In Re Adoption of SW

OK CIV APP the ADOPTION OF In The Matter of C.S., Minor Children.

S.W. S.W., A child

In The Matter of years age.

under C.S., A child under

In The Matter of years age,

Nation, Appellant, Oklahoma, Mark Catherine

State C.S.,

Cunningham, and S.W. and

Appellees. 95,681.

No. Appeals Civil 4.

Division No.

Sept.

Rehearing Denied Oct.

Certiorari Denied Feb. Nation, Johnson, Tah-

Becky M. Cherokee OK, Appellant Nation. lequah, for Cherokee Faulkner, Tulsa, OK, Appel- Benjamin for Cunningham. lees Mark Catherine Strealy, Joseph Assistant General W. Services, Counsel, Human Department OK, Appellee Depart- City, for Oklahoma Huff- and Michelle ment of Human Services Office, man, Bu- Defenders Juvenile Public reau, Tulsa, OK, Appellees S.W. and C.S. RAPP, Judge. KEITH (Nation) appeals 11 The Cherokee of Tulsa the District Court two orders of two first order consolidated County. The involving petitions to declare minors actions deprived children with and C.S. as S.W. appointed adoption proceeding filed children, Mark and of both parents foster Parents.) (Foster Cunningham Catherine the Nation's re- order denied The second deprived quest transfer the action Tribal Court. Cherokee BACKGROUND permanent placement of Nation favored S.W. family adopted half-sibling with a who had children born involves two T2 This case family, This as well as the half- SW. wedlock, mother, long who is no out of their DHS, sibling, filing are non-Indian. relinquished pa her party er a because she 19, 2000, supported the Nation's ree- fathers, who are October rights, separate rental before the Juvenile Court ommendation brothers, Department of Human Oklahoma now, hearing the Child (DHS), the State Services Parents, Nation, supports half- the Foster Parents. and a C.S., sibling and that half-sib of SW. proceedings way, 7 With the under Kevin in ling's adoptive parents.1 The case also test, was, paternity after a determined to S. (a) proceedings: a De three court volves actual father. The test results were be the (b) S.W.; involving prived proceeding 4, beginning 2000. available October Faced C.S.; involving Deprived proceeding Child results, with the DNA test he thereafter (c) by adoption petition filed an acknowledged paternity in October 2000. Parents. 19, 2000, Nation a T8 On October filed here, none of According to the record petition to transfer the case to the Tribal proceedings has been concluded. This hearing Court. The Court set for rulings. Juvenile appeal preliminary two concerns 25, 2000, then continued the parties appearing The Briefs here are the October DHS, Nation, 81, appellant, appellees, hearing and as 2000. October children, and Foster Parents.2 Proceedings-C.S. Parties and Proceedings-S.W. Parties and T9 C.S. was born to the same mother as unwed, I 4 an non-Indian SW. was born to Dewayne putative as the S.W.but with Starr April on mother in 1998. The father listed S.) Dewayne (Dewayne father. also Starr non-Indian.3 the birth certificate was also a member of the Nation. A De- Cherokee custody of was taken into DHS SW. prived petition Child was filed November 1999, March returned and then October 1999, duly as to The Nation was notified. C.S. 1999, Deprived petition filed in was January placed C.S. was also with County and as the District Court Tulsa Foster Parents. signed juvenile division. (Kevin {5 [10 petition Kevin The named Starr party The Nation became a on March S.) father. as well as the birth certificate investigation 2000. The Nation's a member Na- Kevin S. is placement decisions for C.S. were the same duly given tion. Notice was Nation. supported as for SW. DHS the Nation at 15, 2000, January placed with On SW. was trial, again opposes the Nation here. Foster Parents. Dewayne paternity acknowledged T11 S. T6 The Nation intervened August on 2000. 10, 2000, and had an Child action on March Nation, 19, 2000, 1 12 The on filed October placement proceedings. active role in The rejected petition Kevin S. and members of his to transfer the case to the Tribal family, hearing home were conducted. The Juvenile set after studies Court. ported request Nation's the cause to individual, W., 1. Another Steve non-Indian changed position Tribal Court. DHS here has its S.W., listed on the birth certificate as father of subsequently support opposes argues order in a child and now the transfer and that the father, hearing Although perhaps to be the court administrative declared trial should be affirmed. unusual, always ruling party party accept but no now asserts that this individual is in can validity, party argue though position fact the father and he is not a to these its even such proceedings. position. initial be inconsistent its That situation is different from the case in which party positions trial represented by takes inconsistent State of appeal level and the level in an effort to overturn Attorney County, has not District Tulsa the trial court result. Likewise, filed a brief. neither of the Indian proceedings fathers have filed a brief. In the below, sup- DHS and the State and the fathers 3. See fo. 1. 25, 2000, transcript, placed weight great then continued the from the on October hearing to October this The trial denied criterion. the matter to the Tribal Proceedings-Foster Parents Parties and "good Court. The cause" reasons for denial {13 hearing De- Juvenile Court Entry as stated in the Journal are: prived Child cases had ordered visitation 1. The Petition to Transfer was not time- half-sibling. Par- After the Foster filed; ly to deliver and C.S. for ents had failed S.W. Tribal Court inconvenient visitation, August on the Juvenile forum; and 2000, ordered that the visitation continue. 8. A transfer would not Tribal Court thereafter, T 14 The Foster Parents Oc- the best interest of the children. 6, 2000, adopt tober filed a both appeals ruling. Nation also assigned children. This case was to the Pro- of the District Court in accor- bate Division REVIEW STANDARD OF Rule dance with local court rules. Rules appellate court has the of the Fourteenth Judicial District. plenary, au nondeferential independent Rulings Appeal thority legal Trial On to reexamine a trial rul court's ings. Wingrod Acquisition, Neil L.L.C. v. {[ 24, 2000, the Foster Par 15 On October Corp., Investment 1996 OK request Deprived ents filed a that the Child involving legislative n. 1. Matters intent cases be transferred to the Probate Division present questions of which are law examined opposed of the District The Nation Court. independently to and without deference the ground the on the that it de transfer sole ruling. Regina College trial court's Salve petition decided sired to have its transfer Russell, 111 S.Ct. U.S. hearing, After the Probate Division first. Keigor (1991); Springs L.Ed.2d 190 v. Sand judge, adoption to the case had trial whom Co., 98, ¶ 5, Deprived Ry. 1993OK CIV APP assigned, been ordered that the reassigned Child cases be to the Probate Division, thereby consolidating the three single ANALYSIS AND REVIEW

