Smith v. State (In re T.S)
| Citation | 315 P.3d 1030 |
| Decision Date | 08 January 2014 |
| Docket Number | Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,No. 111344.,111344. |
| Parties | In the Matter of T.S; K.S.; D.S.; K.S. and L.S., Alleged Deprived Children: Brian Smith, Appellant, v. State of Oklahoma, Appellee, and Cherokee Nation, Intervenor. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Delaware County, Oklahoma; Honorable Barry V. Denney, Trial Judge.
AFFIRMED.
Georgia R. Manley, Grove, Oklahoma, for Appellant.
Eddie Wyant, District Attorney, Rogers S. Hughes, Assistant District Attorney, Jay, Oklahoma, for Appellee.
Christianna Lincoln Wright, Jay, Oklahoma, for Minor Children.
¶ 1 Appellant Brian Smith (Father) appeals the order adjudicating T.S., K.S., D.S., K.S., and L.S., to be deprived children. Based on our interpretation of the Indian Child Welfare Act, 25 U.S.C.A. § 1901 et seq. (ICWA), and the Oklahoma Indian Child Welfare Act, 10 O.S.2011 § 40.1 et seq. (OICWA), we AFFIRM.
¶ 2 The five children, whose ages ranged from 15 to 3 years, had been residing in Delaware County since 2010 with Father and his wife, Latisha Smith (Mrs. Smith), the mother of the two youngest children. On August 22, 2012, the Oklahoma Department of Human Services (OKDHS) received a referral alleging Father had physically abused K.W.S.,1 one of his three oldest children from a prior relationship with their mother, Paula Searcy (Mrs. Searcy). On August 23, 2012, Appellee State of Oklahoma (State), on behalf of OKDHS filed an application to take the minor children into emergency custody to which was attached a supporting affidavit stating the family “is of Indian descent,” detailing K.W.S.'s physical injuries, and requesting legal and physical custody of all five children based on their inability to protect themselves from such abuse.2 That same day, a hearing was held at which Father and both mothers were present, and the juvenile court entered an order for emergency custody of all five children in OKDHS custody, indicating by checkmark that “ICWA” applied to the proceedings.3
¶ 3 At the show cause hearing held August 30, 2012, the court maintained legal custody with OKDHS and ordered physical custody of the five children with Mrs. Smith until Mrs. Searcy could get a larger home.4The same day State filed a petition and an amended petition,5 alleging the five children were deprived under 10A O.S.2011 § 1–1–105(20), due to alleged physical abuse by Father on the three oldest children, T.S., K.W.S., and D.S., and each mother's alleged failure to protect those children. 6 Father denied the allegations of the amended petition and requested a trial, which was set in November.
¶ 4 On September 6, 2012, the trial court transferred physical custody of the three oldest children to Mrs. Searcy. Four days later, formal notice of the deprived child proceeding involving the five children was sent to Father, both mothers, and two Indian tribes, the Cherokee Nation and United Keetoowah Bank of Cherokee Indians. By separate letters dated September 18, 2012, and filed October 1, 2012, the Cherokee Nation confirmed Father's enrollment and that each of the five children “qualified as an ‘Indian child/children’ ” as defined by ICWA. The same tribe filed a Notice of Intervention in the deprived child proceeding on November 8, 2012.
¶ 5 During the adjudication hearing held November 14–15, 2012,7 State called five witnesses during its case-two of Father's three oldest children, the pediatrician who had examined K.W.S. after the abuse referral, Cherokee Nation's child welfare specialist, and OKDHS's child welfare specialist initially involved in the children's removal. State also submitted the pediatrician's forensic medical report (Exhibit No.1) and seven photographs of K.S. (Exhibits No. 2–8) for admission into evidence. The court overruled Father's objection to admitting Exhibit No. 2 and admitted it and the other exhibits into evidence. Father called one witness on his behalf. After closing arguments by State, counsel for the Children and Father regarding the evidence and ICWA's active efforts requirement for foster care placement, the trial court took a short recess and then announced on the record the reasons for his finding that the children are deprived.
