IN RE: AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS - JUVENILE

IN RE: AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS - JUVENILE
2016 OK 5
Decided: 01/19/2016

THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - JUVENILE

ORDER ADOPTING AMENDED
OKLAHOMA UNIFORM JURY INSTRUCTIONS
AND VERDICT FORMS - JUVENILE

¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Jury Instructions for Juvenile Cases to adopt proposed amendments to existing jury instructions. The Court finds that the amended OUJI-JUV Instructions, Statutory Authority, Committee Comments, and Notes on Use should be adopted.

¶2 It is therefore ordered, adjudged and decreed that the instructions shall be available for access via internet from the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts should notify the Judges of the District Courts of the State of Oklahoma regarding our adoption of the instructions set forth herein. Further, the District Courts of the State of Oklahoma are directed to implement these instructions effective January 19, 2016.

¶3 It is therefore ordered, adjudged, and decreed that the proposed amendments to OUJI-JUV, Nos. 2.7, 2.7A, 3.25, and 3.26, Statutory Authority, Committee Comments, and Notes on Use, as set out and attached to this Order, are hereby adopted. The Court authorizes the amended OUJI-JUV instructions to be published.

¶5 The Court declines to relinquish its constitutional and statutory authority to review the legal correctness of these authorized instructions or verdict forms when it is called upon to afford corrective relief in any adjudicative context.

¶6 The amended OUJI-JUV instructions shall be effective January 19, 2016.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 19TH DAY OF January, 2016.

/S/CHIEF JUSTICE

¶7 ALL JUSTICES CONCUR

Juvenile Instruction No. 2.7

Instructions for Verdict Forms

[Use for cases where only one ground for termination is alleged.] If you find that the State has proved by clear and convincing evidence that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on the statutory ground that [Set forth ground for termination - E.g., the rights of the parent to another child have been terminated, and the conditions that led to the prior termination of parental rights have not been corrected], you should sign and return the verdict form entitled Terminate Parental Rights for that parent and that child. Otherwise, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.

OR

[Use for cases where multiple grounds for termination are alleged.] If you find that the State has proved by clear and convincing evidence that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on one or more statutory grounds, you should sign and return the verdict form entitled Terminate Parental Rights for every such statutory ground for that parent and that child. It is not necessary that the same five people sign each verdict form. If you find that the State has not proved by clear and convincing evidence that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on any statutory ground, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.

Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.

Notes on Use

If the petition or motion for termination of parental rights was filed by the child's attorney, rather than the district attorney, under 10A O.S. Supp. 2014, § 1-4-901(A), this Instruction should be modified accordingly. If any of the alleged grounds for termination is the failure of the parent to correct a condition that led to the deprived adjudication of the child, Juvenile Instruction No. 2.7A should be used instead of or in addition to this Instruction, along with the verdict form in Juvenile Instruction No. 2.8A.

Committee Comments

Okla. Const. Art. 7, § 15 provides that "no law ... shall require the court to direct the jury to make findings of particular questions of fact." The Oklahoma Supreme Court addressed the application of Okla. Const. art, 7, § 15 to Oklahoma's comparative negligence statutes in Smith v. Gizzi, 1977 OK 91, 564 P.2d 1009. The Supreme Court held that the comparative negligence statutes did not violate art, VII, § 15, because they did not require a special verdict. The Supreme Court reasoned that under a general verdict, the jury must know the effect of its answers to special findings, and that if the jury did not know the effect of its answers, the verdict would be a special verdict that would violate Okla. Const. art, 7, § 15. 1977 OK 91, ¶¶ 11-12, 564 P.2d 1009, 1012-13. Under Smith v. Gizzi, a verdict that specified the grounds for termination of parental rights, would be constitutional as long as the jury knew the effect of its answers to special findings regarding the specific grounds for termination. A number of Oklahoma Court of Civil Appeals cases have decided that it is necessary for the trial judge to specify the grounds for termination of parental rights in the journal entry of judgment in order to facilitate appellate review. See In re C.T., 2003 OK CIV APP 107, ¶ 6, 82 P.3d 123, 125; Bales v. State ex rel Dep't of Human Services, 1999 OK CIV APP 96, ¶ 8, 990 P.2d 309, 311. See also Matter of S.B.C., 2002 OK 83, ¶ 7, 64 P.3d 1080, 1083 (appellate court must find clear and convincing proof of grounds for termination of parental rights to affirm). Having the jury specify in its verdict the grounds it finds for termination of parental rights will facilitate the trial judge's preparation of the journal entry of judgment.

