|
(Cite
as: 230 P.3d 911) |
Court
of Civil Appeals of Oklahoma,
Division
No. 1.
In
the Matter of S.F., C.G., and M.G., Alleged Deprived Children.
State
of Oklahoma, Petitioner,
v.
Samuel
Givens and Donna Givens, Respondents,
and
Michael
Wood, Respondent/
and
Muscogee
(Creek) Nation, Intervenor/
No.
106,601.
Released
for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No.
1.
Dec.
4, 2009.
*912
Appeal from the District Court of Okfuskee County, Oklahoma; Honorable David N.
Martin, Judge.
REVERSED
AND REMANDED.Aaron
T. Corbett, Corbett Law Firm, PLLC, Oklahoma City, OK, for
Respondent/
Shanna
Burgin, Assistant Attorney General, Muscogee (Creek) Nation, Okmulgee, OK, for
Intervenor/
KENNETH
L. BUETTNER, Judge.
?
1 Respondent/
?
2 In its Juvenile Petition, filed September 17, 2008, the State alleged that
S.F., C.G., and M.G. were deprived as a result of domestic violence in the home
of Respondents Donna Givens (Mother) and Samuel Givens (Step-Father) while the
children were in their custody. The petition named Wood as the natural father of
S.F. At a hearing held October 7, 2008, Mother and Step-Father stipulated that
the children were deprived.*913
FN1
The parties indicated Step-Father and Mother had begun divorce proceedings in
tribal court, and counsel for Mother stated her intent to file ?a motion that
this case be removed to tribal court for final disposition.? The trial court
indicated it was willing to transfer the case.
FN1.
Counsel for Wood indicated that Wood was returning from military service in
Iraq, but his wife had visited with S.F., and Wood hoped to get visitation and
establish a relationship with S.F. Counsel indicated Wood is not a tribal
member, but S.F. is. Counsel for Wood also indicated he would stipulate to the
petition. The trial court set the case for a disposition hearing.
?
3 Step-Father filed a Petition to Transfer Jurisdiction of this Proceeding to
the Muscogee (Creek) Nation November 5, 2008.FN2
Hearing was held the same day. At the hearing, Wood objected to the transfer as
to S.F. Counsel for Mother asserted that Mother ?joins in the petition to
transfer it to tribal court and [S.F.] is, the child is eligible for enrollment
through ... the natural mother.? The trial court found federal law required it
to transfer the case, and entered an order transferring the case to the tribal
court the same day.
FN2.
In his Petition, Givens asserted he was the father of C.G. and M.G., but he
sought to have the entire matter transferred to the tribal court. Givens noted
the Muscogee (Creek) Nation's motion to intervene had been granted October 7,
2008. 25 U.S.C.A. ? 1911(c) provides for intervention by the tribe:
In
any State court proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the child and the
Indian child's tribe shall have a right to intervene at any point in the
proceeding.
?
4 Wood filed his Motion for Reconsideration November 19, 2008. Wood asserted
that he is a parent as defined by ICWA and he had objected to the transfer of
the case. Wood asserted that 25 U.S.C. ? 1911(b) provides that a state court may
transfer a deprived case ?absent the objection of either parent.? Wood urged the
court to limit the transfer to C.G. and M.G. only.
?
5 Hearing on the Motion for Reconsideration was held December 1, 2008. The trial
court entered its order denying the motion December 18, 2008. Wood timely filed
his Petition in Error.
[1][2]
? 6 We first address the Tribe's claim that once the court transferred the case
to tribal court, the state courts lost jurisdiction, so that this appeal must be
dismissed. The Tribe raised a similar argument in an earlier motion to dismiss
this appeal, which the Oklahoma Supreme Court denied in an order filed April 1,
2009. The order on appeal meets the statutory definition of a final, appealable
order. 12 O.S.2001 ? 953. We are not persuaded that Wood's failure to request a
stay of the transfer pending appeal is fatal to this court's
jurisdiction.FN3
See Matter
of J.B.,
1995 OK CIV APP 91, 900 P.2d 1014, where the Oklahoma Court of Civil Appeals
reversed and remanded an order transferring a deprived proceeding to tribal
court without a stay issued in the trial court. Rather, denying Wood a right to
appeal the transfer order would be a fundamental denial of due process.