¶ 6 Interpreting 25 U.S.C.A. § 1912(d)and§ 1903(1)(i), the court found “a foster care placement ... does in fact apply to this situation as, in fact, the children were removed from [Father's] household particularly.” As a result, he found State was required to prove “active efforts” under § 1912(d) and that such efforts “had been made by the offering of parenting classes” to Father 8 and “in a way” by placing the children with their mothers.9 However, the court expressly declined to find active efforts “have proven unsuccessful,” concluding this part of § 1912(d) applied only to termination of parental rights.10
¶ 7 Based on evidence and testimony supporting child abuse to four of the minor children and domestic violence in their presence, the juvenile court determined there was evidence “including testimony of the qualified expert witness, 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.” 11 He also found State had “met its burden” as to the “allegations of the amended petition,” i.e., the children are deprived because they “have not had the proper parental care or guardianship ... [and] have been abused or neglected in [Father's] care.” From the court's form Adjudication Order filed November 15, 2012,12 Father filed his timely appeal alleging the court failed to comply with ICWA's requirements under 25 U.S.C.A. § 1912(d).13
¶ 8 Father does not challenge the juvenile court's findings that support adjudication of the Indian children as deprived under Oklahoma law or his finding of “serious emotional or physical damage ... if custody is continued” required for foster care placement ordersunder ICWA and OICWA. See25 U.S.C.A. § 1912(e); 10 O.S.2011 § 40.5. In this appeal, he agrees with the juvenile court's ruling the deprived child proceeding against him is a “foster care placement,” arguing he and the minor children meet ICWA's definition of “Indian child” and “parent” and “he was not able to have his children returned upon demand, but his parental rights remained intact.” However, Father disagrees with 1) States' position against a “foster care placement,” 2) the opinion testimony from the Cherokee Nation Child Welfare Specialist, Ms. Watashe, that active efforts under § 1912(d) are not required prior to adjudication,14 and 3) the court's ruling State had met its burden of clear and convincing evidence active efforts have been made to provide him remedial services and rehabilitative services to prevent the breakup of his family. He contends “ between removal of the children from his custody and the adjudication trial ... few services were provided to the family as a whole and almost none were provided to [him].” (Emphasis added.)
¶ 9 State and Minor Children do not dispute ICWA's definitions of “Indian child” and “parent” include the minor children and Father or his inability to demand the return of the custody of his children in these proceedings. Instead, they argue § 1912(d)'s “active efforts” requirement for foster care placement “was never triggered” and “does not apply” because there is “no placement of the children in a foster home, institution, the home of a guardian or conservator.” This argument is premised on the court's placement of the Indian children with their respective mothers at the show cause hearing.
¶ 10 Father takes issue with State's position, claiming it disregards the Indian parent who has been denied custody. Conceding his children were “not placed in a traditional foster home or guardianship for the period of time preceding the [adjudication] trial, he argues “foster care placement” is nevertheless involved here because the Indian children are in the legal custody of State in a physical placement where Father, as the Indian parent, is not able to have them returned upon demand.
¶ 11 The Congressional policy for enacting ICWA is declared in 25 U.S.C.A. § 1902:
... to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance as Indian tribes in the operation of child and family service programs.
¶ 12 This state's policy, as declared in the Oklahoma Indian Children Welfare Act, 10 O.S.2011 § 40.1 et seq. (OICWA), is to “... ensure that the intent and provisions of the federal [ICWA] are enforced.” 10 O.S.2011 § 40.1. OICWA, “in accordance with [ICWA], applies to all child custody proceedings involving any Indian child” except those arising from marriage dissolution proceedings or delinquency adjudications. (Emphasis added.) See10 O.S.2011 § 40.3(A); 25 U.S.C.A. § 1903(1). A “child custody proceeding” is specifically defined by ICWA to include: 1) foster care placement, 2) termination of parental rights, 3) preadoptive placement, and 4) adoptive placement. See25 U.S.C.A. § 1903(1)(i)-(iv).
ICWA provisions at issue
¶ 13 According to 25 U.S.C.A. § 1912(d),
[a]ny 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...
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