| (Cite
as: 69 P.3d 1226)
Court
of Civil Appeals of Oklahoma,
Division
No. 1.
In
the matter of M.J.J., J.P.L., and J.P.G., alleged deprived children,
Marie
E.
Geiss, Respondent/Appellant,
v.
STATE
of Oklahoma, Petitioner/Appellee.
No.
97,758.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. 1.
April 4, 2003.
*1227 Appeal
from the District Court of Carter County, Oklahoma; Honorable Thomas S.
Walker, Trial Judge.
AFFIRMED
Eric R. Jones, Ardmore,
OK, for Respondent/Appellant.
Mitchell D. Sperry, District
Attorney, Ardmore, OK, for Petitioner/Appellee.
Opinion by CAROL M. HANSEN,
Judge.
¶ 1 Appellant, Mary
E. Geiss (Mother) seeks review of the trial court's order terminating
her parental rights as to the minor children, M.J.J., J.P.L., and
J.P.G.
[FN1] It is undisputed that the children are members of the Chickasaw
Tribe and that this action is subject to the Indian Child Welfare Act
(ICWA), 25 U.S.C. §§ 1901 et
seq., as amended,
and the Oklahoma Indian Child Welfare Act, 10 O.S.2001 §§ 40
et seq.
The purpose of the Oklahoma Act is clarification of state policies and
procedures regarding implementation by the state of the ICWA. 10 O.S.2001
§ 40.1.
FN1.
The parental rights of John Patrick Lee (Lee) to J.P.L and J.P.G. were
also terminated in the same order, but he did not appeal and is not a
party here.
¶ 2 Mother stipulated
to the allegations supporting Appellee State's Petitions to have the children
adjudicated as deprived. After the children were adjudicated deprived,
the trial court established a treatment plan proposed to correct the conditions
which led to the adjudication. In December 2001, some ten months after
the initial disposition order setting the standards of conduct in the
treatment plan, State moved to terminate Mother's parental rights to the
three named children. Mother waived her right to a jury trial. The trial
court ordered termination and Mother appeals from that order.
¶ 3 In her first
proposition, Mother contends the trial court erred by failing to comply
with that portion of the ICWA, specifically 25 U.S.C. § 1912(f),
as
amended, which provides:
No
termination of parental rights may be ordered ... 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.
¶ 4 Mother argues
the trial court's order is fatally defective because the court "makes
no reference to the Statute, and more importantly does not state that
its determination was made upon a showing of proof beyond a reasonable
doubt as specifically required by the Statute." The argument here
is thus one of failure to comply with a purported requirement to express
a finding in the order, and not failure of evidence to support the trial
court's determination. We find this argument has no merit.
¶ 5 While §
1912(f) clearly establishes the trial court standard of proof for termination
of parental rights under the ICWA, there is no duty thereunder for the
court to express in its order that it has complied with that standard.
The cases cited by Mother do not impose that requirement and we have not
been made aware of any legal authority which does. The trial court's order
sets forth, inter
alia, the following
findings:
1.
There has been compliance with the Indian Child Welfare Act.
2.
Continued custody of the children by the parents is likely to result in
serious
emotional harm to the children.
¶ 6 The order reflects
the trial court did expressly set out the ICWA as the legal basis for
its determination, and, in statutory language from § 1912(f), articulated
the conclusion of law mandated by that section. Mother's argument is very
similar to that made to the Georgia Court of Appeals in In
the Interest of A.L.L.,
211 Ga.App. 767, 440 S.E.2d 517 (1994). The contention there was that
the trial court had erred by not stating the "clear and convincing"
standard in its order.
¶ 7 The A.L.L.
Court found no reversible error, holding "[t]he standard of clear
and convincing evidence bound the trial court, *1228
even though those words are not stated in the order", and noted,
"[t]he trial judge is presumed to know the law.. and presumed to
faithfully and lawfully (perform) the duties devolving upon by the law."
(Citations omitted). We find the Court's reasoning in A.L.L.
persuasive. The trial court here expressed its compliance with the ICWA
and stated the requisite finding in the statutory language of § 1912(f).
We will presume the trial court was aware of the standard of proof mandated
by § 1912(f) and complied with that standard.
¶ 8 As we understand
it, Mother's next contention is that State failed to establish, through
an "Indian expert witness", that the continued custody of the
children by Mother would be likely to result in serious emotional damage
to the children. There is, however, no absolute requirement that the "qualified
expert
witnesses" necessary for a finding under § 1912(f) be an "Indian
expert witness". In
the Matter of N.L.,
1988 OK 39, 754 P.2d 863.
¶ 9 In N.L.,
the Oklahoma Supreme Court held, pertaining to expert witnesses under
§ 1912(f), "[s]pecial knowledge of Indian life is not necessary
where a professional person has substantial education and experience and
testifies on matters not implicating cultural bias." The Court further
held that social workers may qualify as expert witnesses under §
1912(f) if they possess "expertise beyond the normal social worker
qualifications."