cases into a oneA4 This Court notes only request was that the transfer filed the Proceedings Consolidation of Deprivation adop Child cases and not the pres 119 Nation devotes substantial aspect tion case. of the Nation's One arguments its here to its claim of appeal reassignment. ent concerns the Deprived bringing error in the Child cases Thereafter, judge this same heard together adoption case. The Na petition Deprived Nation's appeal ruling tion's of this has no merit This hear Child cases to the Tribal Court. because: ing argu was conducted on briefs oral -_ ment, presented.5 but no evidence was only There is one District Court in Okla for adminis homa. Dockets are established principle arguments the hear- purposes. Supp.2000, 91.2 trative O.S. ing Tribal on transfer to the Court involved (A). Thus, jurisdictional there is no conflict question of whether the trial court could of the children. District consider the divisions or dockets between Supreme Court. statute and The trial court concluded that the children's and, clearly presiding judges to deal interests were a criterion have established judge appended which an affidavit indi- have referred this The Nation However, Judge." participate trial division as "Probate cated that Parents would not designation it must be made clear that this refers providing cultural education and asso- departments by to the administrative created lo- ex- ciations for the children. Foster Parent's procedure cal rule rather than the formal rules of perts' the effects concentrated on affidavits applicable adoption to either case or the bonding young and their need for children cases, governed which are all of permanent relationships. None of these affida- respective their statutes and the Rules of Civil were offered into evidence. vits Procedure. or are domiciled on an Indian and local rule- reside within matters with administrative (2). reservation, Therefore, 0.S8.1991, defined.7 The Four- as that making. reassign- is 25 applicable provision handles of the FICWA teenth District Judicial ques- presentment 1911(b), ments of cases provides: § which U.S.C. taking the judge who would be tion to the any proceeding for the fos- In State court

