|
(Cite
as: 160 P.3d 967)
Cherokee
Nation v. Nomura
Okla., 2007.
Supreme
Court of Oklahoma.
CHEROKEE
NATION, Plaintiff/Appellee,
v.
Michael
NOMURA, Co-Director of Heritage Family Services in his Official Capacity
as Administrator of the Oklahoma Interstate Compact on the Placement
of Children, Defendant/Appellee,
andAmerican
Adoptions of Florida, Inc., Defendant/Appellant.
No.
102,875.
May
22, 2007.
*969
Appeal from the District Court of Rogers County, Oklahoma;
Honorable
Judge J. Dwayne Steidley.
¶
0
In the adoption of an Indian child born in Oklahoma,
the birth mother, a member of the Cherokee Nation, sought
non-Indian parents residing in Florida to adopt her child through
a Florida adoption agency.
The agency obtained a final judgment ordering the child adopted
by the selected adoptive parents and also terminating the parental
rights of both birth parents.
The Florida judgment declared the adoption was voluntary, therefore not
requiring compliance with the federal Indian Child Welfare Act or
notice to the Tribe.
The Oklahoma Administrator of the Interstate Compact on the Placement
of Children withdrew his previous approval indicating all requirements had
been met in Oklahoma.
The Tribe sought a restraining order to prevent the Administrator
from transferring the case to Florida and allowing removal of
the child from Oklahoma.
The Interstate Compact Act Administrator requested a declaratory judgment from
the trial court as to the applicability of the Oklahoma
Indian Child Welfare Act (Oklahoma Act) to this adoption, requiring
notice to the Tribe.
The trial court held the Oklahoma Act applies to voluntary
and involuntary adoptions of Indian children in Oklahoma.
This appeal followed.
AFFIRMED.
Michael
E. Yeksavich, Tulsa, OK, for Appellant.
Sara
E. Hill, Tahlequah, OK, for Plaintiff/Appellee.
Leah
Farish, Tulsa, OK, for Defendant/Appellee.
Scott
D. Boughton, Oklahoma City, OK, for Oklahoma Attorney General.
OPINION
WATT,
Justice.
¶
1
This case was previously retained by this Court for disposition.
It involves the interaction of the Oklahoma Indian Child Welfare
Act (Oklahoma Act) 10 O.S.2001 §§
40-40.9,
the federal Indian Child Welfare Act of 1978 (Federal Act),
25 U.S.C. §§
1901,
et seq., and the Oklahoma Interstate Compact on the Placement
of Children (Interstate Compact Act), 10 O.S.2001 §§
571-576.
We consider the right of an Indian mother to place
her child voluntarily for adoption with out of state non-Indian
adoptive parents without consideration of the placement preferences of the
Federal Act, 25 U.S.C. §
1915,
or utilizing “to
the maximum extent possible”
the services of the Indian tribe in placement of the
child under 10 O.S. §
40.6
of the Oklahoma Act. The dispositive issue in this adoption
proceeding is whether the Oklahoma Act must be applied to
every adoption of Indian children born to an Oklahoma Indian
parent, even if the Indian parent chooses out of state
non-Indian adoptive parents.
We hold that it must and affirm the trial court's
declaratory judgment.
PROCEDURAL
BACKGROUND
¶
2
Through an adoption agency, Appellant American Adoptions of Florida, Inc.
(Florida Adoption Agency or Agency), the mother chose to
have her child adopted by non-Indian parents living in Florida.
The child was born in Oklahoma on October 2, 2005.
On October 3, 2005, the adoptive parents appeared before the
Oklahoma District Court in Rogers County, Oklahoma, with a motion
to approve adoption expenses pursuant to 10 *970
O.S.2001 §
7505-3.2(B).FN1
The
trial court filed an order granting their motion on the
same day.
On October 11, 2005, the adoptive parents filed a petition
for adoption in Florida, and a Florida court issued an
order for preliminary custody to the adoptive parents, although neither
the birth mother nor the child was present.
On October 13, 2005, the mother went to Florida to
consent to Florida law for the adoption and the termination
of her parental rights.
On October 14, 2005, Florida Adoption Agency filed a petition
in Florida to terminate the birth parents' parental rights.
On October 14, 2005, the Florida court entered a judgment
terminating the parental rights to the mother and to “any
known and unknown biological father,”
finding the putative father's right to consent to the adoption
had been waived.
In that order, the Florida court made a finding that
“[a]ll
provisions of the Indian Child Welfare Act have been complied
with, and all notices required by federal or state law
have been given.
