| (Cite
as: 67 P.3d 359)
Court
of Civil Appeals of Oklahoma,
Division
No. 2.
In
the Matter of the ADOPTION OF BABY GIRL B., a
Minor.
Anthony
Noah and Choctaw Nation of Oklahoma, Appellants,
v.
Kelly
B., Appellee.
No.
96,985.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. 2.
Feb. 11, 2003.
As
Corrected March 20, 2003.
*361 Appeal
from the District Court of Cleveland County, Oklahoma; Honorable Alan
Couch, Trial Judge.
REVERSED
AND REMANDED WITH INSTRUCTIONS.
Robert L. Rabon, Rabon,
Wolf & Rabon, Hugo, OK, Gerald Kelly, Oklahoma City, OK, for Appellants.
Robert G. Boren, Rebecca
P. Boren, Oklahoma City, OK, and Bob Smith, Purcell, OK, *362
and Virginia Frank, Edmond, OK, for Appellees.
Opinion by KEITH RAPP, Judge:
¶ 1 The Choctaw
Nation (Nation) and Anthony Noah (Father) appeal the trial court's decision
declining to vacate its order terminating Father's parental rights and
finding the child (Child), referred to here as Baby Girl B., eligible
for adoption without his consent. Nation also appeals the trial court's
decision which denied Nation's Motion For Placement of Child.
[FN1] Upon review, this Court, affirms in part, reverses in part, vacates
the order terminating Father's parental rights, and remands for further
proceedings.
FN1.
The "Appellees" are not listed in the caption of the petition-in-error
but that pleading was served on the anonymous adoptive parents (Adoptive
Parents), and Child's mother, Kelly Bohanon (Mother). All of these persons
have filed an Answer Brief here and will be deemed the Appellees in this
Court. Child was not represented before the Cleveland County trial court
and has no attorney here. Mother has relinquished her parental rights
and consented to adoption. Mother's decisions are not before this Court
for review.
BACKGROUND
¶ 2 The Child is an Indian child and Mother and Father are members
of the Nation. The federal and State Indian Child Welfare Acts apply to
this case. The judgment terminating Father's parental rights and finding
the Child eligible for adoption without the Father's consent was essentially
a default judgment. The first issue here is whether Father and Nation
were properly and adequately notified of the proceeding leading to this
judgment. Whether the trial court should have vacated the judgment at
Father's request for good cause is collateral to this issue.
¶ 3 Adoption proceedings
were originally filed in Oklahoma County. All parties, including the Child,
were represented by counsel. The Nation and Father were parties and both
were represented by the same attorney. The application of the Indian Child
Welfare Acts was at issue.
¶ 4 On April 13,
2001, the Oklahoma County trial court ruled that the Acts applied. This
ruling had the effect of invalidating Mother's waivers and relinquishments.
The Oklahoma County court's Order recited that the parties had agreed
upon or did not dispute certain facts. Among these facts were: (1) Father
is a parent as defined by the Indian Child Welfare Act; (2) Mother and
Father were not wed nor cohabiting, Father had not supported the Child;
(3) Mother and Father are members of the Choctaw Nation and the Child
is an Indian child; and, (4) the Child was not being taken from an existing
Indian family for purposes of adoption.
[FN2]
FN2.
At the hearing on his motion to vacate held in Cleveland County, Father
acknowledged that he was the Child's parent and testified that he filed
an affidavit of paternity in Oklahoma County. Transcript, August 7, 2001,
page 33.
¶ 5 A minute entry
indicates that the Adoptive Parents requested and were granted a stay
in order to seek appellate relief. However, they dismissed the case. Then,
on May 8, 2001, Mother executed a voluntary relinquishment of parental
rights and consent to adoption and presented it to the District Court
in Canadian County.
[FN3] The record does not reflect any notice to or involvement by Father
or Nation in the Canadian County matter or that the Child was represented
there. The relinquishment also recites that the Mother agrees to transfer
custody to Adoptive Parents. The relinquishment wholly fails to mention
anything related to the facts concerning Indian heritage or the application
of Indian Child Welfare Acts. The relinquishment and consent were approved
by the judge in Canadian County.
FN3.
Mother was represented by counsel. Counsel for Adoptive Parents was also
present.
¶ 6 Thereafter, on May 10, 2001, the proceedings leading to this
appeal were filed in Cleveland County. Adoptive Parents filed an application
to determine eligibility for adoption without Father's consent, pursuant
to 10 O.S. Supp.2000, § 7505-4.2, for failure to provide support,
and to terminate Father's parental rights. The application does not mention
any information pertaining to Indian *363
heritage or application of Indian Child Welfare Acts.
¶ 7 On May 10, 2001,
counsel for Adoptive Parents also executed and filed a "Notice of
Adoption Proceedings" wherein the Indian heritage history is set
forth, including the statement that "the natural father is known
as Anthony Noah...." The Choctaw Nation was notified of intervention
rights. However, the Notice states in paragraph 5 that "the natural
mother will
file an application
with the court to proceed without the consent of the birth father...."
(Emphasis added.)
[FN4] This notice and Mother's relinquishment and statement of preferences
were mailed certified mail to Nation and the Bureau of Indian Affairs,
but the application is not shown to have been served.
[FN5]
FN4.
Record, page 3.
FN5.
The application has no certificate of service. Record, page 1- 2. On August
13, 2001, counsel for Adoptive Parents filed an affidavit of mailing
listing only the Notice and documents other than the application. Record,
page 70. The mail receipts are dated May 14, 2001.
