Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.8 Burden of Proof for Termination of Parental Rights

The State has the burden of proving all the requirements for the termination of the parent's rights by proof beyond a reasonable doubt and you may return a verdict finding that parental rights are terminated only if you find that the State has satisfied its burden of proof.

[For purposes of this case, you are required to accept the following matters as true:

List any issues that are not for the jury to decide either because they have been stipulated to by the parties or are not jury issues].

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.20.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.23 Burden of Proof for Termination of Parental Rights

The State has the burden of proving all the requirements for the termination of the parent's rights beyond a reasonable doubt and you may return a verdict finding that parental rights are terminated only if you find that the State has satisfied its burden of proof.

[For purposes of this case, you are required to accept the following matters as true:

List any issues that are not for the jury to decide either because they have been stipulated to by the parties or are not jury issues].

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.36.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Introductory Note

Under 25 U.S.C. § 1912(d), a showing is required in any proceeding to effect foster care placement or termination of parental rights to an Indian child that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful.” This provision may require a prior adjudication of deprived status before termination of parental rights may be sought, even in cases involving heinous or shocking abuse. There is no guidance from the Oklahoma Supreme Court whether an adjudication of deprived status may be pursued simultaneously with a termination of parental rights under the Indian Child Welfare Act. Some courts have held that recent unsuccessful efforts with respect to the same parent but a different child may satisfy the requirement for “active efforts” with respect to a subsequently born child. See Letitia V. v. Superior Court of Orange County, 81 Cal. App. 4th 1009, 1016, 97 Cal. Rptr. 2d 303, 308 (Cal. Ct. App. 2000).

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.2 The Issues in the Case

There are two separate issues for you to decide in this case in order to terminate parental rights. Consider each issue separately. To terminate parental rights, you must find that the State has met its burden of proof on each of the following issues.

1

Is the child deprived according to the definitions given to you in these instructions? The State has a burden of proof on this issue called “clear and convincing evidence,” which is defined elsewhere in these instructions.

2

Are there grounds to terminate parental rights with respect to the child? The State has a burden of proof on this issue called “proof beyond a reasonable doubt.”

You may reach the issue of whether to terminate parental rights only if you find that a child is deprived. If you find that the child is not deprived, then you may not consider whether to terminate parental rights.

Statutory Authority: 25 U.S.C. § 1912(e), (f).

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.3.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.49 Parental History of Chronic Drug or Alcohol Abuse

The State seeks to terminate the parent's rights on the basis that the parent has a history of chronic drug or alcohol abuse. In order to terminate parental rights on the basis that the parent has a history of chronic drug or alcohol abuse, the State must prove beyond a reasonable doubt that:

1

The child has been adjudicated to be deprived;

2

The parent has a history of extensive, abusive and chronic use of drugs or alcohol;

3

The parent has resisted treatment for the chronic drug or alcohol use during a three year period immediately before the filing of the petition;

4

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

5

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

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(14).

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.7 Presumption That Parent Acts in Best Interest of Child

It is presumed that a child's best interests are ordinarily served by leaving the child in the custody of the parents, who are expected to have the strongest bond of love and affection and to be best able to provide a child those needed qualities. This presumption may be rebutted if there is proof beyond a reasonable doubt that the child would be neglected or abused if the child remained in the custody of the parents.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.19.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.9 Definition of “Beyond a Reasonable Doubt”

NO INSTRUCTION SHOULD BE GIVEN

Committee Comments

The Oklahoma Court of Criminal Appeals has criticized the giving of a definition of reasonable doubt. Young v. State, 1962 OK CR 70, § 22, 373 P.2d 273, 278 (“We agree with our predecessors that the trial court should not undertake to define the terms ‘reasonable doubt,’ ….”); Moore v. State, 1950 OK CR, 214 P.2d 966, 968, 90 Okla. Crim. App. 415, 418 (“[S]uch an instruction has been condemned in this jurisdiction from territorial days to the present time.”). In Wansing v. Hargett, 341 F.3d 1207 (10th Cir. 2003), the United States Court of Appeals for the Tenth Circuit reversed the denial of a habeas corpus petition because the Oklahoma state trial court's definition of reasonable doubt deprived the defendant of a fair trial. The Tenth Circuit explained:

Under Oklahoma law, it is error for a trial court to attempt to define reasonable doubt. Smallwood, 907 P.2d at 231; Summers v. State, 704 P.2d 91, 92 (Okla.Crim.App.1985). This is because Oklahoma has determined that such definitions are more likely to confuse than to clarify the standard. See Romano v. State, 909 P.2d 92, 124–25 (Okla.Crim.App.1995); Smallwood, 907 P.2d at 231. In Williams v. State, 572 P.2d 257, 259 (Okla.Crim.App.1977), the court explained that “ ‘reasonable doubt’ is self-explanatory, and … therefore definitions thereof do not clarify the meaning of the phrase, but rather tend to confuse the jury.” The underlying purpose of the rule—ensuring that the jury is not misled—thus bears some resemblance to the federal constitutional inquiry.

