| (Cite
as: 742 P.2d 1171)
Court
of Appeals of Oklahoma,
Division
No. 3.
In
the Matter of J.W., A.W., & B.W., Children Under the
Age of 18 Alleged
Deprived
as Defined by the Laws of Oklahoma.
Sarah
Beth ALEXANDER, Appellant,
v.
William
N. PETERSON, District Attorney, Pontotoc County; Chris L. Ross,
Assistant
District Attorney; Oklahoma State Department of Human Services,
Pontotoc
County; Frank Baber, Attorney for J.W., A.W., & B.W.,
Appellees.
No.
66795.
Released
for Publication by Order of the Court
of
Appeals of Oklahoma, Division No. 3.
Aug. 25, 1987.
*1172 Appeal
from the District Court of Pontotoc County; Jess E. Green, judge.
Mother appeals from an
order terminating her parental rights tried under the Indian Child Welfare
Act.
REVERSED AND REMANDED
WITH DIRECTIONS
Judy Lewis and Susan
Work Haney, Oklahoma City, for appellant.
Chris Ross, Asst. Dist.
Atty., Ada, for appellees.
HANSEN, Presiding Judge:
We are called upon today
to decide questions arising from an order of the trial court terminating
Appellant's parental rights to her minor children. These questions focus
on procedural and due process requirements and arise from the trial court's
failure to abide strictly by the Federal Indian Child Welfare Act (ICWA)
and the procedural protections provided by the Oklahoma Juvenile Code,
10 O.S.1985 Supp. § 1101 et seq.
10 O.S.1985 Supp. §
40 et seq., the Oklahoma Indian Child Welfare Act, clarifies
policies and procedures of this state regarding implementation of the
Federal Indian Child Welfare Act, 25 U.S.C.A. § 1901 et seq. (ICWA).
In order to maintain the integrity of the various Indian tribes and to
protect Indian children and the concept of the extended Indian family,
this Act creates precise and binding procedural protections. These protections
apply to all custody proceedings involving Indian children arising under
the Oklahoma Juvenile Code where termination of parental rights is an
issue.
It is undisputed Appellant
and her children are Chickasaw Indians. The father's rights were terminated
in a separate unappealed order. The children were adjudicated deprived
on December 30, 1983. That order was on a preprinted form and stated "adjudication
was a result of the following conditions: Based on testimony *1173
heard by parents Court finds the respondent's (sic) are deprived."
No further basis for the adjudication is contained in this order. However
the order contained a preprinted list of stereotypic commands, three of
which were checked off as applicable. First, Appellant was not to consume
alcohol or drugs; second, she was to fully cooperate with DHS worker;
Third, she was to seek and obtain employment; and, a fourth, typewritten
directive, "parents were to provide a stable environment for their
children."
At the dispositional
hearing on February 9, 1984, the trial court placed the children in the
custody of the Department of Human Services (DHS). At that time,
Appellant's court appointed attorney was released. The dispositional order
set out the following service plan:
Court
further directs Sara Beth Alexander to do the following:
(1)
Cooperate with the Department of Human Services worker, and the Chickasaw
worker.
(2)
Provide medical care and basic needs of the children.
(3)
Attend not less than 4 hours of maritial (sic) counseling, not less than
4 hours of parenting counseling, and not less than 4 hours of alcohol
counseling.
(4)
Ms. Walker should move to the Ada area as soon as possible.
Although the record does
not reflect the circumstances, Appellant later voluntarily placed the
children with DHS because she and her husband were separated and she had
no income or residence. The record does reflect that although Appellant
signed the papers for voluntary foster care placement, it was not done
in front of a judge as required by § 1913(a) of the ICWA. At each
of several review hearings, orders similar to the February 9 order were
prescribed. At no time during these proceedings was Appellant appointed
counsel or advised she had that right.
On September 25, 1985
the State of Oklahoma (State) filed its petition for termination of Appellant's
parental rights. No counsel was appointed for the hearing originally scheduled
for November 5, 1985 and continued to December 5, 1985.
On December 20, 1985 Appellant obtained independent counsel upon suggestion
of the Chickasaw Nation caseworkers.
On January 30, 1986 Appellant
entered into a new service plan consisting of the following:
She
was ordered to:
1.
Stabilize marital situation,
2.
Maintain housing suitable for children,
3.
Continue education and/or employment,
4.
Attend Parent Counseling not less than four (4) hours a month,
5.
Attend Alcoholism Counseling classes,
6.
Visit children not less than once a week,
7.
Pay Child Support not less than 10% of earned income, and
8.
Attend to medical needs of children as required.
The hearing was then continued for three months to allow Appellant to
comply with the new plan.
At the hearing on May
30, 1986, the trial court took testimony from the DHS caseworker in support
of State's petition. Appellant and the caseworker from the Chickasaw Nation
testified on behalf of Appellant. Their testimony as well as that of the
DHS caseworker was that she had complied with the January 30th requirements
except she was unemployed. She was still going to school and was in the
process of seeking employment. She was also in the process of obtaining
a divorce from the children's father. She had been living with another
man in his house until the DHS caseworker advised her this was improper.
The man moved out of his house so that she could remain there. Appellant
wanted her children back.
