In re Adoption of SW, 95,681.

• Decision Date: 18 September 2001
• Docket Number: No. 95,681.,95,681.
• Citation: 2002 OK CIV APP 26,41 P.3d 1003
• Parties: In The Matter of the ADOPTION OF S.W. and C.S., Minor Children. In The Matter of S.W., A child under 18 years of age. In The Matter of C.S., A child under 18 years of age, Cherokee Nation, Appellant, v. State of Oklahoma, Mark and Catherine Cunningham, and S.W. and C.S., Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

41 P.3d 1003

2002 OK CIV APP 26

In The Matter of the ADOPTION OF S.W. and C.S., Minor Children.

In The Matter of S.W., A child under 18 years of age.

In The Matter of C.S., A child under 18 years of age, Cherokee Nation, Appellant, v. State of Oklahoma, Mark and Catherine Cunningham, and S.W. and C.S., Appellees.

No. 95,681.

Court of Civil Appeals of Oklahoma, Division No. 4.

September 18, 2001.

Rehearing Denied October 30, 2001.

Certiorari Denied February 5, 2002.

Becky M. Johnson, Cherokee Nation, Tahlequah, OK, for Appellant Cherokee Nation.

Benjamin Faulkner, Tulsa, OK, for Appellees Mark and Catherine Cunningham.

Joseph W. Strealy, Assistant General Counsel, Department of Human Services, Oklahoma City, OK, for Appellee Department of Human Services and Michelle Huffman, Public Defenders Office, Juvenile Bureau, Tulsa, OK, for Appellees S.W. and C.S.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. KEITH RAPP, Judge.

¶ 1 The Cherokee Nation (Nation) appeals two orders of the District Court of Tulsa County. The first order consolidated two actions involving petitions to declare minors S.W. and C.S. as deprived children with an adoption proceeding filed by the appointed foster parents of both children, Mark and Catherine Cunningham (Foster Parents.) The second order denied the Nation's request to transfer the deprived action to the Cherokee Tribal Court.

BACKGROUND

¶ 2 This case involves two children born out of wedlock, their mother, who is no longer a party because she relinquished her parental rights, separate fathers, who are brothers, Oklahoma Department of Human Services (DHS), the State of Oklahoma, the Cherokee Nation, Foster Parents, and a half-sibling of S.W. and C.S., and that half-sibling's adoptive parents.¹ The case also involves three court proceedings: (a) a Deprived Child proceeding involving S.W.; (b) a Deprived Child proceeding involving C.S.; and (c) an adoption petition filed by Foster Parents.

¶ 3 According to the record here, none of these proceedings has been concluded. This appeal concerns two preliminary rulings. The parties appearing by Briefs here are the Nation, as appellant, and as appellees, DHS, the children, and Foster Parents.²

Parties and Proceedings — S.W.

¶ 4 S.W. was born to an unwed, non-Indian mother in April 1998. The father listed on the birth certificate was also non-Indian.³ S.W. was taken into custody of DHS in March 1999, returned and then in October 1999, a Deprived Child petition was filed in the District Court of Tulsa County and assigned to the juvenile division.

¶ 5 The petition named Kevin Starr (Kevin S.) as well as the birth certificate father. Kevin S. is a member of the Cherokee Nation. Notice was duly given to the Nation. On January 15, 2000, S.W. was placed with Foster Parents.

¶ 6 The Nation intervened in the Deprived Child action on March 10, 2000, and had an active role in placement proceedings. The Nation rejected Kevin S. and members of his family, after home studies were conducted. Nation favored permanent placement of S.W. with a family who had adopted a half-sibling of S.W. This family, as well as the half-sibling, are non-Indian. DHS, by a filing on October 19, 2000, supported the Nation's recommendation before the Juvenile Court hearing the Deprived Child petition but now, in this Court, supports the Foster Parents.

¶ 7 With the proceedings under way, Kevin S. was, after a paternity test, determined to be the actual father. The test results were available beginning October 4, 2000. Faced with the DNA test results, he thereafter acknowledged paternity in October 2000.

¶ 8 On October 19, 2000, the Nation filed a petition to transfer the case to the Tribal Court. The Juvenile Court set hearing for October 25, 2000, and then continued the hearing to October 31, 2000.

Parties and Proceedings — C.S.

¶ 9 C.S. was born to the same mother as S.W. but with Dewayne Starr as the putative father. Dewayne Starr (Dewayne S.) is also a member of the Cherokee Nation. A Deprived Child petition was filed in November 1999, as to C.S. The Nation was duly notified. In January 2000, C.S. was also placed with Foster Parents.

