N.L., Matter of
| Decision Date | 19 April 1988 |
| Docket Number | No. 66651,66651 |
| Citation | 754 P.2d 863 |
| Parties | In the Matter of N.L., an Alleged Deprived Child. Jenny Kay CARNEY, nee Riley, Appellant, v. Patrick E. MOORE, Assistant District Attorney and Tom Moore, Attorney for N.L., Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Okmulgee County; Ann Moroney, Trial judge.
The trial court declined to transfer a proceeding to the Court of Indian Offenses in a proceeding to adjudicate the status of an Indian child as deprived. The trial court subsequently adjudicated the Indian child as deprived and placed the child outside of the home. The mother of the child appeals the court's denial of transfer, adjudication of the child as deprived, and the dispositional custody order.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
Judy Lewis, Oklahoma Indian Legal Services, Oklahoma City, for appellant.
Thomas E. Moore, Okmulgee, for appellee, State of Okl.
Patrick E. Moore, Asst. Dist. Atty., Okmulgee County, Okmulgee, for appellant, N.L., an alleged deprived child.
This is a juvenile case in which N.L. was adjudicated to be "deprived" and made a ward of the court. He was born out of wedlock on February 27, 1984. Since he is eligible for membership in both the Kaw and Creek Indian tribes through his mother provisions of the state and federal Indian Child Welfare Acts 1 are implicated. The father is not a party in these proceedings.
A chronology of the events in the trial court reveals the following. An order was issued on May 2, 1984, which granted temporary custody of N.L. to his maternal grandmother. A petition was filed on May 8, 1984, which alleged that N.L. was a deprived child as defined in 10 O.S.1981 § 1101. The petition alleged that N.L. was neglected due to his mother's "pattern of leaving the said child in the care of various neighbors for indefinite periods of time."
The trial court adjudicated N.L. to be a deprived child, ordered an investigation by the Department of Human Services, and continued the temporary custody of N.L. with his maternal grandmother, all on June 25, 1984. The child's mother did not appear and the return on her summons indicated that she had "left the county with her present whereabouts unknown". The Creek Nation filed an answer declining to intervene and the Kaw Tribe did not appear, although the Kaw Tribe was served with notice of the proceeding.
A dispositional order was rendered on August 9, 1984, which placed temporary custody of N.L. with his maternal grandparents. The mother did not appear. A redispositional hearing was held on June 17, 1985. The mother appeared with counsel at this hearing and was granted three months to meet certain conditions or her On February 12, 1986, the trial court set aside the June 25, 1984, adjudication order, for the reason that the mother did not receive sufficient notice of the adjudicatory hearing of June 25, 1984. On February 14, 1986, the trial court granted temporary custody of N.L. to the Huddlestons. On February 14, 1986, an amended petition was filed alleging that N.L. was a deprived child for the identical reason set forth in the original petition.
parental rights would be subject to termination. Prior to this dispositional hearing N.L.'s grandmother had suffered an incapacitating injury and she had placed N.L. with the Huddlestons on her own. Custody of N.L. was then ordered to the Huddlestons, neighbors of the maternal grandparents.
The mother filed a petition on May 7, 1986, to transfer the proceeding to the Court of Indian Offenses.
On May 7, 1986, the court denied the petition to transfer the proceeding, adjudicated that N.L. was a "deprived" child and made N.L. a ward of the court. A dispositional order was pronounced on May 28, 1986, which granted temporary custody of N.L. to the Huddlestons and imposed conditions upon the mother. The mother appealed the orders of May 7 and May 28.
The mother asserts on appeal that the actions of the trial court require reversal of the adjudication order finding her child to be deprived. She contends that the failure of the state to file an affidavit in conformity with 10 O.S.Supp.1982 § 40.5, the absence of a hearing as provided by 10 O.S.1981 § 1104.1, and the failure of the proceedings to conform to 25 U.S.C. § 1922, are errors of such a magnitude as to require reversal of the proceedings. We cannot review the mother's contention that the trial court failed to follow these three statutes.
No motion or argument appears in the trial court record questioning the statutory sufficiency of the amended petition. Similarly, no motion or argument was addressed to the trial court attacking the temporary custody orders for lack of a hearing pursuant to 10 O.S.Supp.1984 § 1104.1. No reference to 25 U.S.C. § 1922 appears in the trial court record before us.
A party may not assign errors on appeal which were not presented to the trial court. Arkansas Louisiana Gas Co. v. Cable, 585 P.2d 1113, 1116 (Okl.1978); Kepler v. Strain, 579 P.2d 191, 193 (Okl.1978).
The misapplication of 10 O.S.Supp.1984 § 1104.1, 10 O.S.Supp.1982 § 40.5, 25 U.S.C. § 1922 does not defeat the jurisdiction of the trial court. 2
Misapplication of the statutes in this case does not present a question involving the welfare of the people at large sufficient for de novo appellate review. 3
The mother's allegations of error that the trial court failed to follow 25 U.S.C. § 1922, 10 O.S.Supp.1982 § 40.5, and 10 O.S.Supp.1984 § 1104.1, do not come within exceptions to the general rule that allegations of error must be presented to the trial court. Therefore, they are beyond the scope of our review on appeal.
The mother asserts that the adjudication of her child as deprived was without a required expert witness. No pre-adjudicatory custody order shall remain in force A court is required to consider the testimony of a qualified expert witness before placement of an Indian child in foster care.
and effect for more than thirty (30) days 4 "without a determination by the court, supported by clear and convincing evidence and the testimony of at least one qualified expert witness, that custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 10 O.S.Supp.1982 § 40.5.
25 U.S.C. § 1912(e) states:
"No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, 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."
A court is also required to consider testimony of a qualified expert witness before termination of parental rights of the parent or Indian custodian. 25 U.S.C. § 1912(f) states:
"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."
The required expert testimony is to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias. State ex rel. Juvenile Department v. Tucker, 76 Or.App. 673, 710 P.2d 793, 799 (1985). The guidelines for state courts promulgated by the United States Bureau of Indian Affairs, while not binding on the court, assist in defining a qualified expert witness. 44 Federal Register 67584 (1979).
"D.4 Qualified Expert Witnesses
(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodians is likely to result in serious physical or emotional damage to the child.
(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings.
(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.
(iii) A professional person having substantial education and experience in the area of his or her specialty.
(c) The court or any party may request the assistance of the Indian child's tribe or the Bureau of Indian Affairs agency serving the Indian child's tribe in locating persons qualified to serve as expert witnesses." 44 Federal Register at 67593.
The guidelines provide that a professional person with substantial education and experience in the area of his or her specialty may be a qualified expert witness. Special knowledge of Indian life is not necessary where a professional person has substantial education and experience and testifies on matters not implicating cultural bias.
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