DEBORAH B. BARNES, Judge.
¶ 1 Appellant Tamera N. Smith (Mother) appeals from an Order of the trial court determining B.T.S. eligible for adoption without her consent. Mother's appeal raises questions of law concerning deficiencies in the notice she received from Appellees Teresa Nixon and Quahana Nixon (collectively, Adoptive Parents) regarding their application for an order determining B.T.S. eligible for adoption without her consent; the burden of proof applied by the trial court in reaching
¶ 2 B.T.S. was born on November 19, 2005, to Mother and Jerrett Shields (Father), who were unwed. Father is a member of the Chickasaw Nation and all parties agree B.T.S. is an Indian child as defined by state and federal law. Tammy Smith is Mother's mother and B.T.S.'s maternal grandmother. On April 12, 2007, Smith and Teresa Nixon, Mother's aunt, were appointed, with Mother's consent, as B.T.S.'s co-guardians in McCurtain County.
¶ 3 B.T.S. has lived with Adoptive Parents for about eight years. On July 2, 2014, Adoptive Parents filed a petition for adoption of B.T.S. in Cherokee County, as well as an application for an order terminating Mother's and Father's parental rights, and an order determining B.T.S. eligible for adoption without Mother's and Father's consent. Adoptive Parents alleged, pursuant to 10 O.S. 2011 § 7505-4.2(B) and (H)
¶ 4 The trial court ordered a court-appointed attorney for Mother. On October 23, 2014, Mother filed her response to the applications denying most of the allegations in the applications. Mother alleged as a "counterclaim" that she filed a motion to have the co-guardianship dismissed because she has rectified the conditions that led to the co-guardianship. She also alleged she has maintained a relationship with B.T.S. to the best of her ability and to the extent allowed by the co-guardians, and that she has contributed and continues to contribute to the support of B.T.S. She also alleged the petition contained a material misrepresentation; that is, Quahana Nixon has never had legal custody of B.T.S., only physical custody, because Ms. Smith is the other co-guardian. Mother asked the court not to terminate her parental rights nor deem B.T.S. eligible for adoption without her consent.
¶ 5 The court also appointed a guardian ad litem who filed a report on September 10, 2014, and filed a supplemental report on November 17, 2014, after interviewing Mother. The GAL found, among other things, that B.T.S. was thriving in the care of Adoptive Parents. The supplemental report did not alter the GAL's original report that it would be in B.T.S.'s best interests to determine B.T.S. eligible for adoption without Mother's consent. According to the supplemental report, Mother told the GAL she suffered post-traumatic stress disorder, has been diagnosed as bi-polar and schizophrenic, and has had sporadic contact with B.T.S. during the guardianship period and had last seen B.T.S. in June of 2014. The GAL also
¶ 6 A hearing was held on November 17, 2014, on the application to determine B.T.S. eligible for adoption without Mother's and Father's consent. Mother asserted a jurisdictional issue was presented because the guardianship was in place in a different county. Mother argued Ms. Smith, the co-guardian, was a necessary party in these proceedings though she referred to no statutory or decisional law for the argument. Mother also admitted the guardianship court was aware of the present proceedings and was waiting to rule on her petition to vacate the guardianship pending the outcome of these proceedings. The court found the co-guardian was not a necessary party in an adoption matter and overruled Mother's objection.
¶ 7 During the hearing, Father admitted he had not maintained a relationship with B.T.S. during the relevant period nor had he paid child support in seven years. Father testified he believed adoption was in B.T.S.'s best interests. The court also heard the testimony of Mother and Voss. Mother maintained she had given money and purchased clothes and school supplies for B.T.S. during the relevant period, but that these sums were given to her mother to give to B.T.S. and Adoptive Parents. Mother, however, failed to produce any records except for one $100 check given during the relevant period although she claimed to have the records documenting other payments. Mother and Voss also claimed Mother maintained a relationship with B.T.S. during the two-week period each summer that Ms. Smith had physical custody of B.T.S. though Mother was also unable to produce more than a few pictures that she testified showed B.T.S. at a swimming pool in June 2014, three pictures of an Easter 2014 visit, and three pictures of a September 2013 get together. The court also heard the testimony of Adoptive Parents who disputed Mother paid child support or otherwise provided gifts or clothing to B.T.S. during the relevant period and disputed Mother maintained any meaningful relationship with B.T.S.