¶ 10 The Nation became a party on March 10, 2000. The Nation's investigation and placement decisions for C.S. were the same as for S.W. DHS supported the Nation at trial, but again opposes the Nation here.

¶ 11 Dewayne S. acknowledged paternity on August 30, 2000.

¶ 12 The Nation, on October 19, 2000, filed a petition to transfer the case to the Tribal Court. The Juvenile Court set hearing for October 25, 2000, and then continued the hearing to October 31, 2000.

Parties and Proceedings — Foster Parents

¶ 13 The Juvenile Court hearing the Deprived Child cases had ordered visitation with the half-sibling. After the Foster Parents had failed to deliver S.W. and C.S. for visitation, the Juvenile Court, on August 30, 2000, ordered that the visitation continue.

¶ 14 The Foster Parents thereafter, on October 6, 2000, filed a petition to adopt both children. This case was assigned to the Probate Division of the District Court in accordance with local court rules. Rule 2, Rules of the Fourteenth Judicial District.

Trial Court Rulings On Appeal

¶ 15 On October 24, 2000, the Foster Parents filed a request that the Deprived Child cases be transferred to the Probate Division of the District Court. The Nation opposed the transfer on the sole ground that it desired to have its transfer petition decided first. After a hearing, the Probate Division trial judge, to whom the adoption case had been assigned, ordered that the Deprived Child cases be reassigned to the Probate Division, thereby consolidating the three cases into a single one.⁴ This Court notes that the transfer request was filed only in the Child Deprivation cases and not in the adoption case. One aspect of the Nation's present appeal concerns the reassignment.

¶ 16 Thereafter, this same judge heard Nation's petition to transfer the Deprived Child cases to the Tribal Court. This hearing was conducted on briefs and oral argument, but no evidence was presented.⁵

¶ 17 The principle arguments in the hearing on transfer to the Tribal Court involved a question of whether the trial court could consider the best interests of the children. The trial court concluded that the children's best interests were a criterion and, clearly from the transcript, placed great weight on this criterion. The trial court denied the request to transfer the matter to the Tribal Court. The "good cause" reasons for denial as stated in the Journal Entry are:

1. The Petition to Transfer was not timely filed;

2. The Tribal Court is an inconvenient forum; and

3. A transfer to Tribal Court would not be in the best interest of the children.

Nation also appeals this ruling.

STANDARD OF REVIEW

¶ 18 The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

ANALYSIS AND REVIEW

Consolidation of Proceedings

¶ 19 Nation devotes a substantial part of its arguments here to its claim of error in bringing the Deprived Child cases together with the adoption case. The Nation's appeal of this ruling has no merit because:

— There is only one District Court in Oklahoma. Dockets are established for administrative purposes. 20 O.S. Supp.2000, 91.2 (A). Thus, there is no jurisdictional conflict between divisions or dockets of the District Court. The statute and the Supreme Court have established presiding judges to deal with administrative matters and local rule-making. 20 O.S.1991, 23 (2). The Fourteenth Judicial District handles reassignments of cases by presentment of the question to the judge who would be taking the transfer, as was done here. Rule CV 3, Rules of the Fourteenth Judicial District.

— Nation had no objection to the transfer other than it desired to have its request for removal to the Tribal Court heard. Nation's request was promptly docketed and heard.

— Nation argues here that conflicts between the Deprived Child procedures and the adoption procedures and statutory proscription against combining the two actions prevent the consolidation. However, Nation's argument assumes that the result of the consolidation is a blending of the cases into a single action. Such was not the case, and the trial court specifically noted that separate procedures, such as right to jury trial, would be followed, as applicable, in each type of case. In addition, the trial court has ample authority to bifurcate the proceedings and to conduct the matters to conclusion without internal conflict and in accord with applicable procedures. 12 O.S.1991, 2018 (D).

¶ 20 Thus, under the facts, and applicable law, no error exists by reason of the consolidation of all cases before a single District Court judge.

Denial of Request to Transfer to Tribal Court — The Issues Presented

¶ 21 Both children are Indian children for purposes of the Federal Indian Child Welfare Act (FICWA.)⁶ Neither of the children reside within or are domiciled on an Indian reservation, as that is defined.⁷ Therefore, the applicable provision of the FICWA is 25 U.S.C. § 1911(b), which provides:

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of

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