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In re Z.M.Z.

Court of Appeals of Oklahoma, Division I

April 29, 2019

IN THE MATTER OF Z.M.Z. and Z.C.Z., Deprived Children. STATE OF OKLAHOMA, Petitioner/Appellee,
v.
JOSHUA ZUEHL, Respondent/Appellant.

          Mandate Issued: 12/11/2019

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE RODNEY SPARKMAN, JUDGE.

          Stephen A. Kunzweiler, China Matlock, TULSA COUNTY DISTRICT ATTORNEY'S OFFICE, Tulsa, Oklahoma, for Petitioner/Appellee,

          Isaiah Parsons, Matthew Day, Charles Graham, PARSONS, GRAHAM & DAY, LLC, Tulsa, Oklahoma, for Respondent/Appellant,

          Timothy R. Michaels-Johnson, TULSA LAWYERS FOR CHILDREN, Tulsa, Oklahoma, for Z.M.Z. and Z.C.Z.

          Kenneth L. Buettner, Judge.

         ¶1 Respondent/Appellant Joshua Zuehl (Father) appeals an order terminating his parental rights to Z.M.Z. and Z.C.Z. (Children). Children were removed from their parents' home because their mother, Veronica Zuehl (Mother), intentionally dropped three-week old Z.C.Z. Mother was charged with child abuse and was found not guilty by reason of insanity. Mother relinquished her parental rights and Petitioner/Appellee the State of Oklahoma (State or DHS) sought termination of Father's parental rights for failure to correct the condition of Mother being in the home, failure to pay child support, and length of time in foster care. The record indicates the State's sole concern was that Father allowed Mother to remain in the home; yet the State did not attempt reunification of Children and Father during the months that Mother was in jail or in the Oklahoma Forensic Center, and Mother had left Father's home by the time of trial. Following a bench trial, the court terminated Father's rights based on failure to correct conditions and on Children being in foster care for six of the most recent twelve months and not being able to safely return to Father's home. In its order, the trial court failed to specifically identify the conditions Father failed to correct; the record does not include clear and convincing evidence that Father failed to correct any of the conditions alleged and we reverse that finding. The State contributed to the length of time that Children were in foster care and by the time of trial, the foster home was essentially the only home Children had known. Nevertheless, the State failed to present clear and convincing evidence that Children could not be safely returned to Father's home, as required by statute, and we therefore reverse termination on that ground also. Finally, while the trial court announced in court that termination was in Children's best interests, the final order does not include the required finding on best interests. We reverse.

         ¶2 The State obtained an order for emergency custody of Children August 29, 2016. At that time, Z.M.Z. had just turned two years old and Z.C.Z. was four weeks old. The affidavit supporting the State's application alleged that Mother dropped Z.C.Z. on the kitchen floor and he hit his head. The affidavit further averred Mother tried to calm the baby then went to a neighbor who took Mother and the baby to a hospital, where the baby was found to have a brain bleed and skull fracture. Upon questioning by police and a DHS worker, Mother admitted she had "had it" and felt life would be easier without the baby and she dropped him. The affidavit stated Mother reported she had been struggling with depression and the day she dropped Z.C.Z. was the fourth anniversary of the birth of her first child, who had died of a genetic disorder when he was two weeks old. Mother also reported she had communicated to Father that she was unhappy about the pregnancy with Z.C.Z. and felt trapped as a stay at home mother. The affidavit further averred that Father was not home when Mother dropped the baby and when Father returned home, he found Z.M.Z. in the care of a neighbor. Father reported he did not immediately go to the hospital because Z.M.Z. had fallen asleep. The affidavit alleged Father reported he knew Mother did not want the pregnancy but Father was unaware of Mother's current mental health issues. Father reported he intended to keep his family together. Children were initially placed in the custody of church friends of Father and Mother.

         ¶3 The State filed its Petition seeking a deprived adjudication September 8, 2016. The State sought immediate termination of Mother's and Father's parental rights based on heinous and shocking abuse by Mother and on Father's failure to protect from heinous and shocking abuse.

         ¶4 Mother relinquished her parental rights January 9, 2017. At the same hearing, the State withdrew its request for immediate termination of Father's rights and Father stipulated to the State's allegations that Children were deprived. The disposition order noted the conditions to be corrected were neglect, failure to protect from shocking and heinous abuse, mental health of caretaker, threat of harm, and failure to provide a safe and stable home.

         ¶5 A disposition order entered following a February 1, 2017 review hearing indicated Father was working two jobs, DHS was directed to increase Father's visitation, the case was set for a 90 day review May 3, 2017, and Father was informed that no trial reunification would happen while Mother lived in Father's home. The order further indicated the foster parents reported Children were doing well and their current placement was "potential adoptive." The ISP directed Father to maintain adequate housing, learn five appropriate development needs of children by attending parenting classes, contact Children's Therapeutic Strategies to schedule an initial counseling intake appointment to address Children's "history of trauma, behaviors, as well as, the recent removal of" Children and follow all recommendations of the service provider, undergo a psychological evaluation and provide the results to DHS, and contact Family and Children's Services for an intake assessment for individual counseling to address "his own history of trauma, as well as, the recent removal of" Children. A February 7, 2017 disposition hearing order indicated Father continued to live in Bixby and Children were in foster care in Copan.

         ¶6 The disposition order entered following the May 3, 2017 review hearing indicates Mother remained in Father's home despite the court's order for Mother to be out of the home by May 3, 2017, and the State announced its intent to file a motion to terminate Father's rights. The order indicated the permanency plan continued to be reunification or adoption.

         ¶7 The State filed its motion to terminate Father's parental rights May 12, 2017. The State alleged Father had failed to correct the conditions of neglect, failure to protect from abuse, mental health of caretaker, threat of harm, and failure to provide a safe and stable home. The State also sought termination for failure to support Children and for length of time in foster care. On the same day, Mother's criminal trial for child abuse ended in a jury verdict of not guilty by reason of insanity. Mother was ordered to be held at the Oklahoma Forensic Center in Vinita "until (the) Court has made a determination that she is not presently dangerous to the public peace and safety because (she) is a person requiring treatment...."

         ¶8 An ISP progress report filed May 16, 2017 indicated Father had attended each visitation and CPP session except one when he was ill, and Father had completed the required intakes for PCC and FCS and had attended therapy sessions. The report indicated Father continued to live in Bixby and Wife lived with him (the record indicates Mother was at the Oklahoma Forensic Center at that time). The report stated Father had "yet to take responsibility for the position he's in, and blames DHS and the Court for making him choose between his wife and his children."

         ¶9 The July 21, 2017 ISP Progress Report indicated Father visited Children every other week as scheduled except for two times when he was sick or could not afford gas. Father completed the Circle of Security Parenting Group June 7, 2017, and he came to class prepared and on time. Father also was enrolled in a Nurturing Parenting Group. Father and DHS disputed whether he had signed releases for his information from FCS. The report indicated Children were doing well in their ...


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