¶ 8 At the conclusion of the hearing, the trial court announced Adoptive Parents had met their burden as to Father and determined B.T.S. eligible for adoption without Father's consent. As to Mother, the trial court noted "conflicting evidence" was presented, but that it was presented with no evidence "that would rebut the proof provided by" Adoptive Parents who by clear and convincing evidence met their burden of proof.
¶ 9 The court filed its Order on March 27, 2015, in which the court found notice had been provided pursuant to the provisions "of 10 O.S. § 29.1 and 10 O.S. § 7505-4.1 et seq." and that it had jurisdiction pursuant to 10 O.S. 2011 § 7502-1.1. The court further found Adoptive Parents had had "physical custody" of B.T.S. since April 12, 2007, by way of the guardianship order in McCurtain County. The court found by clear and convincing evidence that Mother's and Father's consent to the adoption of B.T.S. was not required because they failed to provide support for B.T.S. or to maintain a meaningful parental relationship with B.T.S. during the relevant period and ordered B.T.S. eligible for adoption without their consent.
¶ 10 Mother filed this appeal.
¶ 11 Questions of law are reviewed under a de novo standard of review, without
¶ 12 Father is a member of the Chickasaw Nation. Mother is non-Indian. However, it is uncontested that B.T.S. is an Indian child and that the provisions of the Federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2012) (ICWA), and the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§ 40-40.9 (OICWA) apply in this case. Pursuant to OICWA § 40.3(A), except in circumstances not herein relevant, "[OICWA], in accordance with [ICWA], applies to all child custody proceedings involving any Indian child ...." Mother argues Adoptive Parents' failure to comply with certain notice provisions of OICWA deprived the trial court of jurisdiction to determine B.T.S. eligible for adoption without Mother's consent.
¶ 13 Mother argues Adoptive Parents never notified the United States Bureau of Indian Affairs of their applications to determine B.T.S. eligible for adoption and termination of Mother's parental rights, as required by 10 O.S. 2011 § 40.4.
¶ 14 Adoptive Parents do not contest Mother's factual allegations and the record on appeal reveals no notice was sent to the BIA nor did Mother's Notice of Hearing inform her that the Chickasaw Nation could intervene or that she could seek transfer of the proceedings to the Chickasaw Nation tribal courts. The service of process, however, states Mother was served with the petition for adoption in which B.T.S.'s tribal affiliation was asserted to be the Chickasaw Nation. The Notice of Hearing sent to the Chickasaw Nation does contain the information required by § 40.4, including the language pertinent to the biological parent. That notice was filed of record on July 2, 2014, the same day Mother's Notice of Hearing was filed. Mother has been represented by counsel throughout these proceedings.
¶ 15 In Halliburton, the Oklahoma Supreme Court stated the well-recognized rule that,
Id. ¶ 10 (footnotes omitted). Mother, however, offers no other decisional authority for her position that the Order must be reversed because the trial court had "no subject matter jurisdiction." Nevertheless, because fundamental parental interests are at stake in this matter, we have undertaken our own review of persuasive authority pertinent to the claims raised by Mother.
¶ 17 In In re Adoption of Baby Girl B., 2003 OK CIV APP 24, 67 P.3d 359, another Division of this Court addressed, among other issues, the effect of inadequate notice to both the father of the child and the tribal nation pursuant to both § 1912 and § 40.4. The Court noted the language in § 1914 authorizing "any parent from whose custody such child was removed" to petition the court to vacate its decision upon a showing of a violation of § 1912, among other sections, and noted that the challenge before it was to the notice given to the father and to the nation. Father never had custody of the child, but he also had had no notice of the child's birth or that he was the child's father; once he was so notified, he took steps to establish paternity and provide support. The Court determined ICWA and OICWA applied and father was a parent for purposes of those acts. The Court went on to determine the adequacy of the notice provided to father and the nation, and the effect of any inadequacies in the notice provided on the trial court's ruling.
