IN THE MATTER OF S.F.

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IN THE MATTER OF S.F.
2010 OK CIV APP 5
230 P.3d 911
Case Number: 106601
Decided: 12/04/2009
Mandate Issued: 01/15/2010
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

IN THE MATTER OF S.F., C.G., and M.G., Alleged Deprived Children.

STATE OF OKLAHOMA, Petitioner,
v.
SAMUEL GIVENS and DONNA GIVENS, Respondents,
and
MICHAEL WOOD, Respondent/Appellant,
and
MUSCOGEE (CREEK) NATION, Intervenor/Appellee.

APPEAL FROM THE DISTRICT COURT OF
OKFUSKEE COUNTY, OKLAHOMA

HONORABLE DAVID N. MARTIN, JUDGE

REVERSED AND REMANDED

Aaron T. Corbett, CORBETT LAW FIRM, PLLC, Oklahoma City, Oklahoma, for Respondent/Appellant,
Shanna Burgin, ASSISTANT ATTORNEY GENERAL, MUSCOGEE (CREEK) NATION, Okmulgee, Oklahoma, for Intervenor/Appellee.

Kenneth L. Buettner, Judge:

¶1 Respondent/Appellant Michael Wood, natural father of S.F., appeals from the trial court's denial of his motion to reconsider the trial court's order transferring jurisdiction of this case to the Muscogee (Creek) Nation Tribal Court. The Indian Child Welfare Act (ICWA) provides that either parent may object to a request to transfer a proceeding to tribal court. The trial court transferred this deprived action to tribal court at the request of the natural parents of S.F.'s half siblings. The trial court erred in directing the transfer of the case as to S.F. over Wood's objection. We therefore reverse and remand for further proceedings.

¶2 In its Juvenile Petition, filed September 17, 2008, the State alleged that S.F., C.G., and M.G. were deprived as a result of domestic violence in the home of Respondents Donna Givens (Mother) and Samuel Givens (Step-Father) while the children were in their custody. The petition named Wood as the natural father of S.F. At a hearing held October 7, 2008, Mother and Step-Father stipulated that the children were deprived.

¶3 Step-Father filed a Petition to Transfer Jurisdiction of this Proceeding to the Muscogee (Creek) Nation November 5, 2008.

¶4 Wood filed his Motion for Reconsideration November 19, 2008. Wood asserted that he is a parent as defined by ICWA and he had objected to the transfer of the case. Wood asserted that 25 U.S.C. §1911(b) provides that a state court may transfer a deprived case "absent the objection of either parent." Wood urged the court to limit the transfer to C.G. and M.G. only.

¶5 Hearing on the Motion for Reconsideration was held December 1, 2008. The trial court entered its order denying the motion December 18, 2008. Wood timely filed his Petition in Error.

¶6 We first address the Tribe's claim that once the court transferred the case to tribal court, the state courts lost jurisdiction, so that this appeal must be dismissed. The Tribe raised a similar argument in an earlier motion to dismiss this appeal, which the Oklahoma Supreme Court denied in an order filed April 1, 2009. The order on appeal meets the statutory definition of a final, appealable order.

¶7 The applicable provision of ICWA is 25 U.S.C. §1911(b), which provides:

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

(Emphasis added). Wood contends that the statutory language plainly allows either parent to object. The tribe responds that the trial court must consider whether there is good cause to deny the transfer.

¶8 Only Step-Father, who is not a parent of S.F., filed the petition to transfer the case. Mother announced in court that she joined in Step-Father's petition. Even if we assume Mother's request to join Step-Father's petition amounted to a petition to transfer by a parent of S.F., we nevertheless conclude the plain language of the statute requires us to hold that the trial court did not have authority to transfer the proceeding as it applied to S.F.

¶9 The right of either parent to object is absolute and such objection serves as a veto over transfer of the case to tribal court. 42 CJS, Indians, §161. See also, cases cited in State in Interest of D.A.C.,

Section 1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause," objection by either parent, or declination of jurisdiction by the tribal court.

Mississippi Band of Choctaw Indians v. Holyfield

¶10 The trial court abused its discretion in denying Wood's motion to reconsider. As a parent of S.F., Wood had an absolute right to object to the transfer of the deprived proceedings to tribal court.

BELL, P.J., and HETHERINGTON, J., concur.

FOOTNOTES