¶ 8 A notice of
hearing of the Adoptive Parent's application was signed by the trial court
and filed on May 10, 2001. This notice was directed to Father. It advised
him of the relief sought, eligibility for adoption without his consent
and termination of parental rights for failure to support. The notice
advised that the hearing date was July 2, 2001, at 9:15 o'clock A.M. in
the District Court of Cleveland County, but provided no street address.
¶ 9 The notice did
not advise of any rights accompanying matters proceeding under Indian
Child Welfare Acts. This includes a right to an attorney or provision
for an attorney, or rights or procedures available through the Indian
Tribe. Father resided in Broken Bow, Oklahoma, where he was personally
served with the notice and the application on June 13, 2001.
¶ 10 In the interim,
it appears that the judges assigned to the case in Oklahoma County and
Cleveland County discussed where the case ought to be heard and decided
that it should be heard in Oklahoma County. This discussion appears to
have taken place without knowledge of counsel, but Adoptive Parents' counsel
learned of the proposed transfer and filed a motion to vacate the transfer
order on May 29, 2001. This motion shows a certificate of mailing to the
attorney who acted as counsel for Nation and Father in the Oklahoma County
proceedings.
The filed document shows a notice that the motion will be heard on June
5, 2001, at 8:30 o'clock A.M.
¶ 11 On June 4,
2001, a motion to intervene for the purpose of resisting the motion to
vacate the transfer was filed on behalf of Nation only. The trial court
vacated the transfer. A minute order recites the action and states further
that "July 3, 01 still pends." According to a letter from the
Cleveland County judge to the Oklahoma County judge, counsel for Nation
and the attorney shown as counsel for Mother agreed that the matter should
proceed in Cleveland County.
[FN6]
FN6.
It appears from the statement of counsel at the hearing that the June
5, 2001, hearing was attended by all counsel, but was postponed to the
following day and to a different location due to lack of a reporter. Counsel
for Nation stated that he returned but was unable to locate the new location
until after the matter was heard.
¶ 12 On June 13,
2001, counsel for the Nation filed a Motion for Different Placement Preferences.
The motion sought to have the statutory preferences of 25 U.S.C. §
1915 followed rather than Mother's statement of preference for Adoptive
Parents. This motion was mailed to all counsel, but, again, the mailing
did not include the Father.
¶ 13 On July 2, 2001, the Cleveland County trial court entered an
order that determined the Child eligible for adoption without Father's
consent and terminated Father's parental rights. Father did not appear,
so the determination was by default as to him. The trial court made a
finding that Father had been served notice more than fifteen days prior
and approved the notice to him. The order refers to Father as the "putative
father." The determination makes no mention of anything related to
Indian matters or of Nation. There is no indication in the record that
the order was served on Father or Nation.
*364
¶ 14 However, on July 6, 2001, Nation and Father filed a joint motion
to invalidate the July 2, 2001 proceeding based upon lack of notice to
Nation and inadequate notice to Father, all as required by the federal
and State Indian Child Welfare Acts. In addition, Father filed a separate
motion to vacate on the ground of unavoidable casualty.
¶ 15 At the hearing
on the motions, Father testified that he had been served notice, but he
did not discuss the matter with counsel for Nation who had represented
him in Oklahoma County.
[FN7] Father related that he and his family left Broken Bow at about four
o'clock on the morning of July 2, 2001, to come to Norman for the hearing,
and arrived in Norman at about 8:30 o'clock A.M. They did not know where
to go and asked directions several times but got lost. They arrived at
the courthouse at about 10:00 o'clock A.M., proceeded to the
trial judge's office, and were informed that the hearing was over. Counsel
for Nation also did not appear, and at that time he had not entered an
appearance as counsel for Father.
FN7.
At all times involved in this case, whenever Father was represented he
was represented by the same attorney that represents Nation.
¶ 16 On the placement
issue, Nation presented the great-grandmother of the Child, who testified
as to her willingness and ability to care for the Child and to provide
a residence. Next, a family counselor employed by Nation testified as
one knowledgeable about Indian family life. The witness explained about
cultural deprivation and the problems associated with that condition as
an individual matures. An earlier witness testified as to the services,
foster homes, and facilities available from the Nation along with testimony
that the application to terminate Father's rights document had not been
received by the Nation.
¶ 17 Mother testified
on behalf of Adoptive Parents. She stated that she asked Nation for assistance,
but was refused help. However, on cross-examination, she stated that she
had previously asked for help with her other children before she was pregnant
with the Child and did not ask for the Nation's assistance because she
assumed it would be denied. This was her third child,
and one of the other two children is in the custody of the Department
of Human Services. She eventually met the Adoptive Parents through their
counsel. She formally expressed her desire that the Child be adopted by
them.
¶ 18 The Adoptive
Parents presented a specialist in child psychology who testified as to
bonding in general and that the Child bonded with the Adoptive Parents.
This individual was not an expert in Indian family life or culture.
¶ 19 The trial court
denied relief. The court found that notice was provided, that custody
would not be changed, and that the Child's eligibility for adoption remained
in force. Nation and Father appeal.
STANDARD OF REVIEW
¶ 20 The appellate
court will exercise its "plenary, independent and non-deferential
authority [when] reexamin[ing] a trial court's legal rulings." Neil
Acquisition, L.L.C. v. Wingrod Inv. Corp.,
1996 OK 125, ¶ 5, 932 P.2d 1100, 1103 n. 1; Spielmann
v. Hayes, 2000
OK CIV APP 44, ¶ 8, 3 P.3d 711, 713.