¶ 18 In Baby Girl B., the father and the nation argued the notice served upon father did not comply with the provisions of § 40.4 because the notice lacked the child's tribal identification, a statement of rights, and advice regarding his right to counsel. Although father did receive notice of the hearing on termination of his parental rights — a hearing he ultimately missed because he was lost and arrived after the hearing had already concluded — the Court found
¶ 19 Under the facts presented, the Baby Girl B. Court found the inadequate notice as to father required reversal of the termination order, but also found that while notice to the nation was defective, "the trial court's decision not to invalidate on this ground is not clearly error because of the absence of prejudice to Nation." Id. ¶ 54 (emphasis added).
¶ 20 Other jurisdictions have also considered the effect of an absence of prejudice or lack of harmful error in circumstances where notice has been deficient as to a parent or a tribe pursuant to the notice requirements of ICWA and state law requirements. For example, the Alaska Supreme Court discussed the effect of defective notice to an Indian parent in a termination of parental rights case though the issue had been raised for the first time on appeal. In In re L.A.M., 727 P.2d 1057 (Alaska 1986), the Alaska Supreme Court addressed the mother's assertion that the mere publication of notice of the parental rights termination proceeding failed to comply with the notice requirements of the ICWA § 1912(a), and Alaska's Indian child welfare provisions. The court explained:
In re L.A.M., 727 P.2d at 1059 (citations omitted).
¶ 21 The Alaska Supreme Court found the case before it to be such a case. The court reasoned:
In re L.A.M., 727 P.2d at 1059 (footnote omitted). Although the Alaska court noted there was little case law interpreting § 1914, the court found the guardian ad litem's interpretation to be consistent with the broad purposes of ICWA in promoting stability among Indian tribes and families and with the section's legislative history. Thus, the Alaska court concluded, because the state failed to satisfy ICWA's requirement of notice by registered mail, the order terminating the mother's parental rights required reversal "unless the procedural violation was harmless because the mother had actual notice of the termination hearing." Id. at 1061 (emphasis added). The court found on the record before it that mother had no actual notice; therefore, the court reversed the order of termination.
¶ 22 Though not addressing state law notice requirements, other courts have similarly addressed ICWA's notice requirements with reference to the parents or tribe's actual notice and participation in the proceedings. For example, in In re H.A.M., 25 Kan.App.2d 289, 961 P.2d 716 (1998), the appellate court held the trial court's failure to give notice to the Chickasaw Nation regarding a termination of parental rights proceeding and to foster care placement proceedings commenced prior to the termination proceedings did not require reversal of the case where the tribe ultimately became involved in the proceedings. In response to the parents' argument on appeal that the failed notice requirements required reversal of the termination order, the In re H.A.M. court held:
Id. at 720. See also In re J.J.G., 32 Kan.App.2d 448, 83 P.3d 1264 (2004), disapproved on other grounds in In re B.D.-Y., 286 Kan. 686, 187 P.3d 594, 606 (2008) (Appellate court found the tribe's actual participation in all custody proceedings regarding the child, including scheduling for the termination proceedings, rendered father's notice argument unpersuasive.).
¶ 23 In none of these decisions were inadequacies in the notice requirements of § 1912 or § 40.4 determined to be jurisdictional deficiencies as argued by Mother, but rather procedural deficiencies which could be raised for the first time on appeal; however, we review errors in notice deficiencies for prejudice. "Absent a showing of prejudice, any error is harmless and an insufficient basis for reversal." E & F Cox Family Trust v. City of Tulsa, 2013 OK CIV APP 45, ¶ 34, 302 P.3d 1168 (citations omitted).
