In the Matter of Baby Boy L.

• Decision Date: 07 December 2004
• Docket Number: No. 99,815.,99,815.
• Citation: 2004 OK 93,103 P.3d 1099
• Parties: In THE MATTER OF BABY BOY L., a minor child. Tiffany Leatherman, Appellee, v. Christopher Yancey, Appellant.
• Court: Oklahoma Supreme Court

103 P.3d 1099

2004 OK 93

In THE MATTER OF BABY BOY L., a minor child.

Tiffany Leatherman, Appellee, v. Christopher Yancey, Appellant.

No. 99,815.

Supreme Court of Oklahoma.

December 7, 2004.

Gerald E. Kelley, Oklahoma City, OK, for Appellee.

Jerry L. Colclazier, Amie Rose Colclazier, Seminole, OK, for Appellant.

KAUGER, J.

¶ 1 We granted certiorari to determine: 1) whether a judicially developed exception to the Federal and Oklahoma Indian Child Welfare Acts — known as the "existing Indian family exception" — remains viable; and 2) whether evidence of the refusal to support the mother during the pregnancy is sufficient to warrant adoption without the father's consent under 10 O.S.2001 § 7505-4.2.¹ Even where the threshold requirements of the federal Act have been met, an exception to the statutory scheme known as the "existing Indian family exception" has been applied by courts when the Indian child proceeding does not involve the dissolution of an Indian family, or a family with a significant connection to the Indian community, or the removal of custody from an Indian parent.² We have previously followed those courts who have recognized and applied the exception, although the threshold requirements of the federal Act had been met.³

¶ 2 Because of recent statutory amendments to the Oklahoma Act,⁴ which in essence codified the holding in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), we determine that the "existing Indian family exception" is no longer pertinent to Indian child custody proceedings in Oklahoma and even if it were, the evidence is insufficient to support a finding that the child was eligible for adoption without the consent of the father. To the extent that In the Matter of S.C., 1992 OK 98, 833 P.2d 1249; In the Matter of Adoption of Baby Boy D, 1985 OK 93, 742 P.2d 1059, cert. denied by Harjo v. Duello, 484 U.S. 1072, 108 S.Ct. 1042, 98 L.Ed.2d 1005 (1988); and In the Matter of Adoption of D.M.J., 1985 OK 92, 741 P.2d 1386, are inconsistent with our holding, they are expressly overruled.

FACTS

¶ 3 The appellee, Tiffany Leatherman (mother), was sixteen years old when she became pregnant in January of 2002.⁵ The appellant, Christopher Yancey (father), was a seventeen year old schoolmate and a member of the Muscogee (Creek) Indian Nation of Oklahoma (tribe). The mother is not a member of any Native American tribe. The child's paternity and the father's tribal membership is undisputed. However, other than being a member of the tribe, the father did not participate in any significant tribal activities or live within tribal boundaries.⁶

¶ 4 The mother and maternal grandmother moved in with the father and the fraternal grandmother near the end of February, 2002, and remained there until approximately the end of April. The fraternal grandmother provided support for the household. While the mother remained in school, the father quit school and began working at a local restaurant. After an altercation between the two, the mother moved and lived with her grandmother, later with her brother, and eventually returned to live with her father. Sometime around the time that the mother moved, she led the father to believe that she had miscarried the baby. The father insists that the mother told him she had miscarried the baby. The mother denies that she ever specifically told him that she miscarried.

¶ 5 In the summer of 2002, the mother decided to place the baby for adoption, and through her church, she found a couple from another state who wanted to adopt the baby. After meeting with an attorney for the adoptive parents, the mother was advised to notify the father immediately that she was still pregnant. In July of 2002, the mother told the father that she had not miscarried and that she planned to put the baby up for adoption. The father protested the adoption.

¶ 6 On October 4, 2002, the child was born in Shawnee, Oklahoma. The father attempted to see the mother and child at the hospital after the birth, but the mother and the hospital staff refused to let him have any contact with the baby. On October 14, 2002, the father employed a lawyer to represent him in seeking custody of the child and in preventing the adoption.

¶ 7 On December 26, 2002, the mother sought an order in Cleveland County that the child was eligible for adoption without the father's consent and for termination of his parental rights.⁷ In her application, the mother asserted that the father's consent was unnecessary pursuant to 10 O.S.2001 § 7505-4.2(C)(1)⁸ because he had not contributed to her support during the pregnancy. On January 6, 2003, the mother appeared in court and voluntarily relinquished her parental rights and consented to the adoption of the child.

