IN THE MATTER OF I.T.S.
2021 OK 38
Okla.2021Background
- April 2015: DHS removed I.T.S., I.M.S., and R.E.S. after reports of domestic violence and the father's dangerous history; State filed deprived-child petition.
- Mother applied for and was appointed counsel shortly before the June 23, 2015 adjudication/disposition; the trial court's disposition order notes "Counsel discharged, subject to re-appt."
- For ~26 months after disposition Mother had no court-appointed counsel while she participated in and largely complied with a court-ordered Individual Service Plan (ISP); DHS authorized trial reunification in mid‑2016 and the children lived with Mother for about a year.
- August 23, 2017: DHS ended trial reunification after concerns about the father; State filed a petition to terminate parental rights August 29, 2017.
- Mother was reappointed counsel on September 7, 2017; jury trial January 2018 found Mother failed to correct conditions leading to deprivation and termination judgment was entered (amended judgment filed Feb. 2019).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 25 U.S.C. § 1912(b) requires court-appointed counsel for an indigent parent at all stages of an ICWA-covered proceeding (including the period between disposition and any termination petition) | Mother: § 1912(b) grants an indigent parent the right to court-appointed counsel "in any removal, placement, or termination proceeding," which includes the entire foster-care placement period; appointment is mandatory and must be uninterrupted | State: § 1912(b) is silent as to the duration/term of appointment and does not expressly require representation during the ISP/foster-care period between disposition and a termination petition | Court: § 1912(b)'s language ("in any removal, placement, or termination proceeding") and ICWA's definitions (including "foster care placement") require appointment of counsel upon request and a finding of indigency for the entire covered proceeding; appointment is mandatory and must be continuous |
| Appropriate remedy for a § 1912(b) violation (mootness/relief where children near emancipation) | Mother: Violation of § 1912(b) triggers § 1914 relief; judgment terminating parental rights must be invalidated | State: Practical concerns, passage of time, and children's ages may limit relief or render the issue moot or harmless | Court: Not moot under exceptions (broad public interest; capable of repetition yet evading review); § 1914 authorizes invalidation—trial court's termination order reversed and cause remanded (proceedings that did not comply with § 1912(b) must be invalidated) |
Key Cases Cited
- In re Adoption of D.M.J., 741 P.2d 1386 (Okla. 1985) (state ICWA/ OICWA applicability and enforcement)
- In re M.S., 237 P.3d 161 (Okla. 2010) (ICWA provisions must be construed as written and in light of ICWA's purpose)
- Baby F. v. Oklahoma County Dist. Court, 348 P.3d 1080 (Okla. 2015) (mootness exceptions for matters of broad public interest and issues capable of repetition yet evading review)
- D.E.D. v. State, 704 P.2d 774 (Alaska 1985) (state court holding § 1912(b) mandates appointment of counsel for indigent parents at critical stages)
- In re M.E.M., 635 P.2d 1313 (Mont. 1981) (construed § 1912(b) as mandatory for indigent parents)
- In re G.L.O.C., 668 P.2d 235 (Mont. 1983) (upheld mandatory interpretation of § 1912(b))
- In re D.B.W., 616 P.2d 1149 (Okla. 1980) (recognizing collateral consequences can prevent a finding of mootness)