IN THE MATTER OF Z.M.Z.

IN THE MATTER OF Z.M.Z.
2019 OK CIV APP 78
Case Number: 117046
Decided: 04/29/2019
Mandate Issued: 12/11/2019
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

IN THE MATTER OF Z.M.Z. and Z.C.Z., Deprived Children.

STATE OF OKLAHOMA, Petitioner/Appellee,
v.
JOSHUA ZUEHL, Respondent/Appellant.

APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA

HONORABLE RODNEY SPARKMAN, JUDGE

REVERSED

Stephen A. Kunzweiler, China Matlock, TULSA COUNTY DISTRICT ATTORNEY'S OFFICE, Tulsa, Oklahoma, for Petitioner/Appellee,

Isaiah Parsons, Matthew Day, Charles Graham, PARSONS, GRAHAM & DAY, LLC, Tulsa, Oklahoma, for Respondent/Appellant,

Timothy R. Michaels-Johnson, TULSA LAWYERS FOR CHILDREN, Tulsa, Oklahoma, for Z.M.Z. and Z.C.Z.

Kenneth L. Buettner, Judge:

¶1 Respondent/Appellant Joshua Zuehl (Father) appeals an order terminating his parental rights to Z.M.Z. and Z.C.Z. (Children). Children were removed from their parents' home because their mother, Veronica Zuehl (Mother), intentionally dropped three-week old Z.C.Z. Mother was charged with child abuse and was found not guilty by reason of insanity. Mother relinquished her parental rights and Petitioner/Appellee the State of Oklahoma (State or DHS) sought termination of Father's parental rights for failure to correct the condition of Mother being in the home, failure to pay child support, and length of time in foster care. The record indicates the State's sole concern was that Father allowed Mother to remain in the home; yet the State did not attempt reunification of Children and Father during the months that Mother was in jail or in the Oklahoma Forensic Center, and Mother had left Father's home by the time of trial. Following a bench trial, the court terminated Father's rights based on failure to correct conditions and on Children being in foster care for six of the most recent twelve months and not being able to safely return to Father's home. In its order, the trial court failed to specifically identify the conditions Father failed to correct; the record does not include clear and convincing evidence that Father failed to correct any of the conditions alleged and we reverse that finding. The State contributed to the length of time that Children were in foster care and by the time of trial, the foster home was essentially the only home Children had known. Nevertheless, the State failed to present clear and convincing evidence that Children could not be safely returned to Father's home, as required by statute, and we therefore reverse termination on that ground also. Finally, while the trial court announced in court that termination was in Children's best interests, the final order does not include the required finding on best interests. We reverse.

¶2 The State obtained an order for emergency custody of Children August 29, 2016. At that time, Z.M.Z. had just turned two years old and Z.C.Z. was four weeks old. The affidavit supporting the State's application alleged that Mother dropped Z.C.Z. on the kitchen floor and he hit his head. The affidavit further averred Mother tried to calm the baby then went to a neighbor who took Mother and the baby to a hospital, where the baby was found to have a brain bleed and skull fracture. Upon questioning by police and a DHS worker, Mother admitted she had "had it" and felt life would be easier without the baby and she dropped him. The affidavit stated Mother reported she had been struggling with depression and the day she dropped Z.C.Z. was the fourth anniversary of the birth of her first child, who had died of a genetic disorder when he was two weeks old. Mother also reported she had communicated to Father that she was unhappy about the pregnancy with Z.C.Z. and felt trapped as a stay at home mother. The affidavit further averred that Father was not home when Mother dropped the baby and when Father returned home, he found Z.M.Z. in the care of a neighbor. Father reported he did not immediately go to the hospital because Z.M.Z. had fallen asleep. The affidavit alleged Father reported he knew Mother did not want the pregnancy but Father was unaware of Mother's current mental health issues. Father reported he intended to keep his family together. Children were initially placed in the custody of church friends of Father and Mother.

¶3 The State filed its Petition seeking a deprived adjudication September 8, 2016. The State sought immediate termination of Mother's and Father's parental rights based on heinous and shocking abuse by Mother and on Father's failure to protect from heinous and shocking abuse.

