McAfee v. State (In re IW), Case No. 115,997

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtJERRY L. GOODMAN, JUDGE
Citation419 P.3d 362
Parties In the MATTER OF IW, MM, Jr., and NK, Adjudicated Deprived Juveniles, Michael Lance McAfee, Appellant, v. State of Oklahoma, Appellee.
Docket NumberCase No. 115,997
Decision Date29 December 2017

419 P.3d 362

In the MATTER OF IW, MM, Jr., and NK, Adjudicated Deprived Juveniles,

Michael Lance McAfee, Appellant,
v.
State of Oklahoma, Appellee.

Case No. 115,997

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

FILED December 29, 2017
Mandate Issued: January 24, 2018


W. S. Haselwood, HASELWOOD & WEBB, Shawnee, Oklahoma, For Appellant

Richard Smotherman, DISTRICT 23 DISTRICT ATTORNEY, Rebecca Bauer, ASSISTANT DISTRICT ATTORNEY, Shawnee, Oklahoma, For Appellee

JERRY L. GOODMAN, JUDGE:

419 P.3d 364

¶ 1 M.M. (Father) appeals an April 6, 2017, order terminating his parental rights to his minor children, IW, MM, Jr., and NK. Based upon our review of the record and applicable law, we reverse the order under review.

BACKGROUND

¶ 2 The minor children, who are of Indian descent, were removed from the biological mother's home in October of 2012 due to alcohol abuse.1 Father, who resides in Kansas, stipulated to a deprived petition for failure to protect in December of 2012.

¶ 3 An individualized service plan (ISP) was adopted on January 9, 2013, requiring Father to complete a family functional assessment, complete a domestic violence inventory, visit the minor children, provide the Department of Human Services (DHS) a list of appropriate caregivers for the minor children, sign releases, and contact the caseworker at least monthly.

¶ 4 After Father made significant progress on his ISP, DHS recommended trial reunification. In May of 2015, the minor children were placed with Father in Kansas. However, in October of 2015, reunification was terminated after Father spanked MM, leaving significant bruising. Father was charged with domestic battery, ultimately pleading no contest.

¶ 5 State filed a motion to terminate Father's parental rights on September 16, 2016, pursuant to 10A O.S.2011, § 1-4-904(B)(5), alleging Father had failed to correct the conditions which led to the minor children's deprived status. A jury trial was held on March 20–21, 2017. At the conclusion of the trial, the jury found the allegations of the petition to terminate Father's parental rights were true and that termination was in the best interests of the minor children. The trial court subsequently entered an order terminating Father's parental rights. Father appeals.

STANDARD OF REVIEW

¶ 6 As a general rule, before parental rights may be severed, State must prove its case by clear-and-convincing evidence. In re S.B.C. , 2002 OK 83, ¶ 5, 64 P.3d 1080, 1082. "Clear and convincing evidence" is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." In re C.G. , 1981 OK 131, ¶ 17 fn.12, 637 P.2d 66, 71 fn.12. Where an Indian child is involved, as in the present case, however, "the proceedings must comply with the provisions of both the federal ICWA, 25 U.S.C.A. 1901 through 25 U.S.C.A. 1963, and its Oklahoma counterpart, the Oklahoma ICWA, 10 O.S. 40 through 10 O.S. 40.9," In re T.L. , 2003 OK CIV APP 49, ¶ 11, 71 P.3d 43, 46 (cited with approval in In re H.M.W. , 2013 OK 44, ¶ 6, 304 P.3d 738, 740 ). "[I]n cases under the State and Federal Indian Child Welfare Acts, the State must prove beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child." In re H.M.W. , 2013 OK 44, at ¶ 6, 304 P.3d at 740.

¶ 7 Pursuant to the federal ICWA:

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.

25 U.S.C.A. § 1912(f).

¶ 8 Appellate review of the evidence is thus directed toward assuring the evidence adduced by State, if believed, would support a conclusion by any rational trier of the facts that State's evidence demonstrated beyond a reasonable doubt that continued custody by Father would result in serious damage "to [the children]." T.L. , 2003 OK CIV APP 49, at ¶ 12, 71 P.3d at 47. However, the "beyond a reasonable doubt" standard only applies to...

