Should the state be allowed to introduce evidence of a parent’s pending criminal child abuse charge in a proceeding to terminate parental rights?
By Kyle Persaud, Family Lawyer
The Oklahoma Supreme Court recently ruled that the state may not introduce evidence of a parent’s pending criminal child abuse charge in a proceeding to terminate parental rights. The Court held that the introduction of such a charge unfairly prejudices the jury.
In the Matter of K.H., Father and Mother had three children: C.H., E.H., and C.H. Father also had another child, R.H., by a previous relationship. R.H. lived with Father and Mother. C.H., E.H., and C.H., lived in the same home with Father, Mother, and R.H.
Local police received a report of alleged child abuse of R.H. The police then went to Father and Mother’s home to check on R.H. When the police arrived, they did not find R.H. The police then contacted the person who reported the abuse, to verify that R.H. was indeed at Father and Mother’s home. After the police verified R.H.’s location, the police returned to the home and found R.H. (who was nine years old) wrapped in a blanket, in a dryer. Father had placed R.H. in the dryer when the police had arrived for the first visit.
The police arrested Father and Mother, and the State charged Father and Mother with felony child abuse of R.H. The State also filed a petition to terminate Father and Mother’s parental rights of C.H., E.H., and C.H. As grounds for the termination of their parental rights, the State alleged that Father and Mother had committed heinous and shocking physical abuse of R.H., a half-sibling of C.H., E.H., and C.H. While they were awaiting trial, Mother gave birth to another child, K.H. As soon as K.H. was born, the State took K.H. into State’s custody. The State then sought to terminate Father and Mother’s parental rights of K.H.
The court held a jury trial on the issue of whether Parents’ parental rights should be terminated. At trial, the State introduce Father and Mother’s pending criminal child abuse charges into evidence. The judge allowed the State to introduce this evidence, even though neither Father nor Mother had been convicted yet. The jury then rendered a verdict to terminate Father and Mother’s parental rights.
Father and Mother appealed, arguing that the Court should not have allowed the State to introduce evidence of their pending criminal child abuse charges and that the State’s introduction of the charges unfairly prejudiced the jury.
The state Supreme Court analyzed the case under the Oklahoma Evidence Code, which closely parallels the Federal Rules of Evidence. The Court wrote,
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” 12 O.S.2011 § 2401. “A fact that is ‘of consequence’ is material, and evidence that affects the probability that a fact is as a party claims it to be has probative force.” 1 McCormick on Evidence § 185 (8th ed. 2020). Evidence that is not relevant is not admissible. 12 O.S. 2011 § 2402.
The Court noted, that, in order to terminate parental rights, the State must prove each of the following four elements by clear and convincing evidence:
- The child has been adjudicated deprived;
- The parent abused the child or a sibling of the child;
- The abuse was heinous and shocking; and,
- Termination of parental rights is in the best interests of the child.
The Court then looked at each of the four elements, and discussed whether the Parents’ pending felony child abuse charge was “relevant” to each element; that is, whether the criminal charge has a tendency to make any of the above elements more or less probable.
1. The child has been adjudicated deprived.
The pending felony charge was not relevant to whether the child had been adjudicated deprived.
2. The parent abused the child or a sibling of the child.
The Court held that the fact that the State had criminally charged parents with abuse, had no tendency to make the fact of the abuse more or less probable. Therefore, the pending felony charge was not relevant to proving this element.
3.The abuse was heinous and shocking.
The Court held that the criminal charge did not have a tendency to make it more probable that the abuse was heinous and shocking. The State could not introduce a pending child abuse charge to prove this point, either.
4. Termination of parental rights is in the best interests of the child.
The Supreme Court held that even if the pending child abuse charge was relevant to proving that termination of parental rights was in the children’s best interests, the lower Court still should have excluded this evidence because the introduction of this evidence unfairly prejudiced the jury. The Court quoted Okla. Stat. tit. 12 § 2403:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise.”
The Court held that testimony regarding Parents’ criminal charge “served dual purposes – it harmed Parents’ credibility with the jury at the outset of the trial and planted in the jurors’ minds Parents’ uncertain future with their children.”
The Court also held that when the State introduced Parents’ criminal charge, this evidence, “indirectly achieved what a State prosecutor is prohibited from doing in a criminal trial — giving personal opinions of the accused’s guilt.” The Court quoted the U.S. Supreme Court’s holding in U.S. v. Young, 470 U.S. 1, 18-19, which stated, “The prosecutor’s opinions carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” The Court emphasized that for this reason, a prosecutor is prohibited from injecting his own opinion as to the accused’s guilt, at trial.
The Oklahoma Supreme Court then concluded,
“It is impossible to affirmatively ascertain from the record before this Court that no harm resulted from the admission of the evidence of pending criminal charges against Parents. This is inherently prejudicial error.”
The Court then reversed the lower Court’s termination of parental rights and remanded the case back to the lower Court for a new trial.
The take-away message of In the Matter of K.H. is that in any case where the State seeks to terminate parental rights, the State may not introduce evidence of a pending criminal child abuse charge against the parents. Because many parents in parental rights termination proceedings also have criminal child abuse charges pending against them, K.H. hands down a rule that will likely be important in many future proceedings to terminate parental rights. K.H. is certainly relevant to any lawyer who handles termination of parental rights cases in Oklahoma. Because K.H. could be used as persuasive authority in other jurisdictions, any family law attorney would do well to be familiar with M=In the Matter of K.H.
Attorney Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK. He has years of experience assisting the residents of Bartlesville in a variety of legal matters including family law, civil law, and immigration. Kyle holds a BA from Oklahoma Wesleyan University and a JD from the University of Tulsa College of Law. www.persaudlawoffice.com
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