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In re B.N.B.6/26/1998
Decided: May 22, 1998
RELEASE FOR PUBLICATION BY ORDER OF COURT OF CIVIL APPEALS
APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA
HONORABLE JANICE P. DREILING, JUDGE
AFFIRMED
B.N.B. and C.M.B., minor children of Patricia Breeden, now Jester (Patricia), were adjudicated deprived in December 1994. She stipulated to neglect of the children. A service plan was adopted for her. The natural father of B.N.B. and C.M.B. did not appear during the court proceedings. Subsequently, Patricia married Justin Jester, Sr. (Jester). J.J. was born of that marriage in September, 1995. In June, 1996, J.J. was adjudicated deprived after Patricia and Jester stipulated to domestic abuse in addition to physical neglect of J.J.. The State of Oklahoma also alleged medical neglect, but Patricia and Jester did not stipulate to that allegation. Another child, R.D.J. was born of the marriage in December 1996, and was removed from the care of Patricia and Jester. R.D.J. was found to be deprived due to the parents failure to correct conditions which led to the deprived adjudication of R.D.J.'s sibling and half-siblings. Dispositional plans which adopted a treatment plan for Patricia and Jester were adopted by the court. The State of Oklahoma filed motions to terminate Patricia's parental rights as to all four children and to terminate the parental rights of Jester as to J.J. and R.D.J. The State alleged they failed to correct the conditions which led to the previous adjudications. After trial by jury, a verdict was returned for termination of parental rights. Patricia and Jester (collectively, Appellants) appeal.
ONE
Appellants contend their right to equal protection of law under the 14th Amendment to the United States Constitution was violated. The attorney for the children argues that this contention was not preserved for appeal because Appellants failed to address the issue at the trial court level. However, public policy requires us to consider this fundamental issue. See, Northwest Datsun v. Oklahoma Motor Vehicle Com'n,1987 OK 31, 736 P.2d 516. Specifically, Appellants contend that a higher burden of proof is required, for termination of parental rights of an Indian family pursuant to federal law, than that which is required as to other persons. Therefore, Appellants say, they are victims of racial discrimination by virtue of the color of their skin, since they are not Indians. In particular, 25 U.S.C. § 1912(f) provides:
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (Emphasis added).
State law controls termination of parental rights of parents other than Indians. For them, a lower standard of proof, that of clear and convincing evidence, exists. Pursuant to 10 O.S. Supp. 1995 §7006.1, in order to terminate parental rights, the state must show, by clear and convincing evidence, that (a) the child is deprived; (b) such condition is caused or contributed to by acts or omissions of his parent; and, (c) termination of parental rights is in the best interests of the child. The burden of evidence or persuasion then shifts to the parent to show by clear weight of the evidence that conditions have changed and have been corrected. Matter of C.G., 1981 OK 131, 637 P.2d 66, 77.
Our question becomes: Is there a rational basis for the distinction between termination of Indian parental rights and the t
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