transfer, done here. Rule CV as was of, placement or termination of ter care District. to, the Fourteenth Judicial Rules of rights not dom- parental an Indian child - residing iciled or within the reservation objection to the transfer had no Nation tribe, court, the Indian child's request to have its other than it desired contrary, good cause absence Nation's Tribal Court heard. removal to the juris- proceeding to the shall such and heard. promptly docketed tribe, objection by diction absent argues that conflicts be here parent, upon of either either procedures Deprived Child tween the parent or the Indian custodian or the Indi- statutory proserip adoption procedures and Provided, That such trans- child's tribe: pre against combining the two actions tion subject by the fer shall be to declination consolidation. Nation's vent (Emphasis court of such tribe. add- tribal argument the result of the assumes ed.) blending of cases into a consolidation is a case, and the single action. Such was not here, When, the children do not as specifically separate trial noted reside in or are not domiciled on "reserva trial, right jury procedures, such as would 1911(b) concurrent tion" then Section creates followed, type applicable, in each jurisdiction presumptively which addition, ample the trial court has case. jurisdiction requires the State authority proceedings and to bifurcate the or the unless cause exists otherwise conduct the matters to conclusion without Band Mississippi Choctaw tribe declines. applicable in accord with internal conflict and 30, 35, Holyfield, Indians v. 490 U.S. O.S.1991, (D). procedures. 12 2018 (1989); 1597, 1601, L.Ed.2d 29 S.Ct. 104 R.S., facts, 250, Thus, 212 applicable Adoption f & 167 Ill.2d 20 under the S.S. of 985, 590, (Ill.1995); Ill.Dec. 657 N.E.2d 940 law, by no error reason of the consoli- exists single Halloway, dation of all cases before a District Adoption In re the 782 P.2d judge. Court (Utah 962, 1986); Maricopa 967 In re Coun Action, 104, ty 171 Ariz. Juvenile Request Denial of to Transfer to Tribal Thus, 1245, (Ct.App.1983). 1247 Section Issues Presented Court-The 1911(b), applicable, when allows state courts modified, apply limited version of T21 Both children are children for 1911(a), convemiens, mon while Section purposes of the Federal Indian Child Wel (FICWA.) applicable, completely divests state fare Act Neither of the children time, period 6. For a it was unknown whether juris FICWA is the Thus, "heart" ques- came the FICWA. The provision. the children within Section 1911 establishes a dictional paternity were resolved when was esiab- tions jurisdictional Mississippi Band dual scheme. 1903(4) (9). § 30, lished. See 25 U.S.C. 35, Holyfield, 490 Choctaw Indians v. U.S. (1989). 1597, 1601, S.Ct. 104 L.Ed.2d 29 If 7. When the child's residence or domicile is with- resides or is domiciled on a "reserva the child reservation, 1911(a) Section vests in the Tribe's jurisdiction Tribe tion" exclusive rests with the jurisdiction "any with a Tribe over exclusive 1911(a). The States Su under Section United custody proceeding." child That term includes enacting that, "[In Court said the ICWA preme temporary foster care and removal of the child that, custody pro Congress child confirmed in 1903(1). parenis. § 25 U.S.C. Section from the involving ceedings domiciled on Indian children 1911(b) provides transfer of matters involv- reservation, jurisdiction was exclusive ing Indian children from state court to tribal (the its "[MJore as to the States" jurisdiction whenever the child is not domiciled specifically, Act) to make clear that in residing was, in or the Tribe's reservation in mat- within purpose part, courts did not have certain situations the state involving placement" ters "Loster care or "termi- custody proceedings." jurisdiction parental rights." over child nation of the case in Id., 41, 1604, may of a transfer the tribal court decline to 490 U.S. at 109 S.Ct. at jurisdiction. exercise jurisdiction. Dept. R.B. v. State necessary proper application courts of in lieves Id., (Ala. Resources, Opala concurring in FICWA. So.2d Human at ¶129, by provided are Civ.App.1995). Guidelines in 754 P.2d at 876- directly The not answer Guidelines do Indian Affairs States Bureau of the United (Guidelines).8 personal question of whether the child's good are an best interests element of cause issue then is: What T283 The first of a to a consideration transfer Tribal employed good gauge must be to establish so, and if what evidence one criterion a child's best inter cause and is support good will find best interests cause Guidelines, a that the ests? This Court holds ing. . interests, and the cireumstances child's best find that the Some courts child's developed a case case basis are all integral decision-making are in of whether to the determination relevant volving be children so such interest must deny a tribal good cause exists to every stage an element for consideration court. proceeding. Guardianship procedure next issue asks: What J.O., N.J.Super. 748 A.2d 348- to examine the must be used order (N.J.Super.App.Div.2000). The Court requirement? This holds that Court Maricopa County the case of In re Juvenile party requesting a transfer must make a JS-8287, No. 171 Ariz. Action timely ap- applicationfor the transfer. (Ct.App.1991), that a 1250-52 ruled upon which plication must state the facts it is factor, along child's best interest was a affidavits and counter-affida- based. While There the found from Guidelines. Court employed, the trial court is di- vits had bonded with evidence child testimony, including oral those rected use environment, parents and had a stable foster culture, experts espe- from tribal on Indian proposed but the transfer was to an out-of- cially concerning the child's best on matters state Tribal Court. The site of the Tribal an Indian child. interests as aspects and other of the Guidelines were examined and factored into the decision final € Have those issue is: opposing transfer here met the burden to deny Similarly, transfer. the Nebraska why rejected trans- partly show cause the case should not be Supreme holds that the burden ferred? This Court upon based the Guidelines and because has not been met. transfer was not the best interests of presented. children as shown the evidence Elements of Good Cause- C.W., M.W., J.W., In re Interest K.W. and (1992). 817, 105, Best 239 Neb. 479 N.W.2d 117-18 Child's Interests split ques 126 The courts are simply 128 Other courts state that a child's best interests is a tion of whether a factor elabo child's best interest is without resolving question in ration, factor to consider in all of these cases additional good whether exists to transfer a cause cause present. also factors and the Guidelines were M.E.M., 1313, 329, 1911(b)9 In re 195 Mont. court under Section (1981) T., not defined in the FICWA. Good cause is re 1317 Robert 200 Cal. In 667, 657, 168, App.3d Cal.Rptr. N.L., 39, 863, 174-75 246 P.2d See In re 1988 OK 754 (1988), Opala concurring part dissenting examples. in in In provide In the case of ¶¶ 27-29, part, 754 P.2d at 876- M.E.M., 1988 OK that best re the Court directed child, binding in to the 77. The are not but indi interests of the addition Guidelines Guidelines, remand.10 what the Bureau of Indian Affairs be be considered on cate 1911(a) mandatory 1979). Section because ex- (Nov. under is Fed.Reg. 67584, 26, 8. 44 67591 jurisdiction with the Tribal Guidelines do not best interests of clusive there rests mention question Mississippi Band Choctaw Indians the child as a factor to consider on the Court. 30, 1597, 1911(b) Holyfield, 104 490 U.S. 109 S.Ct. of Section transfers. L.Ed.2d 29. Dale, 9. See Michael J. State Court Jurisdiction Implicit in this directive is the conclusion Under the Indian Child Act and the Un- Welfare is not included as one the best interests criterion 27 Test, stated Interest the Child Gonz. Best Guidelines. (1991-92). 353, contrast, L.Rev. 387 In transfer 1010 Supreme Court has Court's aligns

