| (Cite
as: 754 P.2d 863)
Supreme
Court of Oklahoma.
In
the Matter of N.L., an Alleged Deprived Child.
Jenny
Kay CARNEY, nee Riley, Appellant,
v.
Patrick
E. MOORE, Assistant District Attorney and Tom Moore, Attorney for
N.L.,
Appellees.
No.
66651.
April 19, 1988.
*865 Appeal
from the District Court of Okmulgee County; Ann Moroney, Trial judge.
The trial court declined
to transfer a proceeding to the Court of Indian Offenses in a proceeding
to adjudicate the status of an Indian child as deprived. The trial court
subsequently adjudicated the Indian child as deprived and placed the child
outside of the home. The mother of the child appeals the court's denial
of transfer, adjudication of the child as deprived, and the dispositional
custody order.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED WITH INSTRUCTIONS.
Judy Lewis, Oklahoma
Indian Legal Services, Oklahoma City, for appellant.
Thomas E. Moore, Okmulgee,
for appellee, State of Okl.
Patrick E. Moore, Asst.
Dist. Atty., Okmulgee County, Okmulgee, for appellant, N.L., an alleged
deprived child.
SUMMERS, Justice.
This is a juvenile case
in which N.L. was adjudicated to be "deprived" and made a ward
of the court. He was born out of wedlock on February 27, 1984. Since he
is eligible for membership in both the Kaw and Creek Indian tribes through
his mother provisions of the state and federal Indian Child Welfare Acts
[FN1] are implicated. The father is not a party in these proceedings.
FN1.
The Oklahoma Act is found at 10 O.S.Supp.1982 § 40 et seq.; the U.S.
Act at 25 U.S.C. § 1901 et seq.
A chronology of the events
in the trial court reveals the following. An order was issued on May 2,
1984, which granted temporary custody of N.L. to his maternal grandmother.
A petition was filed on May 8, 1984, which alleged that N.L. was a deprived
child as defined in 10 O.S.1981 § 1101. The petition alleged that
N.L. was neglected due to his mother's "pattern of leaving the said
child in the care of various neighbors for indefinite periods of time."
The trial court adjudicated
N.L. to be a deprived child, ordered an investigation by the Department
of Human Services, and continued the temporary custody
of N.L. with his maternal grandmother, all on June 25, 1984. The child's
mother did not appear and the return on her summons indicated that she
had "left the county with her present whereabouts unknown".
The Creek Nation filed an answer declining to intervene and the Kaw Tribe
did not appear, although the Kaw Tribe was served with notice of the proceeding.
A dispositional order
was rendered on August 9, 1984, which placed temporary custody of N.L.
with his maternal grandparents. The mother did not appear. A redispositional
hearing was held on June 17, 1985. The mother appeared with counsel at
this hearing and was granted three months to meet certain conditions or
her *866
parental rights would be subject to termination. Prior to this dispositional
hearing N.L.'s grandmother had suffered an incapacitating injury and she
had placed N.L. with the Huddlestons on her own. Custody of N.L. was then
ordered to the Huddlestons, neighbors of the maternal grandparents.
On February 12, 1986,
the trial court set aside the June 25, 1984, adjudication order, for the
reason that the mother did not receive sufficient notice of the adjudicatory
hearing of June 25, 1984. On February 14, 1986, the trial court granted
temporary custody of N.L. to the Huddlestons. On February 14, 1986, an
amended petition was filed alleging that N.L. was a deprived child for
the identical reason set forth in the original petition.
The mother filed a petition
on May 7, 1986, to transfer the proceeding to the Court of Indian Offenses.
On May 7, 1986, the court denied the petition to transfer the proceeding,
adjudicated that N.L. was a "deprived" child and made N.L. a
ward of the court. A dispositional order was pronounced on May 28, 1986,
which granted temporary custody of N.L. to the Huddlestons and imposed
conditions upon the mother. The mother appealed the orders of May 7 and
May 28.
I. PRE-ADJUDICATION ORDERS
The mother asserts on appeal that the actions of the trial court require
reversal of the adjudication order finding her child to be deprived. She
contends that the failure of the state to file an affidavit in conformity
with 10 O.S.Supp.1982 § 40.5, the absence of a hearing as provided
by 10 O.S.1981 § 1104.1, and the failure of the proceedings to conform
to 25 U.S.C. § 1922, are errors of such a magnitude as to require
reversal of the proceedings. We cannot review the mother's contention
that the trial court failed to follow these three statutes.
No motion or argument
appears in the trial court record questioning the statutory sufficiency
of the amended petition. Similarly, no motion or argument was addressed
to the trial court attacking the temporary custody orders for lack of
a hearing pursuant to 10 O.S.Supp.1984 § 1104.1. No reference to
25 U.S.C. § 1922 appears in the trial court record before us.
A party may not assign
errors on appeal which were not presented to the trial court. Arkansas
Louisiana Gas Co. v. Cable,
585 P.2d 1113, 1116 (Okl.1978);
Kepler v. Strain,
579 P.2d 191, 193 (Okl.1978).
The
misapplication of 10 O.S.Supp.1984 § 1104.1, 10 O.S.Supp.1982 §
40.5, 25 U.S.C. § 1922 does not defeat the jurisdiction of the trial
court.
