IN THE GUARDIANSHIP OF C.H.S.
2016 OK CIV APP 72
| Okla. Civ. App. | 2016Background
- Guardians Tedd and Scarlett Strawn obtained ex parte emergency custody and guardianship of CHS and KWS in June–July 2010; letters of guardianship issued July 14, 2010. The guardianship order stated the children were "Indian Children" and recited that notice had been given to Cherokee Nation.
- Mother, Erica Strawn, moved in Sept. 2011 to terminate the guardianship or, alternatively, for a reunification plan; a guardian ad litem was appointed in Oct. 2011.
- Cherokee Nation filed a notice of intervention in June 2014 and, on March 9, 2015, petitioned under 25 U.S.C. § 1911(b) to transfer the matter to Cherokee Nation District Court. Guardians objected.
- At an April 22, 2015 hearing (no testimony), the state trial court denied transfer, finding good cause to retain jurisdiction because the case was advanced, reunification orders existed, the parties were not domiciled in Cherokee Nation, and notice was not proved; mother and GAL did not object to transfer.
- On appeal, the Oklahoma Court of Civil Appeals held Guardians failed to prove by clear and convincing evidence good cause to deny transfer under ICWA, and reversed and remanded with directions to transfer the case to Cherokee Nation District Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA §1911(b) required transfer of this foster-care/guardianship case to Cherokee Nation tribal court | Cherokee Nation: transfer required absent good cause; lack of timely notice to tribe and failure to satisfy ICWA requirements weigh for transfer | Guardians: good cause to retain state court because case was advanced, reunification orders existed, children and mother not domiciled in tribe, and notice issues | Transfer required: Guardians did not prove good cause by clear and convincing evidence; remand with directions to transfer to Cherokee Nation District Court |
| Whether statutory notice and "active efforts" under ICWA and Oklahoma ICWA were satisfied before placement | Cherokee Nation: notices required by 25 U.S.C. §1912 and 10 O.S. §40.4 were not established; active efforts under §1912(d) not shown | Guardians: relied on guardianship order recitation that notice was given; emphasized time in state proceedings and established orders | Court found no record proof of required registered/certified notice and no showing of required active remedial efforts; these failures weigh against denying transfer |
| Whether passage of time or case advancement alone constitutes good cause to deny transfer | Guardians: advanced stage and length of proceedings justify keeping case in state court | Cherokee Nation: length of placement or proceedings is not per se good cause; notice failures explain late tribal involvement | Court: passage of time not sufficient; Holyfield principle applies—tribal forum preferred despite delay; lack of timely ICWA compliance undermines Guardians' position |
| Whether absence of domicile on reservation precludes transfer under ICWA §1911 | Guardians: children and mother are not domiciled within Cherokee Nation, implying state jurisdiction is appropriate | Cherokee Nation: §1911(b) governs non-domiciled Indian children and requires transfer absent good cause; non‑domicile does not bar transfer | Court: §1911(b) applies to non-domiciled children; non-domicile is not a bar to transfer; transfer is required absent clear-and-convincing proof of good cause, which Guardians failed to provide |
Key Cases Cited
- In re M.S., 237 P.3d 161 (Okla. 2010) (ICWA transfer: opposing party must prove good cause by clear-and-convincing evidence)
- In re M.H.C., 381 P.3d 710 (Okla. 2016) (ICWA applicability and transfer standards reviewed de novo; burden of proof for denying transfer reiterated)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (tribal courts are the preferred forum; passage of time does not automatically bar tribal adjudication)