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1-
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                                                                SUPREME COURT
                                                              STATE 0F OKLAHOMA

                                                                                          .
R-
-                  NO.


I
             IN THE SUPREME COURT OF THE
I.
-                _ STATE OF OKLAHOMA

B
           ANGELA HOOVER and CHRISTOPHER HOOVER,
R-
.                        Petitioners,


I-                                  V.

                     JAMES H. PADDLEFORD,
1-_                  Special District Judge for the
                       Seventh Judicial District,

I                    In and for Oklahoma County,
                              Respondent.


1                     Petitioners’ Brief in Support of
I               Application to Assume Original Jurisdiction
                    and Petition for Writ of Mandamus.

s
 1                                       Thomas Neil Lynn III, OBA #5583
                                         Gary A Taylor, OBA #8860
                                         Legal Aid of Western Oklahoma, Inc.

 I,                                      2901 Classen Blvd., Suite 110
                                         Oklahoma City, OK 73 106
                                         405-557-0020
 1                                       C. Steven Hager, OBA # 123 15

 r
                                         Oklahoma Indian Legal Services, Inc.
 .                                       4200 Perimeter Center Drive, Suite 222
                                         Oklahoma City, OK 73 112

 I                                       (405) 943 - OILS (405) 917 - 7060 (FAX)

                                                        Attorneys for Petitioner

 E
 s
I
I          NO.


I
      IN THE SUPREME COURT OF THE
I          STATE OF OKLAHOMA

I
    ANGELA HOOILER and CHRISTOPHER HOOVER,
I                      Petitioners,

                             v.
1
              JA3lXS H. P,IDDLEFORD,
1             Special District Judge for the
                Seventh Judicial District,
              In and for Oklahoma County,
1                      Respondent.


I
               Petitioners’ Brief in Support of
         Application to Assume Original Jurisdiction
             and Petition for Writ of Mandamus.




                                  Thomas Neil Lynn III, OBA #5583
                                  Gary A Taylor, OBA #8860
                                  Legal Aid of Western Oklahoma, Inc.
                                  2901 Classen Blvd., Suite 110
                                  Oklahoma City, OK 73 106
                                  405-557-0020

                                  C. Steven Hager, OBA $12315
                                  Oklahoma Indian Legal Services, Inc.
                                  4200 Perimeter Center Drive, Suite 222
                                  Oklahoma City, OK 73 112
                                  (405) 943 - OILS (405) 917 - 7060 (FAX)

                                                 Attorneys for Petitioner
I
1                                                TABLE OF CONTENTS


I   TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . .            ....................... ....... -ii-

             FEDERAL STATUTES: . . . . . . . . . . . . . . . .
I            STATE STATUTES : . . . . . . . . . . . . . . . . . . .
                                                                          ....................... ....... -ii-

                                                                          ....................... ....... -ii-

1            OKLAHOMA CASES . . . . . . . . . . . . . . . . . .           ....................... ....... -ii-


I   INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . .    ....................... ....... -l-

    STATEMENT OF THE FACTS OF THE CASE . . . ....................... . . . . . . . -l-
I                                                                                           3
    ARGUMENTS AND AUTHOIUTIES . . . . . . . . . . . ........................ . . . . . . . -a-

I            PROPOSITION I:              MANDAMUS IS THE ONLY X’PROPRIATE,
                                         ADEQUATE REmDY UNDER THE FACTS OF
                                         THISCASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
I            PROPOSITION II:             THE FEDERAL XND STATE JNDIAN CHILD
                                         WELFARE ACTS -APPLY BASED UPON THE
I                                        STATUS OF THE CHILD, NOT UPON THE
                                         STATUS OFAP,kRENT ORFAMILY. . . . . . . . . . . . . . . . . . -3-

I            PROPOSITION III:            THE INDIAN CHILD WELFARE ACTS
                                         REQUIRE CLEAR AND CObXINCING
1                                        EVIDENCE AND THE TESTIMONY OF AT
                                         LEAST ONE QUXJFIED EXPERT WITNESS,
                                         THAT CUSTODY OF THE CHILD BY THE
1                                        PARENT OR INDIAN CUSTODIAN IS LIKELY
                                         TO RESULT IN SERIOUS E&VIOTIONAL OR
                                         PHYSICAL DAMAGE TO THE CHILD . . . . . . _ . . . . . . . . . -6-
R   CONCLUSION . . . . . . . .            ...................................................                                   -8-

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I
                                                      TABLE OF AUTHORITIES

     FEDERAL STATUTES:

     2 5 u . s . c §1903(9)..........................................................                                                             -7-

     25U.S.C.$1901              ...........................................................                                                       -l-

     25u.s.c.51921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I                                                                                                                                         -1 -7   -j-


     25U.S.C.§1903(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           -7-

I    25U.S.C.§1912(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           -7-

I    ST-ATE STATUTES:

I     12 O.S. $1452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                         -2-

     100.s.fj40            ...............................................................                                                        -l-
1    100.s.g40.1             ..............................................................                                                       -5-

I    lOO.S.$40.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    --t-,-5-

     lOO.S.540.3A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I    lOO.S.§40.3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                                                                                                                                                  -5-

                                                                                                                                          A-,-6-
1    1oo.s.g40.5             ..............................................................                                                       4%

     100.s.g7301-1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        -5-

     3oo.s.g2-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       -l-


     0K.LXJ3OM.A CASES:

     Association of Class. Teach. v. Independenr S.D. # 89, 1975 OK 118, 540 P.2d 1171 . _ _ . -3-

If   Gamer v. City of Tulsa, 1982 OK 104,651 P.3d 1325 . . . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . -3-

     Guardianship of Walling, 1996 OK 50.727 P.2d 586. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
I    Maner0fS.C. 1992OK98,833 P.2d 1249 . . . . . . . . . . . . . _ _. . . . . . . . . . . . . . . _ _. . _ --1-.-6-

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3   Sparks v. Steel, 1972 OK 127,501 P.2d 1106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

    Steward v. Judge of the I.?’ Judicial District, 1975 OK 156,542 P.2d 945, . . . . . . . . . . . . . . -3-




                                                               ...
                                                              -lll-
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I                                           INTRODUCTION

           Petitioner seeks the issuance of a Writ of Mandamus to direct the trial judge to properly apply
I   the Federal and State Indian Child Welfare -\cts’ (“ICWAs” collectively) to a guardianship action

I   over an indisputably Indian Child, DLH, brought by the Maternal Grandmother and Maternal Step-

    Grandmother (Guardians). The natural parents, Petitioners herein, are requesting this Court to direct
I
    that the respondent judge immediately set a hearing to apply the ICWA standards and to direct the

I   court to take appropriate action in full compliance with said Acts.


I                           STATEMENT OF THE FACTS OF THE CASE

           In this brief, reference will be made so both the State and Federal ICWAs because the Court
I   considering an ICWA question should apply both to provide the highest standard of protection.*

1          This action began as a guardianship action over the person of the minor child, filed under the

    authority of 30 O.S. 5 2-101 etseq. by the Guardians on the 6’h of December, 1999. At the time, the
1   child DLH was in the legal custody of his mother, Angela Hoover, as a result of a Divorce from the

1   child’s father, Christopher Hoover. By the terms of that Decree, the father had unrestricted visitation


1   with the child. The parents were, however- residing together with the child when the guardianship

    action was filed, in an “intact” nuclear family.
I           The Guardians had ori-ginally requested and received a voluntary visit with the child fi-om the


I   parents; once the child was in their physical possession, the Guardians then filed the guardianship

    action. The Respondent Judge granted a temporary guardianship, errpane and without notice to the
I   Petitioners, on the 6’h day of December, 1999. A hearing date was set for December 14, 1999, for

I
            1.      25 U.S.C. 5 1901 et seq. and 10 O.S. 4 40 et seq., respectively.
I           3
            -.      See 25 U.S.C. $ 1921 (a court shall apply either the state or federal standard which
    carries thz greater protection for rhe parenr .x Indian custodian of an Indian child).
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I   the Petitioners to show cause why the Temporary Guardianship should not be continued. Although

    the Petitioners appeared with counsel; there was no evidentiary hearing because the matter had been
I   set on the court’s “uncontested” docket. The court continued the matter from December 14,1999 to

I   February 7,200O and appointed the Oklahoma County Public Defender as Guardian ad Litem for the

    child. On February 7, the matter was again continued to February 14,200O.
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           The allegations used to justify removal of the child from the parents’ home were that the

I   minor child exhibited developmental delay, which the Guardians claim was caused by the mental


I   status of the Petitioners. Other concerns raised in the Petition for guardianship had to do with

    activities that occurred prior to the Decree of Divorce between Petitioner-mother and the Petitioner-
I   father. Other substantive allegations, allegedly meriting a guardianship, have been made subsequent

I   to the February 14,200O hearing, none of which are relevant to the issue of the application of the

    ICWAs to these proceedings.
I           On February 14,200O the Court declined to grant an evidentiary hearing, ruling that ICWA

1   did not apply because the Petitioner mother was a non-Indian and the Indian father had no custodial


I   rights to the child, even though he was living in the child’s home. (See Attached Certified Order)

                                 ARGUMENTS AND AUTHORITIES
1   PROPOSITION I:         MANDAMUS IS THE ONLY APPROPRIATE,
                           ADEQUATE REMEDY UNDER THE FACTS OF
I                          THIS CASE.

