Opinion:In the Matter of W.P., 2022 OK CIV APP 31
Subject matter:Family Law–child custody
Date Decided:July 21, 2022
Trial Court:District Court of Okfuskee County; Judge Reilly
Route to this Court:Appellant (father) appealed a final order terminating parental rights to minor child, W.P., based on the length of time W.P. was placed in foster care.
Facts:State filed a Petition to adjudicate W.P. deprived as to mother, then six months later adjudicated W.P. deprived as to father. Both are members of the Seminole Nation and Creek Nation respectively. Father failed to complete the Individualized Service Plan by improving living conditions within 90 days and that W.P. had been in foster care out of the home for six out of the twelve months prior to filing, pursuant to 10A O.S. § 1-4-904(B)(17). Father made little to no effort during the time leading to trial to get to know W.P. He objected to termination of his rights, he also testified that he viewed Foster Mother as W.P.’s mother and that it would be difficult to separate W.P. from Foster Mother. Foster Mother wanted to adopt W.P.

DHS child welfare supervisor, child welfare specialist, and the Nation’s reunification and permanency caseworkers all testified that W.P.’s best interests were to be left with Foster Mother and terminate Father’s parental rights. The jury verdict failed to identify the conditions Father failed to correct on the verdict form. Therefore, the trial court entered judgment based only on length of time in foster care and entered an order terminating Father’s parental rights on November 24, 2021.
Standard of Review:In a parental termination case, the State has the burden of proof to show by clear and convincing evidence that grounds exist for termination. In the Matter of C.G., 1981 OK 31, ¶ 17. Clear and convincing evidence is the 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.D.P.F., 2010 OK 81, ¶ 5. However, because this case involves Indian children, the proceedings must comply with the provisions of the federal ICWA (25 U.S.C. §§ 1901-1963) and the Oklahoma ICWA (10 O.S. §§ 40-40.9). In the Matter of T.L., 2003 OK CIV APP 49, ¶ 11. The “beyond a reasonable doubt” standard only applies to the determination under 25 U.S.C. § 1912(f) “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.” In the Matter of IW, 2018 OK CIV APP 6, ¶ 8. The lesser standard of “clear and convincing” evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d).
Analysis:The two issues that Father brought up in his appeal were based on IWCA claims that (1) that the evidence was insufficient to demonstrate a finding that active efforts were taken to prevent the breakup of an Indian family, which proved unsuccessful, and (2) that the evidence was insufficient to support a finding that Father’s continued custody was likely to result in serious emotional or physical damage to the minor child.

Regarding the active efforts requirement, the Court agreed with the State that active efforts were not required as to Father under 25 U.S.C. § 1912(d) because there was no familial relationship to restore or continue. Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013). The Supreme Court determined that the breakup of a familial relationship requires that there be evidence of an actual familial relationship in existence at leading up to the time the action is brought. In that case, like here, there was no relationship between the parents and the child. Therefore, section 1912(d) was not applicable because there was no “breakup” of the Indian family precipitated by the termination of Father’s rights. In response to Father’s argument that DHS’s efforts were passive and not active, DHS still satisfied 1912(d) by conducting three visits with Father in prison over the course of nine months, discussing with Father services he could utilize in prison, and it maintained regular contact with the state reunification program manager. DHS also provided means for Father to communicate with W.P., with Foster Mother, and with DHS. Father received and worked services. Thus, even if section 1912(d) was applicable, there was clear and convincing evidence that DHS satisfied the active efforts requirement and that it made efforts to provide remedial services and programs to prevent the breakup of the Indian family.

In light of the likelihood of serious emotional or physical damage to the child if custody is continued argument, the Court also found that 25 U.S.C. § 1912(f) was not applicable because there was no preexisting relationship and W.P. was never in Father’s legal custody, thus the beyond a reasonable doubt standard was not required. Again, the Court referred to the Supreme Court case Baby Girl, because Father had no relationship to continue with W.P., therefore, there was no heightened burden of proof on the State to prove that it was in W.P’s best interest to terminate Father’s parental rights. Even if 1912(f) was applicable, the standard was met because expert witnesses all testified that it was in W.P’s best interests to terminate Father’s parental rights and that it was critical for W.P. to have stability at home. In harmony with ICWA, testimony was used only to support the conclusion that continued custody will result in harm to the child, and the trial court looked to other sufficient sources of evidence to prove the harm was likely to occur.
Vote:Fischer, C.J., Barnes, P.J., and Hixon, J. (author) concur.
Other: N/A