State v. Stacy (In re I.T.S.)

• Decision Date: 22 June 2021
• Docket Number: No. 117,827,117,827
• Citation: 490 P.3d 127
• Court: Oklahoma Supreme Court
• Parties: In the MATTER OF I.T.S., I.M.S., and R.E.S., Deprived Children, State of Oklahoma, Petitioner/Appellee, v. Iris M. Stacy, Respondent/Appellant.

490 P.3d 127

In the MATTER OF I.T.S., I.M.S., and R.E.S., Deprived Children,State of Oklahoma, Petitioner/Appellee,

v.Iris M. Stacy, Respondent/Appellant.

No. 117,827

Supreme Court of Oklahoma.

FILED JUNE 22, 2021

Chris D. Jones, JONES LAW FIRM, Durant, Oklahoma, Attorney for Respondent/Appellant Iris M. Stacy,

Whitney Paige Kerr, BRYAN COUNTY DISTRICT ATTORNEY'S OFFICE, Durant, Oklahoma, Attorney for Petitioner/Appellee State of Oklahoma,

D. Michael Haggerty, II, HAGGERTY LAW OFFICE, PLLC, 716 W. Evergreen Street, Durant, Oklahoma, Attorney for Minor Children

ROWE, J.:

¶1 Appellant Iris M. Stacy (Mother) seeks certiorari review of an unpublished opinion by the Court of Civil Appeals (COCA) that affirmed the trial court's judgment terminating her parental rights to I.T.S., I.M.S., and R.E.S. (Children). At issue is the trial court's sua sponte discharge of Mother's court-appointed counsel at the conclusion of the disposition hearing, which left her without representation until State filed its petition to terminate her parental rights over two years later.¹ She argues the trial court's failure to provide her legal representation between the disposition and the filing of the petition to terminate her parental rights—a time period of 798 days—is contrary to the federal Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(b) (2018).

I. RELEVANT FACTS

¶2 This deprived child proceeding began in April 2015, when the children's school counselor reported they had expressed fears of their father, whom Mother had recently allowed to return to their home in Durant, Oklahoma. Child Welfare Services of the Oklahoma Department of Human Services (DHS) confirmed the father's violent criminal history and the parents' history of domestic violence.² State applied for an emergency order to remove the Children from their home,³ which the trial court granted after a hearing held April 24, 2015.⁴

¶3 State filed a petition alleging Children were deprived due to domestic violence, exposure to substance abuse, and their parents' failure to provide a safe and stable home. Children were subsequently adjudicated deprived as to their father based on his stipulation to State's deprived petition. On June 18, 2015, five days before the hearing to adjudicate the children deprived as to Mother, she applied for a court-appointed attorney. The trial court appointed counsel for Mother on June 22, 2015. Mother stipulated to State's deprived petition, and the trial court adjudicated the children deprived on June 23, 2015. Following the disposition hearing held the same day, the trial court's order states, in relevant part, "Counsel discharged, subject to re-app[ointmen]t."⁵

¶4 Twenty-six months passed before State commenced termination proceedings. During this time, the children's first relative foster placement could not handle all three teenage children, necessitating their separation into separate relative foster placement homes. Over the same period, Mother successfully worked the court-ordered Individual Service Plan (ISP) prepared to help her correct the conditions that led to the children's deprived status. In May 2016, the trial court authorized DHS to begin trial reunification "when appropriate," which occurred sometime before July 22, 2016.⁶ The children were reunited with Mother for approximately one year.

¶5 In August of 2017, a caseworker went to Mother's home to check on her daughters' absence from school. The daughters told the worker their Mother was not home, she had used their school clothes money to bail their father out of jail, and since that time, she had allowed father to stay in their home. DHS ended the trial reunification August 23, 2017.

¶6 State filed a petition to terminate the parental rights of Mother and Father on August 29, 2017. The petition alleged two termination grounds against both parents— 10A O.S.Supp.2015 § 1-4-904(B)(5) (failure to correct the conditions which led to the deprived adjudication) and § 1-4-904(B)(16) (children in foster care for fifteen (15) of the twenty-two (22) months preceding the filing of the parental rights termination petition).⁷ On September 7, 2017, the trial court granted Mother's second application for court-appointed counsel, which was filed that same day. The trial court terminated Father's parental rights by default on October 31, 2017.