This is a voluntary proceeding under the ICWA, and therefore,
notice to the tribe is not required under ICWA or
state law.”
Also recited in the October 14 order is the following:
FN1.
B.
1. Except as otherwise specifically provided by law, the following
list of adoption-related costs and expenses specified in this paragraph
may be deemed proper items for a person to pay
in connection with an adoption:
a.
reasonable
attorney fees and court costs,
b.
reasonable
medical expenses for birth mother and minor to be adopted,
c.
reasonable
adoption counseling expenses for birth parents before and after the
birth of the minor, not to exceed six (6) months
from placement of the minor,
d.
reasonable
fees of a licensed child-placement agency,
e.
in
cases of extraordinary need, reasonable expenses for necessities of the
birth mother that are incurred during or as a result
of the pregnancy, not to exceed two (2) months from
placement of the minor,
f.
reasonable
costs for travel or transportation of the birth mother or
minor as same is incurred for medical or adoption placement
needs,
g.
reasonable
expenses for a home study, and
h.
reasonable
expenses legally required by any governmental entity related to the
adoption of a minor.
IT
IS ORDERED, based upon the request of the natural mother
of the minor child, ...
that good cause exists to waive, and the court does
hereby waive, the adoption placement preferences of the Indian Child
Welfare Act, 25 U.S.C. §
1915,
to allow the adoptive placement of [the child] born October
2, 2005, with [adoptive parents]....
¶
3
The Florida court found that a “voluntary”
proceeding under the Federal Act requires neither notice to the
Tribe nor adherence to the adoption placement preferences of 25
U.S.C. §
1915
of the Federal Act. “Good
cause”
to waive the placement preferences was found to exist because
the birth mother requested it. It is undisputed that notice
to the Tribe was not attempted before October 18, 2005,
four days after the Florida court's judgment.
There
is also testimony in the record that notice by certified
mail from Florida Adoption Agency's attorney Jeanne Tate was not
received by the Tribe until November 8, 2005, twenty-five (25)
days after judgment was entered.
¶
4
After receiving notice of the adoption proceeding in Florida, the
Tribe intervened in the Florida case to insure compliance with
the Federal Act and to reserve the right to remove
it to tribal court.
The Tribe then filed this case seeking a temporary restraining
order (TRO)
FN2
against the Administrator of the Oklahoma Interstate Compact on the
Placement of Children (Interstate Compact Act), Michael Nomura, Defendant/Appellee (Nomura).
The Tribe sought to prevent Nomura from approving the Interstate
Compact Act materials and issuing the “100A”
in order to prevent removal of the child from Oklahoma.FN3
FN2.
The
first TRO entered by the court was dismissed to allow
the Tribe to amend their pleading to add Nomura and
Florida Adoption Agency as additional parties.
FN3.
Approval
by the Interstate Compact Administrator of the Form “100A”
indicates the paperwork from the sending state is complete.
Nomura initially gave such approval on a Form “100A”,
but he later withdrew it because of the lack of
compliance with the Federal Act and the Oklahoma Act, after
an inquiry by the Florida Administrator regarding notice to the
Tribe.
¶
5
Florida Adoption Agency specially intervened in the Oklahoma court to
challenge *971
the court's jurisdiction and the alleged interference with the mother's
exclusive and constitutionally protected rights in and to her child,
as recognized by state and federal courts, and to challenge
the requirement to follow the Oklahoma Act in voluntary adoptions.
¶
6
After dismissal of the first TRO issued, the Oklahoma court
issued another TRO and continued the hearing.
At the November 8, 2005 hearing which followed, the court
dissolved the TRO, finding the Tribe could not show irreparable
harm, as the 100A had yet to be issued.
Nomura moved to dismiss on grounds of sovereign immunity
FN4
and alternatively requested a declaratory judgment, pursuant to 12 O.S.2001
§
1652,FN5
as to the applicability of 10 O.S.2001 §
40.6FN6
to this case.
The court denied Nomura's motion to dismiss, stating an order
would issue on Nomura's request for declaratory judgment.FN7
FN4.
Nomura
testified that the Oklahoma Department of Human Services (DHS) contracts
with Heritage Family Services, Inc., for which he is co-director,
to administer the Interstate Compact Act in all adoption-related cases.
It functions as part of the executive branch in administering
an interstate compact in a regulatory, governmental capacity.
FN5.