¶
21 The standard of review for a trial court's conclusion regarding a child's
eligibility for adoption without the consent of the biological parent
is whether it is supported by the clear weight of the requisite clear
and convincing evidence.
[FN8] In re
Adoption of R.W.S.,
1997 OK 148, ¶ 10, 951 P.2d 83, 86 (reh'g.denied
); In re Adoption
of J.L.H.,
1987 OK 25, ¶ 12, 737 P.2d 915, 918. However, the issue on appeal
is whether
the court erred in failing to vacate what was essentially a default judgment.
The test for measuring the legal correctness of the trial court's ruling
on a motion to vacate or set aside judgment is whether sound discretion
was exercised upon sufficient cause shown to vacate, modify, open or correct
its earlier decision, or to refuse the relief sought. VanNort
v. Davis, 1990
OK CIV APP 95, ¶ 9, 800 P.2d 1082, 1085.
FN8.
See In re S.B.C.,
2002 OK 83, 64 P.3d 1080.
*365
ANALYSIS AND REVIEW
¶ 22 Both appeals, as briefed here, concentrate on the issue of whether
notice was adequate and complied with governing law. In addition, Nation
challenges the trial court's decision denying its motion for different
placement.
¶ 23 This Court
takes cognizance of the policy underlying the federal and State Indian
Child Welfare Acts. When enacting the Indian Child Welfare Act, Congress
found:
(3)
that there is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children ...;
(4)
that an alarmingly high percentage of Indian families are broken up by
the removal, often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high percentage of
such children are
placed in non-Indian foster and adoptive homes and institutions; and
(5)
that the States, exercising their recognized jurisdiction over Indian
child custody proceedings through administrative and judicial bodies,
have often failed to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing in Indian communities
and families.
25 U.S.C. § 1901.
¶ 24 "Indeed,
the congressional findings that are a part of the statute demonstrate
that Congress perceived the States and their courts as partly responsible
for the problem it intended to correct." Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 44, 109 S.Ct. 1597, 1606, 104 L.Ed.2d 29 (1989). The law
is intended not only to protect the rights of Indian children, but also
the interests of Indian Tribes in survival. Thus, care must be taken in
such cases to avoid a purely Anglo-American perspective.
Father's
Motion to Vacate
¶ 25 In the
petition-in-error, a point of error was raised about Father's late arrival
at court and being lost. Although not referenced there, this alludes to
unavoidable circumstances allegations made by Father in his motion to
vacate under 10 O.S. Supp.2000, § 7505-4.1(H). However, the issue
was not briefed. In fact, Section 7505-4.1(H) is not cited in the appellate
brief. This issue is thus waived. See
State ex rel. Jones v. Baggett,
1999 OK
68, 990 P.2d 235 n. 5.
Nation's
and Father's Motion to Vacate
¶ 26 25 U.S.C. § 1914 authorizes the Child's Tribe, here Nation,
and "any parent from whose custody such child was removed" to
petition the court to vacate its decision upon a showing of a violation
of Sections 1911, 1912, and 1913 of Title 25. The challenge here is to
the notices given to Father and to Nation.
¶ 27 Adoptive Parents
take the position that the notice to Nation complies with the law; that
Father's notice complied with the applicable law that Father is not a
parent under the Indian Child Welfare Acts and is not a custodian of the
Child, so he has no right to specialized notice and no standing. The Adoptive
Parents' position is rejected for the following reasons.
¶ 28 The facts here
do not fit precisely into the statutory scheme because the Child has never
been in Father's custody, which is not disputed. Adoptive Parents argue
that Father's lack of custody means, first, that he does not have standing
here, so the stringent burden of proof does not apply. Thus, Section 1914
authorizes a parent "from whose custody such child was removed"
to seek invalidation of the proceedings. In addition, the expert witness
requirement and the standards of proof in Section 1912(e) and (f) relating
to placements and terminations insert the phrase "the continued custody
of the child"
into consideration, so Adoptive Parents' second argument is that the expert
witness rule does not apply here.
¶ 29 The facts elicited
below indicate that Mother and Father had a short liaison of about three
weeks. When she learned that she was pregnant, she did not contact the
Nation for assistance, believing that it would be futile. She contacted
Adoptive Parents' counsel, and proceedings were started in Oklahoma County,
where Father was served with notice. He testified without contradiction
*366
that his first knowledge of the Child occurred after the Child's birth
and as a result of the Oklahoma County matter. He did not know that Mother
had been pregnant.
[FN9]
FN9.
Transcript, July 10, 2001, page 55.
¶ 30 Father arranged
for a DNA test and filed an affidavit in the Oklahoma County matter acknowledging
paternity. He also then sent some support money in care of Adoptive Parents'
attorney. Neither the amount of support sent nor any support order are
reflected in the record here.
¶ 31 In three cases
the Oklahoma Supreme Court has ruled that, under the facts of those cases,
the absence of custody with the father rendered the Indian Child Welfare
Acts inapplicable to the case situations. In In
re Adoption of D.M.J.,
1985 OK 92, 741 P.2d 1386, custody had been previously awarded to the
mother in a prior divorce action. The father's parental rights were terminated
for nonsupport and he appealed, joined by the Cherokee Nation, raising
issues under the Indian Child Welfare Act. The case of In
re Adoption of Baby Boy D.,
1985 OK 93, 742 P.2d 1059, involved an Indian father, a non-Indian mother,
and existing awareness of fatherhood on the part of the father coupled
with apparent disregard for the child.
