IN THE GUARDIANSHIP OF C.H.S.
2016 OK CIV APP 72
| Okla. Civ. App. | 2016Background
- In 2010 Tedd and Scarlett Strawn were granted emergency temporary custody and letters of guardianship for two minor children (CHS and KWS); the guardianship order stated the children were Indian and that notice had been given to the tribe.
- Mother, Erica Strawn, sought termination of the guardianship or a reunification plan in Sept. 2011; a guardian ad litem was appointed in Oct. 2011.
- In April 2014 the trial court denied termination and ordered limited supervised visitation and casework (DVIS) for Mother; the matter remained subject to review.
- Cherokee Nation intervened in June 2014 and filed a petition to transfer the matter to Cherokee Nation District Court under 25 U.S.C. § 1911(b) in March 2015; Guardians objected.
- The state trial court denied the transfer on grounds including advanced stage of proceedings, alleged lack of domiciliary ties to the reservation, and perceived potential evidentiary unavailability. No testimony was taken at the transfer hearing.
- The Court of Civil Appeals reversed, holding Guardians failed to present clear-and-convincing evidence of good cause to deny transfer under ICWA; the court ordered transfer to Cherokee Nation District Court.
Issues
| Issue | Cherokee Nation's Argument | Guardians' Argument | Held |
|---|---|---|---|
| Whether the state court erred in refusing to transfer the guardianship to tribal court under 25 U.S.C. § 1911(b) | §1911(b) requires transfer absent good cause; tribal court is preferred forum for Indian children not domiciled on reservation | Advanced stage of litigation, alleged lack of domicile in Cherokee Nation, and evidentiary convenience justify retaining jurisdiction | Reversed: Guardians failed to prove good cause by clear and convincing evidence; transfer required |
| Whether statutory notice and ICWA procedural safeguards were satisfied | Cherokee Nation contends it did not receive the required registered/certified notice under ICWA and Oklahoma law, impairing its ability to intervene earlier | Guardians rely on the guardianship order’s recital that notice was mailed | Held that the record lacks proof of the required notice; absence of compliant notice weighs against denying transfer |
| Whether ICWA "active efforts" and clear-and-convincing findings for foster-care placement were satisfied | Cherokee Nation argued active efforts and §1912(e) findings (qualified expert, clear-and-convincing evidence of likely harm) were not shown | Guardians relied on case history and orders allowing reunification steps as justifying state continuation | Court found no record of required active efforts or §1912(e) expert findings; this failure undermines Guardians’ case to keep state jurisdiction |
Key Cases Cited
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (tribal court is the appropriate forum for custody determinations involving Indian children; delay does not override ICWA's allocation of decision-making to tribes)
- In re M.S., 2010 OK 46, 237 P.3d 161 (Okla. 2010) (party opposing transfer must prove good cause by clear-and-convincing evidence; tribal courts preferred forum under ICWA)