Opinion:In The Matter of A.H., 2021 OK CIV APP 39
Subject matter:Termination of parental rights; Deprived child; Voir dire; Jury instructions
Date Decided:Decided: 9/15/2021; Mandate Issued: 10/21/2021
Trial Court:District Court of Cleveland; Judge Bonner
Route to this Court:Appeal of jury verdict terminating mother’s parental rights
Facts:A.H. was placed in the custody of DHS at birth and adjudicated deprived just prior to turning four. Mother, represented by counsel, stipulated to the State’s petition and an Individualized Service Plan (ISP) was developed for Mother. In early 2020, State filed a motion for termination of Mother’s parental rights on the ground that she failed to correct the conditions that caused A.H. to be adjudicated as deprived (substance abuse, neglect, physical abuse and “untreated mental health”). In addition, State’s motion alleged termination was appropriate because A.H. was placed in foster care for six of the most recent twelve months, could not be safely returned to Mother, and that termination was in A.H. ‘s best interest. Following a three-day trial, the jury returned a 5-1 verdict terminating Mother’s parental rights on the ground of time spent in foster care. Mother appealed alleging that she was denied a fair trial because (1) the trial court disallowed her counsel the opportunity to question the voir dire panel about the State’s burden of proof, and (2) the trial court gave an erroneous oral, “supplemental” “verdict-urging” instruction to the jury. 
Standard of Review:Under Oklahoma law, the manner and extent of voir dire is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. 
In a parental termination case challenging a jury instruction (or procedural matter), the trial court’s judgment may be reversed when error constitutes a substantial violation of a constitutional or statutory right.
Analysis:Although counsel for State referred in her voir dire to State’s burden of proof for termination as “clear and convincing evidence,” the trial court, without explanation, prohibited Mother’s counsel from advising the jury what that meant until after the evidence was presented, even after a prospective juror specifically asked State’s counsel what she meant by that phrase during voir dire. “The better practice is for the trial court in its initial voir dire to advise the panel that State must prove its case for termination of Mother’s parental rights by clear and convincing evidence and to define that evidence according to OUJI-Juvenile 2.5.” The trial court’s denial of Mother’s counsel’s request deprived her counsel of the opportunity to uncover actual or implied bias and to intelligently exercise peremptory challenges on this crucial issue in the case. Defining Mother the opportunity to define the burden of proof is an abuse of discretion and a reversible error. After a little more than three hours of deliberation, the jury advised the trial court that it was deadlocked. The trial court then gave the jury teh following “verdict-urging” instruction:“You all have been going at it a couple of hours. If we need to order dinner for you, we will. But you need to go and have a decision. This is too important. These effect (sic) lives, one of which has been in DHS custody for half that person’s life. They need to know which way it’s going. [Mother] needs to know which way it’s going. So I thank you for your efforts. If we need to order some pizza or something for dinner, it takes about 45 minutes, I would be glad to do so. But you need to return to your deliberations. Thank you. We’re in recess.”Unlike in criminal cases, no Uniform Instruction exists for deadlocked juries in civil or juvenile cases. “If the court determines that the jurors shoudl be instructed on a matter not included in the Uniform Jury Instructions, the court should give an instruction that is ‘simple, brief, impartial and free from argument.’ 12 O.S. 2001 § 577.2”The instruction given, while simple and brief, was not impartial and conveyed the trial court’s feelings about the evidence, and acted to focus the jury’s intention on one element of the grounds for termination. This was also a reversible error. 
Outcome:Reversed and remanded. 
Vote:Barnes, J. (author); Wiseman, P.J., and Hixon, J. (sitting by designation) concur. 
Other: Docket not accessible so procedural history unknown.