Wells
v. Shriver,
1921 OK 122, 81 Okla. 108, 197 P. 460, 478. The transfer order cannot be final
until an appellate decision is final, or the time to appeal has
expired.FN4
FN3.
The Tribe claims that Wood should have requested relief under the Servicemembers
Civil Relief Act, 50 U.S.C. ? 501, et
seq.
While Wood could have done so, his objection through counsel was sufficient
under ? 1911(b). There is no requirement that a party must personally appear and
object.
FN4.
A trial court's finding on the issue of jurisdiction is subject to direct
review. Chicot
County Drainage Dist. v. Baxter State Bank,
308 U.S. 371, 376, 60 S.Ct. 317, 319, 84 L.Ed. 329 (1940).
[3]
? 7 The applicable provision of ICWA is 25 U.S.C. ? 1911(b), which
provides:
In
any State court proceeding for the foster care placement of, or termination of
parental rights to, an Indian child not domiciled or residing within the
reservation of the Indian child's tribe, the court, in the absence of good cause
to the contrary, shall transfer such proceeding to the jurisdiction of the
tribe, absent
objection by either parent,
upon the petition of either parent or the Indian custodian or the Indian child's
tribe: Provided,
That such *914
transfer shall be subject to declination by the tribal court of such
tribe.
(Emphasis
added). Wood contends that the statutory language plainly allows either parent
to object. The tribe responds that the trial court must consider whether there
is good cause to deny the transfer.
?
8 Only Step-Father, who is not a parent of S.F., filed the petition to transfer
the case. Mother announced in court that she joined in Step-Father's petition.
Even if we assume Mother's request to join Step-Father's petition amounted to a
petition to transfer by a parent of S.F., we nevertheless conclude the plain
language of the statute requires us to hold that the trial court did not have
authority to transfer the proceeding as it applied to S.F.
?
9 The right of either parent to object is absolute and such objection serves as
a veto over transfer of the case to tribal court. 42 CJS, Indians,
? 161. See also, cases cited in State
in Interest of D.A.C.,
933 P.2d 993 (Utah App.1997), where the Utah Court of Appeals noted that the
majority view is that a trial court errs when it rejects a parent's objection to
transferring a case to tribal court under ? 1911(b). In a case addressing the
applicability of ? 1911(a), the Supreme Court has noted there are three distinct
and equally viable avenues for jurisdiction of an ICWA case to remain in state
court under ? 1911(b):
Section
1911(b), on the other hand, creates concurrent but presumptively tribal
jurisdiction in the case of children not domiciled on the reservation: on
petition of either parent or the tribe, state-court proceedings for foster care
placement or termination of parental rights are to be transferred to the tribal
court, except in cases of ?good cause,? objection by either parent, or
declination of jurisdiction by the tribal court.
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 1601-1602, 104 L.Ed.2d 29 (1989). The Tribe's
argument that the statute requires the parent to show good cause for his
objection to the transfer is not supported by the one published case cited by
the Tribe. We must interpret ? 1911(b) to make every word and sentence
operative. Matter
of J.B., supra,
900 P.2d at 1016. The interpretation suggested by the Tribe would require us to
ignore the plain language of the statute.
?
10 The trial court abused its discretion in denying Wood's motion to reconsider.
As a parent of S.F., Wood had an absolute right to object to the transfer of the
deprived proceedings to tribal court.FN5
Accordingly, the trial court's decision is REVERSED AND REMANDED for further
proceedings consistent with this decision.
FN5.
We express no opinion as to whether the trial court can or should transfer
separately the proceedings as to C.G. and M.G., or whether good cause would
exist to deny the transfer, because that question has not been decided by the
trial court.
BELL,
P.J., and HETHERINGTON, J., concur.
Okla.Civ.App.
Div. 1,2009.