Carney v. Moore

1988 OK 39, 754 P.2d 863, 1988 Okla. LEXIS 41

• Court: Supreme Court of Oklahoma
• Decided: April 19, 1988
• Docket: No. 66651
• Status: Published

Opinions

SUMMERS, Justice.

This is a juvenile case in which N.L. was adjudicated to be “deprived” and made a ward of the court. He was bom out of wedlock on February 27, 1984. Since he is eligible for membership in both the Kaw and Creek Indian tribes through his mother provisions of the state and federal Indian Child Welfare Acts¹ are implicated. The father is not a party in these proceedings.

A chronology of the events in the trial court reveals the following. An order was issued on May 2, 1984, which granted temporary custody of N.L. to his maternal grandmother. A petition was filed on May 8, 1984, which alleged that N.L. was a deprived child as defined in 10 O.S.1981 § 1101. The petition alleged that N.L. was neglected due to his mother’s “pattern of leaving the said child in the care of various neighbors for indefinite periods of time.”

The trial court adjudicated N.L. to be a deprived child, ordered an investigation by the Department of Human Services, and continued the temporary custody of N.L. with his maternal grandmother, all on June 25, 1984. The child’s mother did not appear and the return on her summons indicated that she had “left the county with her present whereabouts unknown”. The Creek Nation filed an answer declining to intervene and the Kaw Tribe did not appear, although the Kaw Tribe was served with notice of the proceeding.

A dispositional order was rendered on August 9, 1984, which placed temporary custody of N.L. with his maternal grandparents. The mother did not appear. A redispositional hearing was held on June 17, 1985. The mother appeared with counsel at this hearing and was granted three months to meet certain conditions or her parental rights would be subject to termination. Prior to this dispositional hearing N.L.’s grandmother had suffered an incapacitating injury and she had placed N.L. with the Huddlestons on her own. Custody of N.L. was then ordered to the Huddle-stons, neighbors of the maternal grandparents.

On February 12, 1986, the trial court set aside the June 25, 1984, adjudication order, for the reason that the mother did not receive sufficient notice of the adjudicatory hearing of June 25,1984. On February 14, 1986, the trial court granted temporary custody of N.L. to the Huddlestons. On February 14, 1986, an amended petition was filed alleging that N.L. was a deprived child for the identical reason set forth in the original petition.

The mother filed a petition on May 7, 1986, to transfer the proceeding to the Court of Indian Offenses.

On May 7, 1986, the court denied the petition to transfer the proceeding, adjudicated that N.L. was a “deprived” child and made N.L. a ward of the court. A disposi-tional order was pronounced on May 28, 1986, which granted temporary custody of N.L. to the Huddlestons and imposed conditions upon the mother. The mother appealed the orders of May 7 and May 28.

I. PRE-ADJUDICATION ORDERS

The mother asserts on appeal that the actions of the trial court require reversal of the adjudication order finding her child to be deprived. She contends that the failure of the state to file an affidavit in conformity with 10 O.S.Supp.1982 § 40.5, the absence of a hearing as provided by 10 O.S.1981 § 1104.1, and the failure of the proceedings to conform to 25 U.S.C. § 1922, are errors of such a magnitude as to require reversal of the proceedings. We cannot review the mother’s contention that the trial court failed to follow these three statutes.

No motion or argument appears in the trial court record questioning the statutory sufficiency of the amended petition. Similarly, no motion or argument was addressed to the trial court attacking the temporary custody orders for lack of a hearing pursuant to 10 O.S.Supp.1984 § 1104.1. No reference to 25 U.S.C. § 1922 appears in the trial court record before us.

A party may not assign errors on appeal which were not presented to the trial court. Arkansas Louisiana Gas Co. v. Cable, 585 P.2d 1113, 1116 (Okl.1978); Kepler v. Strain, 579 P.2d 191, 193 (Okl.1978).

