| (Cite
as: 657 P.2d 1212)
Court
of Appeals of Oklahoma, Division No. 1.
Lena
DUNCAN and Walter Duncan, Appellants,
v.
Roney
J. WILEY and Peggy Wiley, Appellees.
No.
55657.
Nov. 23, 1982.
Released
for Publication by
Order
of the Court of Appeals
Dec.
23, 1982.
*1212 Appeal
from the District Court in Adair County; L.T. Spray, Judge.
REVERSED and REMANDED.
*1213
David Harris, Stilwell, for appellants.
Charles R. Fisher, Stilwell,
for appellees.
WILSON, Presiding Judge:
At issue in this case
is the trial court's appointment without notice of non-Indian successor
guardians for three parentless Indian children.
Lena and Walter Duncan,
fullblood Cherokee Indians, are the paternal grandparents of Donovan,
Don Wayne and Steward James Duncan. The boys' parents are deceased. On
September 18, 1979, Linda Littledeer, one of the boys' aunts, petitioned
the court for Letters of Guardianship.
Lena and Walter were present at the hearing on Linda's petition. Roy Duncan,
Lena and Walter's son, and his wife, Mary, also petitioned the court for
Letters of Guardianship. The trial court issued Letters to Linda Littledeer
October 15, 1979.
On March 11, 1980, Linda
Littledeer resigned as guardian of the boys and nominated Roney and Peggy
Wiley as her successors. The Wileys were appointed as successor guardians
March 12, 1980. The appointment was made without notice to the grandparents.
On May 14, 1980, Lena
and Walter petitioned the court to set aside its order appointing the
Wileys. Lena and Walter argued that, as the boys' next of kin, they were
entitled to notice of the pending appointment. Lena and Walter urge that
the appointment was made in derogation of their Constitutional due process
and equal protection rights. Further, Lena and Walter asserted that they
were the fit and proper custodians of the boys.
The Wileys filed a Demurrer. No record was made of the hearing. The narrative
statement of the proceedings filed by Appellants pursuant to Rule 1.22,
which was uncontroverted, states that Lena and Walter "repeatedly
requested" a record of the hearing. The request was not allowed by
the trial court. This alone constitutes a denial of due process requiring
reversal. 20 O.S.1981 § 106.4(a); Funnell
v. Cannon,
577 P.2d 1287 (1978).
Lena and Walter perfected
this appeal from the trial court's sustention of the Wileys'
Demurrer.
On appeal, Lena and Walter
confine their arguments to the rights and duties imposed by the Federal
Indian Child Welfare Act, 25 U.S.C. §§ 1902 et
seq. Specifically,
the Duncans urge that § 1912 entitled them to notice of the pending
successor guardian appointment.
The legislative history
of the Act reveals that a disproportionately large percentage of Indian
children were removed from their family units for placement in non-Indian
foster or adoptive homes. Testimony indicated that misunderstanding of
Indian family concepts by state social workers prompted many of the removals.
Concomitantly, lack of understanding of legal concepts by the Indian parents
resulted in unknowing waivers of rights. See,
1978 U.S.Code Cong. and Admn.News, pp. 7530 et
seq.
The Indian Child Welfare
Act of 1978 attempts to protect the rights of Indian children and to promote
tribal stability by establishing minimum Federal standards for removal
of Indian children from the family unit. 25 U.S.C. § 1902. As part
of this plan, notice of pending involuntary state court proceedings must
be given the parents or Indian custodian and the tribe. 25 U.S.C. 1912.
The notice requirements
of § 1912 are mandatory in involuntary actions. The requirements
do not apply to voluntary court proceedings such as the guardianship action
involving the Duncan boys. Instead, the Act provides strict
procedures for a parent's or Indian custodian's voluntary relinquishment
of custody. 25 U.S.C. § 1913.
In this regard, the Act
establishes preferences for the placement of Indian children in foster
or pre-adoptive homes. The statute provides:
* * *
*1214
(b) Any child accepted for foster care or preadoptive placement shall
be placed in the least restrictive setting which most approximates a family
and in which his special needs, if any, may be met. The child shall also
be placed within reasonable proximity of his or her home, taking into
account any special needs of the child. In any foster care or preadoptive
placement, a preference shall be given, in the absence of good cause to
the contrary, to a placement with--
(i)
a member of the Indian child's extended family;
(ii)
a foster home licensed, approved, or specified by the Indian 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.
(c)
In the case of a placement under subsection (a) or (b) of this section,
if
the Indian child's tribe shall establish a different order of preference
by resolution, the agency or court effecting the placement shall follow
such order so long as the placement is the least restrictive setting appropriate
to the particular needs of the child, as provided in subsection (b) of
this section. Where appropriate, the preference of the Indian child or
parent shall be considered: Provided,
that where a consenting parent evidences a desire for anonymity, the court
or agency shall give weight to such desire in applying the preferences.
25 U.S.C. § 1915.
The guardianship statute
is silent on whether notice of pending successor guardian appointments
is required. 58 O.S.1981 § 875. In the seminal case construing the
statute, In
re Chambers' Guardianship,
46 Okl. 139, 148 P. 148 (1915), this Court held that notice was not required.
However, the aggrieved party in Chambers
was the guardian who was removed without notice by the court for mismanagement
of his ward's funds. The same rule was applied in Crosbie
v. Brewer,
68 Okl. 16, 158 P. 388 (1916). In Crosbie,
the parents of a fullblood Choctaw Indian relinquished custody of one
of their sons. The parents subsequently moved to another county where
they attempted to have another guardian appointed for their son. The issue
was which court had jurisdiction to appoint the guardian.
By these holdings, the
District Court of Adair County has jurisdiction to appoint a successor
guardian for Donovan, Don Wayne and Steward James Duncan. In
a subsequent proceeding to appoint wholly new guardians, the interested
parties of the first proceeding must be accorded their due process rights
of notice and opportunity to be heard. The Indian Child Welfare Act prescribes
the criteria governing the placement of the Duncans in a guardian's care
and custody.
The Wileys' Demurrer
should not have been sustained. The order appointing the Wileys as successor
guardians without notice was improper.
Accordingly, we remand
the case to the District Court of Adair County for a hearing on Linda
Littledeer's Resignation and Nomination of Successor Guardians to be held
in accordance with 58 O.S.1981 § 761 and the provisions of the Indian
Child Welfare Act.
REVERSED AND REMANDED.
REYNOLDS and BOX, JJ.,
concur.
657 P.2d 1212, 1982 OK
CIV APP 45
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