Smith v. Nixon (In re B.T.S.)
| Decision Date | 07 March 2016 |
| Docket Number | No. 113714.,113714. |
| Parties | In the Matter of the ADOPTION OF B.T.S., a Minor Child. Tamera N. Smith, Appellant, v. Teresa Nixon and Quahana Nixon, Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Maria Tasi Blakely, Hugo, Oklahoma and Charlie Rowland, Rowland Law Firm, PLLC, Antlers, Oklahoma, for Appellant.
Tim K. Baker, Kimberly N. Clark, Tim K. Baker & Associates, Tahlequah, Oklahoma, for Appellees.
, Judge.
¶ 1 Appellant Tamera N. Smith (Mother) appeals from an Order of the trial court determining B.T.S. eligible for adoption without her consent. Mother's appeal raises questions of law concerning deficiencies in the notice she received from Appellees Teresa Nixon and Quahana Nixon (collectively, Adoptive Parents) regarding their application for an order determining B.T.S. eligible for adoption without her consent; the burden of proof applied by the trial court in reaching its determination of such eligibility; and the court's lack of subject matter jurisdiction to render a decision about B.T.S.'s eligibility for adoption because another Oklahoma district court in a different county previously granted guardianship over B.T.S., a guardianship that was ongoing at the time the present proceedings were filed. We affirm the Order as corrected.
¶ 2 B.T.S. was born on November 19, 2005, to Mother and Jerrett Shields (Father), who were unwed. Father is a member of the Chickasaw Nation and all parties agree B.T.S. is an Indian child as defined by state and federal law. Tammy Smith is Mother's mother and B.T.S.'s maternal grandmother. On April 12, 2007, Smith and Teresa Nixon, Mother's aunt, were appointed, with Mother's consent, as B.T.S.'s co-guardians in McCurtain County.
¶ 3 B.T.S. has lived with Adoptive Parents for about eight years. On July 2, 2014, Adoptive Parents filed a petition for adoption of B.T.S. in Cherokee County, as well as an application for an order terminating Mother's and Father's parental rights, and an order determining B.T.S. eligible for adoption without Mother's and Father's consent. Adoptive Parents alleged, pursuant to 10 O.S.2011 § 7505–4.2(B) and (H)1
that Mother and Father failed to pay child support for twelve consecutive months out of the last fourteen months preceding their petition and failed to maintain a significant relationship with B.T.S. for twelve consecutive months out of the last fourteen months preceding the filing of their petition for adoption. On that same date, Adoptive Parents also filed a “Notice of Hearing” to Mother, Father, and the Chickasaw Nation. Return of summons was filed July 14, 2014, as to Mother, and August 4, 2014, as to Father. The return of service to the Chickasaw Nation was filed of record on April 15, 2015; however, the return of service shows it was served on July 7, 2014.
¶ 4 The trial court ordered a court-appointed attorney for Mother. On October 23, 2014, Mother filed her response to the applications denying most of the allegations in the applications. Mother alleged as a “counterclaim” that she filed a motion to have the co-guardianship dismissed because she has rectified the conditions that led to the co-guardianship. She also alleged she has maintained a relationship with B.T.S. to the best of her ability and to the extent allowed by the co-guardians, and that she has contributed and continues to contribute to the support of B.T.S. She also alleged the petition contained a material misrepresentation; that is, Quahana Nixon has never had legal custody of B.T.S., only physical custody, because Ms. Smith is the other co-guardian. Mother asked the court not to terminate her parental rights nor deem B.T.S. eligible for adoption without her consent.
¶ 5 The court also appointed a guardian ad litem who filed a report on September 10, 2014, and filed a supplemental report on November 17, 2014, after interviewing Mother. The GAL found, among other things, that B.T.S. was thriving in the care of Adoptive Parents. The supplemental report did not alter the GAL's original report that it would be in B.T.S.'s best interests to determine B.T.S. eligible for adoption without Mother's consent. According to the supplemental report, Mother told the GAL she suffered post-traumatic stress disorder
, has been diagnosed as bi-polar and schizophrenic, and has had sporadic contact with B.T.S. during the guardianship period and had last seen B.T.S. in June of 2014. The GAL also reported Mother said she is engaged to a James Voss who has been employed for twelve years. The report states Mother and Voss live on his salary, her disability payments of $721 per month, and food stamps.
¶ 6 A hearing was held on November 17, 2014, on the application to determine B.T.S. eligible for adoption without Mother's and Father's consent. Mother asserted a jurisdictional issue was presented because the guardianship was in place in a different county. Mother argued Ms. Smith, the co-guardian, was a necessary party in these proceedings though she referred to no statutory or decisional law for the argument. Mother also admitted the guardianship court was aware of the present proceedings and was waiting to rule on her petition to vacate the guardianship pending the outcome of these proceedings. The court found the co-guardian was not a necessary party in an adoption matter and overruled Mother's objection.