41 F.3d 1211–12.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.22 Presumption That Parent Acts in Best Interest of Child

It is presumed that a child's best interests are ordinarily served by leaving the child in the custody of the parents, who are expected to have the strongest bond of love and affection and to be best able to provide a child those needed qualities. This presumption may be rebutted if there is proof beyond a reasonable doubt that the child would be neglected or abused if the child remained in the custody of the parents.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.35.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.24 Definition of “Beyond a Reasonable Doubt”

NO INSTRUCTION SHOULD BE GIVEN

Committee Comments

The Oklahoma Court of Criminal Appeals has criticized the giving of a definition of reasonable doubt. Young v. State, 1962 OK CR 70, ¶22, 373 P.2d 273, 278 (“We agree with our predecessors that the trial court should not undertake to define the terms ‘reasonable doubt,’ ….”); Moore v. State, 1950 OK CR, 214 P.2d 966, 968, 90 Okla. Crim. App. 415, 418 (“[S]uch an instruction has been condemned in this jurisdiction from territorial days to the present time.”). In Wansing v. Hargett, 341 F.3d 1207 (10th Cir. 2003), the United States Court of Appeals for the Tenth Circuit reversed the denial of a habeas corpus petition because the Oklahoma state trial court's definition of reasonable doubt deprived the defendant of a fair trial. The Tenth Circuit explained:

Under Oklahoma law, it is error for a trial court to attempt to define reasonable doubt. Smallwood, 907 P.2d at 231; Summers v. State, 704 P.2d 91, 92 (Okla.Crim.App.1985). This is because Oklahoma has determined that such definitions are more likely to confuse than to clarify the standard. See Romano v. State, 909 P.2d 92, 124–25 (Okla.Crim.App.1995); Smallwood, 907 P.2d at 231. In Williams v. State, 572 P.2d 257, 259 (Okla.Crim.App.1977), the court explained that “ ‘reasonable doubt’ is self-explanatory, and … therefore definitions thereof do not clarify the meaning of the phrase, but rather tend to confuse the jury.” The underlying purpose of the rule—ensuring that the jury is not misled—thus bears some resemblance to the federal constitutional inquiry.

341 F.3d 1211–12.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.35 Failure to Correct Conditions—The Treatment Plan

In order for you to find that there has been a failure to correct the conditions which caused a child to be found deprived, you must find that the Court placed the parent on notice of the condition/conditions to be corrected by means of a service plan or treatment plan.

A “service plan” or “treatment plan” provides a list of activities or standards of conduct that are designed to assist the parent to correct the condition/conditions that caused a child to be deprived.

In order to terminate parental rights, you must find beyond a reasonable doubt that the condition/conditions which caused the child to be deprived has/have not been corrected. Failure to complete a treatment plan alone is not a basis to terminate parental rights, but it is evidence that the jury may consider in determining whether the condition/conditions has/have been corrected.

Statutory Authority: 10 O.S. 2001, § 7003-5.3.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.3 Requirements for Adjudication of Deprived Status

In order for you to find that a child is deprived, you must be satisfied by clear and convincing evidence that:

1

The child deprived according to the definitions given to you in these instructions;

2

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and

3

It is in the best interests of the child and the public for the child to be made a ward of the court.

The public's interest lies in protecting the child from harm.

Statutory Authority: 25 U.S.C. § 1912(e), 10 O.S. 2001, § 7003-4.5(A).

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.8.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.11 Verdict Form—Termination of Parental Rights

IN THE DISTRICT COURT OF ____________ COUNTY

STATE OF OKLAHOMA

[JUVENILE DIVISION]

V E R D I C T

TERMINATE PARENTAL RIGHTS

We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find by proof beyond a reasonable doubt 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 child has been born to a parent whose parental rights to another child have already been terminated before].

___________________

FOREPERSON

_____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

Notes on Use

This Verdict Form should be used for ICWA cases instead of the Verdict Form in Juvenile Instruction No. 2.22. The jury must be given both this Verdict Form and the Verdict Form in § 2.23, and it must return one Verdict Form or the other. It is recommended that separate verdict forms should be used for each parent, each child and each alleged ground for termination.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.26 Verdict Form—Termination of Parental Rights

IN THE DISTRICT COURT OF ____________ COUNTY

STATE OF OKLAHOMA

[JUVENILE DIVISION]

V E R D I C T

TERMINATE PARENTAL RIGHTS

We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find by proof beyond a reasonable doubt that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on the statutory ground that the parent failed to correct the following condition/conditions that led to the adjudication that the child was deprived: [Set forth condition/conditions that led to the deprived adjudication].