The misapplication of 10 O.S. Supp.1984 § 1104.1, 10 O.S.Supp.1982 § 40.5, 25 U.S.C. § 1922 does not defeat the jurisdiction of the trial court.²

Misapplication of the statutes in this case does not present a question involving the welfare of the people at large sufficient for de novo appellate review.³

The mother’s allegations of error that the trial court failed to follow 25 U.S.C. § 1922, 10 O.S.Supp.1982 § 40.5, and 10 O.S.Supp.1984 § 1104.1, do not come within exceptions to the general rule that allegations of error must be presented to the trial court. Therefore, they are beyond the scope of our review on appeal.

II. EXPERT WITNESSES

The mother asserts that the adjudication of her child as deprived was without a required expert witness. No pre-adjudi-catory custody order shall remain in force and effect for more than thirty (30) days⁴ “without a determination by the court, supported by clear and convincing evidence and the testimony of at least one qualified expert witness, that custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 10 O.S.Supp.1982 § 40.5.

A court is required to consider the testimony of a qualified expert witness before placement of an Indian child in foster care.

25 U.S.C. § 1912(e) states:

“No foster care placement may be ordered in such proceeding 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.”

A court is also required to consider testimony of a qualified expert witness before termination of parental rights of the parent or Indian custodian. 25 U.S.C. § 1912(f) states:

“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”

The required expert testimony is to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias. State ex rel. Juvenile Department v. Tucker, 76 Or.App. 673, 710 P.2d 793, 799 (1985). The guidelines for state courts promulgated by the United States Bureau of Indian Affairs, while not binding on the court, assist in defining a qualified expert witness. 44 Federal Register 67584 (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 thé 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.” 44 Federal Register at 67593.

The guidelines provide that a professional person with substantial education and experience in the area of his or her specialty may be a qualified expert witness. Special knowledge of Indian life is not necessary where a professional person has substantial education and experience and testifies on matters not implicating cultural bias.

“[W]hen cultural bias is clearly not implicated, the necessary proof may be provided by expert witnesses who do not possess special knowledge of Indian life. Here, the issue before the court was whether the continued custody of the child by mother would result in serious emotional harm to the child because of mother’s mental illness. There was no dispute about that condition or as severity. Termination or not had nothing to do with mother’s fitness to care for the child according to the cultural dictates of her tribe. State ex rel. Juvenile Department v. Tucker, 710 P.2d at 799.

Social workers may be qualified expert witnesses if they have substantial education and experience in their specialties. D.W.H. v. Cabinet for Human Resources, 706 S.W.2d 840, 843 (Ky.App.1986); Matter of J.L.H., 316 N.W.2d 650, 651 (S.D.1982). However, for social workers to be qualified expert witnesses they must possess “expertise beyond the normal social worker qualifications.” State ex rel. Juvenile Department v. Charles, 70 Or.App. 10, 688 P.2d 1354, 1359 N. 3 (1984), (quoting, House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, Reprinted, in 1978 U.S.Code Cong, and Admin. News 7530, 7545).

The social worker that testified in this case had some knowledge of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., and limited experience with Indian children. The purpose of the qualified expert witness provision is to provide the court with evidence of tribal customs as they relate to family practices in raising children. The determination of the best interests of the child must include consideration of tribal family practices unless cultural bias is clearly not implicated. State ex rel. Juvenile Department v. Tucker, supra.

An objection to a witness testifying as an expert must be raised in the trial court or this court will not consider the issue on appeal. Sorge v. Graham, 312 P.2d 929, 932 (Okl.1957). However, the mother’s petition in error and brief on appeal contend that the evidence was insufficient due to a lack of testimony by a qualified expert witness. The State’s complaint against the mother consisted primarily of an allegation that the mother did not display a sense of responsibility or significant degree of interest in the child and such action of the parent constituted an abandonment of the child by the mother.

In People in Interest of S.R., 323 N.W.2d 885 (S.D.1982), the court determined whether the burden of proof had been satisfied to terminate parental rights where the mother was unfit by “showing no sense of responsibility or significant degree of interest in the child.” Id. 323 N.W.2d at 888. In S.R., the trial court qualified two witnesses “as experts within the purview of the ICWA” and they testified that returning custody of the child to the mother would result in serious emotional and physical damage to the child. Id. In D.E.D. v. State, 704 P.2d 774 (Alaska 1985), the testimony of expert witnesses indicated that serious emotional or physical damage would occur if the child were returned to his mother after the mother had abandoned the child. Id. 704 P.2d at 783.