¶4 Mother relinquished her parental rights January 9, 2017. At the same hearing, the State withdrew its request for immediate termination of Father's rights and Father stipulated to the State's allegations that Children were deprived. The disposition order noted the conditions to be corrected were neglect, failure to protect from shocking and heinous abuse, mental health of caretaker, threat of harm, and failure to provide a safe and stable home.

¶5 A disposition order entered following a February 1, 2017 review hearing indicated Father was working two jobs, DHS was directed to increase Father's visitation, the case was set for a 90 day review May 3, 2017, and Father was informed that no trial reunification would happen while Mother lived in Father's home. The order further indicated the foster parents reported Children were doing well and their current placement was "potential adoptive." The ISP directed Father to maintain adequate housing, learn five appropriate development needs of children by attending parenting classes, contact Children's Therapeutic Strategies to schedule an initial counseling intake appointment to address Children's "history of trauma, behaviors, as well as, the recent removal of" Children and follow all recommendations of the service provider, undergo a psychological evaluation and provide the results to DHS, and contact Family and Children's Services for an intake assessment for individual counseling to address "his own history of trauma, as well as, the recent removal of" Children. A February 7, 2017 disposition hearing order indicated Father continued to live in Bixby and Children were in foster care in Copan.

¶6 The disposition order entered following the May 3, 2017 review hearing indicates Mother remained in Father's home despite the court's order for Mother to be out of the home by May 3, 2017, and the State announced its intent to file a motion to terminate Father's rights. The order indicated the permanency plan continued to be reunification or adoption.

¶7 The State filed its motion to terminate Father's parental rights May 12, 2017. The State alleged Father had failed to correct the conditions of neglect, failure to protect from abuse, mental health of caretaker, threat of harm, and failure to provide a safe and stable home. The State also sought termination for failure to support Children and for length of time in foster care. On the same day, Mother's criminal trial for child abuse ended in a jury verdict of not guilty by reason of insanity. Mother was ordered to be held at the Oklahoma Forensic Center in Vinita "until (the) Court has made a determination that she is not presently dangerous to the public peace and safety because (she) is a person requiring treatment . . . ."

¶8 An ISP progress report filed May 16, 2017 indicated Father had attended each visitation and CPP session except one when he was ill, and Father had completed the required intakes for PCC and FCS and had attended therapy sessions. The report indicated Father continued to live in Bixby and Wife lived with him (the record indicates Mother was at the Oklahoma Forensic Center at that time). The report stated Father had "yet to take responsibility for the position he's in, and blames DHS and the Court for making him choose between his wife and his children."

¶9 The July 21, 2017 ISP Progress Report indicated Father visited Children every other week as scheduled except for two times when he was sick or could not afford gas. Father completed the Circle of Security Parenting Group June 7, 2017, and he came to class prepared and on time. Father also was enrolled in a Nurturing Parenting Group. Father and DHS disputed whether he had signed releases for his information from FCS. The report indicated Children were doing well in their foster home. The report also indicated both that Mother lived with Father and that Mother was being held at the Oklahoma Forensic Center.

¶10 Jury trial on the State's motion to terminate was set for November 2017 but was continued at Father's counsel's request. Mother was released from the Oklahoma Forensic Center November 28, 2017 and returned to live with Father. Her conditional release plan provided that "appropriate residency for (Mother) shall be determined by the court" and that Mother agreed to have "no interaction whatsoever with her minor children." Wife left Father and his home in February 2018. Father filed a waiver of jury trial April 16, 2018. Bench trial was held April 16 and 18, 2018. In its order, the trial court stated:

the State . . . has met its burden of proof and demonstrated by clear and convincing evidence that the parental rights of (Father) should be terminated pursuant to (10A O.S.Supp.2014 §1-4-904(B)(5)), in part, to wit: all conditions to correct as listed except the condition of "mental health of caretaker"; and (10A O.S.Supp.2014 §1-4-904(B)(17)). Legal ground (10A O.S.Supp.2014 §1-4-904(B)(7)) not found. The Court stated its complete findings of fact and conclusions of law in open court on April 18, 2018.