At the conclusion, the
trial court terminated Appellant's rights to her three children. She now
appeals.
Appellant first argues
as error that she was denied counsel during certain critical stages of
the proceedings. We *1174
agree. Section 1912(b) of the ICWA states: "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." State argues the review hearings between adjudication
and termination are not critical stages which require appointment of counsel.
We do not agree. What more critical time in such a proceeding than when
a parent is attempting to meet DHS standards in order to prevent the loss
of her children? The right to counsel is an element of procedural due
process as well as a mandate of the ICWA. Counsel must be appointed unless
knowingly and intelligently waived. The assistance of counsel is a statutory
requisite under the ICWA. As such that right does not depend on a specific
request.
[FN1]
FN1.
In the Matter
of Chad S.,
580 P.2d 983 (Okla.1978).
We also agree the trial
court failed to provide Appellant with adequate notice of the conditions
which she had to correct if termination was not to be the end result.
Without knowledge of the expected norms of personal conduct with which
she was expected to comply, Appellant could not be expected to conform.
What does it mean to provide a stable environment? A DHS service plan
is an admirable and useful means to that end. But whether a parent has
complied to the letter with each dictate of that plan is not the determining
factor. The question remains whether Appellant has failed to show the
conditions have been corrected which led to the finding her children were
deprived.
[FN2]
FN2.
10 O.S.1985 Supp. § 1130(A)(3).
Judicial clarity in the
prescribed norms of parental conduct is essential to the preservation
of the procedural safeguards mandated by state and federal due process.
A fair warning requirement breathes life into these fundamental law guarantees,
while lack of specificity makes them meaningless.
[FN3] The State's petition alleging the children were deprived stated:
"they have improper home environment, to-wit: there is no food or
means to cook in the home
and improper parental care, to-wit: the children are suffering from colds,
head lice, impetigo, ring worms, and diarrhea." There is no mention
of these conditions in the petition for termination. Indeed there was
no evidence adduced at trial in reference to these conditions.
FN3.
Matter of C.G.,
637 P.2d 66 (Okla.1981).
The trial court based its order terminating Appellant's parental rights
on several findings, none of which addressed the ultimate question--whether
the above conditions had been corrected. The trial court found termination
of parental rights to be in the best interests of the children, and that
the children had not bonded to their mother. Appellant has been deprived
of her children for two years. If the children have been separated from
their mother for such a length of time, it could not be expected that
"bonding" would occur. No expert other than the DHS caseworker
offered any testimony to this effect or to the children's best interests.
Under these circumstances testimony of lack of bonding is not a proper
basis for termination.
Appellant also argues
there was no evidentiary basis under federal or state law to support the
termination of Appellant's parental rights. Again we agree. The evidence
did not support the finding Appellant had failed to comply with the January
30 order. To the contrary, State does not deny all but
one of the commands of the service plan were met. Appellant, however,
did not have a job. Again, a parent's unemployment is not a reasonable
basis to terminate parental rights.
The ICWA § 1912(f)
provides:
"No
termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence
beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child." (Emphasis
supplied.)
*1175
Although this standard creates a higher burden than that imposed by State
law,
[FN4] the public policy of this State is subservient to Acts of Congress
including the ICWA.
[FN5] The "beyond a reasonable doubt" standard must be applied
in termination proceedings governed by the ICWA. Although the trial court's
charge to meld the protections of the ICWA with those of the State Statutes
to insure the maximum protection to parents and their children is a heavy
one, it is incumbent upon the trial court to provide all constitutional
and statutory protections. By failing to abide strictly by the procedural
protections, a trial court is not only prejudicing the parents whose rights
are in jeopardy, but prejudicing the rights and privileges of the children
who are required to endure prolonged litigation before their fate is finally
decided and they are permitted to go about their business of growing up.
FN4.
Id.
p. 71.
FN5.
Sand Springs
Home v. State ex rel. Department of Highways,
536 P.2d 1280 (Okla.1975).
Evidence indicates Appellant
has not been a model parent. But the evidence also indicates she had tried
and is trying to regain her children and abide by the standards for behavior
set as acceptable by DHS.
As stated by Justice
Kauger in her dissent in Case No. 62,024, In
the Matter of the Adoption of Baby Boy D.,
[FN6] "Continuing separation of Indian children from their heritage
is one of the most tragic and destructive aspects of contemporary Indian
life. State intrusion into Native American parent-child relationships
impedes the ability of the tribe to perpetuate itself, and ultimately,
it unjustifiably results in a coerced assimilation of the First Americans
into a larger more homogenous society." A trial court must strictly
comply with provisions of the ICWA to ensure such unnecessary separation
does not occur.
FN6.
56 O.B.J. 2669, November 11, 1985. As of this date mandate has not
issued.
For the reasons set out
above, we reverse the order of termination with directions to dismiss
State's petition to terminate Appellant's parental rights to her three
children. The dismissal is without prejudice to further proceedings not
inconsistent with the views expressed herein.
REVERSED AND REMANDED
WITH DIRECTIONS.
BAILEY, J., concurs.
HUNTER, J., concurs in
part, dissents in part.
742 P.2d 1171, 1987 OK
CIV APP 60
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