Testimony showing that continued custody of the child by the parent is likely to result in serious emotional or physical harm to the child is necessary. 25 U.S.C. § 1912(c) and (f); 10 O.S.Supp.1982 § 40.5. Testimony from a qualified expert witness indicating that such harm will result from continued custody of the parent is sufficient. People in Interest of S.R., supra. Where cultural bias is clearly not implicated, expert witnesses who do not possess special knowledge of Indian life may provide the necessary proof that continued custody of the child by the parent will result in serious emotional or physical harm to the child. State ex rel. Juvenile Department v. Tucker, supra.

We find that the evidence presented in the trial court does not contain any expert witness testimony as to whether the continued custody of the child by the mother would result in serious emotional or physical harm to the child.

The adjudication of the child as deprived must be reversed with instructions to the court to consider, in light of testimony of an expert witness qualified as required herein, whether continued custody of the child by the mother would result in serious emotional or physical harm to the child.

III. DENIAL OF MOTION TO TRANSFER

The mother asserts that her motion to transfer the proceeding to her tribal court was improperly denied. The mother sought to transfer the proceedings from Okmulgee County to the tribal court in Kay County. All of the witnesses and the child resided in Okmulgee County. The mother resided in Oklahoma County. A proceeding involving the custody of an Indian child, not domiciled on his tribe’s reservation, shall be transferred to the tribal court “in the absence of good cause to the contrary.” 25 U.S.C. § 1911(b).

Good cause to deny a transfer has been found where almost all of the parties and witnesses reside in the county of the state court and have no contact with the tribal court. Matter of Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168, 178 (1982); In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785, 790 (1980).

The best interests of the child may prevent transfer of jurisdiction to a tribal court. Matter of M.E.M., 195 Mont. 329, 635 P.2d 1313, 1317 (1981). In denying the petition to transfer, the trial court stated that the child had good care under the supervision of the court, the child had “established roots here in Okmulgee County,” and that the court was working toward the goal of “getting this mother back with the child.”

The presence of witnesses and parties in Okmulgee County, and the best interests of the child support a finding of good cause to deny the requested transfer.

IV. DENIAL OF CONTINUANCE

The mother requested a continuance of the dispositional hearing held on May 28, 1986.⁵ The stated reason for the continuance was “an opportunity to controvert the recommendations and findings that are contained in this report [by the Department of Human Services].” The report was prepared on May 16, 1986, and then supplemented on May 22, 1986, and May 28, 1986.⁶

A fair opportunity must be given to a parent to controvert a report. Matter of Paul, 555 P.2d 603, 605 (Okl.1976). The supplemental material indicated the efforts by the Department of Human Services in ascertaining the correct address for the mother.⁷ The mother presented a witness and testified herself on the issue of the correct address and the history of her changes in residence.⁸ The mother’s witness and testimony demonstrate that she had a fair opportunity to controvert the supplemental reports.

A request for a continuance is within the sound discretion of the trial court, and a trial court’s decision to deny a continuance will not be disturbed on appeal unless abuse of discretion is clearly shown. Wetsel v. Independent School District 1-1, 670 P.2d 986 (Okl.1983). The trial court did not abuse its discretion where the mother presented testimony to controvert the supplemental reports.

The child welfare worker testified at the dispositional hearing that copies of the report were given to “all of the attorneys involved in the suit.”⁹ The mother did not explain the nature of the evidence she expected to obtain and its materiality to the proceeding. 12 O.S.1981 § 668. The mother did not file a written motion and affidavit for continuance, nor attempt to show due diligence in obtaining evidence to controvert the report. Id. The mother made no argument explaining why a continuance would be required to give the mother a “fair opportunity” to controvert the report. The record is silent as to the opportunity actually afforded the mother to controvert the report. Legal error may not be presumed by the reviewing court from a silent record. Johnson v. Johnson, 674 P.2d 539 (Okl.1983). The trial court’s denial of a continuance of the dispositional hearing is affirmed.