In its order, the trial court did not state the specific conditions Father failed to correct, nor did it find that Children cannot be safely returned to Father's home, or make a best interests finding; however, the trial court did announce these findings at the conclusion of the trial.1 A final order terminating parental rights must identify the precise conditions the parent failed to correct. In re T.T.S., 2015 OK 36, ¶21, 373 P.3d 1022. A final order terminating parental rights also must include a finding that termination is in the child's best interests. In re L.M., 2012 OK CIV APP 41, ¶85, 276 P.3d 1088.

¶11 A parent has a fundamental liberty interest in the care, custody, and management of his children. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 1394-1403, 71 L. Ed. 2d 599 (1982). In a termination proceeding, the State must prove the statutory grounds for termination by clear and convincing evidence. In re C.D.P.F., 2010 OK 81, ¶5, 243 P.3d 21. This burden of proof "balances the parents' fundamental freedom from family disruption with the state's duty to protect children within its borders." Id. In an appeal of a termination of parental rights, we review the record to determine whether the State presented clear and convincing evidence at trial to support termination. In re S.B.C., 2002 OK 83, ¶6, 64 P.3d 1080. The paramount consideration is the child's best interests. 10A O.S.Supp.2014 §1-1-102(E).

¶12 Father first argues the State failed to meet its burden of proving he failed to correct the conditions leading to the deprived adjudication. The record offers no reason for Father to be subject to DHS involvement except for Mother's single incident of dropping Z.C.Z. While we do not minimize the seriousness of that incident, it is undisputed that Father was not home at the time, Mother was found not guilty by reason of insanity, and Mother was later released after being found not presently dangerous or requiring treatment. The State urges that Father was aware Mother had "mental health concerns" but nothing in the record suggests Father should have known Mother would injure one of her children. Father insisted that the incident was an aberration by an otherwise good mother and the State presented no evidence that Mother had ever harmed her children any other time and certainly no evidence that Father had ever harmed them.

¶13 For the first year of this proceeding, Father attended all of the required intake and counseling sessions required by the ISP. Towards the end of the proceeding, Father missed some visitation and counseling sessions because he was unable to afford gas or find a ride. It was clear at trial that the one thing the State was concerned about was Mother's presence in the home. At the end of trial, the State argued "the ability to bring (Children) home was a function that (Father) could have accomplished very easily. But for (Mother's) presence initially I think this case would have been well on its way to reunification, but (Father) has wholly failed in all aspects of this case to acknowledge that (Mother) is, in fact, a safety threat to (Children)." And yet, no trial reunification or even unsupervised visitation was offered during the months that Mother was in jail (from the time Children were removed until she was bonded out at the end of December 2016)2 or in the Oklahoma Forensic Center (from May 12, 2016 to November 28, 2016). Father testified that from the time Mother was bonded out of jail until the time of her criminal trial, he tried unsuccessfully to find alternative housing for Mother, but that he was unwilling to put her out on the street. Father explained:

(Mother) and I had been married seven years at that time. . . . She'd always been a great mother to her kids, and, you know, I wasn't about ready to just make her homeless. At that time the DA was very gracious and he gave us 90 days for her to leave. That way she could still work a job and try to find someplace, though during those 90 days our best efforts to try to find a place for her to stay were unsuccessful. We tried many different like--like shelters for woman (sic) or just shelters in general, . . . And we just had no luck in actually having anyplace (sic) to live. And I'm not the kind of person who wants anybody to be homeless, because (Mother) doesn't have any family down here. She really doesn't have any friends down here. She would be left to her own devices.

Father testified he reached out to church friends to find someone to take Mother in, but those friends had children and no room for Mother. Father further testified that he had no reason to believe Mother would be a further threat to Children because while she was out of jail on bond, she went through testing to determine what caused the incident and the doctor who did the testing opined that Mother dropping the baby was an isolated incident caused by post-partum psychosis. While Father did not present documentary evidence supporting this statement, the State did not object to Father's testimony or offer any evidence countering it.