129 The Oklahoma expression about best interests it with the best interests line of cases and is is a interest of the child stated that best N.L., Therefore, factor, re citing controlling In re 1988 this Court M.E.M. thus here. ¶ 27, 863, However, N.L., that, authority OK of In re holds under present best interests is a factor to consider child's were and considered. other factors and stated The Court cited In M.E.M. question of to a Tribal on the transfer may prevent interests 1911(b). child's best under Section to the Tribal Court. The Court the conclusion that a child's the Trial had found that the noted that deciding is a factor in whether best interests county in the and that child had roots 1911(b) under does not Section working toward reunification state court was fully necessary resolve this case. It is mother. Neither of those cireum- by examine what meant best interests and been shown to exist here. stances have process to decide what should used 1 A courts decline to consid number of determine best interests. as a factor in the transfer er best interests point Yavapai-Apache in inquiry. A case Concept Best Interests-The Mejia, (Tex.Ct.App. Tribe v. 906 S.W.2d 152 and Its Determination 1995). use a There the Court declined to in 133 Good cause must be viewed two questions test on transfer be interest contexts-good cause that is to the (1) purpose the test defeats the children, extrapersonal. cause that is by interjecting Anglo-cultural biases FICWA (2) analysis; ques into the best interests nurture, pertains 34 The former placement pertinent tions are decisions care, and, and welfare of the children jurisdiction and not to decisions. The Court involved, exposure Indian are to and children Armell, Ill.App.3d 141 Ill. in In re aspects cultivation of the social and cultural (1990), N.E.2d Dec. 1064-66 culture, life, their of Indian and Indian BIA added the fact that Guidelines did not ritage.13 he partly mention best interests and were incon application.11 with a best of the child test sistent interest Appeals agreed with Anglo-American legal systems The Missouri Court of considers a (1) that a Armell and determined modified number of factors: the desires of the fo analysis (2) rum non convemiens was the stan child; physical the emotional and need C.E.H., T.W., apply. (8) In re dard to future; in of the child now and R.H., M.L.W.v. L.M.W. and physical danger emotional the child N.L., (Mo.App.1992); Opa see also In re (4) future; parental now and concurring la seeking custody; abilities of the individuals ¶ 28, 39 at 754 P.2d at discuss OK (5) programs available to assist ing non modified conveniens. promote individuals to the best interest of (6) child; plans for the child pri- argues 131 The Nation here that agency seeking or these individuals mary consideration for the denial (7) custody; stability of the home or N.L. was the the decision forum (8) proposed placement; or the acts omis- aspect mon conveniens of that case. While parent may sions of the which indicate that true, Supreme be nevertheless the T.R.M., Adoption of In 11. The case re 525 ed that use of a best interests standard at the of stage purposes defeat of the (Ind.1988) would the 298, 307-08 reached a con N.E.2d FICWA. There, result. the Court read the FICWA trary the BIA to mean inter and Guidelines that best part Congressional ests of the child were a 12. The Guidelines exclude from consideration so- policy perceived adequacy in deter cio-economic conditions and and were valid considerations 1911(b). judicial system mining good services cause under Section tribal or social C.3(c), Fed.Reg. § 44 Guidelines, structure. at contrast, J.L.P., the case of in Interest People of younger Also, the children here are than S.D.P., W.J.P., C.P., and 870 P.2d 1257-59 ages in (Colo.Ct.App.1994), significance the listed Section C.3. found in the fail FICWA the Guidelines to mention ure of the and proper concerns when a final interests of the child in of Section These are also best matters 1911(b) concerning decision is the children. transfers. The Colorado Court conclud- made