V. PLACEMENT PLAN

The mother contends that a placement plan was not filed in accordance with 10 O.S.Supp.1983 § 1115.1. This contention was not raised in the trial court. A placement plan was filed on July 2, 1984, but none was filed after the filing of the amended petition. This allegation of error was not presented to the trial court and is beyond the scope of our review. Kepler v. Strain, supra.

VI. CUSTODY OF THE CHILD

The mother contends that the placement of her child in foster care with the Huddlestons was not consistent with the Indian Child Welfare Act. The mother requested that the trial court place the child in accordance with that Act.¹⁰ The Act specifies that foster care or preadop-tive placement should be with: (1) a member of the child’s extended family; (2) a foster home licensed, approved, or specified by the child’s tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs. 25 U.S.C. § 1915. The Indian child’s tribe may establish a different order of preference by resolution. 25 U.S.C. § 1915(c). The child welfare worker testified that the Huddleston’s home was not an approved foster home.¹¹ No evidence was introduced as to whether the child’s tribe had approved, licensed, or specified a foster home. Section 1915 requires placement of the child in the categories specified “in the absence of good cause to the contrary.” 25 U.S.C. § 1915(b).

The Department of Human Services child welfare worker testified that no Indian foster homes were available.¹² The Creek tribe had been contacted about foster homes, but apparently the Kaw tribe had not been contacted.¹³ Mrs. Huddleston testified that she was one-eighth Cherokee and was in the process of providing verification of her Indian status.¹⁴ She also testified that Mr. Huddleston’s grandfather was a full-blood Cherokee, and that he was in the process of providing verification of his Indian status.¹⁵

A finding of “good cause to the contrary” is predicated upon the court’s consideration of the placement categories specified. Where no inquiry occurs as to whether the child’s tribe has licensed, approved, or specified a foster home, the court has not adequately considered such a placement.

We remand the case for a new disposi-tional hearing because the record does not disclose that the trial court afforded placement preference to the categories specified in 25 U.S.C. § 1915.

On remand the court should consider whether the “good cause” exception in § 1915 is met by the child’s best interests. In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785, 791 (1983),

The adjudication order determining N.L. to be deprived is reversed with instructions. The dispositional order of May 28, 1986 is reversed with instructions. The trial court’s orders denying a transfer and denial of a continuance are affirmed.

HARGRAVE, V.C.J., and HODGES, LAVENDER and ALMA WILSON, JJ., concur. DOOLIN, C.J., and OPALA and KAUGER, JJ., concur in part, dissent in part. SIMMS, J., dissents: I would affirm the trial court.

1 . The Oklahoma Act is found at 10 O.S.Supp. 1982 § 40 et seq.; the U.S. Act at 25 U.S.C. § 1901 et seq.

2 . The trial court’s jurisdiction includes the jurisdiction over the parties, jurisdiction over the subject matter, and jurisdictional power to pronounce the particular judgment rendered. Mayhue v. Mayhue, 706 P.2d 890, 893 N. 8 (Okl.1985). Jurisdiction over the subject matter occurs upon the filing of the petition. 10 O.S.1981 § 1102. The mother appeared with counsel in the proceedings. The trial court has jurisdictional power to specify the appropriate conduct for a parent. 10 O.S.Supp.1982 § 1116.

3 . Where a question for review is of such a nature that the welfare of the people at large is involved, the Court in its discretion may consider the question though not presented to the trial court. First National Bank of Alex v. Southland Production Co., 189 Okl. 9, 112 P.2d 1087 (1941).

4 . The court may extend the effective period of the order an additional period of sixty (60) days. 10 O.S.Supp.1984 § 40.5(B).

5 . Tr. at 25.

6 . Tr. at 2.

7 . Tr. at 67.

8 . Tr. at 33-34, 36-37.

⁹

10 . Tr. at 47.

11 . Tr. at 8, 13.

12 . Tr. at 4, 12.

13 . Tr. at 11-12.

14 . Tr. at 27.

15 . Id.