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In Iw

Court of Appeals of Oklahoma, Division II

December 29, 2017

IN THE MATTER OF IW, MM, Jr., And NK, Adjudicated Deprived Juveniles, MICHAEL LANCE McAFEE, Appellant,
v.
STATE OF OKLAHOMA, Appellee.

          Mandate Issued: 01/24/2018

         APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, OKLAHOMA HONORABLE DAWSON R. ENGLE, TRIAL JUDGE

          W. S. Haselwood, HASELWOOD & WEBB, Shawnee, Oklahoma, for Appellant

          Richard Smotherman, DISTRICT 23 DISTRICT ATTORNEY, Rebecca Bauer, ASSISTANT DISTRICT ATTORNEY, Shawnee, Oklahoma, for Appellee

          JERRY L. GOODMAN, JUDGE

         ¶1 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.

         BACKGROUND

         ¶2 The minor children, who are of Indian descent, were removed from the biological mother's home in October of 2012 due to alcohol abuse. [1] Father, who resides in Kansas, stipulated to a deprived petition for failure to protect in December of 2012.

         ¶3 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 monthly.

         ¶4 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.

         ¶5 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.

         STANDARD OF REVIEW

         ¶6 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, ΒΆ 6, 304, P.3d 738, 740). "[I]n cases under the State and Federal Indian Child ...


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