State of Missouri & Choctaw Nation of Oklahoma v. Judge Sifferman
No. SD37148
Filed October 6, 2021
Missouri Court of Appeals – Southern District
Child was born to B.F. (hereinafter “Father”) and K.F. (hereinafter “Mother”) in May of 2018. Father is a member of the Choctaw Indian Nation of Oklahoma. There is no indication that Mother is the member of any Indian tribe.
Shortly after birth, Child was “remove[d]” due to “emergency circumstances,” and was placed with Foster Parents on May 9, 2018. The juvenile division of the circuit court (“juvenile court”) acquired jurisdiction of Child the next day under section 211.031.1(1) concerning abuse and neglect. The foster parents are not the members of any Indian Tribe and are not the relatives of the child.
On September 14, 2018, the Choctaw Nation filed a notice of intervention in the protective custody proceeding under 25 U.S.C. § 1911(c) (this statute specifically refers to Indian Tribe Jurisdiction over Indian Child Custody Proceedings), and Respondent “accept[ed] and acknowledge[ed]” the intervention. Respondent subsequently entered an order on April 10, 2020, granting the Choctaw Nation the right to intervene in the protective custody proceeding under 25 U.S.C. § 1911(c).
Father’s parental rights to the child were terminated in March of 2021 and one of Father’s cousins, who is also a member of the Choctaw nation, contacted the Children’s Division and requested adoptive placement of the child. Weekly “[v]irtual visits” between Child and M.S. occurred “since March 2020” through at least March 9, 2021.
On Friday, April 3, 2020, the Children’s Division convened an Adoption Staffing that produced a recommendation that Foster Parents should adopt Child rather than M.S.
On Tuesday, April 7, 2020, M.S. and the Choctaw Nation each submitted a timely request for review of the Adoption Staffing Team’s recommendation. On April 10, 2020, the independent reviewer concluded “the case management agency failed to give due diligence to explore familial placements and take actions to ensure the child’s cousin, [M.S.] was afforded the opportunity to be considered as an adoptive placement.” On April 14, 2020, the Children’s Division informed Respondent that “[a]s such, the adoption staffing decision made on April 3, 2020 has been set aside, and Children’s Division will complete the necessary relative exploration and associated activities.”
Both the foster parents and the Father’s cousin plus Choctaw nation file a Motion to adopt the minor child in juvenile court. Respondent granted the Choctaw nation to intervene in the foster parents adoption proceeding.
On May 26, 2021 Respondent reinstated the recommendation that the foster parents adopt child. On June 17, 2021, the Choctaw Nation filed a petition requesting a writ of prohibition ordering Respondent to take no further action in this protective custody proceeding other than vacating Respondent’s May 26, 2021 order pending resolution of competing petitions seeking to adopt Child. A preliminary writ of prohibition on June 29, 2021.
Among the circumstances that allows for a writ of prohibition is when “ . . . a lower court lacks authority or jurisdiction.” Furthermore, although courts are reluctant to issue writs of prohibition, they will be issued when “there is a clear right to do so.”
The Choctaw Indian Nation argues that Respondent exceeded his authority in this protective custody proceeding when he reinstated the prior nonfinal recommendation that foster parents should adopt the child.
Respondent, on the other hand, argued that that the Choctaw Nation does not have standing to seek this writ of prohibition. However, it is important to note that Respondent granted Choctaw Indian Nation the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek this writ of prohibition.
Respondent did not have the express or implied authority to interfere in the Children’s Division’s administrative review of a nonfinal administrative recommendation for adoption, and then substitute Respondent’s judgment for that of the Children’s Division and compel the Children’s Division to reach or adhere to a particular recommendation.7 We make our preliminary writ permanent, and further direct Respondent to refrain from taking further action in the internal administrative processes of the Children’s Division except as authorized by law
OUTCOME: PRELIMINARY WRIT OF PROHIBITION MADE PERMANENT