Malloy v. Caldwell, 2011 OK CIV APP 26, ¶ 18, 251 P.3d 183.
¶ 24 The record indicates Mother had notice of her rights to intervene and to seek removal of the proceeding to the Chickasaw Nation tribal courts. She did not receive this notice from Adoptive Parents as required under § 40.4, but the notice of hearing sent to the Chickasaw Nation is in the record and was filed the same day Mother's defective notice was filed. Unlike the father in Baby Girl B., Mother was represented by counsel at all critical stages of this proceeding and Mother has fully participated in these proceedings. The contents of the record were plainly available to her. Mother has thus failed to explain how she was prejudiced by the defective notice.
¶ 25 Further, as argued by Adoptive Parents, Mother has failed to demonstrate how the outcome of the proceeding would have been different had she received proper notice from them, although she poses rhetorical questions about whether she would have asked the Chickasaw Nation to intervene or whether she would have sought transfer to its tribal courts. Although the July 17, 2014 return receipt of service from the Chickasaw Nation was belatedly entered of record, Mother does not dispute that the Chickasaw Nation had proper notice prior to the originally scheduled September 11, 2014 hearing. That hearing was then continued to November 17, 2014. The Chickasaw Nation declined to intervene in the matter or seek transfer of the proceedings to its tribal courts.
¶ 26 Moreover, as previously noted, Mother was represented by court-appointed counsel. On July 2, 2014, Adoptive Parents filed their petition for adoption and their applications for an order determining B.T.S. eligible for adoption without the consent of his natural parents and order terminating the parental rights of the natural parents. According
¶ 27 We also agree with Adoptive Parents that their failure to notify the BIA as required by § 40.4 was likewise without prejudice to Mother. It is unquestioned B.T.S. is an Indian child and member of the Chickasaw Nation. See 10 O.S. 2011 § 40.3(D)(E). No question is thus presented here about B.T.S.'s status that would require some determination by the BIA. No other tribal affiliation for B.T.S. has been asserted that would require some action in these proceedings by the BIA. Moreover, the § 40.4 notice to the BIA only states the parents, Indian custodian, and tribe have a right to intervene, not that the BIA has a right to intervene in voluntary or involuntary child custody proceedings.
¶ 28 We do not condone Adoptive Parents' failure to follow the notice requirements of OICWA particularly because that failure calls into question the rights of parents and Indian tribes and protracts the proceedings involving their rights and the custody and placement of children. It is in the interests of all to get it right the first time. However, where, as here, the record does not demonstrate the deficiencies resulted in prejudice to Mother, we will not reverse the trial court's judgment.
¶ 29 Mother does not argue the trial court erred in finding by clear and convincing evidence that B.T.S. is eligible for adoption without her consent. Instead, she argues the trial court applied the wrong standard of proof for the evidentiary requirements of ICWA and OICWA, in particular ICWA § 1912(f) which provides:
Thus, Mother argues the heightened burden of proof beyond a reasonable doubt should have been applied. Moreover, Mother argues no "qualified expert witness" testified and "[n]owhere in the transcript is B.T.S.'s emotional and/or physical well-being discussed in the manner envisioned by § 1912(f)." We disagree with Mother's arguments.
¶ 30 As argued by Adoptive Parents, the present case does not involve a circumstance in which the child was in the custody of the parent. B.T.S. has not been in Mother's custody for eight years. Moreover, the present appeal concerns B.T.S.'s eligibility for adoption without Mother's consent, not termination of her parental rights. Section 1912(f) does not apply; thus, the heightened standard it requires does not apply.
In re G.D.J., ¶¶ 35-36. See also In re J.S., 2008 OK CIV APP 15, ¶ 4, 177 P.3d 590 (heightened beyond a reasonable doubt standard of proof absent from the language of § 1912(d) and applies only to factual determination required by 1912(f) to be made in ICWA termination cases; lesser standard of clear and convincing evidence applicable to all other state law requirements for termination).