¶14 Father testified that in the spring of 2016 he did not put Mother out of his home because she was facing the criminal charge and he did not want her to be homeless. He testified he was then still holding out hope "that there could be something that we could do to satisfy the State's requirements or just their conscious (sic) of being able to let her be a mother again or let her be around the kids." Father testified that Mother returned to his home after she was released from the Oklahoma Forensic Center at the end of November 2017, but Mother left Father in February 2018, apparently to go with someone she had met at the Oklahoma Forensic Center. Accordingly, by the time of trial, Mother had been out of the home for approximately two months, but the State argued that was not a correction of the one condition at issue because Mother left of her own volition rather than being evicted by Father. In announcing its decision, as quoted in note 1, supra, the trial court erroneously stated Mother had lived in Father's home throughout this proceeding and indicated it was terminating Father's parental rights because Father continued to trust Mother after the one incident for which she was found not guilty by reason of insanity. Father's opinion about Mother is not a condition to be corrected.

¶15 Jamie Craun testified she was a DHS planning supervisor and that the two workers assigned to this case were in her unit. Craun testified that Father knew from the beginning of the proceeding that getting Mother out of the home was the "primary" condition to be corrected but that Father failed to choose Children over Mother. When asked why she believed termination was in Children's best interests, Craun testified: "(t)he length of time out of home, the failure to maintain consistent visitation . . ., and, again, not complying with the main aspect of the treatment plan which was to separate from (Mother)." Craun testified there was no problem with Father's home other than Mother's presence there. Craun testified DHS did not allow unsupervised visitation "throughout the life of the case" because Mother was in the home, yet as noted, Mother was not in the home for at least nine months of the life of the case. Craun testified Father had not "taken responsibility for the reasons why (Children) have come into custody," yet there was no evidence that Father was present at the time Mother dropped Z.C.Z. or that Father could have foreseen Mother would injure the child.

¶16 The clear and convincing evidence in the record shows that Father had no reason to be subject to a DHS proceeding but for Mother dropping the baby, an unquestionably serious act but one which, on the record presented, can only be seen as a one-time event. Father participated in all the requirements of the treatment plan, despite the hardship of having to travel to another town to participate in some of the services and visit Children. The State has established that the only condition to be corrected was Mother's presence in the home and the State failed to show Father's home was unsafe for Children in any way other than Mother's presence. But the State failed to allow Father to care for Children during the months Mother was out of the home or acknowledge Father's belief that Mother would not be a threat after receiving treatment. We find the trial court erred in finding Father failed to correct the conditions leading to the deprived adjudication and we reverse that finding.

¶17 We next turn to the finding that termination was warranted for length of time in foster care. The relevant statute provides:

A. A court shall not terminate the rights of a parent to a child unless:
1. The child has been adjudicated to be deprived either prior to or concurrently with a proceeding to terminate parental rights; and
2. Termination of parental rights is in the best interests of the child.
B. The court may terminate the rights of a parent to a child based upon the following legal grounds:
* * *
17. A finding that a child younger than four (4) years of age at the time of placement has been placed in foster care by the Department of Human Services for at least six (6) of the twelve (12) months preceding the filing of the petition or motion for termination of parental rights and the child cannot be safely returned to the home of the parent.
a. For purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of:
(1) the adjudication date, or
(2) the date that is sixty (60) days after the date on which the child is removed from the home.
b. For purposes of this paragraph, the court may consider:
(1) circumstances of the failure of the parent to develop and maintain a parental bond with the child in a meaningful, supportive manner, and
(2) whether allowing the parent to have custody would likely cause the child actual serious psychological harm or harm in the near future as a result of the removal of the child from the substitute caregiver due to the existence of a strong, positive bond between the child and caregiver.

10A O.S.Supp.2015 §1-4-904 (emphasis added). It is undisputed Children had been in foster care, as defined by the statute, for eighteen months at the time of trial. The question at issue is whether the State presented clear and convincing evidence of the other statutory element of that ground for termination, that Children "cannot safely be returned home to the parent." The trial court announced its finding that Children could not be safely returned to Father's home because Father continued to believe Mother was not a threat to Children. Father's subjective belief about Mother is not on its own a threat to Children's safety and the State did not present evidence that Father or his home presented any other threat to Children other than Mother's presence there, which condition no longer existed at the time of trial.