[FN2]
FN2.
The trial court's jurisdiction includes the jurisdiction over the parties,
jurisdiction over the subject matter, and jurisdictional power to pronounce
the particular judgment rendered. Mayhue
v. Mayhue,
706 P.2d 890, 893 N. 8 (Okl.1985). Jurisdiction over the subject matter
occurs upon the filing of the petition. 10 O.S.1981 § 1102. The mother
appeared with counsel in the proceedings. The trial court has jurisdictional
power to specify the appropriate conduct for a parent. 10 O.S.Supp.1982
§ 1116.
Misapplication of the statutes in this case does not present a question
involving the welfare of the people at large sufficient for de
novo appellate
review.
[FN3]
FN3.
Where a question for review is of such a nature that the welfare of the
people at large is involved, the Court in its discretion may consider
the question though not presented to the trial court. First
National
Bank of Alex v. Southland Production Co.,
189 Okl. 9, 112 P.2d 1087 (1941).
The mother's allegations
of error that the trial court failed to follow 25 U.S.C. § 1922,
10 O.S.Supp.1982 § 40.5, and 10 O.S.Supp.1984 § 1104.1, do not
come within exceptions to the general rule that allegations of error must
be presented to the trial court. Therefore, they are beyond the scope
of our review on appeal.
II. EXPERT WITNESSES
The mother asserts that the adjudication of her child as deprived was
without a required expert witness. No pre-adjudicatory custody order shall
remain in force *867
and effect for more than thirty (30) days
[FN4] "without a determination by the court, supported by clear and
convincing evidence and the testimony of at least one qualified expert
witness, that custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child."
10 O.S.Supp.1982 § 40.5.
FN4.
The court may extend the effective period of the order an additional period
of sixty (60) days. 10 O.S.Supp.1984 § 40.5(B).
A court is required to consider the testimony of a qualified expert witness
before placement of an Indian child in foster care.
25 U.S.C. § 1912(e)
states:
"No
foster care placement may be ordered in such proceeding in the absence
of a determination, supported by clear and convincing evidence, 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."
A court is also required
to consider testimony of a qualified expert witness before termination
of parental rights of the parent or Indian custodian. 25 U.S.C. §
1912(f) states:
"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."
The required expert testimony is to provide the court with knowledge of
the social and cultural aspects of Indian life to diminish the risk of
any cultural bias. State
ex rel. Juvenile Department v. Tucker,
76 Or.App. 673, 710 P.2d 793, 799 (1985). The guidelines for state courts
promulgated by the United States Bureau of Indian Affairs, while not binding
on the court, assist in defining
a qualified expert witness. 44 Federal Register 67584 (1979).
"D.4
Qualified Expert Witnesses
(a)
Removal of an Indian child from his or her family must be based on competent
testimony from one or more experts qualified to speak specifically to
the issue of whether continued custody by the parents or Indian custodians
is likely to result in serious physical or emotional damage to the child.
(b)
Persons with the following characteristics are most likely to meet the
requirements for a qualified expert witness for purposes of Indian child
custody proceedings.
(i)
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization
and childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery of
child and family services to Indians, and extensive knowledge of prevailing
social and cultural standards and childrearing practices within the Indian
child's tribe.
(iii)
A professional person having substantial education and experience in the
area of his or her specialty.
(c)
The court or any party may request the assistance of the Indian child's
tribe or the Bureau of Indian Affairs agency serving the Indian child's
tribe in locating persons qualified to serve as expert witnesses."
44 Federal Register
at 67593.
The guidelines provide
that a professional person with substantial education and experience in
the area of his or her specialty may be a qualified expert witness. Special
knowledge of Indian life is not necessary where a professional person
has substantial education and experience and testifies on matters not
implicating cultural bias.
"[W]hen
cultural bias is clearly not implicated, the necessary proof may be provided
by expert witnesses who do not possess special knowledge of Indian life.
Here, the issue before the court was whether the continued custody of
the child by mother would result in serious emotional harm to the child
because of *868
mother's mental illness. There was no dispute about that condition or
as severity. Termination or not had nothing to do with mother's fitness
to care for the child according to the cultural dictates of her tribe.
State ex rel.
Juvenile Department v. Tucker,
710 P.2d at 799.
Social workers may be qualified expert witnesses if they have substantial
education and experience in their specialties. D.W.H.
v. Cabinet for Human Resources,
706 S.W.2d 840, 843 (Ky.App.1986); Matter
of J.L.H.,
316 N.W.2d 650, 651 (S.D.1982). However, for social workers to be qualified
expert witnesses they must possess "expertise beyond the normal social
worker qualifications." State
ex rel. Juvenile Department v. Charles,
70 Or.App. 10, 688 P.2d 1354, 1359 N. 3 (1984), (quoting, House Report
for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, Reprinted
in 1978 U.S.Code
Cong. and Admin.News 7530, 7545).
