Lane v. State

FISCHER, V.C.J.,

concurring in part, dissenting in part and concurring in result.

T1 I coneur in part, coneur in result and dissent only with respect to the burden of proof adopted by the Majority. I would apply the beyond-a-reasonable-doubt burden of proof to all elements that must be established to terminate Father's parental rights to these Indian children.

12 As noted by the Majority, this termination proceeding is governed by the Indian Child Welfare Act and specifically 25 U.S.C. § 1912 . There are two things the ICWA required the State to prove before Father's parental rights could be terminated: (1) "Any party seeking to effect a ... 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," § 1912(d); and (2) "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," § 1912(f). Although the Majority and another division of this Court, relying on well-established principles of statutory construction, conclude that Congress would have specified the beyond-a-reasonable-doubt standard for the active efforts element if it had intended that to be required, I am persuaded that one burden of proof is required in an Indian parental rights termination case.

T3 This issue is discussed in C. Steven Hager, The Indian Child Welfare Act: Case and Analysis, § 1-111 (15th ed.2011). The author cites eight jurisdictions that apply the beyond-a-reasonable-doubt burden of proof to all ICWA elements of the termination case, and twelve jurisdictions that apply a bifurcated burden of proof as the Majority does in this case. According to the author, of the seven states with substantial Indian populations, Montana, New Mexico and South Dakota apply a unified burden of proof; Alaska, Arizona, North Dakota and Oklahoma use the bifurcated approach. The author includes Oklahoma among those states applying the bifurcated burden of proof based on In re Adoption of R.L.A., 2006 OK CIV APP 138, ¶17 , 147 P.3d 306, 310-11 . In that case, the Court discussed the 2005 Introductory Comment to the Oklahoma Uniform Jury Instructions for Juvenile Cases (OUJI-Juv.), including the drafting committee's comment: "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)..." 1 The committee *774 reached its conclusion based on its reading of In re T.L., 2003 OK CIV APP 49 , 71 P.3d 43 . The issue on appeal in the TL. case was whether the district court erred in failing to grant the mother's demurrer to the State's evidence in her parental rights termination case. The Court first noted that the reasonable doubt standard was involved: "in ICWA cases, State must prove 'beyond a reasonable doubt' that continued custody by the parent is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912 (F)." The Court then found no error in overruling the mother's demurrer because:

[Wle find that State's evidence was sufficient to convince a rational juror beyond a reasonable doubt that Mother failed to correct the conditions leading to the deprived adjudication, that Children had been in foster care for 15 of the 22 months immediately preceding the filing of the termination proceedings, and that Children's emotional or physical safety and security would be jeopardized if Children were returned to Mother's custody.

Id. ¶15 , 71 P.3d at 47. The R.L.A. Court was not persuaded that the holding in T.L. was so broad as to apply the reasonable doubt burden to all aspects of the termination case and to the extent that it was, the R.L.A. Court declined to follow that holding. 2 Regardless of how the holding in T.L. is characterized, it is clear that the Court applied the reasonable doubt standard to each of the three elements the State was required to prove in terminating Mother's parental rights.

14 After the R.L.A. decision, the Uniform Jury Instructions regarding ICWA cases were revised. See Im re Amendments to Oklahoma Uniform Jury Instructions for Juvenile Cases, 2011 OK 28 , - P.3d -, entered March 24, 2011. The Introductory Comment now requires a bifurcated burden of proof to be applied.

