Okla. SCT Holds Adoption without Consent is Not Termination of Parental Rights under ICWA

Here is the opinion in In re G.D.J.

An excerpt:

¶36 Section 1912 of the ICWA requires the use of a “beyond a reasonable doubt” standard of proof, for certain purposes, in a proceeding to terminate parental rights. As discussed above, our statutes prohibit a trial court from taking any action that results in a termination of the parent-child relationship in a proceeding to determine a minor child eligible for adoption without the consent of a natural parent. Therefore, a “clear and convincing” standard of proof is all that is necessary in such a proceeding. The higher standard of proof is relevant to the specific determination, 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. The hearing on the petition for adoption, which has not occurred in the present case, will be a proceeding which may result in the termination of a parent-child relationship, and is the only proceeding in which the court may grant a final decree of adoption. At the hearing on the petition for adoption, evidence relevant to matters included in subsection (f) of Section 1912 must be proven “beyond a reasonable doubt” in order to support a determination that parental rights should be terminated, including the testimony of an expert witness.

¶37 In Merrell v. Merrell1985 OK 107712 P.2d 35, this Court considered the procedures of 10 O.S. Supp. 1975 Section 60.7, the predecessor to the provisions of 10 O.S. 2001, Section 7505-4.1. This Court determined “that it is the parental right of consent, rather than the absolute termination of all parental ties to the child, at issue in a section 60.7 hearing, we still . . . find the clear and convincing evidence standard . . . to be proper.”25 This position was reiterated in In the Matter of the Adoption of J.R.M. 1995 OK 79, ¶17, 899 P.2d 1155, 1161, wherein this Court stated:

. . . Absolute termination of parental rights is not decided at the time the consent issue is determined. Only when the final decree of adoption is entered are all parental responsibilities severed . . .

¶38 For the reasons stated above, we again find that a hearing on eligibility for an adoption without consent is not a termination proceeding. We further find the “beyond a reasonable doubt” standard of proof is only applicable for the purposes of 25 U.S.C. § 1912(f). Accordingly, the trial court applied the correct standard of proof at the hearing on the application to adjudicate minor eligible for adoption without consent of the natural mother.

 

 

This entry was posted in Author: Matthew L.M. Fletcher, Research and tagged , , , . Bookmark the permalink.

One Response to Okla. SCT Holds Adoption without Consent is Not Termination of Parental Rights under ICWA

  1. Stephen G. says:

    The court doesn’t seem to have held that adoption without consent is not termination of parental rights; rather, it held that adjudication of adoptability without consent is not a termination of parental rights.” As the court seems to try to clarify at paragraph 37, “Absolute termination of parental rights is not decided at the time the consent issue is determined. Only when the final decree of adoption is entered are all parental responsibilities severed . . .” (quoting In the Matter of the Adoption of J.R.M. 1995 OK 79, ¶17, 899 P.2d 1155, 1161).

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