Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

Vernon's Okla. Forms 2d, OUJI-JUV 5.8 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.8 Burden of Proof for Termination of Parental Rights

The State has the burden of proving all the requirements for the termination of the parent's rights by proof beyond a reasonable doubt and you may return a verdict finding that parental rights are terminated only if you find that the State has satisfied its burden of proof.

[For purposes of this case, you are required to accept the following matters as true:

List any issues that are not for the jury to decide either because they have been stipulated to by the parties or are not jury issues].

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.20.

Vernon's Okla. Forms 2d, OUJI-JUV 5.23 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.23 Burden of Proof for Termination of Parental Rights

The State has the burden of proving all the requirements for the termination of the parent's rights beyond a reasonable doubt and you may return a verdict finding that parental rights are terminated only if you find that the State has satisfied its burden of proof.

[For purposes of this case, you are required to accept the following matters as true:

List any issues that are not for the jury to decide either because they have been stipulated to by the parties or are not jury issues].

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.36.

Vernon's Okla. Forms 2d, OUJI-JUV Ch. 5 Intro. 2 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Introductory Note

Under 25 U.S.C. § 1912(d), a showing is required in any proceeding to effect foster care placement or termination of parental rights to an Indian child that ?active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful.? This provision may require a prior adjudication of deprived status before termination of parental rights may be sought, even in cases involving heinous or shocking abuse. There is no guidance from the Oklahoma Supreme Court whether an adjudication of deprived status may be pursued simultaneously with a termination of parental rights under the Indian Child Welfare Act. Some courts have held that recent unsuccessful efforts with respect to the same parent but a different child may satisfy the requirement for ?active efforts? with respect to a subsequently born child. See Letitia V. v. Superior Court of Orange County, 81 Cal. App. 4th 1009, 1016, 97 Cal. Rptr. 2d 303, 308 (Cal. Ct. App. 2000).

Vernon's Okla. Forms 2d, OUJI-JUV 5.2 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.2 The Issues in the Case

There are two separate issues for you to decide in this case in order to terminate parental rights. Consider each issue separately. To terminate parental rights, you must find that the State has met its burden of proof on each of the following issues.

Is the child deprived according to the definitions given to you in these instructions? The State has a burden of proof on this issue called ?clear and convincing evidence,? which is defined elsewhere in these instructions.

Are there grounds to terminate parental rights with respect to the child? The State has a burden of proof on this issue called ?proof beyond a reasonable doubt.?

You may reach the issue of whether to terminate parental rights only if you find that a child is deprived. If you find that the child is not deprived, then you may not consider whether to terminate parental rights.

Statutory Authority: 25 U.S.C. § 1912(e), (f).

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.3.

Vernon's Okla. Forms 2d, OUJI-JUV 5.49 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.49 Parental History of Chronic Drug or Alcohol Abuse

The State seeks to terminate the parent's rights on the basis that the parent has a history of chronic drug or alcohol abuse. In order to terminate parental rights on the basis that the parent has a history of chronic drug or alcohol abuse, the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

The parent has a history of extensive, abusive and chronic use of drugs or alcohol;

The parent has resisted treatment for the chronic drug or alcohol use during a three year period immediately before the filing of the petition;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(14).

Vernon's Okla. Forms 2d, OUJI-JUV 5.7 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.7 Presumption That Parent Acts in Best Interest of Child

It is presumed that a child's best interests are ordinarily served by leaving the child in the custody of the parents, who are expected to have the strongest bond of love and affection and to be best able to provide a child those needed qualities. This presumption may be rebutted if there is proof beyond a reasonable doubt that the child would be neglected or abused if the child remained in the custody of the parents.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.19.

Vernon's Okla. Forms 2d, OUJI-JUV 5.9 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.9 Definition of ?Beyond a Reasonable Doubt?

NO INSTRUCTION SHOULD BE GIVEN

Committee Comments

The Oklahoma Court of Criminal Appeals has criticized the giving of a definition of reasonable doubt. Young v. State, 1962 OK CR 70, § 22, 373 P.2d 273, 278 (?We agree with our predecessors that the trial court should not undertake to define the terms ?reasonable doubt,? ?.?); Moore v. State, 1950 OK CR, 214 P.2d 966, 968, 90 Okla. Crim. App. 415, 418 (?[S]uch an instruction has been condemned in this jurisdiction from territorial days to the present time.?). In Wansing v. Hargett, 341 F.3d 1207 (10th Cir. 2003), the United States Court of Appeals for the Tenth Circuit reversed the denial of a habeas corpus petition because the Oklahoma state trial court's definition of reasonable doubt deprived the defendant of a fair trial. The Tenth Circuit explained:

Under Oklahoma law, it is error for a trial court to attempt to define reasonable doubt. Smallwood, 907 P.2d at 231; Summers v. State, 704 P.2d 91, 92 (Okla.Crim.App.1985). This is because Oklahoma has determined that such definitions are more likely to confuse than to clarify the standard. See Romano v. State, 909 P.2d 92, 124?25 (Okla.Crim.App.1995); Smallwood, 907 P.2d at 231. In Williams v. State, 572 P.2d 257, 259 (Okla.Crim.App.1977), the court explained that ? ?reasonable doubt? is self-explanatory, and ? therefore definitions thereof do not clarify the meaning of the phrase, but rather tend to confuse the jury.? The underlying purpose of the rule?ensuring that the jury is not misled?thus bears some resemblance to the federal constitutional inquiry.