¶ 32 The facts of
In re S.C. and
J.C., 1992
OK 98, 833 P.2d 1249, involved an Indian father who sought to invalidate
a placement decision made after the non-Indian mother's parental rights
had been terminated.
[FN10] The father knew about the children. Moreover, efforts were made
to place the children with father, but studies of his home, including
one by the Cherokee Nation, indicated that the best interests of the children
would not be served by placement with father. There, the Cherokee Nation
only sought visitation for the father, so it cannot be said that the Indian
Child Welfare Acts had no role in the case.
FN10.
The "existing Indian family" controversy has specifically been
eliminated from these proceedings by the parties. Moreover, here Mother
is an Indian whereas in In
re S.C. and J.C.
the mother was non-Indian.
¶ 33 A common thread
among these cases is that the father knew about the children
in each case. Here, it is unrefuted that Father first learned of the Child
and his parenthood as a result of the Oklahoma County proceedings. Upon
learning of his parenthood, he then took steps to acknowledge paternity
and provide support. The case was then dismissed by Adoptive Parents.
¶ 34 In the present
proceedings, no determination has been made that Father has had a reasonable
opportunity to establish custody or that he has waived any right to seek
custody or placement of the Child in accordance with the Indian Child
Welfare Acts. Unfortunately, his claim of unavoidable circumstances in
the default termination portion of this case has not been preserved for
review. Nevertheless, this Court distinguishes the prior cases and holds
that when, as here, a father has no reasonable notice of fatherhood, then
the Acts do not preclude him from asserting rights under those Acts simply
because he had not been, through no fault of his own, a custodial parent.
[FN11]
FN11.
Compare Miller
v. Miller,
1998 OK 24, 956 P.2d 887, where the facts indicated that the mother fraudulently
led the father to believe he was the father. The Court held that a true
claim of an existing pregnancy coupled with a false representation that
the child is that of the proposed spouse, states a fraud claim. Thus,
a father could deny paternity when the true facts were withheld. This
Court perceives no legal reason to find
that the obverse will not apply--a father may assert paternity, and all
rights associated therewith, when the true facts have been withheld from
him.
¶ 35 This result
is consistent with the policies and purposes of the Acts to preserve and
protect the interests of Indian children, Indian Tribes, and Indian families,
and to keep Indian children in homes that reflect Indian culture and values.
25 U.S.C. § 1902; 10 O.S. Supp.2000, § 40.1. Moreover, it must
be observed that custody is immaterial as to the interest of the Nation
and application of the Oklahoma Act. 10 O.S. Supp.2000, §§ 40.1,
40.3(B).
¶ 36 On the question
of notice, this Court holds that neither of the notices complied with
applicable law, but that the Nation was not prejudiced by defective notice
to it because *367
it intervened prior to the termination proceedings. However, Nation may
seek to vacate the proceedings due to the defective notice to Father,
and, under the circumstances, the trial court should have vacated the
proceedings and erred in failing to do so.
A. Notice to Father
¶ 37 Nation
and Father argue that the notice served upon Father did not comply with
the provisions of 10 O.S. Supp.2000, § 40.4.
[FN12] The notice deficiencies include: (1) lack of tribal identification
of the Child; (2)
lack of statement of rights; and (3) advice regarding right to counsel.
FN12.
Section 40.4 provides:
In
all Indian child custody proceedings of the Oklahoma Indian Child Welfare
Act, including voluntary court proceedings and review hearings, the court
shall ensure that the district attorney or other person initiating the
proceeding shall send notice to the parents or to the Indian custodians,
if any, and to the tribe that is or may be the tribe of the Indian child,
and to the appropriate Bureau of Indian Affairs area office, by registered
mail return receipt requested. The notice shall be written in clear and
understandable language and include the following information:
1.
The name and tribal affiliation of the Indian child;
2.
A copy of the petition by which the proceeding was initiated;
3.
A statement of the rights of the biological parents or Indian custodians,
and the Indian tribe:
a.
to intervene in the proceeding,
b.
to petition the court to transfer the proceeding to the tribal court of
the Indian child, and
c.
to request an additional twenty (20) days from receipt of notice to prepare
for the proceeding; further extensions of time may be granted with court
approval; 4.
A statement of the potential legal consequences of an adjudication on
the future custodial rights of the parents or Indian custodians;
5.
A statement that if the parents or Indian custodians are unable to afford
counsel, counsel will be appointed to represent them; and
6.
A statement that tribal officials should keep confidential the information
contained in the notice.
¶ 38 First, if Father
is entitled to the notice required under the Indian Child Welfare Act,
the notice to Father did not meet the statutory requirements. Adoptive
Parents do not argue otherwise, but maintain that Father is not a parent
entitled to Section 40.4 notice because he is an unwed father. This Court
rejected, above, their argument that he has no standing because he never
had custody.
¶ 39 The statute,
25 U.S.C. § 1903(9), excludes from the definition of "parent"
the "unwed father where paternity has not been acknowledged or established,"
which is not the case here. Under Section 1914, the authority to petition
to vacate is given to a parent from whom custody was removed for violations
of Sections 1911, 1912, or 1913.
[FN13] Section 1912, as amplified by State statute, requires notice, provides
for right to counsel, access to information, prerequisites to termination
decisions, and a "beyond a reasonable doubt" standard of proof
for termination proceedings coupled
with a requirement to support the proof with expert testimony.