1011 may prevent to relationship child's interest parent-child is not best existing the (9) one; The Court further observed any for the the tribal court. and excuse proper a that the child the trial court had found parent. acts or omissions of county the state had roots in the Mejia, v. Yavapai-Apache Tribe S.W.2d working with toward reunification court of those cireumstances the mother. Neither in extrapersonal of best context have been shown to exist here. resources, means, terests refers Thus, Supreme Oklahoma Court preserve and used to procedures available with in In re N.L. examined factors that fall interests of the best protect it categories in of best interests. While both Thus, this as the courts consider children. an appears that the N.L. trial court held they hold that the pect best interest when of evidentiary hearing, the nature and content Guidelines, FICWA, and modified hearing were matters of the transfer not the sole standards. convemiens are mon appeal. Signif on Supreme before the in of the FICWA has the context Good icantly, dealing in the cases with best inter extraper- in examined relation often been ests, evidentiary hearing an was or either example, in matters. For best interest sonal M.E.M., dered, in In re or had as been R.N., N.M. Wayne In re experts, conducted with involvement (N.M.App.1988), court determina M.W., C.W., in In re Interest K.W. good cause has been shown tion of whether Thus, J.W. the next matter for consideration necessarily will a case not procedure to determine best interests. is the basis. Id. at 1885. made on a case case There, involved a late re the cireumstances Determination Best Interests-Its transfer, located in quest for parties in witnesses and but with The trial court's task is to Mexico,availabilityof tribal representa New fact-finding engage process leading in a Mexico, in New tives to assist the court interests, determination of the children's best opposition of the Tribe to transfer. Conve Indian yet keeping in mind facts that lateness of the trans nience of the forum and Indian are involved. children and an serving justify fer were factors Thus, foregoing components best while in In Matter Marico denial of transfer re Yavapai-Apache Tribe v. Me- from Action, 171 Ariz. pa County Juvenile exhaustive, list, conjunction in jo are not (App.1991). P.2d 1245 aspects of the case and the with the per need view the case Extrapersonal interests consider from different do indicate a number of relevant spective, justified in In re denial of transfer ations However, in the best considerations. degree N.L. to which these consider The used, must be taken terests standard is care concurring did so is reviewed ations point purely Anglo-American Id., avoid. Opala concurring Opinion. addition, inqui view.14 In the best interests ¶ 31, 1988 OK 39 at interest ry should be consistent Opinion main at P.2d inquiry placement.15 final that a cited M.E.M. and stated the Court 1912(F). qualified quirements § U.S.C. "Anglo" of the child of 25 14. Whether the best interest expert testimony of cultural cause test diminishes risk test should be an element of ¶ 17, N.L., at OK bias: Dale, Michael J. State has been questioned. qualifica guidelines Indian Child Court Jurisdiction Under the 867. For a review of Welfare N.L., expert Interest the Child 1988 OK at Act and the Unstated Best tion see In (1991-92). Test, 27 Gonz. L.Rev. ¶¶ held P.2d at 866-68. It has been 14-24, 754 Mejia Yavapai-Apache spe expertise person Tribe found includes a that such knowledge is silent on the issue and that the that the FICWA and cultur cial social skills suggest the child Woodruff, the best interest of Guidelines aspect v. 108 al of Indian life. State determining good place 352, 623, (1991); has no in cause State v. Or.App. 816 P.2d 626 10, Charles, (1984). determining good in Or.App. A extent that its consideration 70 688 P.2d 1354 discretion, of holding would constitute an abuse cause review of the Charles decision's placement. appropriate in that best interest is but point of the correctness was dismissed because State, holding. separate v. 299 Or. a Charles 341, (1985). Wel also In re 701 P.2d 1052 See should also be The trial court and the 15. G.L.J., (Minn. & 366 N.W.2d 651 cognizant "qualified expert re- T.J.J. witness" fare of 1012 location, like, geography, witness and the Moreover, good ex