12
O.S.2001 §
1652
provides:
A
determination of rights, status, or other legal relations may be
obtained by means of a pleading seeking that relief alone
or as incident to or part of a petition, counterclaim,
or other pleading seeking other relief, and, when a party
seeks other relief, a court may grant declaratory relief where
appropriate.
FN6.
10
O.S.2001 §
40.6
provides in pertinent part:
The
placement preferences specified in 25 U.S.C. Section 1915, shall apply
to all preadjudicatory placements, as well as preadoptive, adoptive and
foster care placements.
In all placements of an Indian child by the Oklahoma
Department of Human Services (DHS), or by any person or
other placement agency, DHS, the person or placement agency shall
utilize to the maximum extent possible the services of the
Indian tribe of the child in securing placement consistent with
the provisions of the Oklahoma Indian Child Welfare Act....
FN7.
At
the end of the hearing on November 10, 2005, the
court also granted Nomura's request for a finding that he
was immune from suit on grounds of sovereign immunity.
[1][2]
¶
7
As a threshold issue, Nomura moved to dismiss this appeal
as to himself on grounds of sovereign immunity because he
acts as an agent for the State in a regulatory
function for the Interstate Compact and because Florida Adoption Agency
failed to give notice to the Attorney General, as required
by 12 O.S. Supp.2003 §
1653.
The ruling on this motion was deferred by this Court
until consideration of the merits of the case.
The trial court ruled Nomura, “acting
as an agent of the State is barred from suit
by sovereign immunity save and except as further set forth
herein.”
The outcome of this litigation will decide the legal issue
of whether the Administrator of the Interstate Compact has a
duty to consider the Oklahoma Act as it pertains to
and supports the Federal Act. When a party makes an
appearance and requests affirmative relief, he has waived any challenge
to personal jurisdiction.
See Porter
v. Oklahoma Bacone College Trust, 1959
OK 174, 346 P.2d 335;
Bill
Cooper Frac Tank Company v. Columbia Regional Hospital,
1993 OK CIV APP 54, 856 P.2d 586.
The declaratory judgment of the trial court now before us
on appeal was rendered at his request.
Moreover, this Court issued an order on March 28, 2007,
notifying the Attorney General of this appeal, pursuant to 12
O.S. Supp.2003 §
1653
(C), and advising him to file a response brief if
he chose to appear.
The Attorney General's brief was filed on April 5, 2007,
and Appellant's reply brief was filed April 19, 2007.
Nomura's motion to dismiss is denied as moot.
TRIAL
COURT'S RULING
¶
8
In its order, the trial court found:
Thus
the ICPC provides that the
child at issue shall be treated in the same manner
as such child would have been dealt with had the
child remained in the sending state.
Then if OICWA would have been applicable had the child
been adopted then it must also be complied with under
the provisions of the ICPC. [emphasis in original].
...
Under
the provisions of 10 O.S. §
40.3,
40.4 and 25 U.S.S. (sic) §
1903
this Court finds that such a proceeding would constitute*972
a child custody proceeding as defined by both ICWA
and OICWA, regardless of whether the proceeding was determined to
be voluntary or involuntary.
The Court further finds that the notice requirements of 10
O.S. §
40.4
would apply, and that the placement preference provisions of 25
U.S.C. §
1915
and 10 O.S. §
40.6
would apply to such an adoption proceeding in Oklahoma.
The
Court accordingly finds and determines under the facts and circumstances
of this case that the Cherokee Nation is entitled to
notice of adoption proceedings related to the minor child ...
and that the placement preference of 25 U.S.C. §
1915
and 10 O.S. §
40.6
would apply to said child.
It
is therefore the Court's determination that Defendant Nomura in his
official capacity as administrator of the Oklahoma ICPC does have
a duty to see that the placement preference established by
OICWA and ICWA are complied with along with the notice
provisions therein before approving the adoption placement of [the child]
under the provision of the ICPC.
¶
9
The trial court overruled Florida Adoption Agency's challenge to the
court's jurisdiction and rejected its constitutional argument that the mother
has a liberty interest to decide who may adopt her
child, holding that the parental rights of these parents were
terminated at their request.
Therefore, the court held that at that point there were
no parental rights “except
whatever rights the natural parents may retain with regard to
the revocations of their consents....”
FN8
FN8.
The
order provides:
In
the alternative the Court finds that even if the parents
do retain some vestige of parental rights and a strict
scrutiny standard does apply that the application of 10 O.S.
§
40.6
survives the current challenge.
The requirements of 10 O.S. §
40.6,
while applying to both voluntary and involuntary cases still utilizes
the standards of 25 U.S.C. §
1915,
including the fact that the good cause exception to the
placement provisions still exists.