There is also a line of Oklahoma Court of Civil Appeals cases that have decided that when termination is ordered under 10 O.S. Supp. 2014, § 1-4-904(B)(5) on the ground of failure to correct a condition that led to the deprived adjudication of the child the jury instruction and verdict forms must specify each condition that the parent failed to correct. See In re B.W., 2012 OK CIV APP 104, ¶ 37, 293 P.3d 986, 996; In re T.J., 2012 OK CIV APP 86, ¶ 48, 286 P.3d 659, 72; In re R.A., 2012 OK CIV APP 65, ¶ 17, 280 P.3d 366, 372. See also In re A.F.K., 2013 OK CIV APP 6, ¶ 7 & n.5, 317 P.3d 221, 225 (commending trial court for providing verdict forms that included lines for checkmarks for the jury to identify each condition that the parent failed to correct); In re J.K.T., 2013 OK CIV APP 70, ¶ 4 & n.3, 308 P.3d 183, 185 (affirming termination order where verdict form included lines for checkmarks that the jury used to identify each condition that the parent failed to correct). But see In re L.S., 2013 OK CIV APP 21, ¶ 10, 298 P.3d 544, 547 (affirming termination order neither the verdict nor order listed the conditions that the parent failed to correct but the jury instructions listed the conditions). The Committee recommends that in cases where termination is sought on the ground of failure of the parent to correct conditions, the trial court should provide verdict forms that include lines for checkmarks for the jury to use to identify each condition that the parent failed to correct.

(2016 Supp.)

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Juvenile Instruction No. 2.7A

Instructions for Verdict Forms for Failure to Correct Conditions

If you find that the State has proved by clear and convincing evidence that the parental rights of the parent to the child should be terminated on the statutory ground that the parent has failed to correct one or more conditions that led to the finding that the child was deprived after the parent had been given at least three (3) months to correct the conditions, you must indicate this finding by putting a check mark on the line next to each uncorrected condition on the verdict form entitled Terminate Parental Rights for that parent and that child given to you, and then sign and return the verdict form. Otherwise, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.

Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.

Notes on Use

This Instruction should be used if any of the alleged grounds for termination is the failure of the parent to correct a condition that led to the deprived adjudication of the child. The trial judge should prepare a verdict form that identifies one or more conditions that the parent is alleged to have failed to correct and directs the jury to check the applicable condition or conditions that the parent failed to correct. An example of such a verdict form for failure to correct one or more conditions is found at Juvenile Instruction No. 2.8A, infra.

Committee Comments

See Committee Comments to Juvenile Instruction No. 2.7, supra

The Oklahoma Supreme Court held in In re T.T.S., 2015 OK 36, ¶ 20, ___ P.3d ____, that the jury instructions, verdict forms, and the final journal entry of judgment in termination actions for failure to correct conditions which led to the deprived adjudication of a child must "identify, with particularity, those conditions which a parent failed to correct." (Emphasis in original).

(2016 Supp.)

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Juvenile Instruction No. 3.25

Child (4 Years or Older) in Foster Care for Fifteen Months

The State seeks to terminate the parent's rights on the basis that the child has been in foster care for 15 months. In order to terminate parental rights on the basis that the child has been in foster care for 15 months, the State must prove by clear and convincing evidence each of the following:

1. The child has been adjudicated to be deprived;

2. The child has been placed in foster care by the Department of Human Services for 15 months out of the most recent 22 months before the filing of the petition/motion. You are instructed that the child entered foster care on [Specify Date];

3. The parent was responsible for the child's being in foster care for 15 of the most recent 22 months;

4. The child could not, at the time of the filing of the petition/motion, be safely returned to the home of the parent; and,

5. Termination of parental rights is in the best interests of the child.

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Statutory Authority: 10A O.S. Supp. 2014 2015, §1-4-904(B)(16).