FN13.
Sections 1911 and 1913 are not involved here.
¶ 40 Here, there
was undisputed evidence that, in the Oklahoma County matter, Father had
taken a DNA test which established his paternity. Counsel for Adoptive
Parents referred to this test in statements to the Cleveland County trial
court. Now, Adoptive Parents argue that Father has not complied with the
statute so he is not an "acknowledged" parent. They refer to
10 O.S. Supp.2000, § 70(B)(1), which calls for an affidavit from
Mother and Father. However, they have ignored and failed to discuss Section
70(B)(2), which provides for an alternative means to establish paternity
by means of a scientific test.
¶ 41 Next, the uncontradicted
evidence presented here also demonstrated that Father acknowledged paternity
by affidavit in the Oklahoma County proceedings based upon a scientific
test showing him to be the biological father of the Child. Adoptive Parents
argue that the record does not support a conclusion that a proper acknowledgment
had been made by Father prior to the initiation of the Cleveland County
proceedings. First, this Court holds that sufficient evidence was placed
before the trial court so that further inquiry was mandatory in order
to ascertain whether Father had previously *368
qualified as
a "parent" under the law and thus entitled to the full range
of notice. The fact of Indian relationships coupled with the strong legislative
policies here involved, compel full examination and determination of the
facts so that State laws or procedures do not deliberately or inadvertently
work to frustrate the interests involved or the application of the Acts.
Thus, for example, a parent cannot frustrate the purposes and intent of
the Acts by the expedient of changing domicile under state law. In
re Adoption of Halloway,
732 P.2d 962, 966 (Utah 1986).
¶ 42 Second, the
Order entered in the Oklahoma County cause was before the trial court
here. The Order stated that the parties had agreed to and did not dispute
certain facts, one of which was that Father is a parent as defined in
the Indian Child Welfare Acts. Moreover, Adoptive Parents did not contest
applicability of the Indian Child Welfare Acts when the case was filed
in Cleveland County. Adoptive Parents offer no reason for ignoring the
statements in the Order. The existence of such statements adds an additional
reason to inquire into Father's legal status as a parent and to make a
specific finding as to Father's legal status as a parent and applicability
of the Acts.
¶ 43 Moreover, this
Court notes that under the Oklahoma Act, notice is to be provided "to
the parents." 10 O.S. Supp.2000, § 40.4. The Oklahoma Act does
not include the federal definition of "parent" that excludes
the unwed father where paternity has not been established or acknowledged.
25 U.S.C. §
1903(9).
¶ 44 Nevertheless,
according to Adoptive Parents, the federal definition of parent applies
here because the Oklahoma Act does not apply unless the federal Act applies.
In support of this position they cite In
re Adoption of D.M.J.,
1985 OK 92, ¶ 9, 741 P.2d 1386, 1388, where the Court made such observation.
However, the context shows that the Court also observed that the Oklahoma
Act clarified Oklahoma's role, as well as expressed this State's intent
to "cooperate fully with Indian tribes in Oklahoma in order to insure
that the intent and provisions of the Federal Indian Child Welfare Act
are enforced." Id.
Adoptive Parents point to no authority limiting the interpretation of
"parent" in the Oklahoma Act by the same limitation contained
in the federal Act nor can they ignore Father's established paternity.
¶ 45 Here, the trial
court's Order cryptically denies Father's Motion to Vacate, stating notice
was provided. Father did receive some notice. He tried to come to the
court, became lost, and he was tardy. However, the notice elements missing
here clearly go to more than the notice of time and date of a hearing.
[FN14] Obviously, Father was not represented by chosen or appointed counsel
at a critical stage of these proceedings. No evidence exists showing he
had waived a right to counsel. In fact, he testified that he believed
he was represented by Nation's counsel, but that was not the case at that
time.
FN14.
The notice of the place of the hearing is somewhat lax in specificity
and may have contributed to the tardiness, but that has not been raised
here.
¶ 46 Adoptive Parents
started a new action for adoption. They were under an obligation to furnish
adequate notice and wholly failed to do so. They have not shown any excuse
for the failure to give adequate and correct notice, nor any basis to
excuse the failure such as lack of prejudice. The trial court has not
made any findings regarding Father's entitlement to notice as provided
by the Indian Child Welfare Acts, but this Court holds that Father, under
the record presented, was entitled to notice as provided in these Acts.
¶ 47 Failure to
provide adequate notice is fatal to the proceedings. Due Process demands
that notice reasonably inform a person that his or her legally protected
interest may be adversely affected. A purpose of notice is to afford an
opportunity to defend. Judicial notice cannot depend upon inferences to
be gathered from outside sources or other events. Clarity and completeness
are essential to preservation of the procedural safeguards afforded by
Due Process of Law norms. Lack of specificity renders the safeguards meaningless.
In re C.G.,
1981 OK 131, ¶¶ 9-10, 637 P.2d 66, 68-69.
Notice
To Nation
¶
48 The notice to Nation stated that the termination and adoption without
consent *369
petition "will" be filed. It was properly mailed. In the hearing
on the motion to vacate, counsel for Adoptive Parents stated, "We
set out in that notice the fact that the natural mother would
be filing an application with the court to proceed without the consent
of the birth father." The application had in fact been filed at that
time. Thus, the notice was misleading and it has not been shown that the
application or a notice of hearing date was served on Nation.