139 cause ception in the state courts the FICWA offers into interes delves the child's N.L., Opala concurring apply a opportunity ts.18 also In re an to modified doctrine See conveniens. The rule of non 1988 OK 39 at forum forum equitable an one embrac mon comveniens is 29, 877, stating 1 754 P.2d at that an adver discretionary of a ing power court sary hearing required. is jurisdiction it decline to exercise has over 142 Onee the matter is before the action, transitory cause of when it believes court, party opposing the transfer has may appropriately that such action be more establishing good not the burden of justly tried elsewhere.16 St. Louis-San C.W., the matter. In re Interest Superior Ry. Co. v. Creek Francisco M.W., J.W., 112; K.W. and 479 N.W.2d 223, In County, 1954 OK 276 P.2d 773. C.3(d) Guidelines, $ Fed.Reg. 44 at 67591-92 equity, matters of the evidence must reason Commentary. party's and C.3 That burden ably findings support of the trial court. 125, Boughan Herington, v. 1970 OK also overcome the fact that the must FICWA ¶ 11, 472P.2d jurisdic preference creates a broad Maricopa County tion. Juvenile Ac general, power In of trans JS-8287, 1248; tion No. 828 P.2d at see discretionary. fer under the rule is Howev Yavapai-Apache Mejia, v. Tribe 906 S. W.2d er, only the transfer should be exercised exceptional cireumstances and when an ade showing quate has been made that the inter The FICWA establishes burdens of justice require a trial in a more ests Act, proof for some determinations under the Groendyke Transport, convenient forum. 1911(b) - however, specify does not Section Cook, 59, ¶ 7, Inc. v. OK degree proof necessary to establish 372. The FICWA the rule re modifies cause not to transfer case to tribal court. versing preferred outcome from reten Similarly, provide the Guidelines do not transfer, proof tion to the standard of has By comparison, effecting answer. an order not been modified. placement requires foster care evidence of a bring convincing quality In order to the matter clear and that continued court, party of transfer before the must parental custody will be harmful and the apply for a transfer.17 Affidavits and counter "beyond applies a reasonable doubt" burden accepted prove affidavits be tradition 1912(e), §§ to termination orders. 25 U.S.C. facts, al 1912(F). non conveniens but the trial encouraged testimony. oral is to hear Montana in In re Woodson, Company v. Oil OK Gulf ¶ 22, M.E.M., 1317, applied 635 P.2d at the "clear application P.2d convincing" standard. Clear and con must state the facts on which it is based vincing degree evidence defined as a Likewise, par not mere conclusions. Id. proof produces in the mind of the trier ty forth, opposing transfer must set writ a firm fact belief or conviction as to the ing, opposing the factual basis for the trans allegation sought truth of to be estab Guidelines, Fed.Reg. fer. at 67590. Oral M.B., APP lished. 2000 OK CIV required testimony request goes of P.3d 1072. beyond extrapersonal considerations App.1985), experts where found the O.S.1991, tion. 140. The Oklahoma Supreme qualified possessed training who in Indian Court has also the terms used mo referring culture. tion when to the means to raise the Woodson, Company issue. Oil 1972 OK Gulf 164, ¶ 23, the parties' above, 16. As ruled the child's best is a filings fully complied procedural require process decision-making factor in the in addition ments. geography, to such considerations conve- witnesses, nience and location of evidence. herein, 18. As noted in other cases where a child's speak petition. appropriate 17. The Guidelines of a Guide- best interests was considered an fac- lines, tor, evidentiary Fed.Reg. proceedings at 67590-91. Oklahoma re- involved an change testimony. quests presented by applica- hearing expert venue are Supreme {45 analyzing pertaining Although the Oklahoma the facts in those cases in the standard not refer to this did such as witness lo extrapersonal matters N.L., concurring the Opinion of In re main cation, away distance of Tribal N.L., Opala concur of the to transfer. Opinion did so.19 timeliness See 1988 OK ring R.N., Wayne 107 N.M. example, In re for 877, citing, ¶ 30, as does the 754 P.2d at at (N.M.App.1988). 757P.2d 1833 the other In M.E.M. On re Opinion, main hand, examining non convemiens Division trial the Probate has Supreme Court the questions, Oklahoma argu with briefs and presented was court to the broad the issue is addressed ruled that trial of the issue at the ment. - Neither side court. Oil equity powers of the trial Gulf formal evidence. Affidavits presented level ¶ 23, Woodson, at Company v. OK presented the Na to the briefs attached P.2d at 490. question a and Foster Parents raised tion $46 This holds that, commitment about Foster Parents' 1911(b) transfers, context of Section specific heritage children and their Indian must estab party opposing the transfer the half-sibling. relationship The Pro with their "clear and according to the good cause lish upon the Division trial focused bate holding This convincing"evidence standard. the bonding children and concept of between Supreme Court's reli with the is consistent the record Significantly, Parents. language Court and the on the Montana ance during here shows that NL. See- concurring Opinion of In re of proceedings the Nation and DHS placement ond, holding with the stan is consistent having a emphasized positive effects of subsequent stages applicable proof dard of justification relationship partial sibling convincing or even "be where clear and parents adoptive placement apply. doubt" standards yond a reasonable half-sibling.20 party presented children's No convincing stan Next, the clear use of culture, life, concerning heri evidence policy of the FICWA foster dard will relationship those factors to tage, with and will assist the Tribal Court prefer sum, In of the children.21 the best interests interjection of inadvertent effort to avoid fully explore and not here does record Last, proceeding. into the cultural bias factors analyze the total cireumstances and found was where the cases personal interests comprising exist, justified findings reported evidence finding based on such that a and C.S. SW. and con on the basis of the "clear of facts made, or could be existing record trial court vincing" The Nebraska standard. convincing supported clear and which is in expert testimony on the best considered C.W., evidence, re Interest question. In