In re Adoption of Baby Girl B.

• Decision Date: 11 February 2003
• Docket Number: No. 96,985.,96,985.
• Citation: 67 P.3d 359,2003 OK CIV APP 24
• Parties: In the Matter of the ADOPTION OF BABY GIRL B., a Minor. Anthony Noah and Choctaw Nation of Oklahoma, Appellants, v. Kelly B., Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

67 P.3d 359

2003 OK CIV APP 24

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.

Court of Civil Appeals of Oklahoma, Division No. 2.

February 11, 2003.

As Corrected March 20, 2003.

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, and Virginia Frank, Edmond, OK, for Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

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.¹ Upon review, this Court, affirms in part, reverses in part, vacates the order terminating Father's parental rights, and remands for further proceedings.

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.²

¶ 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.³ 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.

¶ 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 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.)⁴ 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.⁵

¶ 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.⁶

¶ 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. ¶ 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.⁷ 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.

¶ 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...