Simmers v. State (In re G.V.)
| Decision Date | 16 December 2015 |
| Docket Number | No. 113,934.,113,934. |
| Citation | 365 P.3d 89 |
| Parties | In the Matter of Minor Child G.V., Alleged to be deprived. Abraham Simmers, Appellant, v. State of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
J. Travis Barnett, Hood and Barnett, P.L.L.C., Tulsa, Oklahoma, for Appellant.
Max Cook, District Attorney of Creek County, Kelly Allen, Assistant District Attorney, Sapulpa, Oklahoma, for Appellee.
¶ 1 Appellant Abraham Simmers (Father), a citizen of the Muscogee (Creek) Nation (MCN), appeals from an Order of the trial court overruling his motion for new trial in which he asked the trial court to vacate its order finding active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family and that those efforts proved to be unsuccessful as mandated by the Federal Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 –1963 (2014). We affirm.
¶ 2 In September 2012, Appellee State of Oklahoma (State) filed its petition seeking to have G.V. and his two older brothers adjudged deprived. G.V., at age one month, had been left alone at home by his mother (Mother) and taken into custody. G.V.'s blood tested positive for amphetamines
and methamphetamines at the time of his birth. At the time of the petition, Mother's husband (Husband) was listed as G.V.'s father on the child's birth certificate. The petition alleged the conditions Mother and Husband needed to correct are: "Failure to Provide a Safe and Stable Home, Threat of Harm, Substance Abuse, and Domestic Violence." All three children are Indian children belonging to the MCN. The children were adjudicated deprived on November 5, 2012.
¶ 3 However, it was not until May 8, 2014, that the Department of Human Services (DHS) learned Father was G.V.'s biological father. Husband had indicated he did not believe he was G.V.'s biological father. After numerous delays by Husband to undergo DNA testing, he was tested and determined not to be G.V.'s father. Father was then identified as the possible father; DNA testing proved he is G.V.'s biological father.
¶ 4 Upon learning of Father's status, DHS developed an Individual Service Plan (ISP). On May 12, 2014, a DHS caseworker met with Father in the Creek County jail and completed a family functional assessment. Father's ISP was developed based on his criminal history and the assessment the DHS caseworker completed with Father. The conditions Father needed to correct were to provide G.V. with "a safe and stable home that is free from substance abuse and exposure to domestic violence."2 The ISP contained several "To Do's" for Father including completion of DHS-approved parenting and anger management classes and completion of a substance abuse assessment, and, upon his release from prison, he was to submit to random urinalysis and/or hair strand analysis, provide a safe and stable home for G.V., and obtain a legal means of income to care for G.V. In July 2014, the court adopted the ISP noting it was reviewed in open court with Father and Father stipulated to it.
¶ 5 The July 30, 2014 ISP progress report states Father was then in the Tulsa County jail and in the custody of the Department of Corrections (DOC). It also stated the DHS case worker attempted to contact Father's DOC case manager but had received no return call. It also noted G.V. had been having every-other-week visitation with his paternal grandmother and aunt. The report noted the DHS caseworker's inability to verify any progress by Father in participating in parenting and anger management classes or substance abuse assessment "due to [Father's] being moved to Tulsa County Jail and [her inability] to contact [Father's] case manager."
¶ 6 The November 24, 2014 ISP progress report again states efforts to contact Father's DOC case manager had been unsuccessful and that Father was now in the Davis Correctional Facility in Holdenville. It notes the visits between G.V. and his paternal grandmother and aunt are "going very well." As to Father, the report states DHS had been unable to verify that Father enrolled in or completed the aforementioned classes and assessments. The DHS active efforts report noted the DHS caseworker's efforts to call the DOC case manager on October 7 and 30, 2014, and again on November 20, 2014. It also listed the numerous visitations between G.V. and "his paternal extended family."