___________________

FOREPERSON

_____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

Notes on Use

This Verdict Form should be used for ICWA cases instead of the Verdict Form in Juvenile Instruction No. 2.38. The jury must be given both this Verdict Form and the Verdict Form in § 2.39, and it must return one Verdict Form or the other. It is recommended that separate verdict forms should be used for each parent, each child and each condition that led to the adjudication of the child's deprived status.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.34 Failure to Correct Conditions

The State seeks to terminate the parent's rights on the basis of failure to correct the condition/conditions that led to the finding that a child is deprived. In order to terminate parental rights on this basis, the State must prove beyond a reasonable doubt each of the following elements:

1

The child has been adjudicated to be deprived;

2

The acts or omissions of the parent caused or contributed to the condition/conditions that caused the child to be deprived;

3

The parent has failed to correct the condition/conditions that caused the child to be deprived;

4

The parent has had at least three months to correct the condition/conditions;

5

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

6

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

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(5).

Notes on Use

The trial judge should give Juvenile Instruction No. 5.35 along with this instruction.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.1 Purpose of Termination Proceeding

The purpose of a termination proceeding is to decide whether to break the parental bond. The case is concerned with four separate interests:

1

The parent's right to custody and control of a child.

2

The State's responsibility to protect a child under eighteen (18) years.

3

The child's right to a wholesome place to live, free from abuse and neglect.

4

The right of the Indian child's tribe to stability and security.

The interest of the parent, the State, the Indian child's tribe, and the child must be carefully weighed. The State's responsibility to protect the child must be balanced against the interest of a parent in the custody and control of a child. It is also the policy of the government to prevent the breakup of the Indian family in order to promote the stability and security of Indian tribes.

The right of a parent to the custody and control of a child is a fundamental right protected by the Federal and State Constitutions. While the rights of a parent are important and entitled to protection, they must be balanced against those of a child, and where they conflict, the child's rights should be protected.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 1.1.

Committee Comments

This Instruction incorporates the Congressional declaration of policy for ICWA cases in 25 U.S.C. § 1902.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.4 Issues to Decide

If after a full, fair, and impartial consideration of all of the evidence, facts and circumstances in this case, you find that the State has proven by clear and convincing evidence that a child is deprived, then you should return a verdict that the child is deprived. On the other hand, if after a full, fair, and impartial consideration of all of the evidence, facts and circumstances in this case, you find that the State has failed to prove by clear and convincing evidence that a child is deprived, then you should return a verdict that the child is not deprived.

If you do not find that a child is deprived, then you shall not consider termination of parental rights and all of you in a body should return the verdict to the Court. If you find a child is deprived, you must continue with your deliberations and consider whether parental rights should be terminated with respect to that child.

[For purposes of this case, you are required to accept the following matters as true:

List any issues that are not for the jury to decide either because they have been stipulated to by the parties or are not jury issues].

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.14.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.21 Purpose of Termination Proceeding

The purpose of a termination proceeding is to decide whether to break the parental bond. The case is concerned with four separate interests:

1

The parent's right to custody and control of a child.

2

The State's responsibility to protect a child under eighteen (18) years.

3

The child's right to a wholesome place to live, free from abuse and neglect.

4

The right of the Indian child's tribe to stability and security.

The interest of the parent, the State, the Indian child's tribe, and the child must be carefully weighed. The State's responsibility to protect the child must be balanced against the interest of a parent in the custody and control of a child. It is also the policy of the government to prevent the breakup of the Indian family in order to promote the stability and security of Indian tribes.

The right of a parent to the custody and control of a child is a fundamental right protected by the Federal and State Constitutions. While the rights of a parent are important and entitled to protection, they must be balanced against those of a child, and where they conflict, the child's rights should be protected.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 1.1.

Committee Comments

This Instruction incorporates the Congressional declaration of policy for ICWA cases in 25 U.S.C. § 1902.

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.33 Noncompliance with Placement Agreement

The State seeks to terminate the parent's rights on the basis that the parent has not complied with a placement agreement. In order to terminate parental rights on the basis that the parent has not complied with a placement agreement, the State must prove beyond a reasonable doubt that:

1

The child has been adjudicated to be deprived;

2

Continuation of parental rights is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness;

3

The parent voluntarily placed physical custody of the child with the Department of Human Services or with a child-placing agency for out-of-home placements;

4

The parent has not complied with the placement agreement;

5

The parent has not demonstrated during the placement period a firm intention to resume physical custody of the child or to make permanent legal arrangements for the care of the child; and

6

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

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(4).