¶ 10 In the matter
before us, State presented the testimony of Sherrie West (West), a social
worker for the Chickasaw Nation child welfare department. West testified
she was a member of the Chickasaw Nation and was familiar with the culture
of that tribe. She further testified the allegations supporting termination--emotional
abuse and use of marijuana and other drugs--were not consistent with the
culture of the tribe. West did not testify regarding the effect of continued
custody of the children by Mother.
¶ 11 The substance
of West's testimony was that cultural bias was not implicated here. In
Matter of N.L.,
the Oklahoma Supreme Court cited and quoted from State
ex rel. Juvenile Department v. Tucker,
76 Or.App. 673, 710 P.2d 793 (1985). In Tucker,
the Oregon Court of Appeals noted the issue was whether continued custody
of the child by the mother would result in serious emotional harm because
of the mother's mental illness. Under the circumstances there,
the Court found termination had nothing to do with the mother's fitness
to care for the child according to the cultural dictates of her tribe.
Similarly, here there is no evidence that Mother's deficiencies were in
any way associated with the cultural dictates of her tribe. In fact, the
evidence is that there is no such association.
¶
12 In the absence of implication of cultural bias, the expert witness
may be a social worker who possesses expertise beyond the normal social
worker qualifications. State presented such a witness, Angela Armstrong
(Armstrong), a Department of Human Services (DHS) employee who was the
treatment/permanency social worker assigned to help Mother complete the
treatment plan. She had been with DHS for four years, and previously had
been a counselor for a "therapeutic foster care agency" with
training and experience in counseling children with special behavioral
problems.
¶ 13 Armstrong testified
in detail concerning her efforts to assist Mother with her treatment plan
and the condition of the children when removed from Mother's custody and
improvements of the children in foster care. Armstrong concluded the children
would be "at risk of harm if they were placed in the custody of"
Mother. Armstrong possessed expertise beyond that of the normal social
worker, that is, counseling children with behavioral problems. Because
cultural bias is not implicated in this case, Armstrong is qualified to
testify as an expert witness under § 1912(f). Matter
of N.L., 754
P.2d at
868.
¶
14 Armstrong testified J.P.L., who was two years old at the time, had
severe behavioral and emotional problems when he was removed from the
home. M.J.J., who was nine years old, had to be placed in special education
classes. J.P.G. was born after his siblings had been adjudicated deprived
and was adjudicated deprived as a *1229
new-born. Mother admitted smoking marijuana while pregnant with J.P.G.
M.J.J. and J.P.L. experienced improvement after being removed and when
Mother was denied visitation with J.P.L. because his counselor thought
the visits would be detrimental. Armstrong testified J.P.L. was still
in treatment at the time of trial, that his "behaviors are slowly
decreasing" and that his treatment had been a "long, slow road."
¶ 15 Armstrong testified
the children needed a stable, structured environment and that J.P.L. needed
a lot of nurturing and guidance. She stated she did not believe Mother
could provide such an environment. She said M.J.J. had disclosed physical
abuse by her step-father, John Patrick Lee (Lee), and that M.J.J. was
afraid of him. M.J.J. chose not to have visitation with Mother, partly
because she felt Mother had abandoned her for Lee.
¶ 16 Armstrong further
testified Mother had not exhibited the ability to protect the children.
She had "on numerous occasions" discussed with Mother "what
Mr. Lee's done to the children". Mother admitted knowledge of physical
abuse, but continued to stay with Lee. Mother did attend counseling regularly
for
several months, but never satisfactorily completed a course of counseling.
On cross-examination, Armstrong testified that when she discussed appropriate
housing with Mother, Mother said she did not want to leave Lee. She had
also discussed domestic violence with Mother, but neither Mother nor Lee
would participate in counseling.
¶ 17 Our review
of factual issues in parental termination cases, including those coming
under the ICWA, is no different than on any appeal from a judgment on
a jury verdict,
[FN2] i.e.
where there is competent evidence reasonably tending to support the trial
court's judgment, it will not be disturbed on appeal. In
re M.D.R.,
2002 OK CIV APP 75, 50 P.3d 1160. Legal errors are reviewed de
novo. We find
no errors of law. There is competent evidence of record to support, beyond
a reasonable doubt, the trial court's determination to terminate Mother's
parental rights.
FN2.
In our review, the findings of a trial court sitting without a jury in
a case of legal cognizance are to be given the same weight which would
be given the verdict of a well-instructed jury. Sides
v. John Cordes, Inc.,
1999 OK 36, 981 P.2d 301.
¶ 18 AFFIRMED.
JONES, J., and MITCHELL, P.J., concur.
69 P.3d 1226, 2003 OK
CIV APP 43
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