Porter v. Comstock ex rel. Department of Human Services

2013 OK CIV APP 30, 298 P.3d 1203, 2013 WL 1401899, 2013 Okla. Civ. App. LEXIS 12
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 15, 2013
DocketNo. 110,278
StatusPublished
Cited by2 cases

This text of 2013 OK CIV APP 30 (Porter v. Comstock ex rel. Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Porter v. Comstock ex rel. Department of Human Services, 2013 OK CIV APP 30, 298 P.3d 1203, 2013 WL 1401899, 2013 Okla. Civ. App. LEXIS 12 (Okla. Ct. App. 2013).

Opinion

BAY MITCHELL, Judge.

¶ 1 Lonnie and Colleen Porter appeal an order of the district court denying their petition to adopt the minor children, D.L. and K.L., and granting the petition of Alvieia and Dustin Comstock to proceed with adoption of the minor children.

¶2 The minor children in this ease are Indian children and the Indian Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901 to 1963, applies. The children are members or eligible for membership in the Choctaw Nation. The children were taken into DHS custody around July 2009 and have been in foster care with the Porters since shortly after being taken into custody. Around January 2010 the Porters began to consider adopting the children. Parental rights to the children were terminated in April 2011.1 Respondent/Appellee Avieia Comstock is the minor children’s first cousin, and is therefore entitled to preference as to placement of the children pursuant to ICWA. DHS began to consider the Comstocks as a placement option around October 2010.2 Petitioner/Appellant Colleen Porter is a member of the Choctaw Nation, and the Porters’ home is a tribal foster home in OMahoma. The Comstocks are not members of any tribe, although Avi-eia Comstock believes she has Indian heritage. The Comstocks live in California.

¶ 3 The Comstocks filed a Motion to Adopt and for Transitioning on August 18, 2011. The Porters filed a Petition for Adoption on September 1, 2011, and sought to stay removal of the children from their home. A trial was held in the matter on December 5 and 6, 2011. On December 9, 2011, the trial court found the Porters failed to meet the burden of demonstrating good cause to deviate from the ICWA placement preferences, and denied the Porters’ motion and granted the Comstocks’. The court ordered transitioning of the minor children from the Porters’ home to the Comstocks’ home as soon as possible, denied the Porters’ request for stay of transitioning, and also instructed the Com-stocks to notify the court of any problems that arose during the transitioning period. The Porters appeal the trial court’s order.

¶ 4 ICWA allows deviation from the placement preference for extended family when good cause exists to do so. 25 U.S.C.A. § 1915. The “use of the term ‘good cause’ was designed to provide state courts with flexibility in determining the disposition [1205]*1205of a placement proceeding involving an Indian child.” Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979) (Guidelines). The question of whether there is good cause to deviate from the ICWA preferences is a factual determination to be made by the trial court. We therefore review the court’s determination for abuse of discretion. In re B.B.A., 2009 OK CIV APP 80, ¶ 5, 224 P.3d 1285, 1287. “An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Harvell v. Goodyear Tire and Rubber Co., 2006 OK 24, ¶ 9, 164 P.3d 1028, 1032.

¶ 5 The Oklahoma Indian Child Welfare Act, 10 O.S.2011 § 40.6, provides that the placement preferences of ICWA, 25 U.S.C.A. § 1915, “shall apply to all preadju-dicatory placements, as well as preadoptive, adoptive and foster care placements.” Section 1915 provides priority for adoptive placement of Indian children with extended family. Extended family “shall be defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” Id. § 1903. The placement preferences may be avoided upon a showing that good cause exists to do so. Id. § 1915. The party attempting to avoid the placement preferences has the burden of demonstrating by clear and convincing evidence that good cause exists. In re Adoption of Baby Girl B., 2003 OK CIV APP 24, ¶ 58, 67 P.3d 359, 370; Guidelines, 44 Fed. Reg. 67,584, 67,594.

¶ 6 Appellees’ answer brief included a request for dismissal of the appeal based on Appellants’ failure to timely file the designation of the record, which was deferred to the decisional stage of this appeal. Oklahoma Supreme Court Rule 1.28(b)(3) provides that in juvenile appeals, which include adoption proceedings, the designation of the record must be filed within ten days of the filing of the order appealed. The order appealed was filed December 9, 2011. Appellants did not file the designation of the record until January 9, 2012. Appellants brief was also untimely filed. Rule 1.10(c)(3) provides that in juvenile appeals the brief in chief shall be filed within twenty days of receipt of notice of completion of the record. The notice of completion of the record was filed February 9, 2012, and Appellants’ brief was filed March 9, 2012. Although Appellants filed two amended designations of the record, the second of which resulted in a second notice of completion of the record filed February 28, 2012, this did not result in an extension of time for Appellants to file the brief in chief. See Rule 1.26(e)(5). Pursuant to Supreme Court Rule 1.2 dismissal of an appeal for failure to comply with these rules is discretionary. Although there is no apparent excuse for Appellants’ failure to comply with the rules, we decline to dismiss the appeal in this ease.

¶ 7 The Porters have two main contentions to support the argument that good cause exists to avoid the placement preferences. First, that due to the children’s issues -with anxiety and attachment disorders, it will be highly traumatic to move the children from the Porters’ home, where they have been since a very early age.3 It does appear from the record that all parties agree some degree of trauma will result from moving the children out of the Porters’ home. However, Dr. Randelman, the children’s psychologist, testified that this trauma could be dealt with and overcome if the proper methods are followed, and that there were no indicators the Com-stocks would not be capable of dealing with any trauma the children might sustain, or addressing the children’s behavioral issues. The testimony at trial demonstrated that both the Porters and the Comstocks appear to be equipped to provide a good, stable home for the minor children. Nothing in the record indicates that the Comstocks would be unable to address the trauma that the children may sustain as a result of leaving the Porters’ home. The nature of foster care placement is such that it often results in [1206]*1206some degree of trauma to the children involved who are moved from one home to another. The Porters contend that it is against the best interests of the children to move them. However, ICWA is controlling in this case. Although in an ICWA case the child’s best interest is a factor, it is not the only factor taken into consideration. See In re N.L., 1988 OK 39, 754 P.2d 863; In re Adoption of Baby Girl B., 2003 OK CIV APP 24, ¶ 68, 67 P.3d 359, 372. ICWA also considers the interests of the Indian family or tribe, and the child’s relationship to the family or tribe, with a presumption that the preferences serve those interests. See In re Adoption of Riffle, 277 Mont. 388, 922 P.2d 510, 514 (1996).

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2013 OK CIV APP 30, 298 P.3d 1203, 2013 WL 1401899, 2013 Okla. Civ. App. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-comstock-ex-rel-department-of-human-services-oklacivapp-2013.