she would not meet with the parenting educator who came to her home. After several unsuccessful attempts to meet with Mother, the Cherokee Nation determined that Mother was noncompliant and referred the matter to the Oklahoma Department of Human Services (DHS).

¶ 3 DHS at first sought Mother's voluntary compliance with a plan to treat and improve conditions in her home. On December 1, 2008, the State filed a petition seeking adjudication of KP and KP as deprived. The State alleged that the children did not have proper parental care; Mother took nine different prescription medications prescribed by six different doctors and was under the influence of those drugs while caring for children. The State further alleged that on November 24, 2008, a DHS caseworker visited the home and Mother did not answer the door. She heard the older child hitting the door and crying. When Mother finally answered the door, she appeared confused. Mother told the caseworker she had been sleeping, but subsequently failed a field sobriety test. The two children were taken into emergency custody by DHS. At that time, the older child was thirteen months old and the younger child was less than eight weeks old. DHS placed the children with foster parents in a home approved by the Cherokee Nation.

¶ 4 Following a hearing, the district court entered its February 4, 2009 order adjudicating the children deprived. Initially, the goal was to reunite the children with Mother in a home that was safe and free from substance abuse. To accomplish this, the district court entered an individualized service plan (ISP) for Mother on April 28, 2009. The terms of the ISP required Mother, among other things, to visit the children weekly, take parenting classes at an approved agency, provide financial support for the children by way of employment or other legal means ($277 per month, later reduced to $100), complete a budgeting class and provide a budget, provide a safe home, complete a psychological evaluation by a licensed psychologist, and complete a substance abuse assessment and follow the recommendations of the assessor.

¶ 5 Alleging Mother's failure to correct conditions that led to the adjudication of KP and KP as deprived, the State, with the support of the Cherokee Nation, filed a petition seeking termination of Mother's parental rights to KP and KP. The State further alleged that Mother failed to pay support as ordered by the district court. The matter was tried before a jury in August 2010.¹ The jury determined that Mother had failed to correct the conditions that led to the adjudication of the children as deprived and failed, for at least six out of the last twelve months, to pay the court-ordered support for children or support them according to her financial ability. The district court entered judgment in accordance with the jury verdict on August 18, 2010. Mother appeals the judgment of the district court terminating her parental rights to KP and KP.

STANDARD OF REVIEW

¶ 6 Where Indian children are involved, the proceedings must comply with the provisions of both the federal Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901–1963, and its Oklahoma counterpart, the Oklahoma ICWA, 10 O.S.2011 §§ 40 through 40.9: “The Oklahoma Indian Child Welfare Act, in accordance with the federal Indian Child Welfare Act, applies to all child custody proceedings involving any Indian child....” 10 O.S.2011 §§ 40.3A. Mother challenges the sufficiency of the evidence offered to prove three critical elements in the State's effort to terminate her parental rights: (1) the State's active efforts to provide remedial services and rehabilitative programs to Mother that were designed to prevent the breakup of the family; (2) Mother's failure to correct the conditions that led to the adjudication of the children as deprived; and (3) that termination was in the children's best interests. Mother argues these elements must be proved using the beyond-a-reasonable-doubt standard specified in section 1912 of the ICWA:

(f) ... No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence, beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 U.S.C. § 1912(f). The Oklahoma Supreme Court addressed this issue in In re Adoption of G.D.J., 2011 OK 77, n. 25, 261 P.3d 1159, 1169 n. 25, agreeing with this Court's finding in In re J.S., 2008 OK CIV APP 15, ¶ 4, 177 P.3d 590, 591, that the beyond-a-reasonable-doubt burden of proof “only applies to the factual determination required by 25 U.S.C. § 1912(f) to be made in ICWA termination cases and the state law mandated burden of proof of ‘clear and convincing evidence’ applies to all other state law requirements for termination.” This Court in J.S., although reversing the district court's interpretation of the “active efforts” requirement in section 1912(d) of the ICWA, rejected the argument that the higher burden of proof was required to show “active efforts.” The “factual determination” required by section 1912(f) is whether “the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Because this is not an issue raised by Mother in this appeal, we find that the applicable burden of proof for review of Mother's evidentiary issues is the clear-and-convincing evidence burden.² “Clear and convincing evidence” is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re C.G., 1981 OK 131, n. 12, 637 P.2d 66, 71 n. 12.³

¶ 7 As discussed in detail in Part IV of this Opinion, we review the district court's findings on alleged juror misconduct for abuse of discretion. See Parrish v. Lilly, 1993 OK 80, 883 P.2d 158

ANALYSIS

I. Failure to Correct Conditions

¶ 8 Following the February 2009 deprived adjudication, Mother was required to undergo random testing for drugs. She had positive drug tests in April 2009 for methamphetamine and marijuana, and in September 2009 for marijuana. There was evidence that DHS had requested several additional drug tests, but Mother did not go and complete the testing process when requested to do so.

¶ 9 After the State filed its petition to terminate in February 2010, there were additional episodes when Mother displayed poor judgment related to use of drugs. In July 2010, Mother tested positive for benzodiazepines and oxycodone. Mother claimed to have prescriptions for certain controlled substances, but did not provide the prescriptions to DHS or provide the medical releases it requested to document the prescriptions and confirm that she was actually taking those drugs as directed, for the medical conditions for which they were prescribed. At trial, Mother testified that she no longer used marijuana and methamphetamines. But a drug test administered during trial showed she was taking benzodiazepines and oxycodone. Mother continued to claim that she had prescriptions for the drugs she was taking, which included Lortab, Prozac and Xanax. She did not, however, present the prescriptions to the court.

¶ 10 Mother changed residences more than a dozen times while the children were in DHS custody. She stayed with various friends or family members or in trailers owned by them. She claimed that she moved frequently out of fear for her own safety and the safety of her children. In the summer of 2009, threats were made against Mother and the children. According to Mother, the threats were connected to the involvement of her father, brother and another individual in illegal drug sales and information she provided to authorities about that individual. Nonetheless, one of Mother's residences was a trailer where her brother had stayed and to which he continued to have access. Mother also claimed that she moved frequently because she wanted to avoid conflict with Father, and yet she was still married to him at the time of trial.

¶ 11 Mother did not have a valid driver's license; it had been suspended since the time the children were taken into DHS custody. Mother claimed she was working on...