Kickapoo Tribe of Oklahoma v. Rader
| Decision Date | 02 July 1987 |
| Docket Number | No. 84-2279,84-2279 |
| Citation | 822 F.2d 1493 |
| Parties | KICKAPOO TRIBE OF OKLAHOMA, Johnny Ortega, a minor child through next friend, Vernon Ketcheshawno, Herbert White, Bob White, Delores Murdock, Joyce Naneto, Ruth Sanderson, James Wahpepah, Emma Gonzales, Fredrico Gonzales, Emma Salazar, Fredrico Salazar, Antonio Anico and Vernon Ketcheshawno, Plaintiffs-Appellees, v. Lloyd RADER, Debra Roth, Joanna Romero, Victoria Burkes, Andres Martinez, Helen Martinez, George Miller, Cheryl Mullin, Jane Conner, Earline Logan, Dian England, Defendants-Appellants, State of Oklahoma, Department of Human Services, Defendant In Intervention- Appellant, Betty Davis, the Hon. Arthur Lory Rakestraw, the Hon. Judge Loys Criswell, and Department of Human Services, Defendants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas H. Tucker, State of Oklahoma Dept. of Human Services, Oklahoma City, Okl. (Pamela K. Padley, was also on brief), for defendants-appellants Lloyd Rader, Debra Roth, Joanna Romero, Victoria Burkes, George Miller, Cheryl Mullin, Jane Conner, Earline Logan and Dian England.
Boyd Baker, Altus, Okl., for defendants-appellants Andres Martinez and Helen Martinez.
Sue Wycoff, Oklahoma Indian Legal Services, Oklahoma City, Okl. (Susan Work Haney, Oklahoma City, Okl. and Mary Barksdale, Tahlequah, Okl., were also on brief, for plaintiff-appellee Kickapoo Tribe), Albert Ghezzi and Berry Benefield, Native American Center, Oklahoma City, Okl., for plaintiff-appellee Antonio Anico.
Before HOLLOWAY, Chief Judge, DOYLE, Circuit Judge *, and BROWN, District Judge **.
This appeal generates several difficult legal issues involving the application of the Indian Child Welfare Act of 1978 (ICWA) 1, the role of federal and state courts in the adoption proceedings of an Indian child, Johnny Ortega, the recognition by federal courts of state court judgments construing federal statutes, and the due process rights of an Indian father who speaks no English.
Johnny Ortega was born on October 5, 1977. Johnny's biological parents are Sylvia Marquez Ortega and Antonio Anico, an enrolled member of the Kickapoo Tribe of Oklahoma.
In March 1978, Sylvia took Johnny, then five months old, to the Children's Memorial Hospital in Oklahoma City for treatment of an arm disorder. Physicians at the hospital suspected child abuse or neglect and alerted the Oklahoma Department of Human Services (DHS). Johnny was placed in the emergency custody of DHS on March 9, 1978, by state court order. On March 10, DHS filed a petition in the District Court of Oklahoma County seeking to have Johnny made a ward of the court as a deprived child and to have the parental rights to Johnny terminated. The petition listed Antonio Anico as the father and gave his address as "Mexico." At that time Mark Litke, a DHS agent, filed an "Affidavit For Service By Publication" with the state court which recited:
that the present whereabouts of the father of said child is unknown to your petitioner; that after due search and diligent inquiry your affiant has been unable to ascertain an address at which personal service may be given and that affiant wishes to obtain service by publication.
(I R. 53).
The Oklahoma County District Court order of March 9, 1978, had placed custody of Johnny with DHS and set the matter for hearing on April 26, 1978. Moreover, the court directed that "notice of hearing be given to parents of the child either by personal service or by publication in the manner provided by law." (I R. 51). A On April 26, 1978, on the basis of evidence of a new skull injury, the state court entered an order making Johnny a ward of the court as a deprived child. Visitation rights were granted to the mother and stepfather twice a month. Although it is not clear from the record on appeal, the hearing of April 26, 1978, where Antonio Anico's parental rights to Johnny were to be terminated appeared to be continued to September 7, 1978. There is no showing in our record of further notice attempted on Antonio. On May 9, 1978, DHS placed Johnny in a foster home.
March 9, 1978 affidavit by Juvenile Officer Litke of Oklahoma County had stated that the whereabouts of the father were unknown to petitioner Litke, that after due search and diligent inquiry Litke had been unable to ascertain an address for personal service, and that he wished to obtain service by publication. (Id. at 53). Service on Antonio Anico was by publication of a notice of the April 26, 1978 hearing to terminate parental rights in the Daily Law Journal-Record of Oklahoma City. The notice was published once in English on March 11, 1978. The notice was addressed to "Antonio Aneco [sic]" and stated that a petition alleging that Johnny Ortega was a deprived child and for termination of parental rights had been filed, and that a hearing would be held on the cause on April 26, 1978, where he might appear to be heard. 2 On March 17, 1978, DHS returned custody of Johnny to Sylvia Ortega
On September 7, 1978, the District Court of Oklahoma County terminated the parental rights of Antonio Anico to Johnny Ortega. (I R. 56). Neither Antonio nor his representative was present at the termination hearing.