The social worker that
testified in this case had some knowledge of the Indian Child Welfare
Act, 25 U.S.C. § 1901 et seq., and limited experience with Indian
children. The purpose of the qualified expert witness provision is to
provide the court with evidence of tribal customs as they relate to family
practices in raising children. The determination of the best interests
of the child must include consideration of tribal family practices unless
cultural bias is clearly not implicated. State
ex rel. Juvenile Department v. Tucker,
supra.
An objection to a witness
testifying as an expert must be raised in the trial court or this court
will not consider the issue on appeal. Sorge
v. Graham,
312 P.2d 929, 932 (Okl.1957). However, the mother's petition in error
and brief on appeal contend that the evidence was insufficient due to
a lack of testimony by a qualified expert witness. The State's complaint
against the mother consisted primarily of an allegation that the mother
did not display a sense of responsibility or significant degree of interest
in the child and such action of the parent constituted an abandonment
of the child by the mother.
In People
in Interest of S.R.,
323 N.W.2d 885 (S.D.1982), the court determined whether the burden of
proof had been satisfied to terminate parental rights where the mother
was unfit by "showing no sense of responsibility or significant
degree of interest in the child." Id.
323 N.W.2d at 888. In S.R.,
the trial court qualified two witnesses "as experts within the purview
of the ICWA" and they testified that returning custody of the child
to the mother would result in serious emotional and physical damage to
the child. Id.
In D.E.D. v.
State, 704
P.2d 774 (Alaska 1985), the testimony of expert witnesses indicated that
serious emotional or physical damage would occur if the child were returned
to his mother after the mother had abandoned the child. Id.
704 P.2d at 783.
Testimony showing that
continued custody of the child by the parent is likely to result in serious
emotional or physical harm to the child is necessary. 25 U.S.C. §
1912(c) and (f); 10 O.S.Supp.1982 § 40.5. Testimony from a qualified
expert witness indicating that such harm will result from continued custody
of the parent is sufficient. People
in Interest of S.R.,
supra. Where cultural bias is clearly not implicated, expert witnesses
who do not possess special knowledge of Indian life may provide the necessary
proof that continued custody of the child by the parent will result in
serious emotional or physical harm to the child. State
ex rel. Juvenile Department v. Tucker,
supra.
We find that the evidence
presented in the trial court does not contain any expert witness testimony
as to whether the continued custody of the child by the mother would result
in serious emotional or physical harm to the child.
The adjudication of the child as deprived must be reversed with instructions
to the court to consider, in light of testimony of an expert witness qualified
as required herein, whether continued custody of the child by the mother
would result in serious emotional or physical harm to the child.
III. DENIAL OF MOTION
TO TRANSFER
The
mother asserts that her motion to transfer the proceeding to her tribal
*869
court was improperly denied. The mother sought to transfer the proceedings
from Okmulgee County to the tribal court in Kay County. All of the witnesses
and the child resided in Okmulgee County. The mother resided in Oklahoma
County. A proceeding involving the custody of an Indian child, not domiciled
on his tribe's reservation, shall be transferred to the tribal court "in
the absence of good cause to the contrary." 25 U.S.C. § 1911(b).
Good cause to deny a
transfer has been found where almost all of the parties and witnesses
reside in the county of the state court and have no contact with the tribal
court. Matter
of Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168, 178 (1982); In
re Interest of Bird Head,
213 Neb. 741, 331 N.W.2d 785, 790 (1980).
The best interests of
the child may prevent transfer of jurisdiction to a tribal court. Matter
of M.E.M.,
195 Mont. 329, 635 P.2d 1313, 1317 (1981). In denying the petition to
transfer, the trial court stated that the child had good care under the
supervision of the court, the child had "established roots here
in Okmulgee County," and that the court was working toward the goal
of "getting this mother back with the child."
The presence of witnesses
and parties in Okmulgee County, and the best interests of the child support
a finding of good cause to deny the requested transfer.
IV. DENIAL OF CONTINUANCE
The mother requested a continuance of the dispositional hearing held on
May 28, 1986.
[FN5] The stated reason for the continuance was "an opportunity to
controvert the recommendations and findings that are contained in this
report [by the Department of Human Services]." The report was prepared
on May 16, 1986, and then supplemented on May 22, 1986, and May 28, 1986.
[FN6]
FN5.
Tr. at 25.
FN6.
Tr. at 2.
A fair opportunity must
be given to a parent to controvert a report.
Matter of Paul,
555 P.2d 603, 605 (Okl.1976). The supplemental material indicated the
efforts by the Department of Human Services in ascertaining the correct
address for the mother.
[FN7] The mother presented a witness and testified
herself on the issue of the correct address and the history of her changes
in residence.
[FN8] The mother's witness and testimony demonstrate that she had a fair
opportunity to controvert the supplemental reports.
FN7.
Tr. at 67.
FN8.
