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In re J.W.E.

Court of Appeals of Oklahoma, Division II

March 15, 2018

IN THE MATTER OF J.W.E., I.W.E., and J.W.E., Alleged Deprived Children, DAVA WHITE EAGLE, Appellant,
v.
STATE OF OKLAHOMA, Appellee.

          Mandate Issued: 04/11/2018

          APPEAL FROM THE DISTRICT COURT OF BLAINE COUNTY, OKLAHOMA, HONORABLE MARK A. MOORE, TRIAL JUDGE.

          LaRena J. Casey, Watonga, Oklahoma, for Appellant.

          Mike Fields, DISTRICT FOUR DISTRICT ATTORNEY, Molly B. Neuman, ASSISTANT DISTRICT ATTORNEY, BLAINE COUNTY DISTRICT ATTORNEY'S OFFICE, Watonga, Oklahoma, for Appellee.

          Blayne T. Allsup, Kingfisher, Oklahoma, for the Minor Children.

          JANE P. WISEMAN, PRESIDING JUDGE.

         ¶1 Dava White Eagle (Mother) appeals a trial court order denying her motion for new trial and an order terminating her parental rights after jury verdict. The dispositive issue [1] before us is whether there was trial court error or abuse of discretion in denying the motion for new trial because the federal Indian Child Welfare Act (ICWA) applied to the proceedings at the time of trial. After review, we conclude it was error not to grant the motion for new trial when ICWA applied to the proceedings when the trial started. The decision is reversed and the case is remanded for further proceedings.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 A trial on the State of Oklahoma's petition to terminate Mother's parental right to JeWE, IWE and JoWE, was held on January 23, 24 and 25, 2017. After deliberation, the jury returned a verdict to terminate Mother's parental rights on the grounds of abandonment pursuant to 10A O.S. § 1-4-904(B)(2), failure to correct the conditions that led to the adjudication of the children as deprived pursuant to 10A O.S. § 1-4-904(B)(5), and failure to contribute to the support of the children pursuant to 10A O.S. § 1-4-904(B)(7). The jury found by clear and convincing evidence that Mother's parental rights should be terminated on each of these grounds.

         ¶3 At trial, Mother testified she was a member of the Cheyenne Arapaho Tribe. When asked whether JeWE, IWE and JoWE were members of an Indian tribe, she stated, "Not yet." She testified, "I've got an application for them to--they're in the process of being enrolled in the Choctaw Tribe." She explained that the children were not members of the Cheyenne Arapaho Tribe because of their blood quantum, indicating that the children must be one-quarter to qualify for membership in the Cheyenne Arapaho Tribe. She said the children were "in the process of being enrolled in the Choctaw Tribe." At trial, State asked Mother, "You know that the Choctaw Nation has also sent a letter that says they don't qualify. Do you understand that?" Mother replied, "No.... 'Cause I spoke with them recently and I talked with the Indian child welfare from the Choctaw Tribe and she said that they were in the process of being enrolled." Mother "didn't know where--at what point they were at; she just knew they were in the process." She stated that she is "becoming an established member because in order for [the children] to become members [she has] to be an established member." She stated that she did not switch tribes and she is still enrolled with the Cheyenne Arapaho Tribe. She explained that she "became an established member with the Choctaw Tribe, " which "means that [she doesn't] receive any benefits from the Choctaw Tribe because [she is] still an enrolled member of the Cheyenne Tribe." She agreed that she can be an enrolled member of only one tribe. She is becoming an established member solely to get the children enrolled with the Choctaw Tribe and "[t]hey will receive the whole benefits of whatever the Choctaw Tribe provides for... their tribal members."

         ¶4 When later questioned about her efforts to enroll the children with the Choctaw Tribe, she stated that the process was taking so long because she was trying to get birth certificates and Social Security cards for the children. She thought she could get them on her own, but then found she could get them from DHS. As to the process of enrolling the children, she testified:

Then I had to call up to genealogy at the Choctaw Nation and find out who was on the roll to get--to get my kids on, because it's through lineage. I found that it was my mom's--my great-grandpa was the one who was on the roll. So I had to tie my relationship to my great-grandpa. So I had to get birth certificates for my mom and my mom's dad, and death certificates for both of them, which that took some time getting.
And I had to--first I had to find out my grandpa--my great-grandpa's roll number and find out if he was even on the roll.
So I found all that out, got the birth certificate for my grandpa and death certificate for my grandpa and my mom. And then I had to get my birth certificate and then get birth certificates of my children and then the social security cards of everybody except for my mom and my grandpa. And then I had to mail all those in.

