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In re J.C.

Court of Appeals of Oklahoma, Division II

March 19, 2018

IN THE MATTER OF J.C., J.D., and W.D., Alleged Deprived Children: TYLOR CLARK, Appellant,

          Mandate Issued: 04/18/2018


          Timothy J. Gifford, LAW OFFICE OF TIMOTHY J. GIFFORD, Tulsa, Oklahoma, for Appellant

          Max Cook, DISTRICT ATTORNEY, Kelly Allen, ASSISTANT DISTRICT ATTORNEY, Sapulpa, Oklahoma, for Appellee


         ¶1 Appellant, Tylor Clark (Father), appeals from an order adjudicating as deprived Father's biological child, J.C. (Child), after the trial court denied Father's request for a trial in response to the State of Oklahoma's (State's) petition for an adjudication of Child as deprived on multiple grounds, to which Child's biological mother (Mother) stipulated. For the reasons enumerated below, we vacate that part of the trial court's order adjudicating Child as deprived and remand for a non-jury trial, on the question of whether Child is deprived, compliant with the requirements of the Indian Child Welfare Act.


         ¶2 The record reflects that the Department of Human Services (DHS) took Child and two of Child's half-siblings, J.D. and W.D. (collectively, Children), into protective custody on May 8, 2017, after Mother and J.D. and W.D.'s purported father, Joshua Driever, were arrested for alleged possession and being under the influence of methamphetamines and for child endangerment. At that time, Child was age 9, while J.D. and W.D. were ages 5 and 4, respectively. It is not disputed that Mother and Father were married when Child was born but were divorced at the time Children were taken into custody.

         ¶3 On May 16, 2017, State filed a petition to adjudicate all three Children as deprived, listing Father as a defendant along with Mother and Driever. The petition described the circumstances under which Children had been taken into custody, including Mother and Driever's admission that they had used and/or possessed illegal drugs and drug paraphernalia. The allegations specifically pertaining to Father were (1) that he "has been diagnosed with Bipolar Disorder but is not currently taking any medications"; (2) that Mother and Father had a "domestically violent relationship"; (3) that Father had a "criminal history for domestic assault and battery" based on a 2010 misdemeanor charge and a 2010 protective order; and (4) that Father had failed to protect Child from the "deprivations" listed in the petition. State alleged the conditions constituted "neglect, failure to provide a safe and stable home, failure to protect, and domestic violence and inadequate supervision, " and requested the court to adjudicate J.C. "to be deprived by [Father]." In a separate paragraph State requested that all three Children be adjudicated deprived as to Mother and Driever, but in addition listed the conditions of "substance abuse" and "threat of harm" as grounds for the adjudication.

         ¶4 At the adjudication hearing on July 5, 2017, Mother stipulated to the allegations of State's petition and to Child's deprived status. Father, however, objected to the adjudication and requested a non-jury trial on the question of whether Child should be adjudicated deprived. The court at that time denied Father's request, noting that it had long followed a rule set down in a Court of Civil Appeals case -- the citation of which the judge could not recall but with which he agreed -- that "the status of being a deprived child... belongs to the child, not to the parent." Therefore, the court found that because Mother had stipulated to Child's deprived status there was no need for a trial on State's allegations against Father.

         ¶5 On July 20, 2017, the Cherokee Nation filed a Notice to Intervene, stating that Children are "Indian children" within the meaning of the Indian Child Welfare Act, 25 U.S.C. § 1903(4), and that the Nation intended to be involved with the case. [1] On July 26, the trial court entered a written order finding that the Indian Child Welfare Act applied and memorializing Children's adjudication as deprived based on "[s]tipulation of the Mother... that continued custody of [Child] by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the [Child]." The order further recited that the court had denied Father's request for a non-jury trial and had overruled Father's objection to the adjudication of Child as deprived. [2] In addition, over Father's objection the court ordered an Individualized Service Plan (ISP) for all parents, and described the following conditions as having caused Children to be adjudicated deprived: possessing/using illegal drugs/addiction; domestic violence; failure to maintain safe and/or sanitary home; threat of harm; neglect; and inadequate supervision. Children were declared wards of the State and have been placed in foster care. [3]

         ¶6 Father filed this appeal. His sole proposition of error is that the trial court denied his constitutional right of due process by refusing his request for a non-jury trial on the issue of whether Child is deprived.


         ¶7 This Court reviews de novo a claim that the procedure used in a deprived child action resulted in a denial of procedural due process . In re A.M., 2000 OK 82, ¶ 6, 13 P.3d 484. Statutory construction, a question of law, also is reviewed d ...

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