Tr. at 33-34, 36-37.
A request for a continuance
is within the sound discretion of the trial court, and a trial court's
decision to deny a continuance will not be disturbed on appeal unless
abuse of discretion is clearly shown. Wetsel
v. Independent School District I-1,
670 P.2d 986 (Okl.1983). The trial court did not abuse its discretion
where the mother presented testimony to controvert the supplemental reports.
The child welfare worker testified at the dispositional hearing that copies
of the report were given to "all of the attorneys involved in the
suit."
[FN9] The mother did not explain the nature of the evidence she expected
to obtain and its materiality to the proceeding. 12 O.S.1981 § 668.
The mother did not file a written motion and affidavit for continuance,
nor attempt to show due diligence in obtaining evidence to controvert
the report. Id.
The mother made no argument explaining why a continuance would be
required to give the mother a "fair opportunity" to controvert
the report. The record is silent as to the opportunity actually afforded
the mother to controvert the report. Legal error may not be presumed by
the reviewing court from a silent record. Johnson
v. Johnson,
674 P.2d 539 (Okl.1983). The trial court's denial of a continuance of
the dispositional hearing is affirmed.
FN9.
Tr. at 2.
V. PLACEMENT PLAN
The mother contends that a placement plan was not filed in accordance
with *870
10 O.S.Supp.1983 § 1115.1. This contention was not raised in the
trial court. A placement plan was filed on July 2, 1984, but none was
filed after the filing of the amended petition. This allegation of error
was not presented to the trial court and is beyond the scope of our review.
Kepler v. Strain,
supra.
VI. CUSTODY OF THE CHILD
The mother contends that the placement of her child in foster care with
the Huddlestons was not consistent with the Indian Child Welfare Act.
The mother requested that the trial court place the child in accordance
with that Act.
[FN10] The Act specifies that foster care or preadoptive placement should
be with: (1) a member of the child's extended family; (2) a foster home
licensed, approved, or specified by the child's tribe; (3) an Indian foster
home licensed or approved by an authorized non-Indian licensing authority;
or (4) an institution for children approved by an Indian tribe or operated
by an Indian organization which has a program suitable to meet the Indian
child's needs. 25 U.S.C. § 1915. The Indian child's tribe may establish
a different order of preference by resolution. 25 U.S.C. § 1915(c).
The child welfare worker testified that the Huddleston's home was not
an approved foster home.
[FN11] No evidence was introduced as to whether the child's tribe had
approved, licensed, or specified a foster home. Section 1915 requires
placement of the child in the categories specified "in the absence
of good cause to the contrary." 25 U.S.C. § 1915(b).
FN10.
Tr. at 47.
FN11.
Tr. at 8, 13.
The Department of Human
Services child welfare worker testified that no Indian foster homes were
available.
[FN12] The Creek tribe had been contacted about foster homes, but apparently
the Kaw tribe had not been contacted.
[FN13] Mrs. Huddleston testified that she was one-eighth Cherokee and
was in the process of providing verification of her Indian status.
[FN14] She also
testified that Mr. Huddleston's grandfather was a full-blood Cherokee,
and that he was in the process of providing verification of his Indian
status.
[FN15]
FN12.
Tr. at 4, 12.
FN13.
Tr. at 11-12.
FN14.
Tr. at 27.
FN15.
Id.
A finding of "good
cause to the contrary" is predicated upon the court's consideration
of the placement categories specified. Where no inquiry occurs as to whether
the child's tribe has licensed, approved, or specified a foster home,
the court has not adequately considered such a placement.
We remand the case for
a new dispositional hearing because the record does not disclose that
the trial court afforded placement preference to the categories specified
in 25 U.S.C. § 1915.
On remand the court should
consider whether the "good cause" exception in § 1915 is
met by the child's best interests. In
re Interest of Bird Head,
213 Neb.
741, 331 N.W.2d 785, 791 (1983).
The adjudication order
determining N.L. to be deprived is reversed with instructions. The dispositional
order of May 28, 1986 is reversed with instructions. The trial court's
orders denying a transfer and denial of a continuance are affirmed.
HARGRAVE, V.C.J., and
HODGES, LAVENDER and ALMA WILSON, JJ., concur.
DOOLIN, C.J., and OPALA
and KAUGER, JJ., concur in part, dissent in part.
SIMMS, J., dissents:
I would affirm the trial court.
OPALA, Justice, with
whom DOOLIN, Chief Justice, and KAUGER, Justice, join, concurring in part
and dissenting in part.
Today the court reverses
the trial court's orders declaring N.L. to stand in a deprived child's
status and determining his custodial *871
placement. Its decision is grounded on error [1] in not meeting the Indian
Child Welfare Act's [ICWA or Act]
[FN1] requirement for expert testimony in support of deprived-status declaration
and [2] in not following the Act's preferences for the
child's placement. The court affirms
the trial court's rulings that deny the mother's requests to [1] transfer
the proceedings to the tribal court and [2] continue the dispositional
hearing. The court dismisses
other arguments advanced by the mother because she did not raise them
as error in the trial court. These are: (a) the trial court failed to
follow certain required statutory procedures at the preadjudicative stage
of the deprived-status proceedings and (b) no statutorily mandated placement
plan was on file below.