41 F.3d 1211?12.

Vernon's Okla. Forms 2d, OUJI-JUV 5.22 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.22 Presumption That Parent Acts in Best Interest of Child

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.35.

Vernon's Okla. Forms 2d, OUJI-JUV 5.24 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.24 Definition of ?Beyond a Reasonable Doubt?

NO INSTRUCTION SHOULD BE GIVEN

Committee Comments

The Oklahoma Court of Criminal Appeals has criticized the giving of a definition of reasonable doubt. Young v. State, 1962 OK CR 70, ¶22, 373 P.2d 273, 278 (?We agree with our predecessors that the trial court should not undertake to define the terms ?reasonable doubt,? ?.?); Moore v. State, 1950 OK CR, 214 P.2d 966, 968, 90 Okla. Crim. App. 415, 418 (?[S]uch an instruction has been condemned in this jurisdiction from territorial days to the present time.?). In Wansing v. Hargett, 341 F.3d 1207 (10th Cir. 2003), the United States Court of Appeals for the Tenth Circuit reversed the denial of a habeas corpus petition because the Oklahoma state trial court's definition of reasonable doubt deprived the defendant of a fair trial. The Tenth Circuit explained:

341 F.3d 1211?12.

Vernon's Okla. Forms 2d, OUJI-JUV 5.35 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.35 Failure to Correct Conditions?The Treatment Plan

In order for you to find that there has been a failure to correct the conditions which caused a child to be found deprived, you must find that the Court placed the parent on notice of the condition/conditions to be corrected by means of a service plan or treatment plan.

A ?service plan? or ?treatment plan? provides a list of activities or standards of conduct that are designed to assist the parent to correct the condition/conditions that caused a child to be deprived.

In order to terminate parental rights, you must find beyond a reasonable doubt that the condition/conditions which caused the child to be deprived has/have not been corrected. Failure to complete a treatment plan alone is not a basis to terminate parental rights, but it is evidence that the jury may consider in determining whether the condition/conditions has/have been corrected.

Statutory Authority: 10 O.S. 2001, § 7003-5.3.

Vernon's Okla. Forms 2d, OUJI-JUV 5.3 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.3 Requirements for Adjudication of Deprived Status

In order for you to find that a child is deprived, you must be satisfied by clear and convincing evidence that:

The child deprived according to the definitions given to you in these instructions;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and

It is in the best interests of the child and the public for the child to be made a ward of the court.

The public's interest lies in protecting the child from harm.

Statutory Authority: 25 U.S.C. § 1912(e), 10 O.S. 2001, § 7003-4.5(A).

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.8.

Vernon's Okla. Forms 2d, OUJI-JUV 5.11 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.11 Verdict Form?Termination of Parental Rights

IN THE DISTRICT COURT OF ____________ COUNTY

STATE OF OKLAHOMA

[JUVENILE DIVISION]

IN THE MATTER OF:

)

CASE NO. JD-

)

AN ALLEGED DEPRIVED CHILD

)

V E R D I C T

TERMINATE PARENTAL RIGHTS

We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find by proof beyond a reasonable doubt that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on the statutory ground that [Set forth ground for termination?E.g., the child has been born to a parent whose parental rights to another child have already been terminated before].

___________________

FOREPERSON

_____________________________________________

Notes on Use

This Verdict Form should be used for ICWA cases instead of the Verdict Form in Juvenile Instruction No. 2.22. The jury must be given both this Verdict Form and the Verdict Form in § 2.23, and it must return one Verdict Form or the other. It is recommended that separate verdict forms should be used for each parent, each child and each alleged ground for termination.

Vernon's Okla. Forms 2d, OUJI-JUV 5.26 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.26 Verdict Form?Termination of Parental Rights

IN THE DISTRICT COURT OF ____________ COUNTY

STATE OF OKLAHOMA

[JUVENILE DIVISION]

IN THE MATTER OF:

)

CASE NO. JD-

)

A DEPRIVED CHILD

)

VE R D I C T

TERMINATE PARENTAL RIGHTS

We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find by proof beyond a reasonable doubt that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on the statutory ground that the parent failed to correct the following condition/conditions that led to the adjudication that the child was deprived: [Set forth condition/conditions that led to the deprived adjudication].

___________________

FOREPERSON

_____________________________________________

Notes on Use

This Verdict Form should be used for ICWA cases instead of the Verdict Form in Juvenile Instruction No. 2.38. The jury must be given both this Verdict Form and the Verdict Form in § 2.39, and it must return one Verdict Form or the other. It is recommended that separate verdict forms should be used for each parent, each child and each condition that led to the adjudication of the child's deprived status.

