| (Cite
as: 964 P.2d 241)
Court
of Civil Appeals of Oklahoma,
Division
No. 3.
In
the Matter of M.K. and L.K., alleged deprived children.
Robert
KNIGHT, Appellant,
v.
The
STATE of Oklahoma, Appellee.
No.
90,773.
Released
for Publication by Order of the Court
of
Civil Appeals of Oklahoma, Division No. 3.
June 30, 1998.
*242 Appeal
from the District Court of Logan County.
Larry R. Brooks, Judge.
AFFIRMED.
Larry Monard, Oklahoma
City, for Appellant.
Robert L. Hudson, District
Attorney, and Connie S. Pope, Assistant District Attorney, Guthrie, for
Appellee.
OPINION
ADAMS, Judge.
¶ 1 Robert Knight
(Father) asks us to reverse a trial court order, entered pursuant to a
jury verdict, which terminated his parental rights to his minor children
M.K and L.K. Father alleges two constitutional violations as the basis
of this appeal: (1) as a non-Indian, he was denied equal protection of
the law when the triad court denied his request for a jury instruction
with the same
burden of proof required in termination cases involving parents of Indian
children pursuant to 25 U.S.C. § 1901 et
seq., the Indian
Child Welfare Act (the ICWA); and (2) he was denied due process when the
trial court overruled his demurrer to the evidence during which he argued
the State of Oklahoma (State) failed to prove that he received a copy
of the service plan or that he understood the consequences of his failure
to complete the service plan.
¶ 2 The undisputed
facts are as follows: M.K. and L.K. were approximately 16 and 3 months
old, respectively, when they were placed in the custody of the Department
of Human Services (DHS) in August of 1992 because their parents' home
was filthy and L.K. had failed to thrive. In October 1993, DHS attempted
to reunite the family but returned the minor children to foster care after
only one month because the family was homeless and the children were not
receiving proper care. In late December 1993, the family was again reunited,
and other than parents' voluntary placement of children temporarily with
their foster parents, the family remained together until April of 1995,
when DHS learned that they were again homeless and that Father had tested
positive for cocaine. That same month, State, on behalf of DHS, filed
a petition seeking to adjudicate M.K. and L.K. to be deprived *243
based primarily on Father's positive drug test.
¶ 3 At an adjudication
hearing in October of 1995, Father stipulated to the allegations in State's
petition and both M.K and L .K. were adjudicated to be deprived.
[FN1] The dispositional order with service plan was also entered at that
hearing. The plan set forth several conditions with which Father was ordered
to comply.
[FN2] As a result of Father's failure to complete that plan, a new service
plan was entered in December of 1996, and when he did not complete the
second, a third plan
[FN3] was entered in February of 1997. Father's failure to comply with
that plan led State to file its application to terminate his parental
rights.
FN1.
Although the file stamp indicates it was not filed until August 5, 1997,
the "Amended Journal Entry of Adjudication as to Robert Knight, Father
of [M.K.] and [L.K.]" was admitted into evidence at the jury trial
with no objection by Father.
FN2.
The first service plan required, in pertinent part, that Father: (1) submit
to a drug assessment; (2) submit to a drug test once a week until he tests
negative for six weeks consecutively and thereafter, random drug testing
every three months, (3) have weekly, DHS-supervised visitation with [L.K.];
and [L.K.]; (4) test negative three consecutive weeks before the children
would be placed back in the home under the auspices of DHS; and (5) pay
child support in the amount of $138.00 per month.
FN3.
The changes to Father's requirements under the third service plan were
minimal--completion of a drug and alcohol assessment and parenting classes,
a negative drug test before monthly visit with children, and an increase
in child support to $180.
¶ 4 During Father's
jury trial on December 16, 1997, State introduced evidence from a DHS
social worker that since the first service plan in 1995, Father never
received a drug and alcohol assessment and never completed parenting classes.