FN1.
25 U.S.C. § 1912(e).
I concur in today's reversal
of the adjudicative and dispositional orders and in the court's holding
that the trial court correctly refused to transfer jurisdiction of the
deprived-status proceedings to the tribal court.
I would go further and
also reverse the preadjudicative decision which directed N.L.'s emergency
removal because the court's order, rendered in 1986, lacked the fundamental
ingredient of notice adequate to inform the mother of that offending conduct
which the State relied on for the child's removal; I would reverse the
deprived-status adjudication because it stands unsupported by expert testimony
mandated by the ICWA; I would set aside the dispositional order because,
once the deprived-status adjudication is vacated, that order no longer
has any legal foundation upon which it may be rested; finally, I would
remand the cause with directions that the trial court (a) forthwith issue
a preadjudicative order with the affidavit attached as required by law
and (b) then conduct a hearing on the issue of the child's preadjudicative
placement.
I THE ANATOMY OF LITIGATION
Born to Jenny Kay Carney on February 27, 1984, N.L. was eligible through
his mother for membership in both the Kaw and Creek Indian Tribes. On
May 2, 1984 his temporary custody was placed in his maternal grandmother.
A petition filed shortly thereafter alleged that N.L. was a deprived child.
On June 25, 1984 N.L. was adjudged to stand in that status. His temporary
custody remained in the maternal grandmother. The mother was not present
at the hearing. Her whereabouts were then unknown. The Creek and Kaw Tribes
were notified of the hearing but did not intervene in the proceeding.
[FN2] On June 17, 1985 N.L.'s temporary custody was changed from his maternal
grandmother to a nontribal family, the Huddlestons. The mother appeared
at this hearing.
FN2.
The Federal Indian Child Welfare Act (P.L. 95-608) is codified in 25 U.S.C.A.
§ 1901 et seq. The state counterpart, known as the Oklahoma Indian
Child Welfare Act, is found in 10 O.S.Supp.1982 § 40 et
seq. The provisions pertaining to notice are found in § 1912 of the
federal act and in § 40.4 of the state enactment.
On February 12, 1986
the district court set aside its June 25, 1984 adjudication for lack of
sufficient notice to the mother. Two days later, the court granted an
emergency order which continued N.L.'s custody in the Huddlestons. On
May 9, 1986 the court denied the mother's petition to transfer the case
to the Court of Indian Offenses. On the same day it declared once again
that N.L. was a deprived child and allowed the Huddlestons to retain his
temporary custody.
II THE REVIEWABILITY OF
THE MOTHER'S JURISDICTIONAL CHALLENGE TO THE TRIAL
COURT'S
ASSUMPTION OF COGNIZANCE OVER THE CHILD'S PREADJUDICATIVE CUSTODY
The mother asserts the trial court's failure to follow certain statutory
process during the preadjudicative stages is violative of her due process
rights. She directs us to two instances in which the trial court disregarded
the minimum standard of mandated procedure: [1] a show cause hearing required
by § 1104.1(C) of the Juvenile *872
Code
[FN3] was not held within 48 hours either of the 1984 or of the 1986 order,
both of which authorized N.L.'s emergency removal and [2] contrary to
§ 40.5(A) of the state ICWA, no statutorily mandated affidavit was
attached to either of these orders.
[FN4]
FN3.
The terms of 10 O.S.Supp.1984 § 1104.1(C) provide:
"Whenever
a child is taken into custody as a deprived child, the
parents or guardian of the child are entitled to a hearing within forty-eight
(48) hours of the child being taken into custody,
and thereafter at such intervals as may be determined by the court, in
order to show cause why such child has been taken into custody or why
custody should not be remanded to the parents." [Emphasis added.]
FN4.
See footnote 6 infra
for the full text of 10 O.S.Supp.1982 § 40.5(A).
The record reveals the
mother's brief to the trial court--in support of her oral motion to dismiss
the 1984 proceedings--clearly challenged the trial court's failure to
afford her a § 1104.1(C) hearing following the child's emergency
removal. This challenge had a jurisdictional dimension. It questioned
the court's power
to decide the preadjudicative placement issue. The infirmity asserted
in the mother's motion was not subsequently cured by the 1986 preadjudicative
process. The latter was equally fatal.
[FN5]
FN5.
See discussion in Part II(C) infra.
A
The statutory requirements and their due process implications
The terms of § 40.5(A) of the state ICWA provide that when a court
authorizes the emergency removal of an Indian child from its parent or
Indian custodian in accordance with § 1922 of the federal ICWA, the
order shall be accompanied by an affidavit containing information about
the parents' offending conduct that has resulted in the child's removal.
[FN6]
FN6.
The terms of 10 O.S.Supp.1982 § 40.5(A) are:
"A.