Vernon's Okla. Forms 2d, OUJI-JUV 5.34 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.34 Failure to Correct Conditions

The State seeks to terminate the parent's rights on the basis of failure to correct the condition/conditions that led to the finding that a child is deprived. In order to terminate parental rights on this basis, the State must prove beyond a reasonable doubt each of the following elements:

The child has been adjudicated to be deprived;

The acts or omissions of the parent caused or contributed to the condition/conditions that caused the child to be deprived;

The parent has failed to correct the condition/conditions that caused the child to be deprived;

The parent has had at least three months to correct the condition/conditions;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(5).

Notes on Use

The trial judge should give Juvenile Instruction No. 5.35 along with this instruction.

Vernon's Okla. Forms 2d, OUJI-JUV 5.1 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.1 Purpose of Termination Proceeding

The purpose of a termination proceeding is to decide whether to break the parental bond. The case is concerned with four separate interests:

The parent's right to custody and control of a child.

The State's responsibility to protect a child under eighteen (18) years.

The child's right to a wholesome place to live, free from abuse and neglect.

The right of the Indian child's tribe to stability and security.

The interest of the parent, the State, the Indian child's tribe, and the child must be carefully weighed. The State's responsibility to protect the child must be balanced against the interest of a parent in the custody and control of a child. It is also the policy of the government to prevent the breakup of the Indian family in order to promote the stability and security of Indian tribes.

The right of a parent to the custody and control of a child is a fundamental right protected by the Federal and State Constitutions. While the rights of a parent are important and entitled to protection, they must be balanced against those of a child, and where they conflict, the child's rights should be protected.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 1.1.

Committee Comments

This Instruction incorporates the Congressional declaration of policy for ICWA cases in 25 U.S.C. § 1902.

Vernon's Okla. Forms 2d, OUJI-JUV 5.4 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.4 Issues to Decide

If after a full, fair, and impartial consideration of all of the evidence, facts and circumstances in this case, you find that the State has proven by clear and convincing evidence that a child is deprived, then you should return a verdict that the child is deprived. On the other hand, if after a full, fair, and impartial consideration of all of the evidence, facts and circumstances in this case, you find that the State has failed to prove by clear and convincing evidence that a child is deprived, then you should return a verdict that the child is not deprived.

If you do not find that a child is deprived, then you shall not consider termination of parental rights and all of you in a body should return the verdict to the Court. If you find a child is deprived, you must continue with your deliberations and consider whether parental rights should be terminated with respect to that child.

[For purposes of this case, you are required to accept the following matters as true:

List any issues that are not for the jury to decide either because they have been stipulated to by the parties or are not jury issues].

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.14.

Vernon's Okla. Forms 2d, OUJI-JUV 5.21 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.21 Purpose of Termination Proceeding

The purpose of a termination proceeding is to decide whether to break the parental bond. The case is concerned with four separate interests:

The parent's right to custody and control of a child.

The State's responsibility to protect a child under eighteen (18) years.

The child's right to a wholesome place to live, free from abuse and neglect.

The right of the Indian child's tribe to stability and security.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 1.1.

Committee Comments

This Instruction incorporates the Congressional declaration of policy for ICWA cases in 25 U.S.C. § 1902.

Vernon's Okla. Forms 2d, OUJI-JUV 5.33 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.33 Noncompliance with Placement Agreement

The State seeks to terminate the parent's rights on the basis that the parent has not complied with a placement agreement. In order to terminate parental rights on the basis that the parent has not complied with a placement agreement, the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

Continuation of parental rights is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness;

The parent voluntarily placed physical custody of the child with the Department of Human Services or with a child-placing agency for out-of-home placements;

The parent has not complied with the placement agreement;

The parent has not demonstrated during the placement period a firm intention to resume physical custody of the child or to make permanent legal arrangements for the care of the child; and

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(4).

Vernon's Okla. Forms 2d, OUJI-JUV 5.36 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.36 Previous Termination of Rights to Another Child

The State seeks to terminate the parent's rights on the basis that a child has been born to a parent whose parental rights to another child have already been terminated before. In order to terminate parental rights on this basis, the State must prove beyond a reasonable doubt each of the following elements:

The child has been adjudicated to be deprived;

The parent's parental rights to another child have been terminated before;

The condition which led to the finding that resulted in the termination of parental rights to the other child has not been corrected;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(6).

Vernon's Okla. Forms 2d, OUJI-JUV 5.37 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.37 Failure to Contribute to Support of Child

The State seeks to terminate the parent's rights on the basis that the parent has willfully failed, refused or neglected to contribute to the support of a child. In order to terminate parental rights on the basis that the parent has willfully failed, refused or neglected to contribute to the support of a child, the State must prove beyond a reasonable doubt each of the following elements:

The child has been adjudicated to be deprived;

The parent did not have custody of the child;

The parent has willfully failed, refused or neglected to contribute to the support of the child for twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for termination of parental rights in substantial compliance with a court order of support; or, if no provision for support is provided in an order, according to the parent's financial ability to contribute to the child's support;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(7).

Vernon's Okla. Forms 2d, OUJI-JUV 5.46 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.46 Child Conceived As a Result of Rape

The State seeks to terminate the parent's rights on the basis that the child was conceived as a result of rape. In order to terminate parental rights on the basis that the child was conceived as a result of rape, the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

The child was conceived as a result of a rape committed by the parent;

The child has been placed out of the home;

Continuation of parental rights is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Rape is an act of sexual intercourse under the following circumstances: [Specify Grounds for Rape in 21 O.S. 2001, § 1111].