¶ 49 However, Nation
intervened to argue for a transfer of the case's venue back to Oklahoma
County. The court's letter to the Oklahoma County judge and the minute
Order indicate an agreed disposition of the transfer issue. Neither the
order nor the letter reflect the correct day for the termination without
consent hearing, and, in the case of the letter, nothing is said about
a hearing date.
¶ 50 Nation's intervention
states that Nation resists Adoptive Parents' "motion to vacate transfer
order." The Adoptive Parents' motion to vacate transfer order had
been mailed to counsel for Nation. The body of the motion recites a history
of the case, including the filing of an application for adoption in Cleveland
County. The motion continues by saying that Adoptive Parents' counsel
conferred with Nation's counsel about the filing, his representation in
the matter, and whether the issue for decision was if grounds existed
for termination of the birth father's rights as a parent.
¶ 51 Then, Nation
filed its motion concerning placement preferences. The content of this
filing indicates awareness of at least some of what had been filed in
the case, such as Mother's consent to adoption and preference for the
Adoptive Parents. Moreover, counsel for Nation had been to Cleveland County
on June 5 and June 6, 2001, but the record is silent regarding whether
he availed himself of the opportunity to view the court file. Counsel
for Nation was in contact with counsel for Adoptive Parents, but again,
the record is silent regarding any discussions about the filing of the
application.
¶ 52 On the record
here, it appears that counsel for Adoptive Parents and counsel for Nation
were equally remiss in the matter of notice, but it cannot be said that
the Nation was itself prejudiced. In addition, Nation did not seek to
remove this action to a Tribal Court, nor did it request additional time
as contemplated by 10 O.S. Supp.2000, § 40.4(3)(c). Thus, the record
fails to show that Nation lacked sufficient information so as to enable
it to intervene and take such action as it deemed necessary.
¶ 53 Moreover, regardless
of whether it might have been prejudiced by a decision terminating Father's
parental rights, Nation does not present its case on that ground. Nation
chose the level of involvement before the trial court in Cleveland County,
as shown by its pleadings, and limited its involvement to issues of placement
and adequacy of notice. Thus, although Father and Nation share
counsel and a common concern about adequacy of notice and conformity to
legal requirements, Nation did not seek to act as a surrogate for Father
to resist, on
the merits,
termination of his parental rights.
¶ 54 Therefore,
even though the notice to Nation was misleading, the trial court's decision
not to invalidate on this ground is not clearly error because of the absence
of prejudice to Nation.
Placement
Decision
¶ 55 Here, two issues are presented with respect to placing the Child
with the Adoptive Parents pending further proceedings. The first issue
asks whether good cause has been given not to follow the statutory preference
scheme. The second issue involves determining who bears responsibility
to involve Indian Tribes in the placement decisions, as well as the legal
ramifications following failure to conform to that responsibility.
A. The Good Cause Issue
¶ 56 The statutes establish a preferential scheme for placement of
a child in sundry cases, including preadoptive placements. 25 U.S.C. §
1915.
[FN15] The Oklahoma statute *370
adopts the federal preference scheme. The significant language here is
the mandatory direction to give preference as directed under the Act in
the "absence
of good cause to the contrary
" because this language manifests a presumptive preference in favor
of Indian placement.
FN15.
25 U.S.C. § 1915 provides in part:
(b)
Foster care or preadoptive placements; criteria; preferences
Any
child accepted for foster care or preadoptive placement shall be placed
in the least restrictive setting which most approximates a family and
in which his special needs, if any, may be met. The child shall also be
placed within reasonable proximity to his or her home, taking into account
any special needs of the child. In any foster care or preadoptive placement,
a preference shall be given, in the absence
of good cause to the contrary,
to a placement with--
(i)
a member of the Indian child's extended family;
(ii)
a foster home licensed, approved, or specified by the Indian child's tribe;
(iii)
an Indian foster home licensed or approved by an authorized non-Indian
licensing authority; or
(iv)
an institution for children approved by an Indian tribe or operated by
an Indian organization which has a program suitable to meet the Indian
child's needs.
(c)
Tribal resolution for different order of preference; personal preference
considered; anonymity in application of preferences
In
the case of a placement under subsection (a) or (b) of this section, if
the Indian
child's tribe shall establish a different order of preference by resolution,
the agency or court effecting the placement shall follow such order so
long as the placement is the least restrictive setting appropriate to
the particular needs of the child, as provided in subsection (b) of this
section. Where appropriate, the preference of the Indian child or parent
shall be considered: Provided, That where a consenting parent evidences
a desire for anonymity, the court or agency shall give weight to such
desire in applying the preferences.
(d)
Social and cultural standards applicable
The
standards to be applied in meeting the preference requirements of this
section shall be the prevailing social and cultural standards of the Indian
community in which the parent or extended family resides or with which
the parent or extended family members maintain social and cultural ties.
(Emphasis
added.)
¶ 57 This language
presents three questions for consideration at this juncture:
(1)
Who bears the burden to overcome the presumption established in the statute;
(2)
What constitutes "good cause"; and,
(3)
What is the applicable standard of proof.
¶ 58 This Court holds that a party who advocates a placement other
than prescribed by statute bears the burden to establish good cause to
disregard the statute. This Court next holds that "good cause"
involves multifaceted determinations concerning the best interests of
the child or children involved and
the Tribal interest, keeping in mind the fostering of the purposes and
policies of the Indian Child Welfare Acts, the need for expert testimony,
and the Bureau of Indian Affairs Guidelines.
