IN THE MATTER OF CHILD, B.R.W.
2003 OK CIV APP 92
78 P.3d 1243
Case Number: 98899
Decided: 09/19/2003
Mandate Issued: 10/24/2003
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III
IN THE MATTER OF CHILD, B.R.W.
BRANDON SHANE WOMACK and KRISTINA ANN WOMACK, Appellants,
v.
FELICIA
RUDEY SCHMIDT, Appellee.
APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY, OKLAHOMA
HONORABLE DAVID E. POWELL, TRIAL JUDGE
REVERSED AND REMANDED FOR NEW TRIAL
Richard A. Williams, PAIN AND GARLAND, Anadarko, Oklahoma, for Appellants,
Githen K.
Rhoads, Lawton, Oklahoma, for Appellee.
OPINION
ADAMS, Presiding Judge:
¶1 Brandon Womack, the father of the minor child, B.R.W., and his wife, Kristina Womack (collectively, the Womacks), appeal a trial court's order denying their petition to terminate parental rights and to declare B.R.W. eligible for adoption without the consent of her mother, Felicia Schmidt (Mother). 1 The Womacks argue, inter alia, that the trial court erred in failing to appoint an attorney for B.R.W. We agree and reverse the order.
¶2 According to the Womacks, 10 O.S.2001 § 7505-4.2(H)(1) and (I)(1). ¶3 For reversal, the Womacks first argue that the trial court was required to appoint an attorney to represent B.R.W. Mother conceded this should have been done, but argues that the Womacks may not raise this error on appeal because they did not request the appointment of an attorney for B.R.W. in the trial court. However, "fundamental error" is an exception to the general rule that an appellant may not obtain reversal on an issue not raised in the trial court, see Pine Island RV Resort, Inc. v. Resort Management, Inc., 1996 OK 83, 922 P.2d 609, and In the Matter of Adoption of K.D.K., ¶4 K.D.K. requires us to reverse the trial court's order and remand the case for a new trial. We need not specifically address most of the Womacks' remaining arguments for reversal because they involve examination of the sufficiency of the evidence to support the trial court's order.4 However, we will address the Womacks' argument concerning the appropriate burden of proof because the alleged error is likely to be repeated upon remand.
¶5 The Womacks contend the trial court erred in finding that they failed to comply with 25 U.S.C. § 1912(f) of the federal Indian Child Welfare Act (ICWA),5 arguing that this particular proceeding does not involve removal of an Indian child from an Indian parent or Indian environment. We agree. ¶6 After considering the purpose of ICWA and certain language within 25 U.S.C. § 1912, the Oklahoma Supreme Court held in Matter of the Adoption of D.M.J., 1985 OK 92, ¶12, 741 P.2d 1386, 1389, that § 1912(f) did not apply to an adoption case "in the absence of an attempt to 'break-up the Indian family' or interrupt the 'continued custody' of the child by the Indian parent." Based thereon, the Court affirmed the trial court's determination that ICWA did not apply to the adoption of D.M.J. without her Indian father's consent because she had been in her non-Indian mother's custody since the parents' divorce. ¶7 In this case, it is undisputed that B.R.W. is an enrolled member of the Choctaw Indian tribe, as is Mr. Womack, and Mother admits she is a non-Indian in her brief.6 Although Mother initially had custody of B.R.W., Mr. Womack has had legal custody of B.R.W. since July of 1998 by order of the Stephens County District Court. As in D.M.J., ICWA did not apply to the Womacks' request to adopt B.R.W. without Mother's consent because they are clearly not attempting to "break-up an Indian family" nor attempting to interrupt the "continued custody" of an Indian child by an Indian parent. The trial court erred when it found that the Womacks failed to comply with § 1912(f) of ICWA, which requires a termination of parental rights determination be supported by evidence "beyond a reasonable doubt."¶8 The Womacks' request for a determination that Mother's consent is unnecessary is governed by a "clear and convincing" burden of proof. See Matter of Adoption of Darren Todd H., 1980 OK 119, 615 P.2d 287. The trial court's order is reversed, and the case is remanded for a new trial consistent with this opinion.
REVERSED AND REMANDED FOR NEW TRIAL
JOPLIN, C.J., and BUETTNER, J., concur.
FOOTNOTES
1We note that there appears to be no Oklahoma authority authorizing a custodial parent to bring an action for termination of parental rights under these circumstances. The Oklahoma Adoption Code,
2Under § 7505-4.2(H)(1), consent to an adoption is not required from a parent who "fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child." Under § 7505-4.2(I)(1), consent is not required from a parent who "failed to protect the minor or a sibling of such minor from physical or sexual abuse that is heinous or shocking to the court."
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. (Emphasis added.)
| None Found. |
| Oklahoma Supreme Court Cases | |||
| Cite | Name | Level | 1990 OK 37, 791 P.2d 84, | 1997 OK 69, 940 P.2d 216, | 1996 OK 83, 922 P.2d 609, | 1980 OK 119, 615 P.2d 287, | 1985 OK 92, 741 P.2d 1386, |
| Oklahoma Statutes Citationized, Title 10. Children | |||
| Cite | Name | Level | 10 O.S. 40.1 , | Purpose - Policy of State. | Cited | 10 O.S. 7006-1.1, | Termination of Parental Rights in Certain Situations | Cited | 10 O.S. 7501-1.1 , | Short Title. | Cited | 10 O.S. 7505-4.2 , | Parental Consent Exception | Cited |