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(11).

Vernon's Okla. Forms 2d, OUJI-JUV 5.6 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.6 Verdict Form?Deprived

IN THE DISTRICT COURT OF ____________ COUNTY

STATE OF OKLAHOMA

[JUVENILE DIVISION]

IN THE MATTER OF:

)

CASE NO. JD-

)

AN ALLEGED DEPRIVED CHILD

)

V E R D I C T

CHILD IS DEPRIVED

We, the jury, empaneled and sworn in the above entitled cause, do upon our oath, find by clear and convincing evidence as follows:

It is in the best interest of the child, [NAME], and the public for the child to be made a ward of the court; and

Continued custody by the parent is likely to result in serious emotional or physical

damage to the child, as supported by the testimony of at least one expert witness; and

The child, [NAME], is DEPRIVED; and

The following condition has led to our finding that the child is deprived: [Set forth condition that may lead to the finding?E.g, the child does not have proper parental care or guardianship]

___________________

FOREPERSON

_____________________________________________

Notes on Use

This Verdict Form should be used for ICWA cases instead of the Verdict Form in Juvenile Instruction No. 2.16. The jury must be given both this Verdict Form and the Verdict Form in § 2.17, and it must return one Verdict Form or the other. It is recommended that separate verdict forms should be used for each child. If there are two or more conditions that may lead to adjudication, separate verdict forms should be used for each condition.

Vernon's Okla. Forms 2d, OUJI-JUV 5.10 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.10 Instructions for Verdict Forms

[Use for cases where only one ground for termination is alleged.] If you find that the State has proved beyond a reasonable doubt that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on the statutory ground that [Set forth ground for termination?E.g., the child has been born to a parent whose parental rights to another child have already been terminated before], you should sign and return the verdict form entitled Terminate Parental Rights for that parent and that child. Otherwise, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.

[Use for cases where multiple grounds for termination are alleged.] If you find that the State has proved beyond a reasonable doubt that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on one or more statutory grounds, you should sign and return the verdict form entitled Terminate Parental Rights for every such statutory ground for that parent and that child. It is not necessary that the same five people sign each verdict form. If you find that the State has not proved beyond a reasonable doubt that the parental rights of the parent, [NAME] to the child, [NAME], should be terminated on any statutory ground, you should sign and return the verdict form entitled Do Not Terminate Parental Rights for that parent and that child.

Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.21.

Vernon's Okla. Forms 2d, OUJI-JUV 5.25 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part B. Termination after Prior Adjudication

Juvenile Instruction No. 5.25 Instructions for Verdict Forms

Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.37.

Vernon's Okla. Forms 2d, OUJI-JUV 5.39 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.39 Heinous or Shocking Physical or Sexual Abuse

The State seeks to terminate the parent's rights on the basis of the parent's heinous or shocking physical or sexual abuse of (the child)/(a sibling of the child). In order to terminate parental rights on the basis of the parent's heinous or shocking physical or sexual abuse of (the child)/(a sibling of the child), the State must prove beyond a reasonable doubt that:

The child has been adjudicated deprived;

The parent has physically or sexually abused (the child)/(a sibling of the child);

The abuse was heinous or shocking;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

?Abuse? means harm or threatened harm to a child's health, safety or welfare.

?Sexual abuse? includes, but is not limited to, rape, incest and lewd or indecent acts or proposals made to a child, as defined by law.

?Heinous or shocking? means extremely wicked or shockingly evil, or designed to inflict a high degree of pain; or, utter indifference to or enjoyment of the suffering of others.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(10)(a); 10 O.S. Supp. 2004, § 7102(B)(1), (6).

Vernon's Okla. Forms 2d, OUJI-JUV 5.47 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No.5. 47 Incarceration of Parent

The State seeks to terminate the parent's rights on the basis that the parent has been incarcerated. In order to terminate the parental rights on the basis that the parent has been incarcerated, the State must prove beyond a reasonable doubt that:

The child has been adjudicated deprived;

Continuation of parental rights is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness;

Custody of the child has been placed outside the home of the natural or adoptive parent, guardian or extended family member;

The parent has been incarcerated; and,

Termination of parental rights is in the best interests of the child.

In determining whether the continuation of parental rights is likely to result in serious emotional or physical damage to the child you may consider the following factors, among others:

The duration of imprisonment and its detrimental effect on the parent/child relationship;

Any previous imprisonments;

Any history of criminal behavior, including crimes against children;

The age of the child;

The evidence of abuse or neglect of the child or siblings of the child by the parent; and

The current relationship between the parent and the child and the manner in which the parent has exercised parental rights and duties in the past.

The fact that a parent has been incarcerated is not, in and of itself, sufficient to deprive a parent of parental rights.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(12).

Vernon's Okla. Forms 2d, OUJI-JUV 5.48 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.48 Mental Illness or Mental Deficiency

The State seeks to terminate the parent's rights on the basis of the parent's mental illness or mental deficiency. In order to terminate parental rights on the basis of a parent's mental illness or mental deficiency, the State must prove beyond a reasonable doubt each of the following elements:

The child has been adjudicated deprived;

Continuation of parental rights is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness;

Custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member;

The parent has a mental illness or mental deficiency, as defined in these instructions, which renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities;

The mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve; and,

Termination of parental rights is in the best interests of the child.