The Oklahoma Court of Civil Appeals held in In re Adoption of R.L.A., 2006 OK CIV APP 138, ¶ 15 , 147 P.3d 306, 310 , that the reasonable doubt "burden of proof provided in [25 U.S.C.] § 1912(f) applies only to the specific factual determination required by that section." The R.L.A. decision concluded that because it could not find a proper basis for imposing a higher standard of proof on the other issues in a termination case involving an Indian child than if the case did not involve an Indian child, the clear and convincing standard of proof applied to the state law requirements for termination of parental rights. Id. Appellate courts in Alaska, Arizona, Colorado, Kansas, Maine, Michigan, Nebraska, Nevada, New York, North Carolina, North Dakota, Utah, Washington, and Wisconsin have reached the same conclusion. Valerie M. v. Arizona Dept. of Economic Sec., 219 Ariz. 331, 335 , 198 P.3d 1203, 1207 (Ariz.2009) ("[Nlearly every other state court that has considered this issue has concelud-ed that ICWA allows states to specify the standard of proof for state-law findings distinct from the findings required by ICWA."); In re N.J., 221 P.3d 1255 , 1260-61 (Nev.2009), In re Termination of Parental Rights to Daniel R.S., 286 Wis.2d 278, 321, n. 6 , 706 N.W.2d 269 (2005). Accordingly, Juvenile Instruction No. 5.2 states that there are two standards for the burden of proof for termination of parental rights, defines the clear and convincing evidence standard, and then states that the reasonable doubt standard of proof is a higher standard of proof. In addition, Juvenile Instruction 5.8 incorporates the ap *775 plicable Oklahoma grounds for termination of parental rights and then sets forth the additional requirement of proof beyond a reasonable doubt, including the testimony of at least one expert witness that continued custody of the child by the parent or legal custodian is likely to result in serious emotional or physical damage to the child.

OUJI-Juyv., ch. 5, "Indian Child Welfare Act-Introductory Note." The Order adopting these amendments also accepted and authorized the updated committee comments and user notes to be published with the amendments. However, the Order has not been released for publication and is subject to revision or withdrawal. Further; "As it has done previously, the Court [declined] to relinquish its constitutional or statutory authority to review the legal correctness of these authorized instructions when it is called upon to afford corrective relief in any adjudicative context." Id. §4. The Supreme Court may resolve the conflict between R.L.A. and the T.L. approach by adopting a bifurcated burden of proof, but it has yet to do so. A recent decision, as well as existing law suggest, in my view, that it may find a unified burden of proof is required by the ICWA.

T5 First, a unified burden of proof is consistent with existing law and decisions of the Oklahoma Supreme Court regarding how the burden of proof is applied in other cases involving multiple elements of a claim or cause of action. See e.g., Morris v. Leverett, 1967 OK 164 , ¶0, 434 P.2d 912 (Syllabus 3) (clear, decisive and unequivocal evidence required to establish elements necessary for a constructive trust); Messinger v. Messinger, 1958 OK 296 , 341 P.2d 601 (one seeking to recover under a lost deed has the burden of proving the execution, delivery, and material contents of the deed by clear and convincing evidence); Clark v. Lockstone, 1934 OK 591 , 170 Okla. 316 , 39 P.2d 971 (elements of fraud must be proved by clear and convincing evidence); 43A O.S. Supp.2006 § 5-512 (requiring the findings necessary for involuntary commitment of a minor to be proven by clear and convincing evidence). Further, the appellate courts apply one burden of proof to each element of a claim in a decision under review. Regal v. Riegel, 1969 OK 145, ¶ 11 , 463 P.2d 680, 683 (where a fact is required to be established by proof of a certain degree or character, the appellate court will determine whether or not the proof conforms to the required standard); In re S.B.C., 2002 OK 83 , 64 P.3d 1080 (appellate review of non-ICWA cases must determine the existence of clear-and-convincing evidence to terminate parental rights). In the criminal context, a bifurcated burden of proof would be similar to requiring the state to prove beyond a reasonable doubt that the defendant was in possession of a substance, but only requiring proof by a preponderance of the evidence that the substance was controlled.

T 6 Second, the bifurcated burden of proof would impose essentially the same procedural standard for ICWA parental rights termination cases that is currently employed in Oklahoma for non-Indian parental rights termination cases. See In re C.G., 1981 OK 131 , 637 P.2d 66 (requiring the State seeking to terminate parental rights pursuant to what is now 10A O.S. Supp.2010 § 1-4-904 to do so by clear and convincing evidence). See also, Matter of T.R.W., 1985 OK 99 , 722 P.2d 1197 . Section 1-4-904 requires proof of three elements: (1) the child is deprived, (2) termination is in the child's best interest, and (8) one of the legal grounds listed in paragraph B is shown. I recognize that the bifurcated burden of proof would treat Oklahoma Indian and non-Indian parents alike except in two respects: the proof required to satisfy seetion 1912(f) and the distinction between state law "reasonable efforts" and section 1911(d) "active efforts." In my view, this similarity in treatment cannot be supported. In adopting a heightened burden of proof for parental rights termination cases, the CG. Court recognized: "The law's policy must [guard] against a mistaken parental-bond severance...." Id. ¶ 17, 637 P.2d at 70 . In the ICWA, Congress recognized that the parental bond among Indian families was more in jeopardy of inadequate protection than in non-Indian families and sought to establish federal standards governing the termination of that parental bond.