¶
10
The trial court's order concluded:
The
Court finds in balancing whatever liberty interest the natural mother
may have in making decisions regarding who may adopt the
child at issue against the state's compelling interest to recognize
and protect the valid governmental interest of Indian Tribes and
Nations regarding Indian children, that the statute while intrusive acts
to both preserve the integrity of Indian Tribes and people
while at the same time addressing the best interest of
the Indian child at issue.
The Court finds that the governmental interest outweighs whatever parental
rights may remain with the natural parents.
See
Blevins, 10
O.S. §
40.1
and 25 U.S.C. §
1915.
STANDARD
OF REVIEW
[3][4][5]
¶
11
Under the Declaratory Judgments Act, the determination of a competent
court is reviewable in the same manner as other judgments.
12 O.S.2001 §
1654.
The trial court's declaratory judgment order addressed an issue of
law, and we will review the decision under a de
novo
standard.
See Save
Ad Valorem Funding for Students v. Oklahoma Department of Environmental
Quality, 2006
OK CIV APP 53, 135 P.3d 823,
cert. denied,
2006 (Approved for Publication by Order of the Supreme Court).FN9
Thus,
we must review the record to determine whether the trial
court erred.
City
of Chandler v. State ex rel., Department of Human Services,
1992 OK 137, 839 P.2d 1352.
FN9.
We
find this case is a proper case for declaratory relief.
The constitutionality of the Oklahoma Act is challenged by Florida
Adoption Agency.
Nomura seeks declaratory relief to construe the Oklahoma Act which
he is required to follow in his position as Interstate
Compact Administrator for Oklahoma.
Whether the Oklahoma Act applies will directly impact his actions
as Interstate Compact Administrator in this
adoption proceeding
as to whether to approve the Form 100A and forward
the case to Florida.
This case is thus maintainable as a declaratory judgment action,
as it is based on an actual justiciable controversy.
See City
of Muskogee v. Martin,
1990 OK 70, 796 P.2d 337.
Also, we have held declaratory relief is appropriate when a
statute is attacked on constitutional grounds prior to the time
a final judgment is issued, because the law need not
be violated before obtaining a declaration of its validity.
See Oklahoma
Tax Commission v. Smith,
1980 OK 74, 610 P.2d 794.
*973
JURISDICTIONAL
ISSUES
[6]
¶
12
The issue of the Oklahoma court's continuing jurisdiction after the
initial order approving adoption expenses, under 10 O.S.2001 §
7505-3.2,
was raised in the trial court.
The trial court held that jurisdiction continued.
We agree.
Under the Interstate Compact Act, the sending agency “shall
continue to have financial responsibility for support and maintenance of
the child during the period of the placement.”
Article V(a).
Jurisdiction over the child continues in Oklahoma until the receiving
state notifies the “sending
agency”
FN10
in writing that the proposed placement is in the interests
of the child.
See 10 O.S.2001 §
571,
Article III(d). FN11
Article
V(a) also provides the sending agency shall retain jurisdiction over
the child to determine all necessary matters in relation to
the child “which
it would have had if the child had remained in
the sending agency's state, until the child is adopted....”
FN10.
See
10 O.S.2001 §
571,
Article II(b), The Interstate Compact on the Placement of Children:
(b)
“Sending
agency”
means a party state, officer or employee thereof;
a
subdivision of a party state, or officer or employee thereof;
a
court of a party state;
a
person, corporation, association, charitable agency or other entity which sends,
brings, or causes to be sent or brought any child
to another party state.
FN11.
10
O.S. §
571,
Article III(d) provides:
(d)
The
child shall not be sent, brought, or caused to be
sent or brought into the receiving state until the appropriate
public authorities in the receiving state shall notify the sending
agency, in writing, to the effect that the proposed placement
does not appear to be contrary to the interests of
the child.
¶
13
Florida Adoption Agency appears to acknowledge the authority of the
“sending
agency”
under Article V(a).
However, it argues the birth mother, not Administrator Nomura, is
designated the “sending
agency”
on the Form 100A, and that Nomura is required to
forward to Florida any information she provided.
Agency contends the “receiving
state”
actually approves whether placement is proper and Nomura has no
authority to refuse to sign the 100A and send it
to Florida.
[7]
¶
14
We disagree with Agency's contention that Nomura has a duty
to “rubber
stamp”
any information received from the birth mother and forward it
to Florida.