A finding that a person suffers from a mental illness is not in and of itself sufficient to terminate parental rights.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(13).

Notes on Use

The trial judge should give Juvenile Instruction No. 3.19, supra, along with this Instruction.

Vernon's Okla. Forms 2d, OUJI-JUV 5.50 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.50 Child in Foster Care for Fifteen Months

The State seeks to terminate the parent's rights on the basis that the child has been in foster care for 15 months. In order to terminate parental rights on the basis that the child has been in foster care for 15 months, the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

The child has been placed in foster care by the Department of Human Services for 15 months out of the most recent 22 months before the filing of the petition;

The parent was responsible for the child's being in foster care for 15 of the most recent 22 months;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

A child is deemed to have entered foster care on the earlier of:

The date of the adjudication that the child was deprived; or,

Sixty days after the date the child was removed from the home.

Statutory Authority: 10 O.S. 2001, §§ 7006-1.1(A)(15), 7003-4.7(A)(1).

Vernon's Okla. Forms 2d, OUJI-JUV 5.41 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.41 Severe Harm or Injury As a Result of Physical or Sexual Abuse

The State seeks to terminate the parent's rights on the basis of the parent's causing (the child)/(a sibling of the child) to suffer severe harm or injury as a result of the parent's physical or sexual abuse. In order to terminate parental rights on the basis of the parent's causing (the child)/(a sibling of the child) to suffer severe harm or injury as a result of the parent's physical or sexual abuse, the State must prove beyond a reasonable doubt that:

The child has been adjudicated deprived;

The parent physically or sexually abused (the child)/(a sibling of the child);

(The child)/(sibling of the child) suffered severe harm or injury as a result of the physical or sexual abuse;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

?Abuse? means harm or threatened harm to a child's health, safety or welfare.

?Sexual abuse? includes, but is not limited to, rape, incest and lewd or indecent acts or proposals made to a child, as defined by law.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(10)(b); 10 O.S. Supp. 2004, § 7102(B)(1), (6).

Vernon's Okla. Forms 2d, OUJI-JUV 5.40 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.40 Failure to Protect Child from Heinous or Shocking Abuse

The State seeks to terminate the parent's rights on the basis of the parent's failure to protect (the child)/(a sibling of the child) from heinous or shocking abuse. In order to terminate parental rights on the basis of the parent's failure to protect (the child)/(a sibling of the child) from heinous or shocking abuse, the State must prove beyond a reasonable doubt that:

The child has been adjudicated deprived;

The parent knew or reasonably should have known of physical or sexual abuse to (the child)/(a sibling of the child);

The physical or sexual abuse was heinous or shocking;

The parent failed to protect (the child)/(a sibling of the child) from the heinous or shocking physical or sexual abuse;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

?Abuse? means harm or threatened harm to a child's health, safety or welfare.

?Sexual abuse? includes, but is not limited to, rape, incest and lewd or indecent acts or proposals made to a child, as defined by law.

?Heinous or shocking? means extremely wicked or shockingly evil, or designed to inflict a high degree of pain; or, utter indifference to or enjoyment of the suffering of others.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(10)(a); 10 O.S. Supp. 2004, § 7102(B)(1), (6).

Vernon's Okla. Forms 2d, OUJI-JUV 5.42 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.42 Failure to Protect Child from Severe Harm or Injury As A Result of Physical or Sexual Abuse

The State seeks to terminate the parent's rights on the basis of the parent's failure to protect (the child)/(a sibling of the child) from severe harm or injury as a result of physical or sexual abuse. In order to terminate parental rights on the basis of the parent's failure to protect (the child)/(a sibling of the child) from severe harm or injury as a result of physical or sexual abuse, the State must prove beyond a reasonable doubt that:

The child has been adjudicated deprived;

The parent knew or reasonably should have known of severe harm or injury to (the child)/(a sibling of the child) as a result of physical or sexual abuse;

The parent failed to protect (the child)/(a sibling of the child) from the severe harm or injury;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

?Abuse? means harm or threatened harm to a child's health, safety or welfare.

?Sexual abuse? includes, but is not limited to, rape, incest and lewd or indecent acts or proposals made to a child, as defined by law.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(10) (b); 10 O.S. Supp. 2004, § 7102(B)(1), (6).

Vernon's Okla. Forms 2d, OUJI-JUV 5.43 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.43 Abuse Subsequent to Previous Adjudication

The State seeks to terminate the parent's rights on the basis of abuse subsequent to a previous adjudication of (the child)/(a sibling of the child) as a deprived child. In order to terminate parental rights on the basis of abuse or neglect subsequent to a previous adjudication, the State must prove beyond a reasonable doubt each of the following elements:

The child has been adjudicated to be deprived;

There has been a previous finding by a court that the parent has physically or sexually abused (the child)/(a sibling of the child) or failed to protect (the child)/(a sibling of the child) from physical or sexual abuse;

After the previous finding of physical or sexual abuse, the parent has physically or sexually abused (the child)/(a sibling of the child) or failed to protect (the child)/(a sibling of the child) from physical or sexual abuse;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(10)(c).

