IN THE MATTER OF IW, MM, Jr., And NK, Adjudicated Deprived Juveniles, MICHAEL LANCE McAFEE, Appellant,
STATE OF OKLAHOMA, Appellee.
Mandate Issued: 01/24/2018
FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, OKLAHOMA
HONORABLE DAWSON R. ENGLE, TRIAL JUDGE
Haselwood, HASELWOOD & WEBB, Shawnee, Oklahoma, for
Richard Smotherman, DISTRICT 23 DISTRICT ATTORNEY, Rebecca
Bauer, ASSISTANT DISTRICT ATTORNEY, Shawnee, Oklahoma, for
L. GOODMAN, JUDGE
Michael Lance McAfee (Father) appeals an April 6, 2017, order
terminating his parental rights to his minor children, IW,
MM, Jr., and NK. Based upon our review of the record and
applicable law, we reverse the order under review.
The minor children, who are of Indian descent, were removed
from the biological mother's home in October of 2012 due
to alcohol abuse.  Father, who resides in Kansas,
stipulated to a deprived petition for failure to protect in
December of 2012.
An individualized service plan (ISP) was adopted on January
9, 2013, requiring Father to complete a family functional
assessment, complete a domestic violence inventory, visit the
minor children, provide the Department of Human Services
(DHS) a list of appropriate caregivers for the minor
children, sign releases, and contact the caseworker at least
After Father made significant progress on his ISP, DHS
recommended trial reunification. In May of 2015, the minor
children were placed with Father in Kansas. However, in
October of 2015, reunification was terminated after Father
spanked MM, leaving significant bruising. Father was charged
with domestic battery, ultimately pleading no contest.
State filed a motion to terminate Father's parental
rights on September 16, 2016, pursuant to 10A O.S.2011,
§ 1-4-904(B)(5), alleging Father had failed to correct
the conditions which led to the minor children's deprived
status. A jury trial was held on March 20-21, 2017. At the
conclusion of the trial, the jury found the allegations of
the petition to terminate Father's parental rights were
true and that termination was in the best interests of the
minor children. The trial court subsequently entered an order
terminating Father's parental rights. Father appeals.
As a general rule, before parental rights may be severed,
State must prove its case by clear-and-convincing evidence.
In re S.B.C., 2002 OK 83, ¶ 5, 64 P.3d 1080,
1082. "Clear and convincing evidence" is defined as
"that measure or degree of proof which will produce in
the mind of the trier of fact a firm belief or conviction as
to the truth of the allegation sought to be
established." In re C.G., 1981 OK 131, ¶17
fn.12, 637 P.2d 66, 71 fn.12. Where an Indian child is
involved, as in the present case, however, "the
proceedings must comply with the provisions of both the
federal ICWA, 25 U.S.C.A. 1901 through 25 U.S.C.A. 1963, and
its Oklahoma counterpart, the Oklahoma ICWA, 10 O.S. 40
through 10 O.S. 40.9, In re T.L., 2003 OK CIV APP
49, ¶ 11, 71 P.3d 43, 46 (cited with approval in In
re HMW, 2013 OK 44, ¶ 6, 304, P.3d 738, 740).
"[I]n cases under the State and Federal Indian Child