In re Adoption of R.L.A., 103,076.

• Decision Date: 22 September 2006
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,No. 103,076.,103,076.
• Citation: 147 P.3d 306,2006 OK CIV APP 138
• Parties: 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.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

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.

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 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

¶ 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 statutory grounds for such an order, as delineated in 10 O.S.2001 § 7505-4.2 by clear and convincing evidence. Merrell v. Merrell, 1985 OK 107, 712 P.2d 35. The question presented here is whether individuals seeking to adopt an "Indian child," as defined in the ICWA, must be held to a higher standard of proof on the facts supporting those grounds.

¶ 13 The conclusion that Petitioners had a "beyond a reasonable doubt" burden of proof on the factual questions necessary to prove the grounds asserted in their application must be premised, if at all, on the language of 25 U.S.C. § 1912(f), which provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.

¶ 14 Any reasonable grammatical reading of this statute yields the conclusion that it only requires "evidence beyond a reasonable doubt, including testimony of qualified expert witnesses" to demonstrate "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." It is silent concerning the burden of proof on other issues in a termination case.

¶ 15 Because no provisions of the ICWA displace the burden of proof on other issues, we can find no proper basis for imposing a higher standard of proof on Petitioners than they would have if this case did not involve an Indian child. In so concluding, we join the courts of numerous other states, which have held that the state-law mandated burden of proof is applicable to state law requirements for termination and that the burden of proof provided in § 1912(f) applies only to the specific factual determination required by that section. See Termination of Parental Rights to Daniel R.S., 286 Wis.2d 278, 706 N.W.2d 269 (2005).⁶

¶ 16 We reach this conclusion aware of the provisions of OUJI-Juv. No. 5.23, and similar Uniform Jury Instructions for Juvenile Cases, which would require the State to prove all of the elements of a termination case beyond a reasonable doubt where the ICWA is applicable. The drafting committee's premise for requiring a unitary burden of proof is unconvincing, and to some extent inaccurate.

¶ 17 In its...