Vernon's Okla. Forms 2d, OUJI-JUV 5.5 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part A. Simultaneous Adjudication and Termination

Juvenile Instruction No. 5.5 Instructions for Verdict Forms

[Use for cases where only one condition may lead to an adjudication of deprived status.] If you find that the State has proved by clear and convincing evidence that the child, [NAME], is deprived and that the condition that led to your finding is that [Set forth condition that may lead to the finding?E.g, the child does not have proper parental care or guardianship], you should sign and return the verdict form entitled Child is Deprived for that child. Otherwise, you should sign and return the verdict form entitled Child is Not Deprived for that child.

[Use for cases where multiple conditions may lead to an adjudication of deprived status.] If you find that the State has proved by clear and convincing evidence that the child, [NAME], is deprived and that one or more conditions led to your finding, you should sign and return the verdict form entitled Child is Deprived for every such condition that led to your finding for that child. If you find that the State has not proved by clear and convincing evidence evidence that the child, [NAME], is deprived, you should sign and return the verdict form entitled Child is Not Deprived for that child.

Notify the Bailiff if you arrive at a verdict that the Child is Not Deprived so that you may return it in open court. If your verdict is that the Child is Deprived, you must continue with your deliberations and consider whether parental rights should be terminated with respect to that child.

Notes on Use

This Instruction should be given for ICWA cases instead of Juvenile Instruction No. 2.15.

Vernon's Okla. Forms 2d, OUJI-JUV 5.45 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.45 Chronic Abuse or Neglect

The State seeks to terminate the parent's rights on the basis of chronic abuse or neglect to (the child)/(a sibling of the child)/(another child within the household where the child resides). In order to terminate parental rights on the basis of chronic abuse or neglect to (the child)/(a sibling of the child)/(another child within the household where the child resides), the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

The parent has inflicted chronic abuse, chronic neglect, or torture on (the child)/(a sibling of the child)/(another child within the household where the child resides);

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

?Chronic abuse or chronic neglect? is a pattern of physical or sexual abuse or neglect that is repeated or continuing.

Statutory Authority: 10 O.S. 2001, §§ 7006-1.1(A)(10)(e), 7001-1.3(A)(8) (definition of chronic abuse or chronic neglect).

Vernon's Okla. Forms 2d, OUJI-JUV 5.38 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.38 Conviction for Certain Crimes

The State seeks to terminate the parent's rights on the basis of a conviction for [Specify One or More of the Following Crimes in 10 O.S. 2001, § 7006-1.1(8) or (9)]:

[permitting a child to participate in pornography]

[rape]

[lewd molestation of a child under sixteen years of age]

[child abuse or neglect]

[enabling child abuse or neglect]

[causing the death of a child as a result of the physical or sexual abuse or chronic abuse or chronic neglect of the child]

[causing the death of a sibling of the child as a result of the physical or sexual abuse or chronic abuse or chronic neglect of the child's sibling]

[committing murder of any child or aiding or abetting, attempting, conspiring or soliciting to commit murder of any child]

[committing voluntary manslaughter of another child of the parent, or aiding or abetting, attempting, conspiring or soliciting to commit voluntary manslaughter of another child of the parent]

[committing a felony assault that has resulted in serious bodily injury to the child or another child of the parent]

In order to terminate parental rights on the basis of a conviction for [Specify Crime in 10 O.S. 2001, § 7006-1.1(8) or (9)], the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

The parent has been convicted in a criminal action for [Specify Crime in 10 O.S. 2001, § 7006-1.1(8) or (9)];

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(8), (9).

Vernon's Okla. Forms 2d, OUJI-JUV 5.31 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.31 Abandonment

The State seeks to terminate the parent's rights on the basis of abandonment. In order to terminate the parental rights on the basis of abandonment, the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

Termination of parental rights is in the best interests of the child;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and

[The parent has left the child alone or in the care of another who is not the parent of the child without identifying the child or furnishing a means of identification for the child;

the whereabouts of the parents are unknown; and

the child's identity cannot be ascertained by the exercise of reasonable diligence.]

[The parent has voluntarily left the child alone or in the care of another who is not the parent of the child; and the parent expressed a willful intent by words, actions, or omissions not to return for the child.]

[The parent has failed to establish and/or maintain a substantial and positive relationship with the child, despite an opportunity to do so, for a period of six (6) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for termination of parental rights. The term ?establish and/or maintain a substantial and positive relationship? includes, but is not limited to:

(1)

frequent and regular contact with the child through frequent and regular visitation and/or frequent and regular communication to or with the child, and

(2)

the exercise of parental rights and responsibilities.

Incidental or token visits or communications shall not be sufficient to establish and/or maintain a substantial and positive relationship with the child.]

Statutory Authority: 10 O.S. 2001, § 7006-1.1(A)(2)(c)(1?2).

Committee Comments

The definition of parent in the Indian Child Welfare Act does not include a putative father. 25 U.S.C. § 1903(9) defines parent as: ?any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include an unwed father where paternity has not been acknowledged or established.?

