| (Cite
as: 38 P.3d 245)
Court
of Civil Appeals of Oklahoma,
Division
No. 1.
In
the Matter of the ADOPTION OF J.T., S.T., and C.T.,
minor children.
Lucille
A. Poauty, Plaintiff/Appellant,
v.
State
of Oklahoma; Dan and Raylene Deskin, Defendants/Appellees.
No.
95,428.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. 1.
Decided Aug. 24, 2001.
Rehearing
Denied Sept. 28, 2001.
Certiorari
Denied Dec. 4, 2001.
*245 Appeal
from the District Court of Pottawatomie County, Oklahoma; Honorable John
Gardner, Judge.
AFFIRMED.
Lucille A. Poauty, Shawnee,
OK, Pro Se.
Misty Tiller, Assistant
District Attorney, Shawnee, OK, For Appellee State.
Sheila G. Kirk, Chandler,
OK, For Appellees Dan and Raylene Deskin.
Opinion by LARRY JOPLIN,
Judge:
¶ 1 Lucille A. Poauty
(Grandmother), maternal grandmother of S.T., J.T. and C.T. (Children),
seeks review of the trial court's order denying her petition to vacate
(and/or motion for new trial) after the trial court granted the application
to adopt by Dan and Raylene Deskin (Parents). In this appeal, Grandmother
pro se
alleges non-compliance with the adoption provisions of the Oklahoma and
Federal Indian Child Welfare Acts; misconduct by the Oklahoma Department
of Human Services; and a failure of agreed-to visitation.
[FN1] Having
reviewed the record, however, we find no error as alleged, and hold the
order of the trial court should be affirmed.
FN1.
Although Grandmother does not cite case or statutory law in her pro se
brief, she does reference the record inasmuch as alleging failures and
errors by DHS and the trial court. Accordingly, we do not dismiss her
appeal out of hand; rather, we will review the referenced portions of
the record to determine if Grandmother's allegations of error are meritorious.
¶ 2 On October 2,
1992, Children's biological mother (Mother) left them with Grandmother
*246
for a few days but failed to return.
[FN2] At a hearing on October 23, 1992, which Grandmother did not attend,
Children were adjudicated deprived and placed in DHS custody, Grandmother
having professed her inability to care for Children. DHS placed Children
in the care of their paternal grandmother, but she too was unable to care
for them, and in 1994 Children were again placed by DHS in foster care.
In 1995, the parental rights of Children's biological parents were terminated.
FN2.
A fourth child is non-Indian and not part of this appeal.
¶ 3 In late 1996,
Grandmother and the paternal grandmother requested home studies
for the purpose of obtaining custody of Children. Grandmother later rescinded
her request, and paternal grandmother "did not pass" her home
study. In January 1997, DHS filed a report, in rather scathing terms,
recommending against placement of Children with Grandmother. That same
month, Grandmother retained counsel and entered an appearance. In June
1997, Children were placed with Parents.
¶ 4 The trial court
allowed additional home studies and "re-evaluations," the results
of which were not favorable to Grandmother. In November 1997, the Choctaw
Nation,
[FN3] by and through the adoptions specialist representative, recommended
"non-familial adoption" as in Children's best interests, noting
Children's lack of family placement since 1992 notwithstanding the "adequate
time and opportunity" of "extended family" to provide care
or placement of Children.
FN3.
Of which Children were members.
¶ 5 At about the
same time, Grandmother filed her application for Children's "pre-adoptive
placement" with her as consistent with the statutory preference regarding
Indian children and setting forth her desire to adopt. One month later,
Parents filed a motion to intervene and, subsequently, a petition to adopt
Children. The trial court agreed to yet a third home study of Grandmother.
¶ 6 On November
23, 1998, the trial court held a hearing on the final decree of adoption,
and Grandmother appeared with counsel. Grandmother objected to the adoption
of Children, or in the alternative, sought to obtain specific visitation
rights. The trial court granted Parents' petition to adopt, and transmitted
to Grandmother's counsel a copy of the file along with a proposed Journal
Entry. After Grandmother's counsel failed to respond for approximately
six weeks,
[FN4] the trial court approved and entered a Final Decree of Adoption
in January 1999.
FN4.
Grandmother's counsel subsequently notified Parents' counsel that "in
the near future," he would be "in touch."
¶ 7 Nine months
later, Grandmother filed a petition to vacate the decree of adoption or,
in the alternative, a motion for new trial, alleging lack of notice and/or
approval of the Final Decree and post-decree nunc
pro tunc orders
affecting Children's name change. In the meantime, the paternal grandmother
challenged Grandmother's petition to vacate, arguing Parents' adoption
should be approved or, in the alternative, custody should be vested in
her. In January 2000, Grandmother filed a second amended motion to vacate
"or in the alternative motion to enforce visitation agreement and
to clarify order granting
visitation to grandparents and setting forth specific visitation to grandparents,"
arguing the trial court should enforce "the agreement" allowing
Grandmother visitation with Children not less than that provided by the
standard visitation schedule in divorce cases.
