In re Adoption of R.L.A., No. 103,076.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtAdams
Citation147 P.3d 306,2006 OK CIV APP 138
PartiesIn the Matter of the ADOPTION OF R.L.A., a Minor Child, Jeremy Dewayne Overton and Jennifer Lynn Overton, Petitioners/Appellants, v. William Eagle Lee Arpoika, Respondent/Appellee.
Docket NumberReleased for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,No. 103,076.
Decision Date22 September 2006
147 P.3d 306
2006 OK CIV APP 138
In the Matter of the ADOPTION OF R.L.A., a Minor Child,
Jeremy Dewayne Overton and Jennifer Lynn Overton, Petitioners/Appellants,
v.
William Eagle Lee Arpoika, Respondent/Appellee.
No. 103,076.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
Court of Civil Appeals of Oklahoma, Division No. 3.
September 22, 2006.

Page 307

Appeal from the District Court of Cleveland County, Oklahoma; Honorable Stephen Bonner, Trial Judge.

REVERSED AND REMANDED.

Noel K. Tucker, Phillip J. Tucker, Melodie Martin-Farris, The Tucker Law Firm, Edmond, OK, for Petitioners/Appellants.

Donald T. Bogan, Amelia S. Pepper, Drew T. Palmer, licensed legal intern, University of Oklahoma Legal Clinic, Norman, OK, for Respondent/Appellee.

OPINION

ADAMS, Judge.


¶ 1 The mother (Mother) and stepfather (collectively, Petitioners) of the minor child R.L.A. appeal the denial of their Application For Order Determining Child Eligible For Adoption Without Consent of Natural Parent, arguing the trial court incorrectly applied the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and required them to prove the factual bases for their application by proof beyond a reasonable doubt. Because we conclude the heightened burden of proof required by 25 U.S.C. § 1912(f) applies only to the federally required determination "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," we reverse the trial court's order and remand the case for determination based upon the correct burden of proof.

¶ 2 Respondent (Father), Mother, and R.L.A. lived together from July of 2000 until

Page 308

November of 2002. Mother filed for divorce from Father in March of 2003. Father was incarcerated for several violations of law beginning in June of 2003 under a delayed sentencing program. A divorce was granted in July of 2003, and Mother received custody of R.L.A. Father was ordered to have no visitation with R.L.A. "due to his incarceration with the Department of Corrections."

¶ 3 In September of 2003, when a decree memorializing an agreement setting child support was filed, Father was still incarcerated. He was released from custody and placed on probation in October of 2003. According to his testimony, after his release he worked for room and board on a family member's ranch. Father was re-incarcerated in late February of 2004 for a second violation of law, and the probation for the prior convictions was revoked.

¶ 4 In the meantime, Petitioners married in late January of 2004. They filed their application for adoption without Father's consent on April 13, 2005. The application alleged that Father's consent was not required under 10 O.S.2001 § 7505-4.2(B)(1)1 and 10 O.S.2001 § 7505-4.2(H)(1).2 At that time, Father was still incarcerated. He remained incarcerated until December 17, 2005, and appeared and testified at the February 3, 2006 hearing on the application.

¶ 5 Father claimed that the minor child was eligible for enrolled membership in the Muscogee (Creek) Nation due to his own enrollment3 and that, as a consequence, the ICWA applied. Both Petitioners and Father, in their respective closing arguments, agreed that Petitioners were required to prove the factual elements of their application by "clear and convincing evidence." However, the trial court imposed a "beyond a reasonable doubt" standard, concluding that it was required by the ICWA, and denied Petitioners' application.

¶ 6 At the outset, we must reject Petitioners' suggestion that because a stepparent sought to adopt, the trial court proceedings herein were ones "springing out of a divorce action" and are therefore exempt from the ICWA under 25 U.S.C. § 1903(1). The parties to a divorce are the husband and wife seeking to dissolve the marital union, not a subsequent spouse of one of them who has become a stepparent. Proceedings for adoption without consent are not matters "springing out of a divorce action" but instead are independent statutory proceedings.

¶ 7 Moreover, a stepparent is not "one of the parents" whose claim is one "springing out of a divorce action" under the ICWA because under the definitions set forth in 25 U.S.C. § 1903(2), a stepparent is specifically defined as one of the persons who qualifies as an "extended family member." An "extended family member" is not one of the parents.

¶ 8 Petitioners ask that this Court "only make a determination that ICWA should not apply to a step parent adoption, because the child's custodial biological parent who is participating in the adoption process, [sic] continues to have the fundamental right to determine if his/her child shall participate in any Indian heritage." This argument is too restrictive a view of the process and ignores that the federal statutory scheme recognizes rights of tribes, Indian parents, and an Indian child's extended family under tribal customs when dealing with the custody of an Indian child.4

Page 309

¶ 9 We also must reject the suggestion by Petitioners based upon In re B.R.W., 2003 OK CIV APP 92, 78 P.3d 1243, that the ICWA does not apply. B.R.W. applied the Indian family exception described in In the Matter of Adoption of D.M.J, 1985 OK 92, 741 P.2d 1386. The continued viability of that exception was rejected in In the Matter of Baby Boy L, 2004 OK 93, 103 P.3d 1099, and the Court expressly overruled D.M.J. and several other cases applying that exception. Consequently, the determination of the non-applicability of the ICWA due to the Indian family exception in B.R.W., since explicitly rejected, does not advance the analysis here.