¶ 8 On January 17, 2003, notice of the mother's application and adoption proceedings were given to the father, the Bureau of Indian Affairs, and the Muscogee (Creek) Nation. The father objected to the adoption. The Nation filed a motion to intervene on January 23, 2003, acknowledging that the child was eligible for membership and insisting that the Acts applied to the proceeding. The motion to intervene was granted the next day. On March 25, 2003, the Nation filed a motion to dismiss the mother's adoption proceeding, seeking compliance with placement preferences of the Acts. ¶ 9 On September 5, 2003, the trial court entered an order, determining that: 1) the "existing Indian family exception" to the Acts controlled; 2) the father had neglected to contribute to the support of the mother to the extent of his financial ability during the pregnancy thus failing to establish his parental rights; and 3) the child was eligible for adoption without the consent of the father.⁹ The father appealed. The Court of Civil Appeals affirmed. We granted certiorari on June 14, 2004.

I.

¶ 10 THE "EXISTING INDIAN FAMILY EXCEPTION" IS NO LONGER A VIABLE DOCTRINE IN OKLAHOMA INSOFAR AS INDIAN CHILD CUSTODY PROCEEDINGS ARE CONCERNED.

A. Applicability of the Federal and Oklahoma Indian Child Welfare Acts and The "Existing Indian Family Exception."

¶ 11 The mother argues that because this proceeding does not involve the dissolution of an Indian family or the removal of custody from the Indian parent, it falls under the "existing Indian family exception" to the Acts. The federal Act¹⁰ was enacted in response to concerns regarding the consequences to Indian children, Indian families, and Indian tribes of state child welfare practices which had separated Indian children from their families and tribes.¹¹ To address these concerns, the Act provides "minium Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which reflect the unique values of Indian culture."¹²

¶ 12 The federal Act governs Indian child custody proceedings, including termination of parental rights and adoptions.¹³ It sets forth standards for terminating parental rights¹⁴ and it recognizes the applicability of social and cultural standards.¹⁵ The standards mandated by the federal Act preempt any state law which provides a lower standard of protection for the rights of the parent or the Indian custodian of an Indian Child.¹⁶ The Oklahoma Act¹⁷ implements the federal Act.¹⁸ It is undisputed that this child is an Indian child within the meaning of both Acts.

¶ 13 The watershed opinion was rendered in 1989, when the United States Supreme Court decided Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), a case involving two young Indian parents who sought an adoption by non-Indians of newly-born twins. Although the parents lived on the reservation, they traveled away from the reservation for the birth of the children. The tribe opposed the adoption and sought jurisdiction in tribal court. The United States Supreme Court held that the children were domiciled on the reservation within the meaning of the federal Act's exclusive tribal court jurisdiction provision, even though the children were not present on the reservation.

¶ 14 In discussing the purpose and meaning of the Act, the Holyfield Court recognized that Congress was concerned not only about the interests of Indian children and families, but also about the impact on the tribes because of the large numbers of Indian children being adopted by non-Indians. The Court stated that:

"... [I]t is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside their culture. Congress determined to subject such placements to the ICWA's jurisdictional and other provisions, even in cases where parents consented to an adoption, because of concerns going beyond the wishes of individual parents...."

¶ 15 In 1992, this Court examined Holyfield's implications.¹⁹In the Matter of S.C., 1992 OK 98, ¶ 21, 833 P.2d 1249 involved an Indian father who attempted to invalidate foster care after the non-Indian mother's parental rights were terminated. The father alleged that Holyfield, supra, controlled the cause. The Court determined that Holyfield was inapplicable, and it held that the federal Act did not permit a non-custodial Indian parent to invalidate foster care placement. The Court also reaffirmed the application of the "existing Indian family exception" to Indian child custody proceedings in Oklahoma, largely ignoring Holyfield's language.

¶ 16 In 1994, within two years after our decision in S.C., supra, the Oklahoma Legislature, apparently in response to our opinions and in recognition of the Holyfield teaching, amended the Oklahoma Act. Prior to the amendment, 10 O.S.1991 § 40.1 provided:

"The purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the Federal

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