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes *776 and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902 . Nonetheless, whatever argument can be made for treating Indian and non-Indian termination proceedings alike in all but two respects must account for the fact that "active efforts" is a "minimal Federal standard," not a state law requirement.

17 Third, in addition to the potential lack of uniformity among states, the complexities of a bifurcated burden of proof are highlight ed by the Alaska approach discussed by Mr. Hager at § 1-118. See Neal M. v. State of Alaska, 214 P.3d 284 (Alaska 2009); Jon S. v. State of Alaska, 212 P.3d 756 (Alaska 2009) (applying the clear-and-convineing burden to the state law grounds for termination and the ICWA "active efforts" requirements, beyond-a-reasonable-doubt to the ICWA § 1912F) "serious damage" requirement, and the preponderance-of-the-evidence burden to the "best-interest-of-the-child" requirement). Assuming, as the R.L.A. Court did, that juries would not be confused in their deliberations as to when to apply what burden of proof, a broader issue remains: Is the bifurcated approach consistent with the purpose and intent of the ICWA? "It shall be the policy of the state to cooperate fully with Indian tribes in Oklahoma in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced." 10 ©.9.2001 § 40.1.

18 Finally, the Oklahoma Supreme Court recently expressed its view of the purpose of the ICWA finding the Act must be considered "as a whole." In re M.S., 2010 OK 46 , ¶ 14, 237 P.3d 161 , 165. Although parental rights termination was not at issue in that case, the Court found "a similarity in the potential for harm to the relationship between an Indian child and the child's tribe if the standard of proof required for 'good cause' not to transfer is inadequate." Id. ¶ 19, 237 P.3d at 167. By adopting a heightened burden of proof, i.e., clear and convine-ing evidence rather than a preponderance of the evidence for a motion to transfer an ICWA case from state to tribal court filed pursuant to 25 U.S.C. § 1911 (b), the Supreme Court, in my view, signaled the result I would reach with respect to the applicable burden of proof in ICWA termination cases. Further, as I read M.S., the Supreme Court rejected, or at least found of limited usefulness, statutory interpretation of the ICWA like that used by this Court in R.L.A., and typical of the jurisdictions adopting a bifurcated burden of proof. 3 "[The rule of 'ex-pressio unius est exclusio alterius, i.e., the mention of one thing in a statute implies exclusion of something else ... should be applied only as an aid in arriving at intention and should never be followed when doing so would override the intended purpose of the act." M.S., 2010 OK 46 , ¶ 12, 237 P.3d at 165. Instead, the Supreme Court has adopted a construction of the ICWA designed to achieve clearly expressed Congressional policy, even where that construction results in the curtailment of state authority. See Id. ¶ 14, 237 P.3d at 166 (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45 , 109 S.Ct. 1597, 1607 , 104 L.Ed.2d 29 (1989)).

T9 Therefore, I respectfully dissent from that portion of the Majority Opinion adopting the clear-and-convinecing burden of proof for the "active efforts" requirement and would adopt the beyond-a-reasonable-doubt standard for all elements required to be proven by the State in Father's termination case.

. The full comment is found at In re Oklahoma Uniform Jury Instructions for Juvenile Cases, 2005 OK 12 , 116 P.3d 119, 163 , and provides:

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., 25 Kan. App.2d 289 , 961 P.2d 716, 719 (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 TL., 2003 OK. CIV APP 49, ¶15, 71 P.3d 43 , the Oklahoma Court of Civil Appeals applied the reasonable doubt standard *774 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. §

. This position was reaffirmed in In re J.S., 2008 OK CIV APP 15 , ¶4, 177 P.3d 590 , 591, the case cited by the Majority.

. "Most courts that have considered the issue have concluded from the absence of a Congressional mandate that each state may choose an appropriate burden of proof by which to evaluate reunification efforts and have opted for a clear and convincing evidence standard." Yvonne L. v. Arizona Dep't of Econ. Sec., 227 Ariz. 415 , 258 P.3d 233 (Ariz.Ct.App.Div.1 2011).