| (Cite
as: 900 P.2d 1014)
Court
of Appeals of Oklahoma,
Division
No. 3.
In
the Matter of J.B., a minor child.
STATE
of Oklahoma, ex rel. DEPARTMENT OF HUMAN SERVICES, Appellant,
v.
CHEYENNE-ARAPAHO
TRIBES OF OKLAHOMA, and Intervenors John and Marie Keith,
Appellees.
No.
83723.
Released
for Publication by Order of the Court
of
Appeals of Oklahoma, Division No. 3.
June 20, 1995.
*1015 Appeal
from the District Court of Lincoln County; David Welch, Judge.
REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS.
Diane File, Dept. of
Human Services, Oklahoma City, for appellant.
Albert Ghezzi, Concho,
for appellee Cheyenne-Arapaho Tribes of Oklahoma.
James J. Hodgens, James, Gilmore & Hodgens, Stroud, for appellees
John and Marie Keith.
OPINION
ADAMS, Judge:
The Department of Human
Services (DHS) appeals a trial court order transferring this case to tribal
court. DHS argues, inter
alia, the trial
court was not legally authorized to transfer the case in its present posture.
Because we agree, we reverse the trial court's order and remand for such
further proceedings as may be necessary under the law. We need not address
arguments by the parties relating to other grounds for reversal raised
by DHS.
J.B., an enrolled member
of the Cheyenne-Arapaho Tribes of Oklahoma (Tribe), was born on July 10,
1988, with special health needs that will require her to receive lifelong
care and supervision. She was adjudged a deprived child, made a ward of
the court, and placed in the legal custody of DHS in November of 1988.
The Tribe, which had received appropriate notice of these proceedings,
intervened in the state court action in January of 1989. No party has
ever contended that J.B. resided or was domiciled on a reservation.
DHS placed J.B. in foster
care in the home of John and Marie Keith, and she remained there until
November of 1993. J.B.'s mother consented to the termination
of her parental rights in April of 1991, and J.B.'s father's parental
rights were terminated in July of 1991. DHS began to search, with the
help of the Tribe, for an adoptive home that could meet J.B.'s long-term
needs.
In March of 1993, the
District Attorney for Roger Mills County filed a motion alleging good
cause existed to seek a preadoption placement outside the preferences
listed in the Indian Child Welfare Act, 25 U.S.C. § 1901, et
seq. (the Act).
Following a hearing on April 6, 1993, of which the Tribe received notice
and at which the Tribe did not appear, the trial court concluded J.B.'s
special needs gave good cause for seeking a home for her outside the preferences
listed in the Act. None of the parties raise any issues concerning this
order. The case was transferred on April 8, 1993, to Lincoln County where
J.B. resided with the Keiths.
DHS evaluated the Keiths
and decided they were not appropriate adoptive parents because five-year-old
J.B. would require long-term and lifelong care, and Mrs. Keith was then
in her mid 60's and Mr. Keith was in his early 70's. In November of 1993,
DHS *1016
placed J.B. in a non-Indian home with a couple who are trying to adopt
J.B. On February 22, 1994, the Keiths filed a petition to adopt J.B. in
trial court. On April 1, 1994, the Tribe filed a motion to transfer jurisdiction
of the proceedings concerning J.B. to its court. Following a hearing on
May 12, 1994, the trial court ordered that jurisdiction
be transferred to the tribal court.
The tribal court's authority over cases involving Indian children is found
in 25 U.S.C. § 1911, which states, in pertinent part:
(a)
Exclusive jurisdiction
An
Indian tribe shall have jurisdiction exclusive as to any State over any
child custody proceeding involving an Indian child who resides or is domiciled
within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State by existing
Federal law. Where an Indian child is a ward of a tribal court, the Indian
tribe shall retain exclusive jurisdiction, notwithstanding the residence
or domicile of the child.