Vernon's Okla. Forms 2d, OUJI-JUV 5.44 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.44 Severe Abuse or Neglect

The State seeks to terminate the parent's rights on the basis of severe abuse or neglect to (the child)/(a sibling of the child)/(another child within the household where the child resides). In order to terminate parental rights on the basis of severe abuse or neglect to (the child)/(a sibling of the child)/(another child within the household where the child resides), the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

As a result of even a single incident

of severe sexual abuse, severe neglect or the infliction of serious bodily injury or torture

by the parent to (the child)/(a sibling of the child)/(another child within the household where the child resides);

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and,

Termination of parental rights is in the best interests of the child.

Serious bodily injury means a bodily injury that involves:

substantial risk of death,

extreme physical pain,

protracted and obvious disfigurement, or

protracted loss or impairment of the function of a bodily member, organ or mental faculty.

?Torture? means inflicting:

intense emotional or psychological anguish to or suffering by the child, or

physical pain for the purpose of coercing or terrorizing the child.

Statutory Authority: 10 O.S. 2001, §§ 7006-1.1(A)(10)(d); 7001-1.3(A)(48) (definition of serious bodily injury); 7001-1.3(A)(54) (definition of torture).

Vernon's Okla. Forms 2d, OUJI-JUV Ch. 5 Intro. 1 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Introductory Note

This Chapter provides jury instructions for the adjudication of deprived status and termination of parental rights found in Oklahoma state courts in cases in which the Indian Child Welfare Act (hereinafter ?ICWA?) is applicable. Part A has general instructions for cases where adjudication of deprived status and termination of parental rights are sought simultaneously, and Part B has general instructions for cases where there has been a prior adjudication of deprived status. Part C has instructions for the grounds for termination as modified for ICWA cases. Only the instructions that differ in ICWA cases from non-ICWA cases are given in this Chapter Five; the trial judge should also use the other applicable instructions from Chapters One, Two and Three that are not modified for ICWA cases. In addition, the Notes on Use and Committee Comments for the instructions in this Chapter are directed only to the use of the instructions in ICWA cases; for Notes on Use and Committee Comments that are applicable to non-ICWA cases as well, see the Notes on Use and Committee Comments to the corresponding instructions in Chapters One, Two and Three.

The ICWA provides:

d) Remedial services and rehabilitative programs; preventive measures

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) Foster care placement orders; evidence; determination of damage to child

No foster care placement may be ordered ? in the absence of a determination, supported by clear and convincing evidence, 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.

(f) Parental rights termination orders; evidence; determination of damage to child

No termination of parental rights may be ordered ? 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.

25 U.S.C. § 1912 (d), (e), (f).

Reasonable Doubt Standard for Termination of Parental Rights

Section 1912(f), supra, specifies a beyond a reasonable doubt standard of proof for termination of parental rights proceedings. A number of other jurisdictions use a dual standard of proof in ICWA cases in which a clear and convincing standard is applied to the state law requirements for termination of parental rights and the reasonable doubt standard is applied only to the requirement in 25 U.S.C. § 1912(f) that continued custody by the parent is likely to result in serious emotional or physical damage to the child. E.g.,In re H.A.M., 961 P.2d 716, 719 (Kan. App. 1998). The prevailing practice in Oklahoma trial courts has been to use the reasonable doubt standard for both the state law requirements for termination of parental rights and the requirements in 25 U.S.C. § 1912(f), however. In addition, in In the Matter of T.L., 2003 OK CIV APP 49, § 15, 71 P.3d 43, the Oklahoma Court of Civil Appeals applied the reasonable doubt standard to both the requirements in 25 U.S.C. § 1912(f) and the Oklahoma state law requirements that the parent failed to correct conditions leading to adjudication and that the child had been in foster care for 15 of the 22 months preceding the filing of the termination proceedings. Using the reasonable doubt standard for both the state law requirements and the requirements in 25 U.S.C. § 1912(f) avoids the difficulty of explaining different standards of proof to the jury, and is therefore less confusing to the jury. Applying the higher reasonable doubt standard also gives greatest effect to the ICWA, and it is therefore less likely to result in reversal of a termination of parental rights decision than applying the lower clear and convincing evidence standard. Accordingly, the reasonable doubt standard is used in these instructions for both the state law requirements and the requirements in 25 U.S.C. § 1912(f).

Clear and Convincing Evidence Standard for Adjudication of Deprived Status

Section 1912(e), supra, specifies a clear and convincing evidence standard of proof for foster care placements. A New York state court has interpreted this requirement narrowly to apply only to disposition orders, and not to adjudications of deprived status. SeeNew York City Dep't of Social Servs. v. Oscar C., 600 N.Y.S.2d 957, 960?61 (N.Y. App. Div. 1993). The prevailing practice in Oklahoma trial courts has been to use the clear and convincing standard for adjudications of deprived status, however. Applying the clear and convincing evidence standard for adjudications of deprived status gives greatest effect to the ICWA, and it is therefore less likely to result in reversal of an adjudication of deprived status than applying the greater weight of the evidence standard. Accordingly, the clear and convincing evidence standard is used in these instructions for adjudications of deprived status.