¶ 31 Similarly, because § 1912(f) does not apply under the facts of this case, expert testimony that the continued custody of B.T.S. by Mother is likely to result in serious emotional or physical damage to B.T.S. was not required.
¶ 32 We therefore conclude the trial court did not err in applying a clear and convincing standard of proof.
¶ 33 Mother argues the trial court was without subject matter jurisdiction to determine whether B.T.S. was eligible for adoption without her consent because at the time the application was made, guardianship over B.T.S. had been granted in 2007 in another county and was continuing. She argues the trial court erred in overruling her "position that the proper jurisdiction for the adoption would be in" the county where the guardianship was granted. Mother's argument is based on what she contends is the proper interpretation of Oklahoma's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 43 O.S. 2011 §§ 551-101
Pursuant to UCCJEA § 551-202,
¶ 34 Mother does not argue there is ambiguity in some provision of UCCJEA or § 7502-1.1; rather, she argues the plain language of § 7502-1.1 requires the conclusion that the jurisdiction requirements of UCCJEA apply to proceedings for the termination of parental rights and adoption of a minor child filed under the Oklahoma Adoption Act, and that it would be nonsensical to interpret UCCJEA in such cases to apply only to interstate adoption jurisdiction disputes. Because, she argues, UCCJEA vests the court in the guardianship proceeding with exclusive jurisdiction and UCCJEA applies to termination of parental rights and adoption proceedings, Mother argues this Court must interpret UCCJEA such that wherever the word "state" appears, the word "county" must be inserted. She contends, "Even though [UCCJEA] was meant to deal with interstate issues, many states, including Oklahoma, have decided that its guidelines would also be effective in dealing with similar intra-state problems," and cites, by way of example, to 43 O.S. 2011 § 103(D).
¶ 35 Mother concedes the purpose of UCCJEA "is to avoid jurisdictional conflict between courts of different states," citing Barnett v. Klein, 1988 OK 132, ¶ 12, 765 P.2d 777 (discussing predecessor Uniform Child Custody Jurisdiction Act (UCCJA), 43 O.S. §§ 501-527, repealed effective November 1, 1998) (emphasis added).
¶ 36 Mother's policy argument may not be wholly without merit. She argues the effective administration of justice and use of court resources, the use of litigant resources, and the best interests of a child might be served in adoption proceedings by rewriting UCCJEA such that wherever the word state appears, county should be inserted.
¶ 37 In Oklahoma, the judiciary lacks the power to rewrite a statute merely because the legislation does not comport with our or with an appealing party's concept of prudent public policy.
Okla. Const. Art. 4, § 1. The Oklahoma Supreme Court has stated: "In absence of a constitutional defect, we are duty bound to give effect to legislative acts, not to amend, repeal, or circumvent them. We will not exercise authority not vested in this Court by rewriting statutes merely because the legislation does not comport with our concept of prudent public policy." Coates v. Fallin, 2013 OK 108, ¶ 2, 316 P.3d 924 (citations omitted). The Supreme Court has further stated: "[T]he wisdom of choices made within the Legislature's law-making sphere are not our concern, because those choices — absent constitutional or other recognized infirmity — rightly lie within the legislative domain." Duncan v. Okla. Dep't of Corr., 2004 OK 58, ¶ 5, 95 P.3d 1076 (citation omitted).
¶ 38 Adoptions are not subject to UCCJEA § 551-103 and we agree with Mother that § 7502-1.1 specifically states adoption proceedings commenced pursuant to The Oklahoma Adoption Code are.
¶ 39 Consequently, we decline to usurp the Legislature's power to rewrite statutes and we find no legislative intent on the face of § 7502-1.1 or the provisions of UCCJEA to conclude the Legislature intended UCCJEA to apply to intrastate adoption proceedings. Therefore, we conclude the trial court was not without jurisdiction to determine B.T.S. eligible for adoption without Mother's consent and did not err in entering its Order.
