In Re State in Interest of Kp
2012 OK CIV APP 32
Okla. Civ. App.2012Background
- KP and KP are Cherokee Nation members; Cherokee Nation participated under ICWA and Oklahoma ICWA.
- Mother tested positive for opiates at younger child's birth; DHS removed children after visitation and a field sobriety test failed.
- DHS placed children with Cherokee Nation-approved foster parents; deprived adjudication entered February 4, 2009 with an ISP for Mother.
- ISP required weekly visits, parenting classes, child support, budgeting, safe home, psychological evaluation, and substance abuse assessment.
- State petitioned to terminate Mother's parental rights; trial occurred August 2010; jury found failure to correct conditions and to pay support.
- Court affirmed termination, holding clear and convincing evidence supported the termination and expert testimony supported best interests and potential for harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether active efforts requirement was satisfied | Mother contends DHS/Cherokee Nation failed to provide active efforts. | State argues active efforts were provided to prevent breakup of Indian family. | Active efforts found satisfied; proper predicate showing supported by evidence. |
| Whether Mother failed to correct the conditions leading to deprivation | Mother alleges compliance with ISP; argues some progress but not corrected conditions. | State demonstrates failure to correct conditions due to ongoing substance abuse and noncompliance. | Clear and convincing evidence shows failure to correct conditions. |
| Whether termination was in KP and KP's best interests | Mother argues continued parental custody would not cause harm per se. | State and Cherokee Nation present expert showing potential serious harm if custody continued. | Record supports best interests of termination. |
| Whether juror misconduct warranted reversal | Juror 5 discussed case with his wife; could have prejudiced trial. | Court did not find prejudice and declined to remove juror. | No reversible error; district court did not abuse discretion. |
Key Cases Cited
- In re J.S., 177 P.3d 590 (Okla. Civ. App. 2008) (active-efforts standard distinct from non-ICWA cases; burden clarified)
- In re Adoption of G.D.J., 261 P.3d 1159 (Okla. 2011) (beyond-a-reasonable-doubt burden applies to ICWA factual determination)
- In re C.G., 637 P.2d 66 (Okla. 1981) (definition of clear and convincing evidence)
- In re A.G. and E.G., 996 P.2d 494 (Okla. Civ. App. 2000) (standard for termination when ISP compliance discussed)
- Mullinix Constr. Co. v. Myers, 358 P.2d 187 (Okla. 1960) (juror misconduct review and prejudice standard)
- City of Lawton v. McAdams, 15 Okla. 412 (Okla. 1905) (standard for evaluating juror misconduct and prejudice)