Expert Witnesses

Testimony of qualified expert witnesses is required under the ICWA for both foster care placements and termination of parental rights. 25 U.S.C. § 1912(e), (f). Accordingly, the instructions for adjudication of deprived status and the grounds for termination in this Chapter include as an element that there is testimony from at least one expert witness. The instructions do not require the jury to determine whether the expert witness is qualified, however, since trial judges generally rule on the qualifications of expert witnesses, rather than juries. The trial judge's ruling on the qualification of expert witnesses should be guided by the Oklahoma Supreme Court's decision in Matter of N.L., 1988 OK 39, §§ 15?18, 754 P.2d 863, 867. The Supreme Court held that a trial court is required to consider the testimony of qualified expert witnesses in ICWA cases in order to provide the court with knowledge of the social and cultural aspects of Indian life and diminish the risk of any cultural bias. Id. § 17. In cases in which cultural bias is not implicated, however, such as cases involving physical abuse or sexual abuse of a child, the expert witness does not need to possess special knowledge of Indian life. Id. § 18. The Supreme Court also pointed out while the BIA guidelines for state courts are not binding, they are instructive in terms of who may possess the qualifications of an expert witness for ICWA cases. The Supreme Court quoted the following from the BIA guidelines in 44 Federal Register 67584, 67593 (1979):

D.4 Qualified Expert Witnesses

(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodians is likely to result in serious physical or emotional damage to the child. (b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings. (i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. (ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe. (iii) A professional person having substantial education and experience in the area of his or her specialty. (c) The court or any party may request the assistance of the Indian child's tribe or the Bureau of Indian Affairs agency serving the Indian child's tribe in locating persons qualified to serve as expert witnesses.

The Serious Emotional or Physical Damage Requirement

Section 1912(f), supra, requires for the termination of parental rights proof beyond a reasonable doubt ?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.? This requirement is included as an element in all the grounds for termination of parental rights in Part C, infra.

The ?Active Efforts? Requirement

Section 1912(d), supra, requires in any proceeding to effect foster care placement or termination of parental rights to an Indian child, a showing that ?active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful.? The Committee has concluded that whether this requirement has been satisfied is an issue for the judge, rather than the jury. The trial judge will have familiarity with the various remedial services and rehabilitative programs that are available, and therefore, the trial judge is in a position to determine whether active efforts to provide them have been made before allowing a case to be presented to the jury. Accordingly, this Chapter does not include a jury instruction on this issue. The judge's determination with respect to active efforts should be made by the trial court prior to or simultaneously with a proceeding for adjudication of deprived status or termination of parental rights. There is no precise definition for what constitutes ?active efforts,? and it should be determined by the court on a case by case basis.

Vernon's Okla. Forms 2d, OUJI-JUV 5.32 (2005 ed.)

Vernon's Oklahoma Forms 2d

Oklahoma Uniform Jury Instructions-Juvenile

Chapter 5. Indian Child Welfare Act

Part C. Grounds for Termination of Parental Rights from Chapter Three

Juvenile Instruction No. 5.32 Abandoned Infant

The State seeks to terminate the parent's rights on the basis that the child is an abandoned infant. In order to terminate the parental rights on the basis that the child is an abandoned infant, the State must prove beyond a reasonable doubt that:

The child has been adjudicated to be deprived;

Termination of parental rights is in the best interests of the child;

Continued custody by the parent is likely to result in serious emotional or physical damage to the child, as supported by the testimony of at least one expert witness; and

[The child was twenty-four (24) months of age or younger; and the parent:

[willfully left the child alone or in the care of another who is not the parent of the child without identifying the child or furnishing any means or methods of identification.]

[willfully left the child alone or in the care of another who is not the parent of the child and expressed a willful intent by words, actions, or omissions not to return for the child.]

[knowingly placed or knowingly allowed the child to be placed in or remain in conditions or surroundings that posed or constituted a serious danger to the health and safety of the child thereby demonstrating wanton disregard for the child's well-being. Serious danger to the health and safety means that without the intervention of another person or agency, a child would likely or in all probability sustain severe or permanent disability or injury, illness, or death.]

[has not established and/or maintained substantial and positive relationship with the child, despite being given the opportunity to do so, during the six (6) months immediately prior to out-of-home placement or the six (6) continuous months while in out-of-home placement, and has not made meaningful efforts to gain or regain custody of the child, despite being given the opportunity to do so. ?Establish and/or maintain substantial and positive relationship? includes but is not limited to:

(1)

frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and

(2)

the exercise of parental rights and responsibilities.

Incidental or token visits, communications or contributions shall not be sufficient to establish and/or maintain a substantial and positive relationship with the child.]

[The child was less than ninety (90) days of age and the parent is a father, or a putative father if the infant was born out of wedlock, who despite having the opportunity to do has not exercised proper parental rights and responsibilities with regard to the child, including, but not limited to, contributing to the support of the mother of the child to the extent of the father's financial ability during the mother's term of pregnancy.].

Statutory Authority: 10 O.S. Supp. 2004, §§ 7001-1.3(A)(1), (49); 10 O.S. 2001, § 7006-1.1(A)(2).

Committee Comments