In re J.S., No. 104,648.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtAdams
Citation177 P.3d 590,2008 OK CIV APP 15
Docket NumberNo. 104,648.
Decision Date10 January 2008
PartiesIn the Matter of J.S. and M.C., deprived children under the age of 18 years, Robin Stephens, a/k/a Robin Cobb, Appellant, v. The State of Oklahoma, Appellee.
177 P.3d 590
2008 OK CIV APP 15
In the Matter of J.S. and M.C., deprived children under the age of 18 years,
Robin Stephens, a/k/a Robin Cobb, Appellant,
v.
The State of Oklahoma, Appellee.
No. 104,648.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1. Court of Civil Appeals of Oklahoma, Division No. 1.
January 10, 2008.

Appeal from the District Court of Tulsa County, Oklahoma; Honorable Carl Funderburk, Trial Judge.

REVERSED AND REMANDED WITH INSTRUCTIONS.

David C. Morse, Jenks, OK, for Appellant.

[177 P.3d 591]

Tim Harris, District Attorney, Robert J. Sher, Assistant District Attorney, Tulsa, OK, for Appellee.

OPINION

ADAMS, Presiding Judge.


¶ 1 Robin Cobb a/k/a Robin Stephens (Mother) appeals a trial court order terminating her parental rights to the minor Indian children who are the subjects of this action, J.S. and M.C. The termination order was based on Mother's failure to correct the conditions which led to the children's deprived adjudication and their placement in foster care with the Department of Human Services (DHS) for 15 of the most recent 22 months preceding the filing of the petition to terminate by the State of Oklahoma (State).1 For reversal of the order, Mother argues, inter alia, that the trial court improperly evaluated the evidence presented by the State to support the trial court's determination that "active efforts" were made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family but were unsuccessful. We agree and reverse the order.

¶ 2 Before addressing Mother's principle argument, we must address her argument that the State did not prove beyond a reasonable doubt that active efforts were made to reunite Mother and her children, which she contends is mandated by § 1912(d) of the federal Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq. Section 1912(d) of ICWA provides that:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. (Emphasis added.)

¶ 3 The applicability of ICWA is undisputed in this case. When ICWA applies, the Oklahoma Indian Child Welfare Act, 10 O.S.2001 § 40.1, et seq. (OICWA), also applies. See Matter of the Adoption of D.M.J., 1985 OK 92, 741 P.2d 1386.2 It is the policy of the State of Oklahoma through OICWA to "ensure that the intent and provisions of the federal [ICWA] are enforced." 10 O.S.2001 § 40.1. Compliance with ICWA is required in all state voluntary and involuntary child custody court proceedings involving Indian children, except those arising from marriage dissolution proceedings or delinquency adjudications. 10 O.S.2001 § 40.3(B); Cherokee Nation v. Nomura, 2007 OK 40, 160 P.3d 967.

¶ 4 Mother specifically argues that "Due Process and statutory interpretation require that the state prove beyond a reasonable doubt that active efforts have been made before [her] rights can be properly terminated." (Emphasis added.) State correctly points out that Mother's argument is an incorrect statement of law under present Oklahoma case law. That heightened standard of proof, which is absent from the language of § 1912(d), applies only to the factual determination required by 25 U.S.C. § 1912(f) to be made in ICWA termination cases, i.e., "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," whereas the lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination. In re Adoption of R.L.A., 2006 OK CIV APP 138, 147 P.3d 306.

¶ 5 Section 1912(d)'s "active efforts" requirement, for which the State has the burden of proof, is a predicate finding of the trial court made before a termination case may proceed. The meaning of "active efforts," a process of statutory interpretation and determination of the appropriate burden

177 P.3d 592

of proof for that finding are legal rulings. As with any other legal rulings which are reviewed de novo, this review requires an independent, non-deferential re-examination of those rulings. See In re A.M. & R.W., 2000 OK 82, 13 P.3d 484.

¶ 6 The trial court identified the predicate issue as "has reasonable efforts . . . or has active efforts been made beyond a reasonable doubt," and after some discussion, the trial court stated "[i]t appears to me that active efforts have been made beyond a reasonable doubt." (Emphasis added.) Because the trial court actually placed the heightened burden of proof on the State on the issue of "active efforts," such error is harmless because it benefitted Mother. Newton v. Paul, 1950 OK 279, 203 Okla. 556, 224 P.2d 265.