State admitted the results of 11 different urine drug screens, eight of
which were positive, either for cocaine or marijuana. Father, who was
called as a witness during State's case, admitted that the court ordered
him to have weekly drug screens and that out of the 112 weeks since he
had been ordered to do so, he had submitted only 13. After State rested
and the children's attorney declined to introduce any evidence, Father
demurred. The trial court overruled his demurrer to the evidence, and
Father rested. The jury returned a verdict finding that Father's rights
should be terminated. The trial court entered an order accepting that
verdict, and this appeal followed.
¶ 5 In his first
proposition of error, Father correctly points out that the ICWA, specifically
25 U.S.C. § 1912(f),
[FN4] mandates a higher burden of proof for termination of parental rights
as to Indian children, i.e.,
evidence
beyond a reasonable doubt, than was applied to him. The policy behind
such Congressional mandate is provided by 25 U.S.C. § 1902:
FN4.
There is no corresponding section in the "Oklahoma Indian Child Welfare
Act," 10 O.S.1991 § 40 et
seq., which
was adopted by our Legislature, effective April 6, 1982, with the purpose
of clarifying state policies and procedures regarding the implementation
of the ICWA and the policy, inter
alia, to cooperate
with state Indian tribes to ensure that the intent and provisions of the
ICWA are enforced. See
10 O.S.1991 § 40.1.
The Congress hereby declares
that it is the policy of this Nation to protect the best interests of
Indian children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards for the
removal of Indian children from their families and the placement of such
children in foster or adoptive homes which will reflect the unique values
of Indian culture, and by providing for assistance to Indian tribes in
the operation of child and family service programs.
¶ 6 Father does not
contend the ICWA applies to this case, but argues the trial court erred
in instructing the jury that his parental rights could be terminated if
proof of the statutory elements was clear and convincing,
[FN5] instead of a jury instruction with the ICWA burden of proof as he
requested. *244
He argues the ICWA provides Indian parents with greater protection against
losing parental rights than non-Indians, and the use of the lesser burden
of proof at his termination hearing violated his right to equal protection
of law as guaranteed by the Fourteenth amendment of both the U.S. and
Oklahoma Constitutions. Father has cited no case authority in support
of this argument.
FN5.
Pursuant to 10 O.S.Supp.1995 § 7006-1.1, in order to terminate parental
rights, the state must show, by clear and convincing evidence, that (a)
the child is deprived; (b) such condition is caused or contributed to
by acts or omissions of the parent; and, (c) termination of parental rights
is in the best interests of the child.
¶ 7 While it might
be argued that under traditional equal protection analysis the disparate
treatment provided by the ICWA requires strict scrutiny as discrimination
based upon race
[FN6], the United States Supreme Court has held otherwise. When considering
the State of Montana's racial discrimination argument concerning tax immunity
extended to Indians living on reservations in Moe
v. Confederated Salish & Kootenai Tribes, Etc.,
425 U.S. 463, 480, 96 S.Ct. 1634, 1644, 48 L.Ed.2d 96 (1976), the Court
stated:
FN6.
We note that nothing in the ICWA prevents states like Oklahoma from requiring
proof "beyond a reasonable doubt" in all termination cases.
Father argues not so much that the ICWA is unconstitutional as he does
that Oklahoma denies him equal protection of the laws by not requiring
that burden of proof in all cases.
we think [that argument]
is foreclosed by our recent decision in Morton
v. Mancari,
417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). In reviewing the variety
of statutes and decisions according special treatment to Indian tribes
and reservations, we stated, id.,
at 552-555, 94 S.Ct., at 2483-2485, 41 L.Ed.2d, at 302:
"Literally
every piece of legislation dealing with Indian tribes and reservations
... single(s) out for special treatment a constituency of tribal Indians
living on or near reservations. If these laws, derived from historical
relationships and explicitly designed to help only Indians, were deemed
invidious racial discrimination, an entire Title of the United States
Code (25 U.S.C.) would be effectively erased and the solemn commitment
of the Government toward the Indians would be jeopardized.