¶ 10 It is undisputed that R.L.A. qualifies as an Indian child as that term is defined in both the Oklahoma Indian Child Welfare Act (OICWA) and ICWA. See 10 O.S.2001 § 40.2(2) and 25 U.S.C. § 1903(4). A child custody proceeding is defined, under § 1903(1)(ii), as including and meaning "any action resulting in the termination of the parent-child relationship" as well as, under § 1903(1)(iv), "any action resulting in a final decree of adoption."

¶ 11 The Legislature has provided in the OICWA that with the exceptions of "[a] child custody proceeding arising from a divorce proceeding," 10 O.S.2001 § 40.3(A)(1), or one from an adjudication of delinquency "unless there has been a request for termination of parental rights," 10 O.S.2001 § 40.3(A)(2), the OICWA "applies to all child custody proceedings involving any Indian child." 10 O.S. 2001 § 40.3(A). Further, the OICWA provides that it "applies to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated," 10 O.S.2001 § 40.3(B). (Emphasis added.) However, save and excepting when an emergency removal of an Indian child occurs, the OICWA does not specify the burden of proof for proceedings.5 The expressed focus of the OICWA is to "ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced." 10 O.S.2001 § 40.1. Thus, we must look to the ICWA to discover any increased burden of proof on Petitioners, and the ICWA was the basis of the trial court's decision.

¶ 12 In order to obtain an order determining a child eligible for adoption without the consent of a natural parent, the prospective adoptive parents have the burden of proving the existence of one or more of the...

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17 practice notes
  • Adoption T.A.W. v. C.W., No. 92127-0
    • United States
    • United States State Supreme Court of Washington
    • October 27, 2016
    ...do not spring forth from divorce, but are instead independent statutory proceedings. In re Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 6, 147 P.3d 306. In a divorce, the parties are the husband and wife attempting to dissolve their marriage, not a spouse who later becomes a stepparent. Id. A......
  • R.B. v. C.W. (In re Adoption of T.A.W.), No. 92127–0
    • United States
    • United States State Supreme Court of Washington
    • October 27, 2016
    ...do not spring forth from divorce, but are instead independent statutory proceedings. In re Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 6, 147 P.3d 306. In a divorce, the parties are the husband and wife attempting to dissolve their marriage, not a spouse who later becomes a stepparent. Id. A......
  • In re N.B., No. 06CA1325.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2007
    ...stepparent adoption cases. See In re Crystal K., 226 Cal.App.3d 655, 662-66, 276 Cal.Rptr. 619, 622-26 (1990); In re Adoption of R.L.A., 147 P.3d 306, 308-09 (Okla.Civ.App.2006); State in Interest of D.A.C., 933 P.2d 993, 997-1001 (Utah Ct.App.1997). Other states have applied the ICWA to no......
  • Smith v. State (In re T.S), No. 111344.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • January 8, 2014
    ...1169, expressly agreed with the holding Matter of J.S.26 and its authority, Matter of the Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 23, 147 P.3d 306, 311: That heightened standard of proof [beyond a reasonable doubt], which is absent from the language of § 1912(d), applies only to the fact......
  • Request a trial to view additional results
17 cases
  • Adoption T.A.W. v. C.W., No. 92127-0
    • United States
    • United States State Supreme Court of Washington
    • October 27, 2016
    ...do not spring forth from divorce, but are instead independent statutory proceedings. In re Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 6, 147 P.3d 306. In a divorce, the parties are the husband and wife attempting to dissolve their marriage, not a spouse who later becomes a stepparent. Id. A......
  • R.B. v. C.W. (In re Adoption of T.A.W.), No. 92127–0
    • United States
    • United States State Supreme Court of Washington
    • October 27, 2016
    ...do not spring forth from divorce, but are instead independent statutory proceedings. In re Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 6, 147 P.3d 306. In a divorce, the parties are the husband and wife attempting to dissolve their marriage, not a spouse who later becomes a stepparent. Id. A......
  • In re N.B., No. 06CA1325.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2007
    ...stepparent adoption cases. See In re Crystal K., 226 Cal.App.3d 655, 662-66, 276 Cal.Rptr. 619, 622-26 (1990); In re Adoption of R.L.A., 147 P.3d 306, 308-09 (Okla.Civ.App.2006); State in Interest of D.A.C., 933 P.2d 993, 997-1001 (Utah Ct.App.1997). Other states have applied the ICWA to no......
  • Smith v. State (In re T.S), No. 111344.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • January 8, 2014
    ...1169, expressly agreed with the holding Matter of J.S.26 and its authority, Matter of the Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 23, 147 P.3d 306, 311: That heightened standard of proof [beyond a reasonable doubt], which is absent from the language of § 1912(d), applies only to the fact......
  • Request a trial to view additional results

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