[FN16] Last, this Court holds that the "clear and convincing"
standard of evidence applies when a trial court considers whether a party
who has the burden of proof has established "good cause" to
disregard the preadoption placement preferences in the statute.
FN16.
Guidelines for State Courts; Indian Child Custody Proceedings. 44 Fed.Reg.
67583. The Guidelines provide preadoptive placement guidance. Id.
at 67594.
1. Burden of Proof
¶
59 The clear language of the statute establishes a presumptive placement
scheme, and not by default in the absence of some alternative. Thus, the
trial court must be convinced to depart from the statutory scheme. The
party seeking that result then must persuade the court. In
re Adoption of Riffle,
277 Mont. 388, 922 P.2d 510, 514 (1996); see
In re Adoption of F.H.,
851 P.2d 1361, 1363 (Alaska 1993). Moreover, the Guidelines state:
Proceedings
in state courts involving the custody of Indian children shall follow
strict procedures and meet stringent requirements to justify any result
in an individual case contrary to these preferences.
Guidelines, 44 Fed.Reg. at 67586.
¶ 60 Here, the burden
of proof rested with Adoptive Parents as to why the statutory scheme should
not be followed.
2. What constitutes "good
cause".
¶
61 The federal Act provides that the preadoption preferences shall be
followed, but does not include a definition of *371
what constitutes "good cause" not to follow the statutory scheme.
The Guidelines do not fill in the gap, although the Guidelines do provide
a list of factors.
[FN17] The factors listed in the Guidelines reiterate the provisions of
the statute, Section 1915(b).
[FN18] As a result there has been some disparity in court treatment of
the concept of "good cause".
FN17.
See In re N.L.,
1988 OK 39, 754 P.2d 863 (Opala concurring, 1988 OK at ¶¶ 27-29,
754 P.2d at 876-77, for a discussion in the context of good cause to decline
a request to transfer a case to a Tribal Court.) A similar absence of
a definition for "good cause" exists in that context.
FN18.
See Note 15.
¶ 62 One line of
authority looks to the traditional best interests of the child approach.
The Court in In
re Interest of Bird Head,
213 Neb. 741, 331 N.W.2d 785 (1983), directed the trial court to consider
the good cause issue keeping in mind that the Act did not override the
best interest of the child test.
The
Indian Child Welfare Act does not change the cardinal rule that the best
interests of the child are paramount, although it may alter its focus.
The legislative history of the act states explicitly that the use of the
term "good cause" was designed to provide state courts with
flexibility in determining the disposition of a placement proceeding involving
an Indian child. Factual support in the record in the trial court as to
"good cause" for failure to comply with statutory child placement
preference directives are necessary for appropriate appellate review.
Id.
at 791.
¶ 63 Other cases
take the approach that the Act's scheme and design incorporate the child's
best interests. These cases deem the Act to be a presumptive statement
of the child's best interests. In
re Adoption of Riffle
is an example.
We
believe, however, that a finding of good cause cannot be based simply
on a determination
that placement outside the preferences would be in the child's best interests.
The plain language of the Act read as a whole and its legislative history
clearly indicate that state courts are a part of the problem the ICWA
was intended
to remedy. See Mississippi Band of Choctaw Indians,
490 U.S. at 44-45, 109 S.Ct. at 1606-07.... The best interests of the
child standard, by its very nature, requires a subjective evaluation of
a multitude of factors, many, if not all of which are imbued with the
values of majority culture. It therefore seems "most improbable"
that Congress intended to allow state courts to find good cause whenever
they determined that a placement outside the preferences of § 1915
was in the Indian child's best interests.
Id.
at 514.
¶ 64 Other courts
take a more expansive approach. Thus, factors in addition to a child's
best interest are taken into account to determine whether "good cause"
exists to depart from the placement preferences. In
re A.E., J.E., S.E., and X.E,
572 N.W.2d 579 (Iowa 1997).
Good
cause is a matter of discretion, and discretion must be exercised in light
of many factors. These include but are not necessarily limited to the
best interests of the child, the wishes of the biological parents, the
suitability of persons preferred for placement, the child's ties to the
tribe, and the child's ability to make any cultural adjustments necessitated
by a particular
placement.
Id.
at 583.
¶ 65 The same "good
cause" problem exists when the decision is whether to reject transfer
to a tribal court. 25 U.S.C. § 1911(b). Again, courts are split on
whether to consider the child's best interests.
[FN19] Some courts find that the child's best interests are integral to
decision-making involving children so that such interest must be an element
for consideration at every stage of the proceeding. In
re Guardianship of J.O.,
327 N.J.Super. *372
304, 743 A.2d 341, 348-49 (2000). The Court in the case of In
re Maricopa County Juvenile Action No. JS-8287,
171 Ariz. 104, 828 P.2d 1245, 1250-52 (Ariz.Ct.App.1991), ruled that a
child's best interest was a factor, along with the Guidelines.
FN19.
See
Michael J. Dale, State
Court Jurisdiction Under the Indian Child Welfare Act and the Unstated
Best Interest of the Child Test,
27 Gonz. L.Rev. 353, 387 (1991-92). In contrast, transfer under Section
1911(a) is mandatory because exclusive jurisdiction there rests with the
tribal court. Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.
¶ 66 Other courts
simply state that a child's best interest is a factor,
without elaboration, but in all of these cases additional factors and
the Guidelines were also present. Matter
of M.E.M.,
195 Mont. 329, 635 P.2d 1313, 1317 (1981) and In
re Robert T.,
200 Cal.App.3d 657, 246 Cal.Rptr. 168, 174-75 (1988), provide examples.
In the case of Matter
of M.E.M.,
the Court directed that best interests of the child, in addition to the
Guidelines, be considered on remand.
