| (Cite
as: 50 P.3d 1160)
Court
of Civil Appeals of Oklahoma,
Division
No. 3.
In
the Matter of M.D.R., Deprived Child, Lisa Reagan, Respondent/Appellant,
v.
The
STATE of Oklahoma, Petitioner/Appellee.
No.
96,013.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. 3.
June 21, 2002.
*1160 Appeal
From The District Court of Washington County, Oklahoma; Honorable Janice
Dreiling, Judge.
VACATED
AND REMANDED WITH INSTRUCTIONS.
Kristi K. Sanders, Bartlesville, OK, for Respondent/Appellant.
Teressa H. Williams,
Assistant District Attorney, Bartlesville, OK, for Petitioner/Appellee.
Opinion by BAY MITCHELL,
Judge.
¶ 1 Lisa Reagan,
Respondent/Appellant, appeals an order terminating her parental rights.
The order was entered by the trial court based on a unanimous jury verdict.
The ground for termination recited in the order was that "Appellant
has failed to correct the conditions" and that termination "is
in the best interests of [the] child."
¶ 2 In 1997, the
State first filed a petition seeking to have the child found deprived.
*1161
That petition alleged, and it was subsequently found, the child had been
sexually molested by her uncle, grandfather and another, had witnessed
domestic violence in the home, had been cared for (while Appellant was
incarcerated) by the step-father who abused alcohol, and had been physically
abused for speaking to Department of Human Services (DHS) workers. Appellant
did not dispute these allegations. A service plan was adopted by the court
which required Appellant to correct the conditions which led to the adjudication
of deprived. The care and custody of M.D.R. was placed with DHS.
¶ 3 The State subsequently
amended the "deprived" petition adding that the grandfather
had continued to bring alcohol into Appellant's home since the adjudication,
that M.D.R. had been counseled to lie to DHS workers about alcohol in
the home, that step-father had overdosed on drugs and alcohol and was
increasingly violent, that Appellant had indicated she would leave step-father
and divorce him, but was living with him again since the adjudication.
The mother again did not dispute these allegations. An amended adjudication
order was entered requiring Appellant to correct the conditions.
¶ 4 Appellant substantially
complied with the service plan adopted by the trial court and the child
was returned to her home. However, approximately two months later, the
child was again removed from Appellant's home due to allegations of contact
between the child and one of her former sexual abusers. The State filed
a motion for termination of Appellant's parental rights. The motion asserted
Appellant had failed to protect the child from abuse and neglect. The
motion also alleged that Appellant had been given in excess of 90 days
to correct a condition which led to M.D.R. being adjudicated as deprived
and had failed to correct the condition. Because one of the child's parents
was a member of the Osage Tribe, that tribe was given notice of the pendency
of the motion to terminate the parental rights and allowed the opportunity
to intervene. When the trial was set, the tribe was given notice of the
date and time of the jury trial and again given the opportunity to intervene.
There is no evidence in the record of the tribe having done so.
¶ 5 Following a jury trial the court entered judgment on the verdict.
Appellant appeals and contends as error: The Order terminating her parental
rights does not refer to specific
statutory grounds for termination; the State's expert witness was not
a properly qualified expert under the Indian Child Welfare Act; the Order
contains no finding of compliance with the Indian Child Welfare Act; and
the State failed to prove beyond a reasonable doubt that Appellant had
failed to correct the conditions which led the child to being adjudicated
deprived.
¶ 6 The statutory
grounds for terminating a parent's parental rights are found at 10 O.S.2001
§ 7006-1.1. Ordinarily, the State's obligation is to prove one or
more of these grounds by "clear and convincing" evidence. However,
where, as here, the Indian Child Welfare Act is involved
[FN1] the State must prove "beyond a reasonable doubt" that
continued custody by the parent is likely to result in serious damage
to the child. 25 U.S.C.1912(f); Matter
of J.W., 1987
OK CIV APP 60, 742 P.2d 1171, 1175. Our review of factual issues is no
different than on any appeal from a judgment on jury verdict; where there
is competent evidence reasonably tending to support the verdict the judgment
thereon will not be disturbed on appeal. Matter
of T.R.W.,
1985 OK 99, 722 P.2d 1197, 1200. Legal errors, of course, are reviewed
de novo.
FN1.
The Appellant and her child are members of the Osage tribe.
¶ 7 Appellant first
contends that the order terminating her parental rights does not contain
"statutorily mandated predicatory findings." She relies on Matter
of L.S., 1990
OK CIV APP 94, 805 P.2d 120 and Matter
of E.M., 1999
OK CIV APP 32, 976 P.2d 1098. Both cases were reversed and remanded because
the termination orders failed to identify the specific statutory basis
relied on, did not contain the specific findings required by that statutory
provision and did not identify what conditions Appellant failed to correct
which led to the adjudication order. See also, Matter
of B.M.O.,
1992 OK CIV APP 89, 838 P.2d 38, 40.
*1162
¶ 8 Such is the situation in the instant case. The termination order
merely states that Appellant "has failed to correct the conditions"
and that termination of Appellant's rights "is in the best interests
of said child". The specific statutory basis is not identified, necessary
statutory findings are absent and the "conditions" are not identified.
Although there appears to be evidence supportive of certain underlying
facts in this case, the order appealed is fundamentally deficient and
must be vacated.
¶ 9 A related allegation
of error is that the termination order also lacks a finding of compliance
with the Indian Child Welfare Act as required by Rule 8.2, Rules for District
Courts of Oklahoma, 12 O.S. Supp. Ch. 2, App.
1.
[FN2] This is mandatory, not optional. Being mandatory, this oversight
also requires the termination order be vacated.
FN2.
"All decrees of adoption, divorce or separate maintenance where custody
of a minor Indian child or children is given to a third party, all orders
of adjudication in juvenile proceedings, termination of parental rights
and all final orders in Habeas Corpus and guardianship of the person proceedings
resulting in the adjudication of status, custody or wardship of minor
children, shall contain a finding of compliance with 25 U.S.C.A.1901 et
seq. (Indian Child Welfare Act of 1978), ..."
¶ 10 The order terminating
Appellant's parental rights is vacated and this matter is remanded to
the trial court, not for a new trial, but with instructions for the trial
court to enter a proper final order correcting the deficiencies described
herein. It is unnecessary to address Appellant's remaining allegations
of error at this time.
¶ 11 VACATED AND
REMANDED WITH INSTRUCTIONS.
HANSEN, P.J., and ADAMS,
J., concur.
50 P.3d 1160, 2002 OK
CIV APP 75
|