IN THE MATTER OF A.F.K.; M.J.K. and M.A.K., DEPRIVED
CHILDREN:
¶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
maintaining a safe and stable home, is not supported by clear and convincing
evidence.
Domestic Violence
¶16 In 2011, prior to Children being removed, Children told the DHS worker
that Parents hit and punched each other in the face and on the back. There is a
history of violence between the Parents which led to the requirement in the ISP
that they complete domestic violence classes.
¶17 Mother completed a domestic violence inventory, which is a diagnostic
tool to help determine if the individual has been in a violent relationship or
has tendencies that could lead to domestic violence. Based on answers to the
inventory questions, the evaluator will make recommendations for any counseling
services that might be necessary or beneficial. The September 2011 ISP required
Mother to attend domestic violence classes, but she did not submit to the
domestic violence inventory until November of 2012, more than a year later and
only one week before the State filed its motion to terminate her parental
rights.
¶18 At trial, Regan Green testified on behalf of Mother. Ms. Green is an
advocate for Project Safe, which is the service provider that conducted Mother's
domestic violence inventory. Based on Mother's inventory responses, no domestic
violence services were recommended. However, Mother nevertheless participated in
an eight-week class and attended seven of the sessions. On cross-examination,
Ms. Green admitted it is important that she know the history of a client's
domestic violence when recommending appropriate services. She then testified
that Mother had not disclosed that a protective order had been issued between
Mother and Father. Neither had Mother advised her that Father had been arrested
for domestic violence against Mother. Further, she was not told that Mother
continued living with Father despite the fact that Father had not received
domestic violence treatment. When Mother testified at trial, she admitted she
had not reported her domestic violence history on her inventory or to Ms. Green.
In fact, she admitted she never disclosed to Ms. Green that she had been a
victim of domestic violence.
¶19 Mother claims the most recent incident of domestic violence occurred in
2009, long before Children were adjudicated deprived. She claims this is not
evidence of an uncorrected condition and there is no evidence of domestic
violence after Children were removed from the home.
¶20 Father completed a domestic violence inventory in June of 2011. He was
required by the September 2011 ISP to participate in domestic violence
counseling. As a result of Father's 2010 conviction for domestic assault and
battery (he pleaded no contest), he was sentenced to complete a 52-week domestic
violence counseling program. The child welfare specialist testified that even
though the law permits a motion to terminate if a parent has not corrected the
conditions (that led to the deprived adjudication) within 90 days, the practice
of DHS is to allow parents a full year before recommending termination. At the
time of trial, Father had attended only four sessions of his 52-week domestic
violence counseling program.
¶21 Failure to comply with an ISP is not, in itself, grounds for termination
of parental rights, but noncompliance with the plan may be considered as
evidence that parental rights should be terminated because the parent has been
unable to correct conditions leading to the child's deprived status. Matter
of L.S., 2013 OK CIV APP 21,
¶14, 298 P.3d 544, 549. The
Court of Civil Appeals in Matter of L.S. stated:
[The father's] inability to comply with the terms of the ISP and follow
often simple directives that were repeated at each visitation was especially
concerning, particularly in light of the fact that being a single father to
a toddler would be much more difficult than complying with the ISP itself.
Compliance with the ISP was a chance for Father to demonstrate he had met a
standard of conduct expected of him in order to correct the conditions
leading to the deprived adjudication and be in a position to responsibly
parent L.S. In re S.A., 2007 OK CIV APP 97, ¶12, 169 P.3d 730, 735. The State
proved by clear and convincing evidence that Father was unable to meet this
level of parental competence and the jury agreed. In re State of Oklahoma
In the Interest of K.P., 2012 OK CIV APP 32, ¶22, 275 P.3d 161, 166-67 (failure
to comply with the ISP service plan, in itself, is not grounds for
termination of parental rights, but noncompliance with the plan may be
considered as evidence that parental rights should be terminated, because
the parent has been unable to correct conditions leading to the child's
deprived status).
