State v. Pigg (In re M.K.T.)

Citation368 P.3d 771
Decision Date20 January 2016
Docket NumberNo. 113,110.,113,110.
Parties In the Matter of M.K.T., C.D.T., and S.A.W., Deprived Children: State of Oklahoma, Petitioner/Appellant, v. Tracey Nicole Pigg (Natural Mother), Clayton Willbourn (Natural Father), Respondents/Appellants, and Patty Duckworth (Foster Mother), Appellant, and S.A.W., Appellant, and Cherokee Nation, Intervenor/Appellee.
CourtSupreme Court of Oklahoma

Becki A. Murphy, Murphy Francy PLLC, Tulsa, Oklahoma, for Appellant, Foster Mother.

Larisa Grecu–Radu, Assistant District Attorney, Tulsa County Juvenile Bureau, Tulsa, Oklahoma, for Appellant, State of Oklahoma.

Kacie R. Cresswell, Owasso, Oklahoma, for Minor Child, S.A.W.

Delorus Crawford, Tulsa, Oklahoma, for Natural Mother.

Brian Wilkerson, Tulsa, Oklahoma, for Natural Father.

Robert Garcia, Assistant Attorney General of Cherokee Nation, Tahlequah, Oklahoma, for Intervenor/Appellee.

Chrissi Ross Nimmo, Tahlequah, Oklahoma, for Intervenor/Appellee.

EDMONDSON, J.

¶ 1 The district court ordered the transfer of a minor child, S.A.W., to a foster-adoption home that was in compliance with the Indian Child Welfare Act and the Oklahoma Indian Child Welfare Act, and in the bests interests of the child. Foster mother, natural mother, father, child, and the State appealed. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and convincing evidence; and the evidence presented by appellants was sufficient to satisfy their burden, regardless whether we apply abuse-of-discretion or clear-and-convincing standards. We hold the circumstances of this case do not warrant reversal of the judge's order based upon 10A O.S. § 1–4–812. We hold appellants failed to satisfy their burden challenging natural father's status as not a member of his tribe. The Cherokee Nation met its burden showing the child was subject to the Indian Child Welfare Act. We hold the evidence was sufficient to show an ICWA-noncompliant temporary placement as in the best interests of the child. We affirm the district court's order in part and reverse in part.

¶ 2 In May 2013, the State placed two-year-old S.A.W. and her two older siblings in emergency protective custody in different homes and filed a petition to adjudicate the children as deprived due to neglect, lack of supervision and exposure to substance abuse. The natural mother is a non-Indian. S.A.W. was placed with foster mother and the placement was not compliant with the Indian Child Welfare Act, (ICWA), (25 U.S.C. §§ 1901–1963). The parties dispute whether the child's father is a member of the tribe and if the child's placement is governed by the ICWA.

¶ 3 For nine months after the placement of S.A.W., the Oklahoma Department of Human Services (DHS) contacted extended family of both natural mother and natural father to find an ICWA-compliant placement for S.A.W. The family members contacted were either unsuitable or not interested in a placement. DHS sought help from the Cherokee Nation in finding an ICWA-compliant placement for the child.

¶ 4 In February 2014, DHS recommended that a placement for the child should ultimately lead to a permanent placement because of a plan to seek termination of the parental rights of S.A.W.'s parents. The Cherokee Nation had not had a family available for foster care, but did have an ICWA-compliant family that was interested in adoption of a child. The parental rights of the parents had not been terminated.1 Visitations started with this ICWA-compliant family in April 2014. Visitations ceased with this prospective family, and on the one-year anniversary of the child being taken into custody the Cherokee Nation filed a motion to transfer the child to an ICWA-compliant placement. The trial court held a hearing and on July 21, 2014, the trial court determined that appellants had failed to demonstrate a good cause to deviate from the ICWA placement preferences and also found that it was in the best interests of S.A.W. to move to an ICWA-compliant home.

¶ 5 The State of Oklahoma, natural mother, natural father, foster mother, and S.A.W. appealed. The Court of Civil Appeals reversed the trial court's decision. The Cherokee Nation sought certiorari from this Court to review the opinion of the Court of Civil Appeals. We vacate the opinion of the Court of Civil Appeals and affirm the order of the District Court in part and reverse in part.