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6 practice notes
  • Dahl v. K.B. (In re Interest of K.B.), 20210109
    • United States
    • United States State Supreme Court of North Dakota
    • June 24, 2021
    ...33 P.3d 1001, 1005 (2001) ; Brenda O. v. Arizona Dep't of Econ. Sec. , 226 Ariz. 137, 244 P.3d 574, 579 (Ct. App. 2010) ; Matter of IW , 419 P.3d 362, 366 (Okla. Civ. App. 2017) ; see also Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 184 P.3d 9, 17 (Alask......
  • In re , A17-1194
    • United States
    • Supreme Court of Minnesota (US)
    • May 16, 2018
    ...the continued custody of the child ... is likely to result in serious emotional or physical damage to the child."); In re IW , No. 115997, 419 P.3d 362, 365–66, 2017 WL 7048813, at *3 (Okla. Civ. App. Dec. 29, 2017) ("The expert testimony need not be the sole basis for [the] finding ... but......
  • Dahl v. K.B. (In re Interest of K.B.), No. 20210109
    • United States
    • United States State Supreme Court of North Dakota
    • June 24, 2021
    ...33 P.3d 1001, 1005 (Or. Ct. App. 2001); Brenda O. v. Arizona Dep't of Econ. Sec., 244 P.3d 574, 579 (Ariz. Ct. App. 2010); Matter of IW, 419 P.3d 362, 366 (Okla. Civ. App. 2017); see also Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 184 P.3d 9, 17 (Alaska ......
  • In re W.P., 120074
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • July 21, 2022
    ...doubt that continued custody by Father would result in serious damage to the children. In the Matter of IW, 2018 OK CIV APP 6, ¶ 8, 419 P.3d 362. ¶16 However, the "beyond a reasonable doubt" standard only applies to the determination under 25 U.S.C. § 1912(f) "that the continued custody of ......
  • Request a trial to view additional results
5 cases
  • Dahl v. K.B. (In re Interest of K.B.), No. 20210109
    • United States
    • United States State Supreme Court of North Dakota
    • June 24, 2021
    ...33 P.3d 1001, 1005 (2001) ; Brenda O. v. Arizona Dep't of Econ. Sec. , 226 Ariz. 137, 244 P.3d 574, 579 (Ct. App. 2010) ; Matter of IW , 419 P.3d 362, 366 (Okla. Civ. App. 2017) ; see also Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 184 P.3d 9, 17 (Alask......
  • In re , A17-1194
    • United States
    • Supreme Court of Minnesota (US)
    • May 16, 2018
    ...the continued custody of the child ... is likely to result in serious emotional or physical damage to the child."); In re IW , No. 115997, 419 P.3d 362, 365–66, 2017 WL 7048813, at *3 (Okla. Civ. App. Dec. 29, 2017) ("The expert testimony need not be the sole basis for [the] finding ... but......
  • Dahl v. K.B. (In re Interest of K.B.), No. 20210109
    • United States
    • United States State Supreme Court of North Dakota
    • June 24, 2021
    ...33 P.3d 1001, 1005 (Or. Ct. App. 2001); Brenda O. v. Arizona Dep't of Econ. Sec., 244 P.3d 574, 579 (Ariz. Ct. App. 2010); Matter of IW, 419 P.3d 362, 366 (Okla. Civ. App. 2017); see also Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 184 P.3d 9, 17 (Alaska ......
  • State v. Black (In re V.D.), Case Number: 116959
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • December 12, 2018
    ...proposition of error is that the State's expert witness testimony was not sufficient, citing In re IW, MM, Jr., and NK, 2018 OK CIV APP 6, 419 P.3d 362. There, another division of this Court found there was "a total lack of expert witness testimony to support a conclusion beyond a reasonabl......
  • Request a trial to view additional results

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