¶7 The jury trial on State's petition to terminate Mother's parental rights was held January 29-30, 2018. The jury rendered separate verdicts finding that termination of Mother's parental rights was in the children's best interest because she had failed to correct the conditions that led to their deprived status. The jury identified the conditions that were not corrected as "[u]nsafe, unstable and inappropriate home environment, substance abuse, and domestic violence" by checkmarks on all three verdicts.

¶8 The journal entry of judgment terminating Mother's parental rights, the preparation of which was delayed for a full year, was filed on January 30, 2019. On February 28, 2019, an amended judgment terminating Mother's parental rights was filed. Mother filed her appeal on the same date.⁸ The appeal was assigned to Division IV of the Oklahoma Court of Civil Appeals, which affirmed the amended judgment but remanded with directions.⁹ This Court granted Mother's Petition for Certiorari on May 4, 2020.

II. STANDARD OF REVIEW

¶9 Mother's certiorari petition challenges COCA's interpretation of ICWA regarding appointment of counsel for an indigent parent of an Indian child. A legal question involving statutory interpretation is subject to de novo review. Casey v. Casey , 2005 OK 13, ¶ 7, 109 P.3d 345, 348. "Under the de novo standard, this Court examines legal issues independently, without deference to findings of the trial court." In re T.T.S. , 2015 OK 36, ¶ 14, 373 P.3d 1022, 1027.

III. ANALYSIS

¶10 ICWA's application in this case is undisputed.¹⁰ When ICWA applies, the Oklahoma Indian Child Welfare Act (OICWA), 10 O.S.2011 §§ 40.1, et seq. , also applies. See In re Adoption of D.M.J ., 1985 OK 92, ¶ 9, 741 P.2d 1386, 1388. OICWA's declared purpose is "the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of [ICWA]." 10 O.S.2011 § 40.1. The State's policy through OICWA is to "ensure that the intent and provisions of the federal [ICWA] are enforced." Id . OICWA requires compliance with ICWA in "all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated." 10 O.S.2011 § 40.3(B).¹¹

IV. SECTION 1912(b) OF THE INDIAN CHILD WELFARE ACT

¶11 The applicable ICWA statute is 25 U.S.C. § 1912(b), "Appointment of counsel," which provides:

In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.¹²

The record establishes Mother filed separate applications requesting court-appointed counsel—some 26 months apart (five days before the date set for her disposition hearing and a month after State filed its petition to terminate her parental rights). The trial court granted both applications.¹³ For purposes of this review, the indigency findings are presumed from the orders appointing counsel.

¶12 COCA concluded § 1912(b) is "silent regarding the term of court-appointed counsel" and "does not expressly provide that the parent shall be represented during the period of time when the parent is complying with the ISP." COCA failed to interpret § 1912(b) pursuant to the rules of statutory construction.

¶13 "[B]y virtue of the Supremacy Clause, ‘we are governed by the decisions of the United States Supreme Court with respect to the federal constitution and federal law, and we must pronounce rules of law that conform to extant Supreme Court jurisprudence.’ " Sparks v. Old Republic Home Prot. Co. , 2020 OK 42, ¶ 20, 467 P.3d 680, 687 (quoting Hollaway v. UNUM Life Ins. Co. of Am. , 2003 OK 90, ¶ 15, 89 P.3d 1022, 1027 ).

"Where the United States Supreme Court has not spoken on the direct issue, ‘we are free to promulgate judicial decisions grounded in our own interpretation of federal law.’ " Id .

¶14 "The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute." Fanning v. Brown , 2004 OK 7, ¶ 10, 85 P.3d 841, 845. "Courts will give the words of a statute a plain and ordinary meaning, unless it is clear from the statute that a different meaning was intended by the Legislature." Id . at 845-46. "When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction, and the statute will be accorded meaning as expressed by the language employed." In re City of Durant , 2002 OK 52, ¶ 13, 50 P.3d 218, 221. We must consider the statute as a whole, not just individual words or provisions. These same rules apply when interpreting ICWA. See In re M.S., 2010 OK 46, ¶¶ 13-14, 237 P.3d 161, 165-66 (finding ICWA § 1911(b) must be construed "as it is written" and that ICWA must be construed as a whole and in light of its stated purpose).

¶15 We find no opinions in which the U.S. Supreme Court interpreted § 1912(b) of ICWA to decide the issue before this Court—does the right to court-appointed counsel for a...