¶22 In the present case, Father did not complete the ISP requirements which
would have demonstrated he had met a standard of conduct expected of him in
order to correct the condition relating to domestic violence. Mother attended
seven classes on her own terms - after delaying more than a year and then
purposefully hiding material facts directly relating to her domestic abuse
history. The jury could reasonably have concluded her dishonesty resulted in
avoidance of necessary treatment. We hold that noncompliance with the ISP is
evidence Father and Mother did not correct the condition of not engaging in
domestic violence in the home. Matter of L.S., 2013 OK CIV APP 21, ¶14, 298 P.3d
at 549. The order terminating Father and Mother's parental rights based upon
failure to correct the condition of domestic violence is supported by clear and
convincing evidence.
Substance Abuse
¶23 Mother argues the State's only evidence relating to substance abuse was
that she took legally prescribed medications. Father testified Mother was
bipolar; however, until trial, neither the trial court nor DHS had ever been
informed that Mother had this affliction. By the time of trial, Mother presented
prescriptions for the drugs Xanax, an anti-anxiety drug, and Lortab, an opiate,
but there was no evidence of any physician's records describing an affliction
requiring those drugs. During the time Parents were working on the ISP, Mother
frequently tested positive for these prescription drugs.
¶24 In order to correct the condition of substance abuse, the ISP required
Mother to attend drug and alcohol education groups. She submitted to drug
assessments that totaled five hours. She had a treatment session for fifteen
minutes in October of 2011, a 45-minute individual counseling session in
November, and two separate 90-minute group sessions in December. In January of
2012 she had a 30-minute session and a 60-minute session a few weeks later. She
stopped attending sessions after losing her job in January of 2012 and did not
complete the treatment program. Father does not contend he corrected the
condition of substance abuse.
¶25 Because Mother did not complete her treatment program after being given
more than one year to do so, and Father does not take issue with the findings of
the jury, we hold the order terminating Father and Mother's parental rights
based upon failure to correct the condition of substance abuse is supported by
clear and convincing evidence.
Inappropriate Care Givers
¶26 Regarding exposure to inappropriate care givers, Mother points out that
before the Children were adjudicated deprived, Father was assaulted by his
brother, Tanner Schepp, who had threatened to kill Father's family. Father
obtained a protective order against him after Children were removed from the
home. She claims there is no evidence Children have been exposed to
inappropriate care givers since they were removed from the home.
¶27 Of course, because Children have been in the physical custody of a foster
parent since their removal, Parents have not had an opportunity to expose them
further to inappropriate care givers. However, because Parents previously had
exposed Children to several inappropriate care givers with criminal records who
also had their own children removed from their custody, the ISP required them to
complete parenting classes, as well as the substance abuse and domestic violence
classes to demonstrate a standard of conduct expected of them in order to
correct the conditions leading to the deprived adjudication and be in a position
to responsibly parent their Children. See Matter of L.S., 2013 OK CIV APP 21, ¶14, 298 P.3d 544, 549.
¶28 In the present case, as in Matter of L.S., Mother did not complete
any ISP requirements which would have demonstrated she had met a standard of
conduct expected of her in order to correct the condition which led to the
deprived adjudication. Even though failure to comply with the ISP is not, in
itself, grounds for termination of parental rights, Mother's noncompliance may
be considered as evidence her parental rights should be terminated because she
failed to correct conditions leading to Children's deprived status. Father does
not contend he corrected this condition. We hold the order terminating Father
and Mother's parental rights based upon failure to correct the condition of
exposure of the children to inappropriate care givers is supported by clear and
convincing evidence.
Reasonable Efforts
¶29 Citing 10A O.S. 2011 §1-1-102(B)(5),6 Father urges because of his health and
financial limitations, DHS did not make reasonable efforts to assist him in
correcting conditions leading to the deprived adjudication, and that it did not
provide financial help to pay for ISP-required classes.