¶ 6 On appeal, appellants argue the trial court (1) violated the rights of natural mother and natural father to participate in the care, custody, and maintenance of their child; (2) erroneously failed to find good cause to deviate from the ICWA's placement preferences, ordering removal of the child from the foster mother's home; (3) failed to address whether the child was an Indian child for the purposes of the ICWA; (4) failed to address whether the father was no longer a member of the tribe; (5) failed to give statutorily-required "great weight" to the foster mother's quest for custody; and (6) failed to place custody in accordance with the child's best interests.

¶ 7 The Cherokee Nation responds (1) both parents were represented by counsel and participated in the trial court hearing where they expressed their opinions on the matter, and the trial court considered what they said; (2) no evidence showing good cause to deviate from the ICWA was presented to the trial judge; (3) the trial court did address whether the child was an Indian child for the purposes of the ICWA; and (4) the trial judge properly followed the ICWA and ordered placement according to the bests interests of the child.

I. Hearing in the District Court.

¶ 8 A hearing was held on the Cherokee Nation's motion to move the child to an ICWA-compliant placement. A summary of the testimony is as follows.

A. Natural Father

¶ 9 Natural father testified by telephone with his counsel present. He agreed that he had been "incarcerated during the whole pendency of this case." He was aware of his child's placement with the foster mother, and she had brought the child to visit him twice at the facility where he was incarcerated. The foster mother sent him photos of the child and kept him informed of her activities. He gave an opinion that moving his child "would be harmful for her emotional well-being." He stated his preference that the child remain with the foster mother.

¶ 10 Natural father also testified he had "filed a tribal relinquishment form" which he had signed. He stated he had filed the form in April or May of 2014 because "I was informed that it would, uh—it would—well, it would help keep ... [the child] where she's at." (Name omitted and explanation added). He said "... it was in hopes that, uh, it would take the matter out of—out of the Tribe's hands." He said the foster mother visited him during his incarceration and brought him the papers to sign and a notary to notarize them. He said he did what he thought was best for the child. He said if his parental rights and those of the natural mother were terminated, then he would prefer the child to be adopted by the foster mother.

¶ 11 Natural father said he was willing to "disenroll" if it would help keep the child where she's at. He also said he was "definitely not" pressured in any way to sign the tribal relinquishment, and he had signed it of his own free will. He said the Cherokee Nation had brought him papers to enroll the child in the tribe when he had been incarcerated in the county jail. He said the Cherokee Nation had not informed him of the particular facts concerning its proposed placement of the child

¶ 12 When questioned whether he knew that DHS and the Cherokee Nation "had a dual certified home that is ICWA compliant" for the child, he responded that he was unaware of anything about this home. He said he did not know whether the child was "seeing any kind of a counselor or a therapist."

¶ 13 Counsel for the Cherokee Nation said "a child who is the subject of a custody proceeding cannot be unenrolled during the pendency of that proceeding." He also said that once a person unenrolls, "it's a minimum of five years before you can reenroll." Natural father said he was unaware of these rules.

B. DHS Child Welfare Specialist

¶ 14 A child welfare specialist employed by DHS testified concerning the child's placement with the foster mother since May 2013. He said the placement was not ICWA-compliant. He said the child had developed strong attachment to the foster mother, and the child was thriving in her placement. He said the child was receiving therapy.

¶ 15 He said he had maintained communication with a tribal worker from August 2013 to February 7, 2014. He said relatives of the child were either not available or disqualified from accepting the child's placement. He said the child was safe and had a healthy attachment with the foster mother. He said the best interests of the child would be served by the child remaining with the foster mother.

¶ 16 He testified that the child could have handled a transition that placed her with the foster home recommended by the Cherokee Nation if the placement had occurred within two months of DHS taking custody of the child. He said the "level of attachment" at two months is different than the level of attachment after one year and two months with the foster mother.

¶ 17 He testified that in "maybe January" a concurrent plan for adoption of the child began to be explored. He was asked at what point would the family recommended by the Cherokee Nation have been considered by DHS as a "fost-adopt home" for the child. He responded: "if they had come forward first month, then they would have—the first month of ... [the child] coming into DHS custody, then they would have been considered. If it was the second month—it's difficult to say at what point would they have been considered." He agreed that the home recommended by the Cherokee Nation had been certified by DHS since 2012 and certified by the Cherokee Nation as well.

¶ 18 He testified of his concern...

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