When a court order authorizes the emergency removal of an Indian child
from the parent or Indian custodian of such child in accordance with 25
U.S.C. Section 1922, the order shall be accompanied by an affidavit containing
the following information:
1.
The names, tribal affiliations, and addresses of the Indian child, the
parents of the Indian child and Indian custodians, if any;
2.
A specific and
detailed account of the circumstances that lead the agency responsible
for the removal of the child to take that action;
and
3.
A statement of the specific actions that have been taken to assist the
parents
or Indian custodians so that the child may safely be returned to their
custody." [Emphasis added.]
The Juvenile Code, §
1104.1(C), provides in part that whenever a child is taken into custody
as a deprived child, its parents or guardians are entitled to a show-cause
hearing within 48 hours to determine why the child had been taken into
custody or why it should not be returned to its parent.
[FN7]
FN7.
See footnote 3 supra
for the full text of 10 O.S.Supp.1984 § 1104.1(C).
These statutory requirements
have a constitutional dimension. The § 40.5(A) affidavit is an indispensable
component of due process because it is to impart notice of the parents'
alleged offending conduct the State relies upon as its basis for the child's
removal. The trial court's failure to conduct a § 1104.1(C) hearing
denied the mother an opportunity to refute the petition's allegations
and hence to prevent the child's removal.
Cognizance to decide
custody placement in a preadjudicative phase of a deprived-status proceeding
cannot be validly exercised unless it was acquired and assumed in strict
conformity to the minimum standards of due process.
[FN8] Due process inexorably commands notice which reasonably informs
a person that his legally protected interest may be adversely affected.
[FN9] Parents are unable to oppose an emergency *873
removal of children unless the nature of the complaint against them is
known. The information to be contained in the affidavit--which must include
a "specific and detailed account of the circumstances" leading
to removal of the child--is the first
notice parents will ordinarily receive of the grounds for the impending
juvenile proceeding. The affidavit's importance is made clear when, as
in the present case, the emergency orders and their extensions are obtained
in ex parte proceedings.
FN8.
York v. Halley,
infra note
11 at 364; Pettit
v. American Nat. Bank of Austin, infra
note 10 at 529 and Carnley
v. Cochran, infra
note 13, 369 U.S. at 515, 82 S.Ct. at 890.
FN9.
The terms of Art. 2 § 7, Okl. Const., provide: "No person shall
be deprived of life, liberty, or property, without due process of law."
Matter of C.G.,
Okl., 637 P.2d 66, 68 [1981]; Mullane
v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313-315, 70 S.Ct. 652, 657, 94 L.Ed. 865, 872-874 [1949]
and Bomford
v. Socony Mobil Oil Co.,
Okl., 440
P.2d 713, 719 [1968].
B
The preadjudicative and merits stages of the deprived-status proceedings
are jurisdictionally separable and distinct
A due process infirmity rising to a jurisdictional dimension may be presented
for the first time when the nisi
prius decision
is challenged for its constitutional flaw on direct appeal.
[FN10] An emergency order, within the meaning of § 1104.1(C), is
tantamount to process by which the court acquires jurisdiction over the
preadjudicative (pendente
lite ) custody
of the child.
FN10.
See Johnson
v. Zerbst,
304 U.S. 458, 462-463, 465-467, 58 S.Ct. 1019, 1022-1023, 1023-1024, 82
L.Ed. 1461 [1938]; Peralta
v. Heights Medical Center, Inc.,
485 U.S. 80, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 [1988] and Pettit
v. American Nat. Bank of Austin,
Okl., 649 P.2d 525, 529 [1982]. In Pettit
the court allowed a foreign judgment to be attacked collaterally on due
process grounds for lack of jurisdiction. Similarly, the mother here is
attacking the validity of the proceeding applied against her and seeks
to invalidate all the proceedings for want of due process in the initial
notice-giving stage. This asserted error is not
a procedural defect to be reached by an objection but rather a facially
apparent jurisdictional infirmity.
The preadjudicative
custody stage
is to be viewed as jurisdictionally separable from the merits
of the deprived-status proceedings. These stages draw on separate sources
for the court's assertion of its cognizance. The former stage calls for
the exercise of judicial power over the child and the latter extends over
the parents' status. The merits stage focuses on the parents' rights while
the preadjudicative phase centers on the child's present condition.
[FN11]
FN11.
It is clear from extant case law that preadjudicative custody cognizance
is structured by statute to give the trial court jurisdiction over the
child while the parental status is clouded. See York
v. Halley,
Okl., 534 P.2d 363, 364-365 [1975], in which this court's treatment of
due process violations at the preadjudicative stage of the deprived status
proceedings indicates its recognition of the separate nature of the preadjudicative
and merits jurisdictional stages.
The trial court's preadjudicative
stage jurisdiction was tainted by a fatally flawed
process because the § 40.5(A) notice-giving affidavit was not attached
to the 1986 emergency order. The mother was afforded neither the requisite
notice nor an opportunity to challenge this preadjudicative custody determination.