¶30 Father testified he had an umbilical hernia surgically repaired shortly
after Children were removed from the home, the surgery failed, and he had
another surgery. He scrapped metal for income, earning from $70.00 to $900.00
per month. He also complained the gasoline expense was $55.00 or $60.00 to visit
Children in their foster home in Ada.7
¶31 It is Parents' responsibility, not DHS's responsibility, to correct the
conditions which led to the deprived adjudication of Children. 10A. O.S. 2011
§1-4-904(B)(5)(a). Mrs. Walker, a DHS child investigation worker, worked with
Parents before Children were removed from their custody. Based on referrals in
January, February and April 2011 from a statewide hotline, she investigated the
family's home situation. She spoke with Parents on several occasions about
voluntary services which included domestic violence counseling, substance abuse
counseling, housing assistance, and financial assistance. From January 2011
through June 2011 when Children were removed, Parents did not seek or receive
these voluntary services. Because of Parents' failure to cooperate with her, she
had to close out the earlier referrals.
¶32 After Children were removed from Parents' custody in June 2011, Mrs.
Zumstein, the DHS worker assigned to Parents, testified that several times she
referred Parents to the website and the telephone number for the Department of
Rehabilitation Services which ". . . would have helped them with money to get to
retraining. It would have helped with transportation to get to stuff like that
which would have helped them." Again, Parents did not seek or receive assistance
from this service. Both before and after removal of Children, by informing and
encouraging Parents to avail themselves of voluntary services, DHS made
reasonable efforts to prevent the need for removal of Children and to return
Children to the home.
Effective Legal Counsel
¶33 Mother also contends she lacked effective assistance of legal counsel. In
her brief-in-chief, she stated:
Here, counsel for the Mother presented a disjointed and rambling case
which confused and misled the finders of fact in this cause. Counsel for the
Mother made innumerable and duplicative objections which lacked any legal
basis, interrupted witnesses, and attempted to present extra-legal
requirements into jury instructions.
¶34 Mother also stated that, "[e]ven if the State had presented evidence
sufficient to meet the burden to establish the necessity of termination of
parental rights, because the Mother lacked effective assistance of legal
counsel, the matter should be reversed and remanded for proceedings in which the
Mother might receive adequate representation."
¶35 In parental rights termination cases, because the parties have a
constitutional and statutory right to be represented by an attorney, there
attaches the concomitant "right to effective assistance of counsel." Matter
of D.D.F., 1990 OK 89, ¶15,
801 P.2d 703, 707.8 In
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), the United States Supreme Court held that a criminal defendant's
claim that representation was so deficient so as to require reversal must show
(1) that the attorney's performance was deficient and (2) the deficient
performance prejudiced the defense. The Court also stated that "[j]udicial
scrutiny of counsel's performance must be highly deferential." Id. at
689. In Matter of K.L.C., 2000 CIV APP 98, ¶9, 12 P.3d 478, 481, the Court of Civil
Appeals took guidance from criminal cases and reasoned, "[i]n reviewing a claim
of ineffective assistance of counsel, we look at the proceedings as a
whole."
¶36 In reviewing these proceedings, Mother has not shown her counsel's
performance was deficient; in fact, it appears Mother's counsel zealously
represented her. Neither has Mother shown how this representation prejudiced
her.9 Looking
at the proceedings as a whole, it is clear Mother did not meet her burden of
proving ineffective assistance of counsel.
HETHERINGTON, P.J., adopts Judge Mitchell's specially concurring
opinion.
MITCHELL, J., concurring specially:
¶38 Although I highly approve of the verdict forms used in this case, the
termination order is lacking. We have held previously that the termination order
based on a failure to correct conditions must identify the uncorrected
conditions on which termination is based. Matter of R.A., W.A., Z.A. and
A.A., 2012 OK CIV APP 65,
¶17, 280 P.3d 65; Matter of B.M.O., 1992 OK CIV APP 89, 838 P.2d 38; Matter of E.M.,
1999 OK CIV APP 32, 976 P.2d 1098; Matter of
B.C., 2010 OK CIV APP 103,
242 P.3d 589. The termination
order in the instant case acknowledges the jury's findings, but fails to
identify the uncorrected conditions on which termination is based. The order
should identify the specific grounds for terminations and, if based on a failure
to correct conditions, specifically identify those uncorrected conditions. I
fully concur in all other respects.