* * * * * *
"On
numerous occasions this Court specifically has upheld legislation that
singles
out Indians for particular and special treatment."
The
test to be applied to these kinds of statutory preferences,
which we said were neither "invidious" nor "racial"
in character, governs here:
"As
long as the special treatment can be tied rationally to the fulfillment
of Congress' unique obligation toward the Indians, such legislative judgments
will not be disturbed."
Id.,
at 555, 94 S.Ct., at 2485, 41 L.Ed.2d, at 303. (Emphasis added).
¶ 8 Although it
does not appear that the United States Supreme Court has had occasion
to apply the Mancari
test to the ICWA, at least one state court has applied the test to non-Indian
adoptive parents' argument that the ICWA is unconstitutional as a denial
of equal protection. In Application
of Angus, 60
Or.App. 546, 655 P.2d 208, 213 (1982), rev.
den. 294 Or.
569, 660 P.2d 683, cert.
den. sub nom.
464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983), the Oregon Court of
Appeals, after considering that "[t]he goal of the ICWA is to protect
Indian families against disruption," denied the argument, stating
"[w]e hold the protection of the integrity of Indiani families to
be a permissible goal that is rationally tied to the fulfillment of Congress'
unique guardianship obligation toward the Indians." Father has not
furnished any authority suggesting otherwise and we have found none.
¶
9 Applying the Mancari
test as we must, we conclude the heightened burden of proof required for
termination of a child covered by the ICWA is rationally
tied to Congress' responsibility for policy towards Indian families. The
trial court's failure to instruct the jury that the State was required
to prove its case against Father beyond a reasonable doubt was not an
error and did not violate Father's constitutional right to equal protection
of the law.
¶ 10 Finally, Father
argues that he was denied due process because State was not required to
prove he was reasonably informed of or understood the service plan *245
requirements, i.e.,
there was no evidence establishing that he received a copy of the service
plan, that he agreed to the service plan or that a hearing was held or
waived dealing with the service plan. This argument is simply not supported
by the record.
¶ 11 Unlike the case
Father relies upon for his authority, In
the Matter of C.G.,
1981 OK 131, 637 P.2d 66, wherein the record lacked written
"judicially-prescribed norms of conduct to which the parent is expected
to conform," the record in this case reflects that Father and his
attorney were present in court on October 18, 1995, when the first service
plan was presented and ordered by the court. Furthermore, Father signed
the third service plan, ordered by the trial court on February 18, 1997,
which included a statement explaining the consequences for not completing
the plan, as required by 10 O.S.Supp.1996 § 7003-5.3(E).
[FN7] More importantly, the record is replete with evidence, including
Father's testimony during State's case, that he fully understood
the plan requirements.
FN7.
Effective November 1, 1996, 10 O.S.Supp.1996 § 7003-5.3(E) provided
that an individual treatment and service plan shall include the following
statement:
TO
THE PARENT: THIS IS A VERY IMPORTANT DOCUMENT. ITS PURPOSE IS TO HELP
YOU PROVIDE YOUR CHILD WITH A SAFE HOME WITHIN THE REASONABLE PERIOD SPECIFIED
IN THE PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE YOUR CHILD WITH
A SAFE HOME, YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE RESTRICTED
OR TERMINATED OR YOUR CHILD MAY NOT BE RETURNED TO YOU.
¶ 12 Father has
not demonstrated any violation of his right to due process or equal protection,
and where, as here, there is competent evidence reasonably tending to
support the verdict of a jury, the judgment based thereon will not be
disturbed on appeal. Matter
of T.R.W.,
1985 OK 99, 722 P.2d 1197. The judgment of the trial court is affirmed.
¶ 13 AFFIRMED.
HANSEN, J., and BUETTNER,
P.J., concur.
964 P.2d 241, 1998 OK
CIV APP 118
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