The 1986 infirmity in acquiring jurisdiction over the child's preadjudicative
custody was cured neither by waiver nor by the mother's later appearances
in the case to defend her embattled
parental interest.
The latter proceeding was jurisdictionally separate and distinct from
the former.
C
The
scope of the court's review
The mother's jurisdictional challenge goes to the very heart of the court's
power over the child's status rather than to the correctness of an in-trial
ruling and that power is subject to invalidation because of failure to
give adequate notice at the critical preliminary stage of the proceeding.
She brings a direct attack for want of a jurisdictional element--the power
of the court to act. She argues that the procedure by which the power
over her child first came to be asserted was fatally flawed. When jurisdiction
over a judicial proceeding is acquired by a facially defective process,
want of an objection interposed in the trial court is not a barrier to
appellate review in the absence of a waiver. This is particularly so when
the court gives no opportunity to challenge the tainted process by a hearing.
[FN12]
FN12.
The rule that errors sought to be presented on appeal must be preserved
in the record by objection applies to issues in the adversary evidentiary
process. See Wilson
v. Levy, 140
Okl. 74, 282 P. 679, 681- 682 [1929] and State
Nat. Bank v. Lokey,
112 Okl. 82, 240 P. 101, 103 [1925]. On the other hand, the scope of review
deals with the available breath of corrective relief that may be afforded
in a given case. See
Mayhue v. Mayhue,
Okl., 706 P.2d 890, 892-893, 895 [1985], where the scope of review was
limited by the judgment roll; see also Mobbs
v. City of Lehigh,
Okl., 655 P.2d 547, 549 [1982] and Timmons
v. Royal Globe Ins. Co.,
Okl., 713 P.2d 589, 591 [1986], where in a post-appellate posture the
scope of subsequent review was held to be confined by the settled law
of the case.
*874
We can presume neither the presence of jurisdictional prerequisites nor
their waiver from a silent record.
[FN13] The record here does not reflect that an affidavit was attached
either to the 1984 or the 1986 emergency order. Neither is there any record
trial of a show-cause hearing afforded the mother within 48 hours of these
emergency orders. In short, the record is absolutely devoid of a showing
that at the preadjudicative custody stage
jurisdiction was acquired by means that are constitutionally mandated.
The child was taken away from the mother without the benefit of either
the notice-giving affidavit or a hearing. Because the mother was not haled
into court for a show-cause hearing, she had no duty to object to the
defective process.
FN13.
Matter of C.G.,
supra note
9 at 69; Faulkenberry
v. Kansas City Southern Ry. Co.,
Okl., 602 P.2d 203, 206-207 [1979];
Carnley v. Cochran,
369 U.S. 506, 515, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 [1962] and Johnson
v. Zerbst, supra
note 10, 304 U.S. at 464, 58 S.Ct. at 1023.
There are two distinct
jurisdictional prerequisites for the preadjudicative and merits stages
of a deprived-status proceeding. The mother's right to due process was
violated here in the initial assumption of jurisdiction over the preadjudicative
stage. The only fit cure of this fatal defect is to vacate the preadjudicative
decision and to require an immediate post-remand hearing that will address
the placement issue pending adjudication of the merits.
[FN14]
FN14.
In Peralta v.
Heights Medical Center, Inc., supra
note 10, 108 S.Ct. at 900, the Court reversed a Texas court decision which
held that a default judgment entered without proper notice must stand
absent a showing of a meritorious defense to the action. The Court found
that a judgment entered without notice was constitutionally infirm and
that this infirmity could only
be corrected by "wiping the slate clean" in order to restore
the petitioner to the position he would have occupied had due process
of law been accorded to him in the first place. The Court noted that if
an individual is deprived of his right to due process "it is no answer
to say that in his particular case due process of law would have led to
the same result because he had no adequate defense upon the merits."
Peralta, supra
note 10, quoting from Coe
v. Armour Fertilizer Works,
237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027 [1915]. The meritorious-defense
requirement does not serve as a barrier to the appellant's constitutionally
protected right to notice in the trial court proceeding.
III BURDEN OF PROOF FOR
ADJUDICATION OF AN INDIAN CHILD'S DEPRIVED STATUS
The mother contends that the State did not demonstrate by clear and convincing
evidence that her conduct was likely to cause serious emotional or physical
harm
to N.L. This is so, she asserts, because the trial court did not rely
on evidence from "qualified expert witnesses" within the meaning
of § 1912. In short, her position is that the evidence at trial was
not sufficient to affect her parental status.
Section 1912(e) of the
ICWA provides that no foster care placement may be ordered unless there
is
"...
clear and convincing evidence, 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."
[FN15] [Emphasis added.]
FN15.
25 U.S.C. § 1912 [1982].
The BIA guidelines provide
that under the ICWA an expert witness should have knowledge of tribal
customs concerning family organization and child rearing practices. The
expert may be a member of the tribe, one who has substantial experience
in rendering family services to Indians, or a professional who has considerable
education in his specialty.
