Judicial Notice of Internet Evidence — Appellate Court’s Taking Notice of Ongoing Proceedings in Lower Court Is Consistent with Its Authority to Require Supplementation of the Record and to Issue a Writ for Such Records

Matter of MKT, 2016 OK 4; 2016 Okla. LEXIS 6 (Okla. Sup. Ct. Jan. 20, 2016):

The district court ordered the transfer of a minor child, S.A.W., to a foster-adoption home that was in compliance with the Indian Child Welfare Act and the Oklahoma Indian Child Welfare Act [IWCA], and in the bests interests of the child. Foster mother, natural mother, father, child, and the State appealed. We hold the proper standard for a party showing a need for an ICWA-noncompliant child placement is clear and [**2]  convincing evidence; and the evidence presented by appellants was sufficient to satisfy their burden, regardless whether we apply abuse-of-discretion or clear-and-convincing standards. We hold the circumstances of this case do not warrant reversal of the judge's order based upon 10A O.S. § 1-4-812. We hold appellants failed to satisfy their burden challenging natural father's status as not a member of his tribe. The Cherokee Nation met its burden showing the child was subject to the Indian Child Welfare Act. We hold the evidence was sufficient to show an ICWA-noncompliant temporary placement as in the best interests of the child. We affirm the district court's order in part and reverse in part.

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 [*P63]  Appellants [**53]  were also required to introduce evidence that the proposed ICWA-compliant placement would not fulfill this need of the child which their expert witnesses said made placement with the foster mother to be the placement in the child's best interests. Their testimony concerning best interests of the child was produced in the context of objecting to a request for placement with an ICWA-compliant family. The ICWA and Guidelines are clear that if a Indian child's emotional and physical needs may be equally satisfied by an ICWA-compliant placement and an ICWA-noncompliant placement, then the ICWA-compliant placement is preferred. The single argument made by the appellants is that preference in placement should be with the foster mother because of the time the foster mother had custody, the bonds between child and foster mother, and foster mother's desire for permanent placement. There was no testimony at that time relating to the ICWA-compliant family's ability to provide for the emotional and physical needs of the child.

 [*P64]  Because of factors showing the extraordinary nature of this controversy involving a child of tender years, we have taken judicial notice of the docket of the trial court [**54]  showing events while this appeal has been pending.54 The docket shows that as of December 2105 the natural father's parental rights have not been terminated, and there is currently no ICWA-compliant family for placement of the child.

54   This Court has the discretion to take judicial notice of the dockets of District Courts. Dutton v. City of Midwest City, 2015 OK 51, ¶ 38, 353 P.3d 532, 550. Our discretionary expansion of the appellate record through the procedure of judicial notice is consistent with this Court's authority to require supplementation of an appellate record pursuant to Okla. Sup. Ct. R. 1.28(h), and the Court's common-law power to issue a discretionary writ of certiorari for transmittal of trial court records to an appellate court. Cf. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2014 OK 14, n. 11, 297 P.3d 378, 385 (A discretionary constitutional writ of certiorari may be used to bring up a record of an inferior court to a superior court for review of jurisdictional error.).

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