¶ 7 During the hearing, Father admitted he had not maintained a relationship with B.T.S. during the relevant period nor had he paid child support in seven years. Father testified he believed adoption was in B.T.S.'s best interests. The court also heard the testimony of Mother and Voss. Mother maintained she had given money and purchased clothes and school supplies for B.T.S. during the relevant period, but that these sums were given to her mother to give to B.T.S. and Adoptive Parents. Mother, however, failed to produce any records except for one $100 check given during the relevant period although she claimed to have the records documenting other payments. Mother and Voss also claimed Mother maintained a relationship with B.T.S. during the two-week period each summer that Ms. Smith had physical custody of B.T.S. though Mother was also unable to produce more than a few pictures that she testified showed B.T.S. at a swimming pool in June 2014, three pictures of an Easter 2014 visit, and three pictures of a September 2013 get together. The court also heard the testimony of Adoptive Parents who disputed Mother paid child support or otherwise provided gifts or clothing to B.T.S. during the relevant period and disputed Mother maintained any meaningful relationship with B.T.S.
¶ 8 At the conclusion of the hearing, the trial court announced Adoptive Parents had met their burden as to Father and determined B.T.S. eligible for adoption without Father's consent. As to Mother, the trial court noted “conflicting evidence” was presented, but that it was presented with no evidence “that would rebut the proof provided by” Adoptive Parents who by clear and convincing evidence met their burden of proof.
¶ 9 The court filed its Order on March 27, 2015, in which the court found notice had been provided pursuant to the provisions “of 10 O.S. § 29.1
and 10 O.S. § 7505–4.1 et seq. ” and that it had jurisdiction pursuant to 10 O.S. 2011 § 7502–1.1. The court further found Adoptive Parents had had “physical custody” of B.T.S. since April 12, 2007, by way of the guardianship order in McCurtain County. The court found by clear and convincing evidence that Mother's and Father's consent to the adoption of B.T.S. was not required because they failed to provide support for B.T.S. or to maintain a meaningful parental relationship with B.T.S. during the relevant period and ordered B.T.S. eligible for adoption without their consent.
¶ 10 Mother filed this appeal.2
¶ 11 Questions of law are reviewed under a de novo standard of review, without deference to the trial court's conclusion. In re A.N.O., 2004 OK 33, ¶ 3, 91 P.3d 646
; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081. Statutory interpretation presents a question of law. State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d 1017. “When making a determination of a child's eligibility for adoption without consent, an appellate court will review issues of fact under a clear and convincing standard.” In re Adoption of G.D.J., 2011 OK 77, ¶ 17, 261 P.3d 1159 (citation omitted). Additionally, Id. (citation omitted).
¶ 12 Father is a member of the Chickasaw Nation. Mother is non-Indian. However, it is uncontested that B.T.S. is an Indian child and that the provisions of the Federal Indian Child Welfare Act, 25 U.S.C. §§ 1901
–1963 (2012) (ICWA), and the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§ 40 –40.9 (OICWA) apply in this case. Pursuant to OICWA § 40.3(A), except in circumstances not herein relevant, “[OICWA], in accordance with [ICWA], applies to all child custody proceedings involving any Indian child....” Mother argues Adoptive Parents' failure to comply with certain notice provisions of OICWA deprived the trial court of jurisdiction to determine B.T.S. eligible for adoption without Mother's consent.
¶ 13 Mother argues Adoptive Parents never notified the United States Bureau of Indian Affairs of their applications to determine B.T.S. eligible for adoption and termination of Mother's parental rights, as required by 10 O.S. 2011 § 40.4
.3 Further, Mother argues the required “notice” is something other than the “petitions” and that notice requires particular information including “[t]he child's tribal affiliation[,] ... [a] statement that the appropriate...
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...never had legal or physical custody of the Indian child. Id . See also In the Matter of Adoption of B.T.S. , 2016 OK CIV APP 21, ¶ 30, 371 P.3d 1145 (heightened standard under 1912(f) did not apply, in part because mother did not have custody of child). ¶33 As noted above, Father has never ......
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In re W.P.
...had never had legal or physical custody of the Indian child. Id. See also In the Matter of Adoption of B.T.S., 2016 OK CIV APP 21, ¶ 30, 371 P.3d 1145 (heightened standard 1912(f) did not apply, in part because mother did not have custody of child). ¶33 As noted above, Father has never had ......