428 P.3d 881
Okla.2018Background
- Mother gave birth June 6, 2016; Child removed by DHS June 17, 2016 after police found heroin and Mother displayed signs of drug use while Child was in NICU. DHS filed deprivation petition and an ISP was imposed by consent.
- State filed to terminate Mother's parental rights March 2, 2017; jury trial set for August 28, 2017.
- On trial day Mother orally requested a continuance to work on services, offered to waive a jury in exchange; court denied the continuance but accepted Mother's waiver of jury trial after questioning her on the record.
- Non-jury trial held August 29, 2017: Mother admitted sporadic participation in services, missed ~50 drug screens, tested positive multiple times (including within a week of trial), and denied having (or acknowledging) a substance-abuse problem.
- DHS and a Choctaw Nation social worker (testified by phone) recommended termination; the district court found clear and convincing evidence under 10A O.S. § 1-4-904(B)(5) and (17) and terminated Mother's parental rights. Mother appealed on five grounds including continuance denial, invalid jury waiver, telephonic testimony violating due process, insufficiency of evidence, and ineffective assistance of counsel.
Issues
| Issue | Mother’s Argument | State’s Argument | Held |
|---|---|---|---|
| Denial of continuance | Trial-day denial deprived her of needed time to complete services; court improperly considered witness availability and docket/permanency concerns | Denial was within court’s discretion; Mother sought time for services not to gather evidence and had had ample time previously | Court did not abuse discretion; denial furthered justice and did not deprive Mother of reasonable opportunity to prepare |
| Validity of jury-waiver while on methadone | Methadone use impaired competency; waiver was not knowingly/voluntarily given | Court properly inquired about substance influence and competency; waiver was made knowingly and voluntarily | Waiver was valid; no abuse of discretion in accepting waiver |
| Telephonic testimony / confrontation rights | Telephonic testimony denied her right to confront witnesses and violated due process (invoking full procedural safeguards) | Sixth Amendment confrontation clause inapplicable to civil termination; due process satisfied because Mother had meaningful opportunity to cross-examine; statute permits teleconference testimony | No due process violation; telephonic testimony permitted and Mother had extensive cross-examination |
| Sufficiency of evidence & ineffective assistance of counsel | State failed to prove termination by clear and convincing evidence; trial counsel was deficient (no opening, few objections, no witnesses) | Record shows continued missed drug tests, positive tests, failure to complete treatment, Child in foster care required period; counsel’s choices were reasonable trial strategy and caused no prejudice | Clear and convincing evidence supported termination under §§ 1-4-904(B)(5) and (17); counsel was not ineffective under Strickland |
Key Cases Cited
- Bookout v. Great Plains Reg’l Med. Ctr., 939 P.2d 1131 (1997) (continuance denial standard and consideration of witness availability)
- In re N.L., 754 P.2d 863 (1988) (continuance abuse-of-discretion analysis in child-deprivation context)
- Colbert v. State, 654 P.2d 624 (1982) (waiver must be knowing, voluntary, and competent)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- In re C.D.P.F., 243 P.3d 21 (2010) (clear-and-convincing burden in parental termination)
- In re H.M.W. & K.D.W., 304 P.3d 738 (2013) (requirement to prove likelihood of serious harm beyond a reasonable doubt in ICWA cases)