Rodríguez v. State (In re M.R.)

548 P.3d 120

2024 OK 28

In the MATTER OF: M.R., S.R., E.R., and N.R., adjudicated deprived children;

Victoria Rodríguez, Appellant,

v.State of Oklahoma, Appellee.

In the Matter of: M.R., S.R., E.R., and N.R., adjudicated deprived children;

Everardo Rodríguez, Sr., Appellant,

v.State of Oklahoma, Appellee.

No. 120,910 (comp, w/ 120,844, 121,060)

Supreme Court of Oklahoma.

Filed April 23, 2024

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY; Honorable Kaitlyn G. Allen, District Judge

¶0 The appellants are the parents of four children who were adjudicated deprived and, after a jury trial, the trial court terminated their parental rights. Each parent filed a separate appeal of their respective termination orders and both are considered within this opinion. A separate appeal, unrelated to the parties in this case, was made a companion due to a first impression issue concerning the Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, presented in Case No. 120,844, and Victoria Rodriguezes’ appeal. Case No. 120,-844 is not addressed within this opinion. All three appeals were retained by this Court. We hold that Victoria Rodríguez lacks standing to challenge the constitutionality of ICWA and that the trial court’s failure to apply the heightened burden of proof neither violated her constitutional right to equal protection under the law nor constituted legal error. As to the remaining issues raised on appeal, we hold that the trial court’s orders terminating parental rights should be affirmed.

PREVIOUSLY RETAINED ON THIS COURT’S OWN MOTION; DISTRICT COURT AFFIRMED

Christian Henry, Attorney at Law, Oklahoma City, Oklahoma for Appellant, Victoria Rodriguez

Jessica Brown, Resurge Legal, PLLC, Oklahoma City, Oklahoma for Appellant, Everardo Rodriguez, Sr.

Jaclyn Rivera, Assistant District Attorney, Oklahoma County, Oklahoma City, Oklahoma for Appellee

William R. Hauser, Oklahoma County Public Defender, Oklahoma City, Oklahoma for children

COMBS, J.:

FACTUAL AND PROCEDURAL BACKGROUND

¶1 This opinion involves two appeals, one initiated by Victoria Rodriguez (Mother), in Case No. 120,910, and one initiated by Everardo Rodriguez, Sr. (Father), in Case No. 121,060. The orders appealed are two orders terminating parental rights following a jury trial; one for Mother in her appeal¹ and one for Father in his appeal. Both orders arise from the same termination proceedings in The District Court of Oklahoma County, State of Oklahoma, Juvenile Division, Case No. JD-2022-149. The appeals along with another unrelated appeal, as to parties, in Case No. 120,844, were made companion cases. All three cases were previously retained by this Court. Case No. 120,844, is not the subject of this opinion but has some similar issues addressed for the first time by this Court.

¶2 The matter concerns the termination of parental rights of Victoria Rodriguez and Everardo Rodriguez, Sr., to their four children, two girls, M.R. and S.R., and two younger boys, E.R., and N.R. The termination is based upon allegations of heinous and shocking sexual abuse against M.R. by Father over approximately a two-year period and failure to protect the children from heinous and shocking sexual abuse by Mother.

¶3 On or about July 11, 2022, M.R. who was a few days away from her fifteenth birthday, disclosed to her aunt she had been sexually abused by Father since she was 13 years old. She alleged the abuse occurred up to three times a week over this period. Mother was told of the abuse and took M.R. to Oklahoma Children’s Hospital for an examination. Dr. Stockett examined M.R. and although she did not find any physical signs of sexual abuse she later testified that such signs would not necessarily be apparent in someone like M.R. who is post-pubertal and according to M.R. the last abuse occurred weeks earlier in June 2022. Dr. Stockett concluded from M.R.’s descriptions that she had been abused. Officer Griggs of the Del City Police Department was contacted by Dr. Stockett. Officer Griggs met with M.R. and Mother about an hour after M.R.’s examination. M.R. was crying and upset and he found Mother to be detached and not comforting to M.R. Mother did not want to believe M.R.’s allegations and was more concerned about being at her house rather than protecting the children. Officer Griggs was concerned that Mother would not leave the house.