terests J.W., by denying trans M.W., 479 W.2dat 117-18. children are served N. K.W. fer to the tribal court. clearly supported the outcome The evidence jurisdictional a applied substantial evi- quickly seen that the CaliforniaCourt 19. The It T., hearing with characteris re Robert inquiry the transfer issue. In evolves into dence test to Cal.Rptr. Cal.App.3d at 173. placement at onee best a final examination tics of context, Supreme a different jurisdic injected into the interests of the child Oklahoma evidence:" "substantial Court defined does not inquiry. this Court tional means some- "substantial evidence" The term authority to recede to decide whether have the It thing of evidence. more than scintilla the child at this of best interests of from use something possesses means evidence that request stage light In re N.L. See In consequences such relevant substance and of Armell, Dec. Ill.App.3d 141 Ill. conviction, it to induce fitness as carries (1990), de where the Court at 1064-66 N.E.2d reasonable man such evidence and is not to are "relevant that best interests termined may fairly to whether it establishes differ as place jurisdiction ascertain determine case. result, and, contrary In re Guard for the ment" Manning, Hayes Freight, OK Inc. v. Motor 348-49, J.O., "the best ianship 743 A.2d 71, 6,¶ test is the backbone interests of child law." n. 14 family But see also note Planning Recommendation, American Permanent 20. DHS of C.S. above. record at Matter Matter of S.W. Court Court record deprive the children of their cul- Deny Alternative Reasons Transfer history. expert's ture and An affidavit sub- The trial court's order as mitted on behalf of Foster Parents states signed two other reasons for denial of the they heritage that honor the children's and petition is that transfer.22 The first the "will work with help the tribe to the children timely. Promptness was not is a incorporate genetic their and cultural birth- requirement recognized for a transfer re However, right." personal no statement Guidelines, Fed.Reg. § quest. and C.1 Commentary untimely An appears C.1 re from the Foster Parents in the ree- ord. quest asserting will non comvemiens not succeed under Oklahoma law. Oil Gulf 1 52 This Court is concerned whether the ¶ Woodson, Company v. 1972 OK at 505 jurisdictional squabble, presented, as here P.2d at 490. has as its basis the children's best interests may and how those interests be served ver- the record reflects that uncertainty system being manipulated sus whether the period existed for a substantial regarding paternity Thus, purposes obtaining leverage. children. Be paternity in this case as to both chil parties' motivations are concerns when they dren whether were established of Indian determining what the best interests of these descent, such fact needed to be known before children be here. Thus, transfer would have been authorized. heightened 158 This Court's concern is under it the circumstances cannot be said because DHS has reversed itself. The con- requests untimely.23 that are the transfer legal cern is not that DHS has reversed its timing of the transfer arguments, but rather that DHS has now adoption petition ques- raise support sibling abandoned its relationship placed by tions. The children had been DHS parent bonding relationship, favor of foster January with the Foster Parents as apparent regard all without for the fact that Children cases. After it children that are involved here involved, began the Nation became it to take implications policies and the flowing position the children should be heritage. from that placed adoptive parents of the chil- Therefore, among the matters for in- half-sibling. dren's late as As October vestigation and consideration on remand are plan, supported possible parties motivations of the DHS, leading adoption was to eventual the interaction and conflicts here between half-sibling's adoptive both children their bonding sibling relationships. Under parents. cireumstances, factors, along those sundry filings 151 Statements in in components the other of best dispute matters indicate an undercurrent of herein, noted must be examined deter- between the Nation and Foster Parents. mination of whether cause exists to any adoption petition event, was filed deny opponents transfer and whether the 6, 2000, October and the transfer was transfer have met their burden of evidence. filed October 2000. The affida- Nation's supporting vits its brief on the transfer inconvenient forum factor here issue involving appears geography. mention a confrontation relate to The Guide- allegation they Parents and an would lines refer to hardship undue to the ruling 22. The trial court's oral best inter- tained. The record fails to show a correction to children, ests of the stated in terms of their the birth certificate of SW. to reflect the correct paternity of SW. See subsection Parties & Pro- interests, was the basis of deni- ceedings, p. Hearing S.W. 4. This birth certificate should al of transfer. 3, 2000, Nov. Transcript, i p. 56. be corrected to remove the administrative court W., father, adjudicated Steve from the birth cer- tificate father, K.S., 23. The the DNA on the father, W., birth certificate Steve a non- place officially recognize certificate the child's Indi- adjudicated Indian, was S.W.'s father by September heritage appearance duplicate administrative court order on and avoid fathers, acknowledge paternity 1999. KS. did not each of whom is decreed or acknowl- edged by proceeding of S.W. until after DNA results were ob- a court to be S.W.'s father. Appellees court because Guidelines, case to the 44 Fed. witnesses. any good the existence C.3(b)Gii) pertinent to show failed § Reg. for transfer. witnesses, deny petition can be information, cause to 1911(b). § is Distance U.S.C. of counties. in a number found the Nation overwhelming factor and not an prefer- placement appears that T2 It also holding nearer capability has the Indian of the requirements and other ences Parents re- the Foster County where Tulsa through Act, § 1901 25 U.S.C. Welfare and con- that clear be said It cannot side. followed. § not been have denial of supports vincing evidence ground. on this adequately presented This case can be T3 ANDCONCLUSION any hard- undue without SUMMARY in the tribal court parties or witnesses. ship to the {56 to the remanded must be This case hearing. an adversarial to conduct trial court interests hearing, the children's

