Opinion:In the Matter of K.H., 2021 OK 33
Subject matter:Parental Termination. 
Date Decided:June 8, 2021. 
Trial Court:Oklahoma County; Judge Williams
Route to this Court:Appeal from jury verdict terminating parental rights. 
Facts:DA sought to terminate Mother and Father’s parental rights to four children of the relationship after police were called and allegations were made against Father of abuse to a child from a previous relationship who was staying with Father at the time. Criminal charges of child abuse were brougth against both Mother and Father. Termination of parental rights was sought under provision allowing termination for abuse of the child or a sibling of the child that was heinous and shocking. Mother and Father both objected to evidence of their criminal charges being introduced to the jury; trial court overruled the objection and allowed the DA to question Mother and Father about their charges. Trial court also allowed an exhibit into evidence that included the criminal Information filed in the criminal case. Jury returned a verdict terminating both Mother and Father’s rights. Both appealed. Oklahoma Supreme Court retained the case and issued an opinion on May 12, 2020. Parents sought rehearing. The Court granted rehearing and vacated the May 12, 2020 opinion. 
Standard of Review:“Errors that are inherently prejudicial are those from which, by their nature, one of the litigants obtains beneficial prejudice. Where matters of a highly prejudicial nature have been brought before the jury, even when not manifestly motivated by bad faith, we have regarded such procedure as reversible error unless it can be affirmatively ascertained from the record that no harm resulted therefrom” “We may not set aside a verdict for misdirection of the jury unless the error has probably resulted in a miscarriage of justice, or constitutes a susbstantial violation of a constitutional or statutory right. In a parental rights termination case challenging a jury instruction and a procedural matter, the trial court’s judgment may be reversed when error constitutes a substantial violation of a constitutional or statutory right.” 
Analysis:The Court held that evidence of pending criminal child abuse charges fails the relevancy test under 12 O.S. § 2401 because the elements required clear and convincing evidence that 1) the child has been adjudicated deprived; 2) the parent abused the child or a sibling of the child; 3) the abuse was heinous and shocking; and 4) termination of parental rights is in best interest of the child. Majority says that nothing about the criminal charges is relevant to these elements and that relevant evidence would include testimony by the child abuse pediatrician regarding whether the bruises qualified as serious bodily injury and therefore heinous and shocking physical abuse (and parents’ cross examination of such witness). The Court also held that admission of a pending criminal charge in a jury trial to terminate parental rights is overly prejudicial and is inadmissible. Finally, the Court held that the trial court abused its discretion by giving instruction No. 8 which referenced the prejudicial child abuse criminal charges against parents. 
Outcome:Matter previously retained for disposition; rehearing granted; opinion of the court issued May 12, 2020 is withdrawn and this opinion ordered substituted therefor; judgment of the District Court reversed; new trial granted. 
Vote:Rowe, J. (author), Darby, C.J., Winchester, J. Edmondson, J., Gurich, J., concur.Darby, C.J., with whom Winchester, J., joined concurring by separate writing.Combs, J., with whom Kauger, J., and Kane, J., joined, dissenting by separate writing. 
Other:Because this is a parental termination appeal involving minor children, neither the trial court record nor the appellate record (or docket) are available to review by the public. As such, it’s not entirely clear from the majority opinion what the Petition for Rehearing argued and what grounds parents established for grant of rehearing. The original opinion from the Court can still be found at 2020 OK 32 (but probably only until mandate issues in this case).  Chief Justice Darby concurs specially to point out the importance of constitutionally protected parental rights and although the “issue in this case is, and has always been, whether the trial court abused its discretion in admitting testimonial and written evidence of pending criminal charges against the parents” in the jury trial to terminate their parental rights, even so, the court will review issues not raised on appeal if a fundamental error affecting constitutionally protected rights has occurred (citing In re TTS, 2015 OK 36). Justice Combs writes separately and dissents:  “The majority’s application of a heightened standard of harmless error review could revolutionize appellate review in termination of parental rights cases. At the very least it leads to the wrong result in this case. Parents waived application of the heightened standard by failing to invoke any constitutional error prior to rehearing. Moreover, the admission of evidence that is more prejudicial than probative is a non-constitutional error subject to reversal only if Parents can show the verdict would have been different had the error not occurred. Because the overwhelming amount of evidence at trial demonstrates Parents engaged in heinous and shocking abuse against R.H., we should conclude that the verdict is supported by clear and convincing evidence and that the alleged evidentiary and instructional errors are harmless. . . .”