The Interstate Compact Act allows the proper authorities of the
state from which the placement is made to “obtain
the most complete information on the basis on which to
evaluate a projected placement before it is made.”
Article I(c).
The
receiving state may request additional information.
Article III(c).FN12
In
fact, in this case, the Florida Administrator contacted Nomura with
concerns about the lack of notice to the Tribe. This
led to Nomura's withdrawal of the original Form 100A.FN13
FN12.
(c)
Any public officer or agency in a receiving state which
is in receipt of a notice pursuant to paragraph (b)
of this article may request of the sending agency, or
any other appropriate officer or agency of or in the
sending agency's state, and shall be entitled to receive therefrom,
such
supporting or additional information
as it may deem necessary under the circumstances to carry
out the purpose and policy of this compact. [emphasis added].
FN13.
The
record shows the withdrawal of the 100A was done promptly
after Florida's inquiry.
No actions were then taken by either the Oklahoma or
the Florida Interstate Compact Administrator to make jurisdiction in Oklahoma
questionable.
Moreover, this Court has held that retroactive compliance with the
Interstate Compact is acceptable.
See eg., White
v. Adoption of Baby Boy D.,
2000 OK 44, 10 P.3d 212.
¶
15
Nomura contends the Interstate Compact Act charges him, as the
sending state's Interstate Compact official, with the duty of determining
documentation exists showing “maximum
opportunity”
is taken to find a “suitable
environment”
for the child, Article I(a). He also contends the Oklahoma
Act requires a parent wishing to relinquish his parental rights
out of state to utilize the tribe's resources to the
“maximum
extent possible.”
See 10 O.S.2001 §
40.6.
He stated his signature on the 100A indicates to a
receiving state that the evaluation process is complete.
At the time of this appeal, that had not been
done.
¶
16
Nomura contends Agency attempts to ignore the clear intent of
federal and state law favoring placement with Indian families by
designating the birth mother as the “sending
agency”.
Whether it was done to evade the purposes of the
Federal Act or *974
Oklahoma's jurisdiction is an issue for the trier of fact.
DISCUSSION
[8]
¶
17
Florida Adoption Agency seeks to challenge the application of the
Oklahoma Act to a Florida adoption, the failure to allow
Florida law to determine the appropriateness of placement in Florida,
and to challenge the failure to acknowledge valid orders of
the Florida Court.
Also, Agency questions the constitutionality of the Oklahoma Act in
voluntary adoptions, claiming it interfered with mother's constitutional and fundamental
rights in and to her child, requiring the courts to
apply the test of “strict
judicial scrutiny”
when examining state law.
Florida Adoption Agency contends the birth mother selected the Florida
family, which is fit and proper to nurture her child,
with only the child's best interests in mind.
It also contends the Oklahoma Act does not apply unless
the Indian child is at risk, or is being endangered
by the birth parents and claims that neither the Tribe,
nor Nomura, presented any information the child was endangered by
the mother or the adoptive family.
Agency further contends the only basis for the Tribe's and
Nomura's support of the Oklahoma Act is the fact the
child is Cherokee, which infringes upon the mother's constitutional rights.
¶
18
The Attorney General disputes Florida Adoption Agency's contention that this
Court is required to apply the standard of “strict
judicial scrutiny”
to the alleged violation of birth mother's constitutional rights, (i.e.,
liberty, privacy and the fundamental right to the care and
custody of her child).
As the Attorney General correctly argues, we held in In
the Matter of Baby Boy L, 2004
OK 93, 103 P.3d 1099 (Baby
Boy L.),
discussed infra,
wherein we cited with approval the case of In
re A.B.,
2003 ND 98, 663 N.W.2d 625, that the “rational
basis”
analysis is appropriate when dealing with equal protection and substantive
due process challenges.
In holding the Federal and Oklahoma Acts are constitutional as
applied to the cause in Baby
Boy L.,
we recognized the U.S. Supreme Court has consistently rejected claims
that laws which treat Indians as a distinct class violate
equal protection.
¶
19
In Baby
Boy L.,
we considered a case involving the adoption of an Indian
child and the application of the Federal Act and the
Oklahoma Act. A child was born out of wedlock to
a non-Indian mother and a noncustodial Indian father who did
not live on an Indian reservation.
The mother wished to place the child for adoption.
She sought an order terminating the father's parental rights and
declaring the baby eligible for adoption without the consent of
the father.
She located a non-Indian family in another state who wished
to adopt the child.
The mother argued the Federal Act and the Oklahoma Act
were inapplicable because the baby was not being removed from
an Indian family.
