428 P.3d 881
Okla.2018Background
- Mother gave birth June 6, 2016; DHS removed the infant (Child) June 17, 2016 after evidence of parental heroin use and unsafe behavior. Child was adjudicated deprived by consent on Sept. 8, 2016 and an individualized service plan (ISP) was imposed.
- Mother repeatedly failed to comply with ISP: missed many drug screens (only 3 UAs in ~10 months), missed substance‑abuse counseling (eventual dismissal), and had multiple positive tests including one week before trial. Mother denied having a drug problem.
- The State moved to terminate parental rights (filed March 2017) under 10A O.S. § 1‑4‑904(B)(5), (7), and (17); the (B)(7) ground was withdrawn at trial. Trial was set for Aug. 28–29, 2017.
- Mother asked for a continuance on Aug. 28 to obtain more time to comply and offered to waive a jury trial; the court denied the continuance, accepted a signed jury‑waiver after questioning Mother, and held a non‑jury trial the next day.
- The Choctaw Nation social worker testified by telephone; Mother cross‑examined. The court found DHS had provided active reunification efforts, Mother failed to correct the conditions, and terminating parental rights was in Child’s best interest. The court also found ICWA harm beyond a reasonable doubt. The district court granted termination; Mother appealed.
Issues
| Issue | Mother’s Argument | State’s Argument | Held |
|---|---|---|---|
| Denial of motion to continue | Court abused discretion by denying continuance requested day of trial to allow more time to comply with ISP and secure tribal witness | Denial proper because case had been pending long, State ready, Child’s interest in permanency outweighs delay | No abuse of discretion; denial furthered justice and did not unfairly deprive Mother of opportunity to prepare |
| Validity of jury‑trial waiver | Waiver involuntary or uninformed because Mother was on methadone and later appeared lethargic | Court properly questioned Mother, she swore waiver was voluntary and competent; judge observed her demeanor | Waiver was knowing, voluntary, and the court did not abuse its discretion |
| Telephonic testimony / confrontation rights | Telephonic testimony denied Mother meaningful opportunity to confront witness; violation of procedural due process (and allegedly Confrontation Clause) | Telephonic testimony was authorized by statute; Mother had oath, opportunity to cross‑examine and was present in court | No due process violation; Confrontation Clause not applicable to civil termination proceedings; telephonic testimony permissible under statute |
| Sufficiency: clear and convincing evidence for termination (10A §1‑4‑904(B)(5),(17)) | State failed to prove by clear and convincing evidence that Mother failed to correct conditions or that Child could not be safely returned | Pointed to longstanding noncompliance, missed/dismissed treatment, multiple positive drug tests, Child in foster care >6 of prior 12 months | Clear and convincing evidence supported termination under (B)(5) and (B)(17); appellate court affirmed |
| Ineffective assistance of counsel | Counsel was deficient for not making more objections, not calling witnesses, no opening statement, not objecting to telephonic testimony | Tactical choices (no opening, limited objections, no defense witnesses) were reasonable trial strategy and Mother failed to show prejudice | Strickland not satisfied; counsel’s performance not shown to be deficient or prejudicial |
Key Cases Cited
- Anderson v. Chapman, 356 P.2d 1072 (Okla. 1960) (standard of review for continuance motions)
- Bookout v. Great Plains Reg’l Med. Ctr., 939 P.2d 1131 (Okla. 1997) (continuance and consideration of witness availability)
- Colbert v. State, 654 P.2d 624 (Okla. Crim. App. 1982) (competent, knowing, intelligent waiver standard)
- In re D.D.F. & S.D.F., 801 P.2d 703 (Okla. 1990) (waiver and right to counsel in deprivation proceedings)
- In re A.M. & R.W., 13 P.3d 484 (Okla. 2000) (procedural due process and confrontation principles in child deprivation cases)
- In re C.D.P.F., 243 P.3d 21 (Okla. 2010) (clear and convincing evidence standard in termination cases)
- In re S.B.C., 64 P.3d 1080 (Okla. 2002) (appellate review requires record support of clear and convincing evidence)
- In re H.M.W. & K.D.W., 304 P.3d 738 (Okla. 2013) (ICWA/Indian Act proof beyond a reasonable doubt for serious harm)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective‑assistance test)