¶18 Nevertheless, we are cognizant of §1-4-904(B)(17)(b)(2). At the time of trial, Z.C.Z. had been in the foster home for all his life and Z.M.Z. had been in the foster home half of her young life. It may be the case that Children have a bond with the foster parents such that separating them would result in serious psychological harm and that Children cannot not safely be returned to Father's home for that reason. The foster parents did not testify. Craun testified about the importance of permanence to young children. Counsel for Children asked Craun ". . . at this time would that method for permanency be best served by returning home to the natural father or remaining in an adoptive home" and Craun answered "(r)emaining in their current placement and being adopted by their current foster parents." Counsel for Children urged the trial court to terminate Father's rights so that Children could have permanence. The State did not present any witnesses other than Father and Craun. Counsel for the Children did not present any witnesses. This scant evidence is simply not clear and convincing evidence that Children cannot be safely returned to Father's home. Accordingly, we reverse termination on the ground of time in foster care.

¶19 Father's final assertion of error is that he was denied effective assistance of counsel. A parent is entitled to effective assistance of counsel in a deprived proceeding. Matter of D.D.F., 1990 OK 89, ¶15, 801 P.2d 703, 707. To warrant reversal for ineffective assistance of counsel, a parent must show he was prejudiced by his counsel's deficient performance and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Matter of J.L.O., 2018 OK 77, ¶¶35-38, 428 P.3d 881. Father argues his counsel was ineffective because he did not make an opening statement, did not object to hearsay statements during Craun's testimony, did not object to Craun opining on Children's best interests when she had not observed Father interact with Children, did not cross-examine Father during the State's case, and called no witnesses. Father's counsel cross-examined the State's witness, demurred to the State's evidence, and presented a closing argument. We cannot therefore say Father's counsel did not act.3 "The choice not to give an opening statement, call witnesses, object excessively, and even not to object to testimony of a witness via telephone, however, all 'might be considered sound trial strategy.'" J.L.O., supra, at ¶37. We find Father has not demonstrated that he was denied effective assistance of counsel.

¶20 The record in this case shows Father's parental rights were terminated solely because of Mother's mental illness. The State's only allegation against Father was that his home was unsafe so long as Mother lived there, but the evidence showed DHS did not allow Children to return to Father's home during the months Mother was out of the home and Father testified Mother was out of the home permanently by the time of trial. The State therefore failed to present clear and convincing evidence that Father failed to correct the condition of an unsafe home. Additionally, the State failed to present clear and convincing evidence that Children could not be safely returned to Father's home despite the length of time in foster care. Lastly, the trial court's order did not include the required finding that termination was in Children's best interests. REVERSED.

GOREE, C.J., and JOPLIN, P.J., concur. 

FOOTNOTES

1 In announcing its decision at the end of trial, the court explained that it found Father failed to correct the conditions because Father continued to believe Mother was not a threat to Children, explaining in part:

He didn't get rid of the mother's presence for that 90 days the Court allowed him. He didn't get rid of the mother for almost a year after that fact. He didn't remove the mother after she was released from the criminal court with conditions not to be around her children whatsoever, . . . . As a parent stating that you want your children, you'd do anything for your children, I think that's pretty apparent from that report mother didn't need to be around these children and yet you refused to believe she was a threat to these children. You saw no reason why a one-time event should keep her from being around her children.

In explaining its findings terminating on the basis of time in foster care, the trial court explained: ". . . and again based on (Father's) attitude and belief in the mother, the Court finds the children cannot be safely returned to his care at this time, so the State has met their ground under (B)(17)."

2 As noted above, during the time Mother was in jail and up until Mother relinquished her parental rights in January 2017, the State was seeking immediate termination of Father's rights.

3 Compare, for example, In re N.L., 2015 OK CIV APP 24, ¶19, 347 P.3d 301. In that case, the trial court allowed the parent and the State to waive the appearance of the child's counsel at trial, and the appellate court noted "(w)here a party has counsel and the counsel takes no action, the result is a constructive denial of effective assistance of counsel."