¶ 40 Although she has failed to assert the issue in her appellate brief, in her application to the Supreme Court to convert her petition to assume original jurisdiction to a direct appeal, Mother asserts the Order is "fatally defective" on its face because it fails to "address the requirements of [ICWA and OICWA] in its findings of fact and conclusions of law." Mother had been directed by the Supreme Court to file a petition in error, and while she did so, she did not attach to it
¶ 41 Mother has requested in her appellate brief appeal-related attorney fees and costs. Her request does not comply with the requirements of Oklahoma Supreme Court Rule 1.14, 12 O.S. Supp. 2013, ch. 15, app. 1, and is denied.
¶ 42 Based on the applicable law and facts, we conclude the trial court properly exercised jurisdiction over this adoption proceeding, and although Adoptive Parents did not fully comply with the notice provisions of OICWA, Mother — who raised these notice deficiencies for the first time on appeal — had notice of her rights, fully participated in the proceedings, and was represented by counsel at all critical stages of the proceedings. We therefore conclude the error was harmless and the trial court properly determined the issue of whether B.T.S. was eligible for adoption without the consent of Mother. We further conclude the trial court applied the correct clear and convincing evidentiary standard in reaching the determination that B.T.S. was eligible for adoption without Mother's consent. Further, we decline Mother's request that we exercise the Legislature's power to rewrite statutes and we find no legislative intent on the face of § 7502-1.1 or the provisions of UCCJEA to conclude the Legislature intended UCCJEA to apply to intrastate adoption proceedings. We further conclude, however, because B.T.S. is an Indian child and the trial court properly applied the applicable provisions of ICWA and OICWA, the Order should be corrected to identify B.T.S. as a member of the Chickasaw Nation and to state that the provisions of ICWA and OICWA apply to this case. Finally, we deny Mother's request for appeal-related attorney fees and costs. Accordingly, we affirm the Order as corrected.
¶ 43
THORNBRUGH, P.J., and RAPP, J., concur.
(Emphasis added.)
(Emphasis added.)
This conclusion finds further support from the Supreme Court's reasoning in In re Adoption of R.R.R., 1988 OK 109, 763 P.2d 94. There a grandmother sought to adopt the minor child because the child was living with her and the parents had not supported the child in over a year. The mother could not be located and was served by publication, but the father had actual notice and filed a motion for summary judgment on grounds not here pertinent, which the trial court granted. The Supreme Court reversed the grant of summary judgment and remanded the case for new trial. The child was a member of the Kiowa Tribe and the tribe, along with the BIA, had been notified of the adoption proceeding. The tribe filed a motion to intervene; however, the record revealed it did not have notice of the summary judgment hearing. In determining that the tribe on remand for a new trial was not precluded from seeking transfer to its tribal courts, the Oklahoma Supreme Court reasoned:
1988 OK 109, ¶ 17, 763 P.2d 94 (footnotes omitted). The Supreme Court specifically noted the trial court's minute stated the Kiowa Tribe was not present for the hearing and had received no notice of the hearing. In the present case, Mother had notice — albeit not in full conformity with OICWA § 40.4 — of the pre-adjudicatory proceedings, was represented by counsel, fully participated in the hearing, and had access to the filings in the record.
In fact, the circumstances here — where the issue is for the first time presented on appeal — are not unlike those addressed by the Supreme Court in In re N.L., 1988 OK 39, 754 P.2d 863, where a mother challenged the sufficiently of the notice under OICWA of a pre-adjudication order because the emergency custody order did not contain the requisite affidavits required by § 40.5. Because the mother had not raised those issues at the trial level, the Supreme Court said it could not review those issues on appeal. In re N.L., ¶ 8. The Supreme Court reasoned:
In re N.L., ¶¶ 9-11 (citations omitted) (footnote omitted). As to the jurisdictional issue, the Court stated:
In re N.L., ¶ 11 n. 2 (citation omitted). The Court concluded:
In re N.L., ¶ 13.
Id. at 2560.
(Emphasis added.)