Thus, she argued, the placement preferences set out in the
Federal Act were not mandatory.
The trial court agreed with her, and the Court of
Civil Appeals affirmed.
This Court reversed.
¶
20
In doing so, we examined Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)
(Holyfield),
and the application of the Federal Act to the law
of individual states.
We held the “existing
Indian family exception”
to the Federal Act was no longer viable in Oklahoma.
In so ruling, we noted the Holyfield
Court recognized Congress showed concern, through passage of the Federal
Act, “not
only about the interests of Indian children and families, but
also about the impact on the tribes because of the
large numbers of Indian children being adopted by non-Indians.”
Baby
Boy L., 2004
OK 93, ¶
14,
103 P.3d 1099, 1104.FN14
We
determined the Oklahoma Legislature amended the Oklahoma *975
Act in 1994 to abrogate the judicially created “existing
Indian family exception”
to the Federal Act in Oklahoma.
We determined the Legislature so acted, partly “in
recognition of the Holyfield
teaching.”
Baby
Boy L., 2004
OK 93, ¶
16,
103 P.3d 1099, 1106.
We recognized the Federal Act showed Congressional intent to achieve
uniformity among the states where the interests of Indian children,
parents and tribes are concerned.
We find the 1994 amendments of the Oklahoma Act show
the Oklahoma Legislature's intent to make clear a parent involved
in a voluntary “child
custody proceeding”
involving an Oklahoma Indian child may not ignore the application
of the Federal Act as a matter of personal choice.
FN15
See
10 O.S.2001 §§
40.3
(B) and (E):
FN14.
We
noted that the U.S. Supreme Court in Holyfield
stated, with regard to Congressional intent:
“[I]t
is clear that Congress' concern over the placement of Indian
children in non-Indian homes was based in part on evidence
of the detrimental impact on the children themselves of such
placements outside their culture.
Congress determined to subject such placements to the ICWA's jurisdictional
and other provisions, even
in cases where parents consented to an adoption,
because of concerns going beyond
the wishes of individual parents
....”
[emphasis added].
FN15.
See,
10 O.S.2001 §
40.6
(note 7, supra), which provides that all adoption placements in
Oklahoma shall utilize the placement preferences of 25 U.S.C. §
1915,
as well as the services of the Tribe “to
the maximum extent possible.”
B.
Except
as provided for in subsection A of this section [involving
divorce and delinquency], the Oklahoma Indian Child Welfare Act applies
to 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.
[emphasis added].
...
E.
The
determination of the Indian status of a child shall be
made as soon as practicable in order to ensure compliance
with the notice requirements of Section 40.4 of this title.
Also
amended in 1994 is section 40.4
FN16
which provides:
FN16.
Except
for a change from “registered
mail”
to “certified
mail”,
the current statute, 10 O.S. Supp.2006 §
40.4,
contains the same language noted above.
Our references to §
40.4
will be to the current statute unless otherwise noted.
In
all Indian child custody proceedings of the Oklahoma Indian Child
Welfare Act, including
voluntary court proceedings and review hearings,
the court shall ensure that the district attorney or other
person initiating the proceeding shall send notice to the parents
or to the Indian custodians, if any, and
to the tribe that is or may be the tribe
of the Indian child,
and to the appropriate Bureau of Indian Affairs area office,
by certified mail return receipt requested.
The notice shall be written in clear and understandable language
....
[emphasis added].
¶
21
In Holyfield,
the sole issue before the United States Supreme Court was
the domicile of Indian twins whose voluntary adoption was under
consideration.
Their parents had lived on the reservation until immediately before
their birth when they moved to Mississippi.
If domiciled on the reservation, the tribal court had jurisdiction.
See 25 U.S.C. §
1911(a).
The parents argued the domicile of the twins was in
Mississippi and the adoption should proceed in state court.
The Supreme Court decided “domicile”
under §
1911(a)
must be given the construction which provides uniformity under federal
law for purposes of the Federal Act. The
Court held the result should not be different “simply
because the twins were ‘voluntarily
surrendered’
by their mother ...
[because] [t]ribal jurisdiction ...
was not meant to be defeated by the actions of
individual members of the tribe....”
Holyfield,
490 U.S. 30, 49, 109 S.Ct. 1597, 1608. [emphasis added].
¶
22
In the instant case, we do not have before us
the domicile issue because neither the mother nor the child
lived on a reservation.