         Mother agreed that it was "quite a process." She said it usually takes three months for the Choctaw Tribe to make a decision.

         ¶5 Scott Walters, employed by DHS as a child welfare specialist, was asked at trial: "Now, all through the time that this case has been pending mom has attempted to enroll her children in various Indian tribes but that has not been successful to this point; is that correct?" Walters replied, "That is correct." Walters stated, "We did receive a letter from the Cheyenne Arapaho Tribe as well as the Choctaw Tribe stating that the children were not eligible for enrollment." He testified that at the beginning of the case, DHS approached it as though the children were Indian children.

         ¶6 In its final order terminating Mother's parental rights filed January 31, 2017, the Court stated that it had previously found that JeWE, IWE and JoWE "are not members or eligible for membership with an Indian Nation/Tribe and are not Indian Children as defined by the State and Federal Indian Child Welfare Acts." It is the children's status as Indian children at the time of trial on which we focus in this appeal.

         ¶7 After the final order was filed on January 31, 2017, Mother filed a motion for new trial pursuant to 12 O.S. § 651 on February 3, 2017. Mother alleged, among other things:

Shortly after the announcement of the verdict by the Jury, the Mother received notice by mail that the children were enrolled members of the Choctaw Nation of Oklahoma and that said membership was certified on January 10, 2017 by the United States Department of the Interior Bureau of Indian Affairs and on January 20, 2017 by the Choctaw Nation of Oklahoma.

         ¶8 Mother attached to her motion for new trial copies of each child's documentation of Certificate of Degree of Indian Blood, dated January 10, 2017, from the United States Department of Interior Bureau of Indian Affairs (BIA), which indicated each child "is 1/8 degree Indian blood of the Choctaw Tribe." Mother also attached copies of a Choctaw Nation membership card for each child stating each child "is 1/8 Choctaw and is a member by blood of the Choctaw Nation of Oklahoma." Each card also stated, "Date Approved: 01/20/2017."

         ¶9 The motion for new trial noted, "That Mother testified at trial as to her diligent effort to enroll the children with the tribe and to obtain proof of enrollment prior to trial but that the evidence of enrollment was not and could not have been discovered until after the jury rendered its verdict." She asserted, "That because the children were enrolled members of an Indian Tribe prior to and at the time of trial, all proceedings, including the trial, were subject to the Indian Child Welfare Act 25 U.S.C. 1901 et seq. and Oklahoma Indian Child Welfare Act 10 O.S. § 40 et seq." She further asserted:

That no notice of the proceedings was given to the Tribe, no expert witness testimony was presented, and the State proceeded under an improper burden of proof at trial all in violation of the requirements of ICWA and OICWA and such violation materially affected substantial rights of the Mother, prevented her from having a fair trial and constitutes an error requiring a new trial.

         ¶10 State filed an objection and response asserting, inter alia: "At the time of trial, the evidence and record showed the children were not members of an Indian tribe." It claimed that "the only other way the children could be defined as Indian children implicating the application of ICWA was if the children were 'eligible for membership [in a tribe] of which the biological parent is a member.' See BIA Regulations §23.108(a)." State argued that, because Mother testified she is a member of the Cheyenne Arapaho Tribe and the children are not eligible to be members of that tribe, "but that she was trying to enroll the children as Choctaw (of which she could not be a full member given her membership in Cheyenne Arapaho), there was no reason to believe the children met the definition of 'Indian Child' at the time of trial given the evidence and testimony in the record." It argued that the record in the case showed that the children were not tribal members at the time of trial and the record only reflected their membership after Mother filed the motion for new trial.

         ¶11 The trial court denied the motion for new trial, and Mother appeals.

         STANDARD OF REVIEW

         ¶12 "A motion for new trial is addressed to the sound discretion of the trial court. Unless it is apparent that the trial court erred in some pure question of law or acted arbitrarily the ruling will not be disturbed on appeal." Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, ¶ 5, 22 P.3d 695. "ICWA's applicability is a question of law. The standard of ...


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