Notes on Use

This Instruction is to be used if the child was 4 years of age or older at the time the child was placed in foster care. Juvenile Instruction No. 3.26, infra, should be used if the child was less than 4 years of age at the time of the filing of the petition or motion for termination the child was placed in foster care. The trial court should determine the date the child entered foster care for the second element above. A child is deemed to have entered foster care on the earlier of: the date of the adjudication that the child was deprived; or, sixty days after the date the child was removed from the home. 10A O.S. Supp. 2014 2015, §1-4-904(B)(16).

Committee Comments

This instruction is based on 10A O.S. Supp. 2014 2015, §1-4-904(B)(16), which provides for termination of parental rights of a child who is four years of age or older if "[the] child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition." The Oklahoma Court of Civil Appeals stated in Matter of M.C., 1999 OK CIV APP 128, ¶ 6, 993 P.2d 137, 139, that "the plain purpose [of this provision] is to protect children from extended foster care."

The third element in the instruction is included because of the ruling by the Oklahoma Court of Civil Appeals in Matter of C.R.T., 2003 OK CIV APP 29, ¶ 33, 66 P.3d 1004, 1012, that:

In the context of extended foster care, the evidence must also show that the parent bears the culpable responsibility for the fact that the child has been in foster care for the requisite period and that the parent is not the subject of an uncorrected condition which is by its nature beyond the parent's power to correct.

(2016 Supp.)

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Juvenile Instruction No. 3.26

Child (Less Than 4 Years Old) in Foster Care for at Least Six Months

The State seeks to terminate the parent's rights on the basis that the child has been in foster care for at least 6 months. In order to terminate parental rights on the basis that the child has been in foster care for at least 6 months, the State must prove by clear and convincing evidence each of the following:

1. The child has been adjudicated to be deprived;

2. The child has been placed in foster care by the Department of Human Services for at least 6 months out of the most recent 12 months before the filing of the petition/motion. You are instructed that the child entered foster care on [Specify Date];

3. The parent was responsible for the child's being in foster care for at least 6 of the most recent 12 months;

4. The child could not, at the time of the filing of the petition/motion, be safely returned to the home of the parent; and,

5. Termination of parental rights is in the best interests of the child.

In deciding whether to terminate parental rights on the basis that the child has been in foster care for at least 6 months, you may consider:

1. The circumstances of the parent's failure to develop and maintain a parental bond with the child in a meaningful and 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.

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Statutory Authority: 10A O.S. Supp. 2014 2015, §1-4-904(B)(17).

Notes on Use

This Instruction is to be used if the child was younger than 4 years of age at the time the filing of the petition or motion for termination the child was placed in foster care. Juvenile Instruction No. 3.25, supra, should be used if the child was 4 years of age or older at the time the child was placed in foster care. The trial court should determine the date the child entered foster care for the second element above. A child is deemed to have entered foster care on the earlier of: the date of the adjudication that the child was deprived; or, sixty days after the date the child was removed from the home. 10A O.S. Supp. 2014 2015, §1-4-904(B)(17).

Committee Comments

This instruction is based on 10A O.S. Supp. 2014 2015, §1-4-904(B)(17), which provides for termination of parental rights for a child younger than four years of age if "[the] child has been placed in foster care by the Department of Human Services for at least six (6) of the most recent twelve (12) months preceding the filing of the petition." The Oklahoma Court of Civil Appeals stated in Matter of M.C., 1999 OK CIV APP 128, ¶ 6, 993 P.2d 137, 139, that "the plain purpose [of this provision] is to protect children from extended foster care."

The third element in the instruction is included because of the ruling by the Oklahoma Court of Civil Appeals in Matter of C.R.T., 2003 OK CIV APP 29, ¶ 33, 66 P.3d 1004, 1012, that:

In the context of extended foster care, the evidence must also show that the parent bears the culpable responsibility for the fact that the child has been in foster care for the requisite period and that the parent is not the subject of an uncorrected condition which is by its nature beyond the parent's power to correct.

(2016 Supp.)

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