¶4 Mother took the children to a friend’s house. The next day, July 12, 2022, an Oklahoma Department of Human Services (DHS) employee in the Child Protective Services division, Brianna Hill, went to the friend’s house in order to attempt to instigate a safety plan. The purpose of the safety plan is to allow the children to be voluntarily housed in a safe place without court involvement while DHS finishes its investigation. It involves finding a home with a relative or friend of the family who can act as a safety plan monitor. Hill spent nearly four and one-half hours at the house while multiple persons were contacted to act as a safety plan monitor. Hill informed Mother what the difference would be if they could not find a safety plan monitor. However, knowing a court would get involved if they could not find one, Hill observed Mother calling M.R. a liar while on the phone with the potential safety plan monitors. She would tell them that M.R. just made up the allegations because she was upset with her father. Father also told Hill that M.R. was a pathological liar. Mother stated that she did not have concern about Father being with the kids and as soon as DHS was done she planned to take the children back to her home. None of the potential safety plan monitors volunteered. Mother made other comments defending Father rather than M.R., including that she could not understand why Father would have sex with M.R. when he could have sex with her. Not finding a safety plan monitor, Hill pursued court involvement and the children were placed in foster care. Mother returned to live with Father.

¶5 A hearing was held and an Emergency Custody Hearing Order was entered on July 14, 2022. Under the "reasonable efforts" section of the form/order the court determined continuation of the children living in their home was contrary to the health, safety or welfare due to, "allegations of lack of proper parental care/guardianship, threat of harm, failure to protect, and sexual abuse." The court also determined that reasonable efforts have been made by DHS to prevent removing the children, noting DHS attempted to find a safety monitor but was unable to identify one and there are concerns the mother does not believe the sexual abuse disclosure. The two boys were placed together in a traditional foster home, while M.R. and S.R. were at first placed separately but soon were placed together in a different foster home. The court also determined The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901–1963 (ICWA) does not apply to these children.

¶6 The State filed its petition on July 21, 2022, wherein it pursued termination of parental rights as to Mother for failure to protect from heinous and shocking sexual abuse and as to Father for heinous and shocking sexual abuse. A jury trial began on October 31, 2022, and ended on November 4, 2022. At the close of the evidence, the court determined that by a preponderance of the evidence all four children should be adjudicated deprived. The jury deliberated and returned a verdict finding it was in the best interests of all four children to terminate the parental rights of Mother for failure to protect from heinous and shocking sexual abuse and of Father for abuse of any child that was heinous and shocking. Two orders terminating parental rights were entered on November 4, 2022. It is from these orders that Mother and Father appeal.

STANDARD OF REVIEW

[1] ¶7 In parental termination cases, the State must show by clear and convincing evidence that the child’s best interest is served by the termination of parental rights. In the Matter of C.G., 1981 OK 131, ¶17, 637 P.2d 66, 70-71. Our case law provides that clear and convincing evidence is the measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. In the Matter of the Adoption of L.D.S., 2006 OK 80, ¶11, 155 P.3d 1, 4, quoting In re C.G., 1981 OK 131, ¶17 n. 12, 637 P.2d 66, 71 n. 12. This standard of proof "balances the parents’ fundamental freedom from family disruption with the state’s duty to protect children within its borders." In the Matter of Adoption of L.D.S., 2006 OK 80, ¶11, 155 P.3d 1, 4, quoting In re C.G., 1981 OK 131, ¶17, 637 P.2d at 70.

[2–6] ¶8 Although the burden of proof is by a preponderance of the evidence when a court adjudicates children are deprived and the appellate court shall affirm the trial court’s findings if supported by competent evidence, Matter of L.M.A., 2020 OK 63, ¶¶37-38, 466 P.3d 559, 569, the burden shifts at the termination of parental rights phase of trial. Our review on appeal must find the presence of clear and convincing evidence to support the factfinder’s decision as to termination of those rights. In the Matter of S.B.C., 2002 OK 83, ¶7, 64 P.3d 1080, 1082. We must canvass the record to determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id. ¶6, 64 P.3d at 1081. Our appellate review, however, does not require a reweighing of the evidence presented at trial. Daniels v. State (In re C.D.P.F.), 2010 OK 81, ¶6, 243 P.3d 21, 24. Where a party makes no objection to the trial court but raises the issue on appeal, the authority of the appellate court is severely limited. Farris v. Masquelier, 2022 OK 91, ¶13, 524 P.3d 942, 948. However, an issue is still reviewable for fun- (lamentai error even when no exception has been taken. Id. Fundamental error occurs when a trial court...