In this of transfer on the issue consider a factor to

is must trial court Tribal Court. are just what

determine children, with this however consistent

for are fact that and the Opinion OK CIV APP 19 to inad- taken not must be Care children. pro- into the interject cultural bias vertently Petitioner, HARNS, Charlotte parts the Guidelines ceedings. Relevant addressed, hardship on the so are to . however, consider, this parties is factor FUND INJURY TRUST MULTIPLE the transfer ruled that has Compensation The Workers' timely. Respondents. Therefore, Probate the decision T57 consolidated 95,737. which trial court Division No. Adoption Case and the cases Deprived Child judge, but District Court single before procedures for respective retained which Appeals of of Civil case, which The decision is affirmed. each Division No. to the proceedings denied the case reversed and Tribal Court Sept. consistent proceeding further remanded 2, 2001. Rehearing Nov. Denied Opinion. with RE- PART AND IN AFFIRMED ©58 14, 2002. Denied Jan. Certiorari AND REMANDED PART IN VERSED CON- PROCEEDINGS FOR FURTHER THIS OPINION. WITH

SISTENT concurs, STUBBLEFIELD, P.J.,

TAYLOR, J., part and dissents concurs

part. J.,

TAYLOR, concurring part.

{ majority's decision I 1 concur denying trans- order the trial court's

reverse tribal court. proceedings

fer of the and remand I reverse would to sustain the trial court for the

instructions Nation's

Case Details

Case Name: In Re Adoption of SW

Court Name: Court of Civil Appeals of Oklahoma

Date Published: Sep 18, 2001

Citation: 41 P.3d 1003

Docket Number: 95,681

Court Abbreviation: Okla. Civ. App.