When “child
custody proceedings”
under the Federal Act take place in state court, certain
statutory preferences are mandated under 25 U.S.C. §
1915(A),
“absent
good cause to the contrary.”
The Holyfield
Court stated, at 1602:
The
most important substantive requirement imposed on state courts is that
of §
1915(a),
which absent “good
cause”
to the contrary, mandates that adoptive placements be made preferentially
with (1) members of the child's extended family, (2) other
members of the same tribe, or (3) other Indian families.
¶
23
Agency contends the Oklahoma Act's requirement of notice to the
Tribe in “voluntary”*976
adoptions is unconstitutional because in the Federal Act, under
25 U.S.C. §
1912(a),
notice is only required for involuntary state court proceedings.
But see 25 U.S.C. §
1913(c)
which provides, “In
any voluntary
proceeding for termination of parental rights to, or adoptive placement
of, an Indian child, the consent of the parent may
be withdrawn for any reason at any time prior to
the entry of a final decree of termination or adoption
....”
[emphasis added].
Clearly, the Federal Act contemplates voluntary proceedings.
See also 25 U.S.C. §
1911(c),
which provides “In
any
State court proceeding for ...
termination of parental rights to, an Indian child, ...
the Indian child's tribe shall have a right to intervene
at any point in the proceeding.”
[emphasis added].
It would be difficult indeed to enforce the right to
intervene in the proceeding without receiving notice of it.
[9]
¶
24
Agency contends Holyfield
is inapplicable to this case because of its distinguishing factual
scenario.
However, we adhered to its teachings in Baby
Boy L.,
despite somewhat different facts, and we recognized Holyfield's
influence on our Legislature's amendments to the Oklahoma Act. Congress
intended the protections of the Federal Act to extend not
only to Indian children and families, but also to the
tribes themselves.
Although notice to the tribe was not the main issue,
the Supreme Court recognized Congress intended the Federal Act to
promote uniformity and the protection of individual Indians and
the Tribes.
This persuades us that compliance with the Federal Act is
required in voluntary and involuntary “child
custody proceedings.”
Indeed, the “child
custody proceeding”
FN17
in Holyfield
was a voluntary
adoption and termination of parental rights case.
FN17.
“Child
custody proceeding”
is defined by the Federal Act, 25 U.S.C. §
1903(1)
and includes “adoptive
placement”
defined as “the
permanent placement of an Indian child for adoption, including any
action resulting in a final decree of adoption.”
25
U.S.C. §
1903(1)(iv).
Under 10 O.S.2001 §
40.3,
the Oklahoma Act, “in
accordance with the federal Indian Child Welfare Act, applies to
all child custody proceedings involving any Indian child”
except divorce and delinquency proceedings.
It also provides, at §
40.3(B),
that the Oklahoma Act “applies
to 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.”
¶
25
Further, the Oklahoma Act does not restrict the Federal Act,
but in fact, supports it in state court adoptions.
Neither the purpose of the Federal Act nor the Oklahoma
Act can be achieved without notice to the tribe or
consideration of the placement preferences.
We noted in Baby
Boy L.,
supra, that the amendments to the Oklahoma Act showed our
Legislature was aware of Holyfield
and attempted to conform our laws consistently with the Federal
Act. See 25 U.S.C. §
1921,
which recognizes:
In
any case where State or Federal law applicable to a
child custody proceeding under State or Federal law provides a
higher
standard of protection
to the rights of the parent
or Indian custodian of an Indian child
than the rights provided under this subchapter, the State or
Federal court shall apply the State or Federal standard. [emphasis
added].
[10]
¶
26
Since Holyfield
instructs that the Federal Act was intended to protect the
Indian child, the parents and
the Tribe,
we find the “higher
standard of protection”
under §
1921
extends to the Tribe as well. FN18
While
domicile of mother and child is not an issue in
this case, Holyfield
instructs that a *977
change in domicile merely
for the purpose of avoiding the Federal Act
was an invalid act.
Crossing state lines to avoid the jurisdiction of the tribal
courts was held to be ineffective for purposes of the
Federal Act.
FN18.
This
intended protection was recognized by our Legislature in 1994 when
it abrogated the “existing
Indian Family exception”
in its amendment of 10 O.S.1991 §
40.1
(currently cited as 10 O.S.2001 §
40.1
),
by adding the following italicized language to that section:
The
purpose of the Oklahoma Indian Child Welfare Act is the
clarification of state policies and procedures regarding the implementation by
the State of Oklahoma of the federal Indian Child Welfare
Act, P.L. 95-608.