[FN16] The guidelines *875
specify that poverty, alcohol abuse, or nonconforming social behavior
is not evidence that the child should be removed from his Indian home.
Rather, the
state must demonstrate that a cause-and-effect relationship exists between
the poverty or conduct and the potential for serious harm to the child.
[FN17]
FN16.
Guidelines,
D.4(b), infra
at 67,593.
In
25 U.S.C. § 1952 the ICWA authorizes the Secretary of Interior to
establish regulations necessary to implement the Act. Through the Bureau
of Indian Affairs ["BIA"], the Secretary has issued mandatory
rules and recommended guidelines for application of the ICWA. The rules
are limited to narrow issues within the Act. See 25 C.F.R. §§
13.1--13.16, 23.1-23.93 [1987]. The guidelines cover a broader range of
subjects. See Guidelines for State Courts: Indian Child Custody Proceedings,
44 Fed.Reg. 67,584-95 [1979] [Guidelines
]. See also, Trentadue and DeMontigny, The
Indian Child Welfare Act of 1978: A Practitioner's Perspective,
62 N.D.L.Rev. 487, 518-521 [1986].
FN17.
Guidelines,
D.3(b), and commentary, supra
note 16 at 67,592.
State courts have generally
found that the term "qualified expert witness" in the context
of the ICWA requires that the witness have experience with Indian culture
and family organization. While this requisite exceeds typical social worker
qualifications,
[FN18] the failure of experts to possess knowledge of Indian social practices
is not necessarily fatal to the state's case.
[FN19] Some courts have held that social workers qualify as expert witnesses
because they come within the BIA term "professional persons having
substantial education and experience in the area of his or her specialty."
[FN20] Other courts have found that testimony from a typical social worker
can be properly admitted, but that it should be supplemented by an expert
witness who has expertise in Indian family affairs.
[FN21]
FN18.
In re Welfare
of Fisher,
31 Wash.App. 550, 643 P.2d 887, 888 [1982], the Washington Court of Appeals
affirmed a state court's termination of Indian parental rights and held
that the caseworker qualified as an expert witness because she had counseling
experience at an Indian center.
In
State ex rel.
Juv. Dept. v. Charles,
70 Or.App. 10, 688 P.2d 1354, 1360 [1984] the court held that testimony
from social workers without Indian experience did not comply with the
intent of ICWA. The court reversed the trial court's decision to remove
the child from the mother because the state failed to show that serious
emotional or physical harm to the
child was likely to occur.
In
re Dependency of Roberts,
46 Wash.App. 748, 732 P.2d 528, 533 [1987], the court affirmed the termination
of Indian parental rights and found that the caseworker was a qualified
expert witness because she had experience and training in Indian child
welfare. See also Matter
of M.E.M. infra
note 21 at 1317-1318.
FN19.
State ex rel.
Juv. Dept. v. Charles, supra
note 18 at 1360.
FN20.
D.W.H. v. Cabinet
for Human Resources,
706 S.W.2d 840, 843 [Ky.App.1986]. The court affirmed the termination
of an Indian parent's custody even though the expert witnesses did not
have any special knowledge of Indian society.
FN21.
Matter of M.E.M.,
635 P.2d 1313, 1318 [Mont.1981].
In this case, the district
court heard testimony from the child welfare worker assigned to investigate
N.L.'s status. She had some knowledge of the ICWA and limited experience
with Indian children. Her testimony was relevant but it did not comport
with the Act's intent. One of the basic goals of the ICWA
is to prevent state courts from making custody determinations involving
Indian children without meaningful input about tribal family practices.
[FN22] The ICWA does not stray from the fundamental principle that the
child's best interests are paramount. The Act recognizes that the best
interests concept must incorporate, for a legally effective custody decision,
consideration of the child's Indian background.
[FN23]
FN22.
25 U.S.C. § 1901(5) [1982]; see also, State
ex rel. Juv. Dept. v. Charles, supra
note 18 at 1359, n. 3, and 1360.
FN23.
25 U.S.C. § 1902 [1982].
I would hence reverse
the deprived-status adjudication because no expert testimony was available
as required by the ICWA. On remand, the district court should direct the
State to produce testimony from persons with expertise in Indian family
matters.
IV PLACEMENT PREFERENCE
Section 1915(b) requires that in a foster care or preadoptive placement
determination the child should be placed, in the absence of good cause
to the contrary, with:
"(i)
a member of the Indian child's extended family;
*876
(ii) a foster home licensed, approved or specified by the child's tribe;
(iii)
an Indian foster home licensed or approved by an authorized non-Indian
licensing authority; or
(iv)
an institution for children approved by an Indian tribe or operated by
an Indian organization which has a program suitable to meet the Indian
child's needs."
[FN24]
FN24.
25 U.S.C. § 1915(b) [1982]. The terms of § 1915(a) provide that
in adoption proceedings preference should be given to:
"1)
a member of the child's extended family;
(2)
other members of the Indian child's tribe; or
(3)
other Indian families."
The statutory norm was
originally followed in this case when N.L. was placed with his maternal
grandmother. |