¶ 7 An addendum to the court report was filed December 2, 2014, in which the DHS caseworker reported she had been contacted by Father's DOC case manager. DHS was informed that as a condition of his parole, Father was ordered to complete Thinking for a Change and his GED. She was also informed Father had been placed in segregation until the end of December 2014 because he was found to be in possession of a knife, and he would be transferred to "phase unit" for nine months after segregation. The DOC case manager informed DHS that Father had not initiated any of the aforementioned classes and assessments prior to being transferred to segregation, but that he would be offered Thinking for a Change and GED while in segregation. The report also notes the DHS caseworker's inquiry about how she could schedule visitation with Father.
¶ 8 On January 27, 2015, State made a motion to terminate Father's parental rights upon the grounds that, pursuant to: 10A O.S 2011 § 1–4–904(B)(5), Father had been permitted a period of not less than three months to correct the conditions, which included Father's failure to comply with the court-ordered standards at the May 28, 2014 dispositional hearing; 10A O.S. 2011 § 1–4–904(B)(12), Father has been incarcerated and G.V. has been placed outside the home of the parent, guardian or extended family member and continuation of his parental rights would cause harm to G.V.; and 10A O.S. 2011 § 1–4–904(B)(15), G.V. has been in foster care for fifteen of the last twenty-two months. State alleged it is in G.V.'s best interests to terminate Father's parental rights.
¶ 9 An active efforts hearing was held on February 13, 2015, at the conclusion of which the trial court found State presented clear and convincing evidence that active efforts had been made and that those efforts were unsuccessful. A jury trial on the termination of Father's parental rights was held February 25 and 26, 2015. The jury returned a verdict terminating Father's parental rights.
¶ 10 On March 11, 2015, the trial court entered its Order adopting, among other things, the findings of the jury that termination of Father's parental rights is in G.V.'s best interests and that Father's parental rights should be terminated pursuant to § 1–4–904(B)(12) and (15). The court further found that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proved unsuccessful.
¶ 11 On March 18, 2015, Father filed his motion for new trial in which he asked the court to vacate its March 2015 Order because the DHS worker's failure to meet DHS policy—that contact be made once a month with Father or his caseworker—was a failure to meet the minimum policy of DHS and, consequently, "does not meet the meaning of active efforts." The court overruled Father's motion and Father appeals.
¶ 12 Where Indian children are involved, the proceedings must comply with the provisions of both ICWA and its Oklahoma counterpart, the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§ 40 –40.9 (OICWA) : "The [OICWA], in accordance with [ICWA], applies to all child custody proceedings involving any Indian child...." 10 O.S. 2011 § 40.3A. Father challenges the sufficiency of the evidence offered to prove State's active efforts to provide remedial services and rehabilitative programs to Father that were designed to prevent the breakup of the Indian family.
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. Active efforts must be proven by clear and convincing evidence. See, e.g., In re Adoption of G.D.J., 2011 OK 77, ¶ 37 n. 25, 261 P.3d 1159.
¶ 14 With respect to a trial court's refusal to grant Father's motion for new trial, the standard of review on appeal is abuse of discretion. Taliaferro v. Shahsavari, 2006 OK 96, ¶¶ 14–15, 154 P.3d 1240. This Court will not reverse a trial court under this standard unless the trial court "reached a conclusion that is clearly against the evidence and reason." Conoco Inc. v. Agrico Chem. Co., 2004 OK 83, ¶ 14, 115 P.3d 829 (citation omitted). An abuse of judicial discretion occurs "when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence." Patel v. OMH Med. Ctr., Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185 (footnote omitted).
¶ 15 Father offers three propositions on appeal, but they all make the same essential argument: the trial court erred in finding State proved by clear and convincing evidence active efforts had been made as required by 25 U.S.C. § 1912(d) and the court thus abused its discretion in overruling his motion for new trial.
¶ 16 With the exception of setting forth the requirements of 25 U.S.C. § 1912(e), Father has offered no authority for any of ...
To continue reading
Request your trial