[FN20]
FN20.
Implicit in this directive is the conclusion that the best interests criterion
is not included as one of the Guidelines.
¶ 67 The Oklahoma
Supreme Court, citing Matter
of M.E.M.,
has stated that best interest of the child is a factor. In
re N.L., 1988
OK 39, 754 P.2d 863. However, the other factors listed in the statute
must also be considered and failure to do so constitutes reversible error.
A
finding of "good cause to the contrary" is predicated upon the
court's consideration of the placement categories specified. Where no
inquiry occurs as to whether the child's tribe has licensed, approved,
or specified a foster home, the court has not adequately considered such
a placement.
We
remand the case for a new dispositional hearing because the record does
not disclose that the trial court afforded placement preference to the
categories specified in 25 U.S.C. § 1915.
On
remand the court should consider whether the "good cause" exception
in § 1915 is met by the child's best interests. In
re Interest of Bird Head,
213 Neb. 741, 331 N.W.2d 785, 791 (1983).
Id.,
1988 OK 39 at ¶¶ 36-38, 754 P.2d at 870.
¶
68 The Oklahoma Supreme Court's citation to In
re Bird Head,
coupled with the directive to examine and apply the statutory preferences
aligns it with the expansive view line of authority. Therefore, this Court
holds that, under the authority of In
re N.L., a
child's best interest is a criterion to consider, albeit not the sole
criterion, because other factors, including those set forth in the statutes
and the Guidelines must also be considered.
[FN21]
FN21.
This result is consistent with this Court's holding that the same factors
apply when the issue is good cause to deny transfer to a tribal court.
In re Adoption
of S.W. and C.S.,
2002 OK CIV APP 26, 41 P.3d 1003.
¶
69 Further elaboration is called for at this juncture because "good
cause" is not defined. Good cause must be viewed in two contexts--good
cause that is personal to the children, and good cause that is extrapersonal.
[FN22]
FN22.
The Guidelines exclude
from consideration socio-economic conditions and perceived adequacy of
the tribal judicial system or social services structure. Guidelines, §
C.3(c), 44 Fed.Reg. at 67591. Also, the children here are younger than
the ages listed in Section C.3.
¶ 70 The former
pertains to the nurture, care, and welfare of the children and,
when Indian children are involved, exposure to and cultivation of the
social and cultural aspects of Indian life, their Indian culture, and
Indian heritage.
[FN23]
FN23.
These are also proper concerns when a final decision is made concerning
the children.
¶ 71 Factors relating
to good cause personal to children are found in Yavapai-Apache
Tribe v. Mejia,
906 S.W.2d 152 (Tex.Civ.App.1995), where it is stated:
The
best interest of the child test in the Anglo-American legal systems considers
a number of factors: (1) the desires of the child; (2) the emotional and
physical need of the child now and in the future; (3) the emotional and
physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available
to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking
custody; (7) the stability of the home or proposed placement; (8) the
acts or omissions of the parent which may indicate that the existing parent-child
relationship is not *373
a proper one; and (9) any excuse for the acts or omissions of the parent.
Id.
at 168.
¶ 72 The extrapersonal
context of best interests refers to the means, resources, and procedures
available and used to preserve and protect the personal best interests
of the children and
to the Tribal and cultural interests specially involved.
Thus, the courts consider this aspect of best interest when they hold
that the FICWA and the Guidelines apply. Good cause in the context of
the FICWA has often been examined in relation to extrapersonal best interest
matters.
[FN24]
FN24.
For example, in In
re Wayne R.N.,
107 N.M. 341, 757 P.2d 1333 (N.M.Ct.App.1988), the court determination
of whether good cause had been shown not to transfer a case will necessarily
be made on a case by case basis. Id.
at 1335.
¶ 73 The trial court's task is to engage in a fact-finding process
leading to a determination of the children's best interests, yet keeping
in mind the permanent facts that Indian children and an Indian nation
are involved. Thus, while the foregoing components of best interests from
Yavapai-Apache
Tribe v. Mejia
are not exhaustive, the list, in conjunction with the Indian aspects of
the case and
the need to view the case from a different perspective,
do indicate a number of relevant considerations. However, when the best
interests standard is used, care must be taken to avoid a purely Anglo-American
point of view.
[FN25] In addition, the best interests inquiry should be consistent with
the best interests inquiry on final placement.
[FN26]
FN25.
Whether the "Anglo" best interest of the child test should be
an element of the good cause test has been questioned. Michael J. Dale,
State Court
Jurisdiction Under the Indian Child Welfare Act and the Unstated Best
Interest of the Child Test,
27 Gonz. L.Rev. 353, 387 (1991- 92). The Court in Yavapai-Apache
Tribe v. Mejia
found that the FICWA is silent on the issue and that the Guidelines suggest
the best interest of the child has no place in determining good cause.
FN26.
The trial court and the parties should also be cognizant of the "qualified
expert witness" requirements of 25 U.S.C. § 1912(f). The qualified
expert testimony diminishes the risk of cultural bias. In
re N.L., 1988
OK 39 at ¶ 17, 754 P.2d at 867. For a review of the guidelines for
qualification of an expert see In
re N.L., 1988
OK 39 at ¶¶ 14-24, 754 P.2d at 866-68. It has been held that
such expertise includes a person with special skills and knowledge of
the |