On November 3, 1978, the Indian Child Welfare Act became law, in part effective immediately, and in part effective May 8, 1979. DHS possessed information suggesting that Johnny was an Indian child on September 12, 1979, and communicated that information to the Oklahoma County District Court on or about October 2, 1979. Nevertheless on October 7, 1979, DHS moved Johnny from the foster home where he was placed on May 9, 1978, to another non-Indian foster home.
On May 1, 1980, the District Court of Oklahoma County terminated the parental rights of Sylvia Ortega to Johnny Ortega, with the court reserving the right to consent to adoption. On September 4, 1980, some two years after Antonio Anico's parental rights were terminated and one day before Johnny was placed for adoption by DHS, an Order Nunc Pro Tunc was entered by the District Court of Oklahoma County finding:
That on the 7th day of March, 1978 this Court found that the whereabouts of Antonio Aneco [sic], alleged natural father of the referenced juvenile, were unknown and that a diligent effort had been made to ascertain the whereabouts of the alleged natural father.
That as a result of such findings, this Court authorized the publication of notice to Antonio Aneco [sic].
Through clerical error these findings were not recorded or reflected in the court file in this matter. This clerical record should be corrected.
(I R. 55). This order was issued by a judge different than the one presiding over the March 10, 1978 hearing. 3 The following day, DHS placed Johnny for adoption in the home of Andres and Helen Martinez, non-Indians.
On November 3, 1980, the Kickapoo Tribe attempted to intervene in the state court proceedings pursuant to 25 U.S.C. Sec. 1911(c), with the purpose of transferring the case to the Indian Tribal Court so that the Kickapoo tribe could place the child in accordance with Kickapoo custom, pursuant to the ICWA. (I R. 32). The state court denied the Kickapoo Tribe's petition to intervene, finding that the ICWA did not apply to any proceeding under state law for foster care placement or termination of parental rights which was initiated prior to May 8, 1979. (Id. at 33).
The Oklahoma County District Court terminated the parental rights of Sylvia Ortega to Johnny on May 1, 1980. On November 25, 1980, Andres and Helen Martinez filed a petition to adopt Johnny in the District Court of Jackson County, Oklahoma. On February 26, 1981, that court entered a decree granting the adoption. The state court found that DHS "did not receive reliable confirmation of any Indian heritage of this child [Johnny] until December fo [sic] 1980." (II R. 300).
Plaintiffs-appellees commenced this action in July 1981, in the United States District Court for the Western District of Oklahoma, alleging violations of the Due Process Clause of the Fourteenth Amendment, the ICWA, and the Indian Religious Freedom Act. 4 The plaintiffs sought declaratory and injunctive relief as well as damages. At the pretrial conference in the federal district court, the parties entered into certain stipulations which are relevant on appeal. The stipulations include these facts: (1) Antonio Anico is an enrolled member of the Kickapoo Tribe of Oklahoma; (2) the district courts of Oklahoma and Jackson Counties did not follow the placement preferences of the ICWA in the foster care and adoptive placement of Johnny; (3) the Kickapoo Tribe was not given notice of the state court proceedings involving Johnny; (4) the ICWA was not in effect on September 7, 1978, the date on which Antonio Anico's parental rights to Johnny were terminated; and (5) the Kickapoo Tribe of Oklahoma has certified that Johnny is eligible for membership in the tribe. (II R. 383-85).
On cross-motions for summary and partial summary judgment, the district court held (1) that the defendants-appellants had violated the ICWA in the foster care placement and adoption of Johnny; (2) that the plaintiff Antonio Anico's parental rights to Johnny were terminated without adequate notice in violation of the Due Process Clause, and in doing so the defendants had also violated the relevant Oklahoma notice statute; (3) that the adoption of Johnny by Helen and Andres Martinez was void ab initio; and (4) that the determination of custody and placement of Johnny must be re-determined by the state courts of Oklahoma in accordance with the ICWA. Judgment was then entered pursuant to Rule 54(b), Fed.R.Civ.P. Still remaining for disposition by the district court are issues concerning injunctive relief and damages.
The defendants-appellants appeal the order of the federal district court. By agreement of the parties, the judgment of the district court insofar as it affects the custody...
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