¶ 8 Shortly thereafter,
the Choctaw Nation filed a motion to dismiss Grandmother's petition, stating
it had investigated and monitored the present case since its inception
and asserted the best interests of Children would be served by Parents'
continued custody with limited visitation by Grandmother and the paternal
grandmother. In September 2000, the trial court denied Grandmother's post-judgment
motions except as necessary to allow visitation "as the parties agree"
or, absent agreement, for three hours of supervised visitation on the
first Saturday of each month. Grandmother appeals.
[FN5]
FN5.
DHS filed a response brief moving to dismiss Grandmother's appeal for
failure to join the proper appellees, the Deskins; however, the Deskins
have entered an appearance. We accordingly deny DHS's motion to dismiss
and address the matter on the merits.
*247
¶ 9 As she
did below, Grandmother invokes the protections of the Federal Indian Child
Welfare Act, 25 U.S.C. § 1903 et seq., and the Oklahoma Indian Child
Welfare Act, 10 O.S.1991 § 40.2(2). Particularly, Grandmother
argued (and argues) that as a statutorily defined "Indian custodian,"
she could not consent to foster care for Children, her wards, without
approval of a judge of a court of competent jurisdiction who certified
that the terms and consequences of the "Indian custodian's"
consent were fully explained in detail and understood. While we agree
the cited law indeed provides, we cannot say those provisions operate
in Grandmother's favor.
[FN6]
FN6.
The sections of the Federal Indian Welfare Act cited by Grandmother all
refer to an Indian child's parent or
Indian custodian, presupposing that only one but not both may exercise
care, custody, and control of an Indian child at the same time.
¶ 10 First, upon
obtaining "physical custody" of Children in 1992, Grandmother
almost immediately surrendered custody of Children to DHS. Grandmother
did not seek to regain custody until 1995, over three years after (1)
Children had been removed from their natural parents' custody, (2) the
court adjudicated them deprived, (3) the court terminated the natural
parents' rights, and (4) the court placed Children in Parents' care.
¶ 11 Second, the
Choctaw Nation consented to placement of Children with Parents and Parents'
adoption, subject to visitation by Grandmother; Parents agreed
to visitation by Grandmother; and the trial court approved the agreement
for visitation. Grandmother essentially consented to the adoption upon
favorable visitation provisions, and the trial court entered a very specific
order regarding visitation if the parties could not agree.
¶ 12 Third, Grandmother
waited for nine months after entry of the final decree of adoption before
challenging the decree by her petition to vacate, then seeking visitation
beyond that agreed to by Parents. The Choctaw Nation opined that Children's
best interests were served by limited visitation with Grandmother.
¶ 13 Grandmother
was accorded years to demonstrate a desire and ability to provide a proper
home for Children, which Grandmother failed to do. Grandmother acquiesced
to Children's adoption while represented by counsel, notwithstanding Grandmother's
protestations to the contrary in this appeal. The Choctaw Nation recommended
both Parents' adoption and limited visitation by Grandmother.
¶
14 Under these facts and the circumstances of this case, we consequently
cannot say Grandmother qualifies as an "Indian custodian" having
temporary custody of Children as to enjoy the statutory custodial preference.
Absent evidence of Grandmother's status as an "Indian custodian"
of Children so as to bring her under the purview of the state and federal
Indian child welfare acts, a grandparent has no constitutional right to
visitation with a grandchild.
K.R. v. B.M.H.,
1999 OK 40, ¶ 17, 982 P.2d 521 ("This Court has held that grandparents
have no constitutional right to custody of or visitation with their grandchildren.")
Grandparental visitation may be allowed only if the trial court, in the
exercise of its sound discretion, determines such visitation is in the
best interests of the child(ren), and the trial court's judgment will
not be disturbed on appeal unless clearly against the weight of the evidence
or affected by an abuse of discretion. 10 O.S. § 5; Kahre
v. Kahre, 1995
OK 133, 916 P.2d 1355. Having thoroughly reviewed the record, we find
the trial court's order denying Grandmother post-trial motion challenging
adoption and visitation unaffected by reversible error.
¶ 15 The order of
the trial court denying Grandmother's petition to vacate/motion for new
trial is therefore AFFIRMED.
ADAMS, P.J., concurs
in result; JONES, J., concurs.
38 P.3d 245, 2002 OK
CIV APP 2
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