IN THE MATTER OF IW, MM, Jr., And NK, Adjudicated Deprived Juveniles
Case Number: 115997
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II
Decided: 12/29/2017
2018 OK CIV APP 6
JERRY L. GOODMAN, JUDGE
Mandate Issued: 01/24/2018
MICHAEL LANCE McAFEE, Appellant, v. STATE OF OKLAHOMA, Appellee.
APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, OKLAHOMA
HONORABLE DAWSON R. ENGLE, TRIAL JUDGE
REVERSED
W. S. Haselwood, HASELWOOD & WEBB, Shawnee, Oklahoma, for Appellant
Richard Smotherman, DISTRICT 23 DISTRICT ATTORNEY, Rebecca Bauer, ASSISTANT DISTRICT ATTORNEY, Shawnee, Oklahoma, for
JERRY L. GOODMAN, JUDGE:
¶1 Michael Lance McAfee (Father) appeals an April 6, 2017, order terminating his parental rights to his minor children, IW, MM, Jr., and NK. Based upon our review of the record and applicable law, we reverse the order under review.
BACKGROUND
¶2 The minor children, who are of Indian descent, were removed from the biological mother‘s home in October of 2012 due to alcohol abuse.1 Father, who resides in Kansas, stipulated to a deprived petition for failure to protect in December of 2012.
¶3 An individualized service plan (ISP) was adopted on January 9, 2013, requiring Father to complete a family functional assessment, complete a domestic violence inventory, visit the minor children, provide the Department of Human Services (DHS) a list of appropriate caregivers for the minor children, sign releases, and contact the caseworker at least monthly.
¶4 After Father made significant progress on his ISP, DHS recommended trial reunification. In May of 2015, the minor children were placed with Father in Kansas. However, in October of 2015, reunification was terminated after Father spanked MM, leaving significant bruising. Father was charged with domestic battery, ultimately pleading no contest.
¶5 State filed a motion to terminate Father‘s parental rights on September 16, 2016, pursuant to
STANDARD OF REVIEW
¶6 As a general rule, before parental rights may be severed, State must prove its case by clear-and-convincing evidence. In re S.B.C., 2002 OK 83, ¶ 5, 64 P.3d 1080, 1082. “Clear and convincing evidence” is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re C.G., 1981 OK 131, ¶17 fn.12, 637 P.2d 66, 71 fn.12. Where an Indian child is involved, as in the present case, however, “the proceedings must comply with the provisions of both the federal ICWA,
¶7 Pursuant to the federal ICWA:
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
¶8 Appellate review of the evidence is thus directed toward assuring the evidence adduced by State, if believed, would support a conclusion by any rational trier of the facts that State‘s evidence demonstrated beyond a reasonable doubt that continued custody by Father would result in serious damage “to [the children].” T.L., 2003 OK CIV APP 49, at ¶ 12, 71 P.3d at 47. However, the “beyond a reasonable doubt” standard only applies to the factual determination required by
ANALYSIS
¶9 On appeal, Father contends State failed to introduce testimony from a qualified expert witness as required under the Indian Child Welfare Act (ICWA). Father asserts State‘s witness, Timothy Oliver with the Kickapoo Tribe of Kansas, was unqualified because he was the social worker regularly assigned to the case, citing
¶10 Title
¶11 We find no error by the trial court‘s decision finding Oliver was qualified as an expert for purposes of the ICWA.
¶12 Father further contends State did not establish beyond a reasonable doubt with expert testimony that continued custody of the minor children by Father would result in serious emotional or physical damage, as required by
¶13 Title
No termination of parental rights may be ordered in such proceedings in the absence of a determination supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
The Guidelines for the Bureau of Indian Affairs provides: “the evidence must show the existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding,” and “the causal relationship between the conditions that exist and the damage that is likely to result.” See Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, D.3(c), 44 Fed. Reg. 67584, 67593 (November, 26, 1979) (BIA Guideline D.3 [c]). This evidence must include expert witness testimony. See
¶14 With respect to IW, Oliver testified that he “think[s] she would” suffer serious emotional or physical damage if returned to Father. Regarding MM, Oliver merely stated he was very concerned about him and that he‘s scared, particularly about these proceedings. Oliver never affirmatively testified that MM would suffer serious emotional or physical harm if returned to Father. With respect to NK, Oliver stated “I‘m really unsure on that one. ... I really am. I‘m just really unsure.” Finally, on cross examination, Oliver acknowledged that he had not been in the home in two years so he could not really say whether the children would suffer serious emotional or physical damage if returned to Father.
¶15 Angela Dockrey, a permanency planning worker with DHS, testified she did not believe the minor children could be returned to Father‘s home safely. She stated the children had a strained relationship with Father. In addition, she believed Father did not know how to handle MM‘s behavioral issues or know how to discipline him appropriately.
¶16 We find State failed to present evidence through the testimony of a qualified expert affirmatively showing beyond a reasonable
¶17 We emphasize that State in this case must meet a heightened burden of proof beyond a reasonable doubt. Although Father‘s assault on MM is very serious, there is a total lack of expert witness testimony to support a conclusion beyond a reasonable doubt that continued custody of the minor children by Father is likely to result in serious emotional or physical damage. Testimony as to possibilities such as “think[s]” or “I‘m really unsure” does not rise to the required level of probability.
¶18 Accordingly, State failed to present evidence through the testimony of a qualified expert affirmatively showing beyond a reasonable doubt that the continued custody of the minor children by Father is likely to result in serious emotional or physical damage to the children, a showing required by
¶19 REVERSED.
FISCHER, P.J., concurs, and RAPP, J., concurs specially.
RAPP, J., concurring specially:
The reversal in this case does not necessarily require that the deprived children‘s case should be dismissed or that Father should have custody of the Children.