It
shall be the policy of the state to recognize that
Indian tribes and nations have a valid governmental interest in
Indian children regardless of whether or not said children are
in the physical or legal custody of an Indian parent
or Indian custodian at the time state proceedings are initiated.
It shall be the policy of the state to cooperate
fully with Indian tribes in Oklahoma in order to ensure
that the intent and provisions of the federal Indian Child
Welfare Act are enforced. [emphasis added].
CONCLUSION
[11][12]
¶
27
We hold that the Oklahoma Act does not conflict with
the Federal Act in its requirements of notice to the
Tribe under 10 O.S. Supp.2006 §
40.4FN19
when voluntary
or involuntary
child custody proceedings are initiated;
or
under 10 O.S.2001 §
40.6,
which provides the placement preferences in 25 U.S.C. §
1915
shall apply to all adoptive placements of Indian children.
Section
40.6 adds the further requirement that the placement agency “shall
utilize to the maximum extent possible the services of the
Indian tribe of the child in securing placement consistent with
the provisions of the Oklahoma Indian Child Welfare Act.”
The Oklahoma Act supports the Federal Act by recognizing the
Tribe's interests must be protected in adoption proceedings involving Indian
children.
The Oklahoma Act is thus consistent with the Federal Act
and its purposes as recognized by the United States Supreme
Court.
FN19.
The
current statute is substantially similar to the statute in effect
at the time this proceeding was initiated.
The amendment in 2006 changed the requirement of “registered”
mail to “certified”
mail in the first paragraph.
[13][14][15]
¶
28
The trial court's declaratory judgment correctly states that the Federal
Act and the Oklahoma Act apply to the adoption proceeding,
that the Tribe is entitled to notice, and that the
placement preferences under 25 U.S.C. §
1915
and 10 O.S. §
40.6
apply to voluntary and involuntary child custody proceedings.
The court also properly declared Nomura, in his official capacity
as Administrator of the Interstate Compact Act, has a duty
to see that there is compliance with the placement preferences
of the Oklahoma and Federal Acts prior to approving the
adoption under the Interstate Compact Act.
¶
29
While we agree it must be followed, it is not
necessary in this case to define the language “to
the maximum extent possible,”
found in 10 O.S. §
40.6,
in reference to utilization of the Tribe's services in adoptions
of Indian children.
Under the circumstances of this case, no attempt whatsoever was
made to involve the Tribe in the placement of the
child.
Agency's allegations that the Tribe was given notice and intervened
in Florida are hollow attempts to justify the actions taken
after the judgment was entered.
[16][17]
¶
30
The withdrawal of the Form 100A by Nomura effectively prevented
jurisdiction from being lost in Oklahoma.
We offer no opinion on the effectiveness or validity of
the Florida judgment.
We only provide declaratory relief herein to clarify Oklahoma law
in connection with the requirements of the Federal Act and
the Interstate Compact Act. We hold that adoptions of Oklahoma
Indian children require notice to the Tribe and compliance with
the Oklahoma Act, whether the child custody proceedings are voluntary
or involuntary.
The Administrator has a duty to question whether compliance has
been made before signing the Form 100A which facilitates sending
the adoption to another state to complete.
This case is affirmed.FN20
FN20.
We
express no opinion on the ultimate placement of the child.
Nevertheless, we note that placement preferences for Indian children are
subject to a “good
cause”
exception.
See, 10 O.S.2001 §
40.6
and 25 U.S.C. §
1915.
Furthermore, at least one court has determined that the parent's
preference for placement with a non-Indian family may be sufficient
to invoke the “good
cause”
exception.
In
re Adoption of B.G.J.,
33 Kan.App.2d 894, 111 P.3d 651, 657-58 (2005), judgment
affirmed, In
re Adoption of B.G.J.,
281 Kan. 552, 133 P.3d 1 (2006).
Finally, in non-Indian placement proceedings, the Legislature has deemed the
amount of time in which the child has been in
the prospective adoptive home significant.
See, 10 O.S. §
7003-5.6h(B),
which recognizes that long placement of a child may justify
great weight being given to this factor in determining a
child's best interests in adoption proceedings.
¶
31
AFFIRMED.
EDMONDSON,
V.C.J., LAVENDER, OPALA, KAUGER, WATT, COLBERT, JJ., concur.
*978
TAYLOR, J., concurs in result.
WINCHESTER,
C.J., HARGRAVE, J., dissent.
Okla.,2007.
Cherokee
Nation v. Nomura
160
P.3d 967, 2007 OK 40
|