¶ 7 As noted by Mother regarding § 1912(d)'s application in Oklahoma, "Where is no precise definition for what constitutes `active efforts,' and it should be determined by the court on a case by case basis." This is the approach counseled by the Oklahoma Supreme Court Committee's Introductory Note of Ch. 5, "Indian Child Welfare, Act," within In re Oklahoma Uniform Jury Instructions for Juvenile Cases, 2005 OK 12, 116 P.3d 119.

¶ 8 Mother also argues, relying on A.A. v. State of Alaska, Department of Family & Youth Services, 982 P.2d 256 (Alaska, 1999), that there is a difference between "passive efforts" and "active efforts." According to her argument, "active efforts" require affirmative help from the State for developing job and parenting skills to retain custody and locating financial assistance, instead of only "passive efforts," i.e., requiring the Individualized Service Plan (ISP) be performed by exclusive efforts of the parent. In that case, the Alaska Supreme Court, after considering its prior opinions approving the distinction between active and passive efforts and recognizing that there is "no pat formula" for distinguishing those efforts, 982 P.2d at 261, terminated a father's parental rights in spite of the State's "relatively passive" efforts, 982 P.2d at 262, concluding his unwillingness to participate in treatment while in prison and his lengthy sentence had justified the level of remedial services the State provided, and therefore it had fulfilled its duty under ICWA to make active efforts.

¶ 9...

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37 practice notes
  • State ex rel. C.D., No. 20070978-CA.
    • United States
    • Utah Court of Appeals
    • December 26, 2008
    ...standard for social services departments than the `reasonable efforts' required by state statutes.'" In re J.S., 2008 OK Civ App 15, ¶ 14, 177 P.3d 590, 593 (emphasis omitted) (quoting In re Nicole B., 927 A.2d at 1206).17 These jurisdictions have chiefly relied upon the "common and ordinar......
  • Couple v. Girl, Opinion No. 27148
    • United States
    • United States State Supreme Court of South Carolina
    • July 26, 2012
    ...because the circumstances before us do not involve removal, the application of section 1912(d) is not straightforward. See In re J.S., 177 P.3d 590 (Okla. Civ. App. 2008) (finding the active efforts provision of section 1912(d) eludes definition and therefore should be determined by courts ......
  • In re Roe, Docket No. 283642.
    • United States
    • Michigan Court of Appeals
    • September 25, 2008
    ...the ICWA imposes two additional elements: the active efforts element and the serious emotional or physical damage element); In re J.S., 177 P.3d 590, 591 (Okla.Civ.App., 2008) (noting that the active efforts requirement is a predicate finding that the trial court must make before a terminat......
  • Couple v. Baby Girl, No. 27148.
    • United States
    • United States State Supreme Court of South Carolina
    • August 22, 2012
    ...because the circumstances before us do not involve removal, the application of section 1912(d) is not straightforward. See In re J.S., 177 P.3d 590 (Okla.Civ.App.2008) (finding the active efforts provision of section 1912(d) eludes definition and therefore should be determined by courts on ......
  • Request a trial to view additional results
37 cases
  • State ex rel. C.D., No. 20070978-CA.
    • United States
    • Utah Court of Appeals
    • December 26, 2008
    ...standard for social services departments than the `reasonable efforts' required by state statutes.'" In re J.S., 2008 OK Civ App 15, ¶ 14, 177 P.3d 590, 593 (emphasis omitted) (quoting In re Nicole B., 927 A.2d at 1206).17 These jurisdictions have chiefly relied upon the "common and ordinar......
  • Couple v. Girl, Opinion No. 27148
    • United States
    • United States State Supreme Court of South Carolina
    • July 26, 2012
    ...because the circumstances before us do not involve removal, the application of section 1912(d) is not straightforward. See In re J.S., 177 P.3d 590 (Okla. Civ. App. 2008) (finding the active efforts provision of section 1912(d) eludes definition and therefore should be determined by courts ......
  • In re Roe, Docket No. 283642.
    • United States
    • Michigan Court of Appeals
    • September 25, 2008
    ...the ICWA imposes two additional elements: the active efforts element and the serious emotional or physical damage element); In re J.S., 177 P.3d 590, 591 (Okla.Civ.App., 2008) (noting that the active efforts requirement is a predicate finding that the trial court must make before a terminat......
  • Couple v. Baby Girl, No. 27148.
    • United States
    • United States State Supreme Court of South Carolina
    • August 22, 2012
    ...because the circumstances before us do not involve removal, the application of section 1912(d) is not straightforward. See In re J.S., 177 P.3d 590 (Okla.Civ.App.2008) (finding the active efforts provision of section 1912(d) eludes definition and therefore should be determined by courts on ......
  • Request a trial to view additional results

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