(b)
Transfer of proceedings; declination by tribal court
In
any State court proceeding for
the foster care placement of, or termination of parental rights to, an
Indian child not domiciled or residing within the reservation of the Indian
child's tribe,
the court, in the absence of good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the tribe, absent objection by
either parent, upon the petition of either parent or the Indian custodian
or the Indian child's tribe: Provided, That such transfer shall be subject
to declination by the tribal court of such tribe.
(Emphasis
added.)
Under 25 U.S.C. §
1903(1), the term "child custody proceeding" means and includes:
(i)
"foster care placement" which shall mean any action removing
an Indian child from its parent or Indian custodian for temporary placement
in a foster home or institution or the home of a guardian or conservator
where the parent or Indian custodian cannot have the child returned upon
demand, but
where parental rights have not been terminated;
(ii)
"termination of parental rights" which shall mean any
action resulting in the termination of the parent-child relationship;
(iii)
"preadoptive placement" which shall mean the temporary placement
of an Indian child in a foster home or institution after the termination
of parental rights, but prior to or in lieu of adoptive placement; and
(iv)
"adoptive placement" which shall mean the permanent placement
of an Indian child for adoption, including any action resulting in a final
decree of adoption.
(Emphasis
added.)
According to DHS, the
proceeding which the trial court transferred was not a "foster care
placement" because by definition that includes only proceedings "where
the parental rights have not been terminated." Further, DHS argues,
the transferred proceeding was not a proceeding "resulting in the
termination of the parent-child relationship" because termination
had already occurred.
The Tribe and the Keiths
maintain this argument is irrelevant because the transferred
case was a "child custody proceeding" as that term is defined
in § 1903(1). It is true that the transferred proceeding is, at the
very least, a "preadoptive placement" or an "adoptive placement"
and is therefore a "child custody proceeding," as defined in
§ 1903(1). However, § 1911 does not provide for the transfer
of "any child custody proceeding." Congress chose to limit transfer
authority to only two of the four proceedings included in the definition
of "child custody proceeding."
The construction urged by the Keiths and Tribe renders Congress' use of
the phrases "foster care placement" and "termination of
parental rights" in § 1911(b) a nullity, along with the distinctions
between those terms in the definitions in § 1903(1). We must interpret
§ 1911(b) and § 1903(1) so as to render every word and sentence
operative. State
ex rel. Thompson v. Ekberg,
613 P.2d 466 (Okla.1980). We hold transfer authority is limited to proceedings
for "foster care placement" and "termination of parental
rights" as § 1903(1) defines those terms.
*1017
In addition, the Tribe argues the transferred proceeding was a "termination
of parental rights" because it started as such a proceeding. According
to the Tribe, so long as the state court proceeding qualified as a "foster
care placement" or a "termination of parental rights,"
at some time during its life, transfer is authorized without regard to
what action is pending or potentially pending at the time transfer is
requested.
Virtually every proceeding for a "preadoptive placement" or
an "adoptive placement" will evolve from a proceeding for "foster
care placement" or "termination of parental rights." The
Tribe's interpretation would render Congress' specific decision to omit
"preadoptive placement" and "adoptive placement" proceedings
from the ambit of § 1911(b) futile and meaningless.
We
cannot adopt such an interpretation. Although the rule of construction
in Indian law is that ambiguous provisions are to be interpreted for the
benefit of Indians, Ahboah
v. Housing Authority of Kiowa Tribe of Indians,
660 P.2d 625 (Okla.1983), the terms used by Congress in § 1903(1)
and § 1911(b) are not ambiguous. They are clearly defined. We will
not assume that Congress committed a vain and useless act in choosing
the words employed in defining the scope of its legislation and the meaning
of terms. For purposes of § 1911(b), the nature of the proceeding
is determined by what is pending or potentially pending before the state
court.
The transferred proceeding
was not a "proceeding for the foster care placement of, or termination
of parental rights to" J.B. Section 1911(b) of Title 25, United States
Code, did not authorize the transfer of this case. The trial court's order
is reversed, and the case is remanded for such further proceedings as
the law may require.
REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS
GARRETT, C.J., and HUNTER, J., concur.
900 P.2d 1014, 1995 OK
CIV APP 91
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