            The remedy of mandamus is used to compel an inferior court to proceed in the discharge of
I   its functions when there is not a “plain and adequate remedy in the ordinary course of the law.” 12

1   O.S. 5 1452. The trial court has here refused to apply the substantive and procedural law contained

    in the Federal and State ICWAs, thereby denying the Petitioners herein and the subject child the
I   protections associated with those acts. The court’s action has resulted in the removal of this “Indian

1                                                    -2-

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 8   child” from the home of his parents during the pendency of this action, without applying the

     standards and protections afforded under either ICWA.
I            Although Petitioners have a right of appeal of any final judgment in this case, this Court has

I    said in Association of Class. Teach. v. Independent S.D. # 89, 1975 OK 118, 540 P.2d 1171, 1176


8    that:

                    The question of whether a remedy is adequate is one of fact to be
8                   determined by the court as a matter of discretion in the light of the
                    facts of the particular case.

I    Quoted with approval, Gamer v. City of Tulsa, 1982 OK 104,651 P.2d 1325, 1329.

             In one case where a writ of prohibition was sought, the rule was stated thus: “the availablity
I    of another remedy does not prevent granting of prohibition if the other remedy is not equally

1    adequate.” Sparks v. Steel, 1972 OK 127,501 P.2d 1106,lllO. See also Steward v. Judge ofthe IS’”

     Judicial District, 1975 OK 156, 542 P.2d 945, 946 (accord).
I            The ICWAs provide certain substantive and procedural protections to Indian children and

I    families, even as regards “temporary” custody of a child. Each day that passes, and each hearing held


II   in which the State and Federal ICWAs are not applied, harms the Petitioners and the child. Appeal,

     with its attendant delays, is wholly inadequate to protect the rights of the Petitioners and the child,
I    and their interests in a speedy resolution of the protected right of custody. Without immediate

I    intervention by this Court, Petitioners and the child will continue to be denied the rights and

     protections both Federal and State ICWAs.
I    PROPOSITION II:         THE FEDERAL AND STATE INDIAN CHILD
                             WELFARE ACTS APPLY BASED UPON THE
I                            STATUS OF THE CHILD, NOT UPON THE
                             STATUS OF A PARENT OR FAMILY.

I            This matter comes before the Court on findings of the trial judge that indicate that the


I
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8   applicability of the act is governed solely by the status of the custodial parent or family, not that of

    the child. This ruling appears to be in conformity with or based upon what has been referred to as
I   the “Existing Indian Family” doctrine. The “Existing Indian Family” doctrine would essentially deny

8   the protections of the ICWAs when there was no intact “Indian Family” from which a child is being

    removed. Petitioners recognize that the purpose clauses in the federal Act have been cited as giving
I   support to this proposition. This Court in Matter of S. C., 1992 OK 98, 833 P.2d 1249, in adopting

8   the “Existing Indian Family” doctrine, declined to call it an “exception” although recognizing that


8   other courts had done so.

            When Matter of S. C. was decided, the Oklahoma statute which dealt with applicability of
1   Oklahoma’s ICWA, 10 O.S. 1991 $40.3(B), provided:

1                   The Oklahoma Indian Child Welfare Act applies only to a child who
                    is a member of an Indian tribe or who is eligible for membership in

a                   an Indian tribe and is the biological child of a member of an Indian
                    tribe.


a   However, within two years of the publication of Matter of S. C., the Oklahoma legislature amended

    10 O.S. $ 40.33 to read:

a           Application of Act - Exemptions - Determination of Indian Status.


a                   A.      The Oklahoma Indian Child Welfare Act, in accordance with
                            the federal Indian Child Welfare Act, applies to aJ child
                            custody proceedings involving w Indian child except the
a                           following:



1                            1.     A child custody proceeding arising from a
                                    divorce proceeding; or


a                           2.      A child custody proceeding arising from an
                                    adjudication of delinquency, unless there has
                                    been a request for termination of parental

t                                   rights.



1            3.      See 1994 O.S.L., Ch. 30, S 2, sff. Sept. 1, 1994.

                                                       4

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8                   B.      Except as provided for in subsection -A of this section, the
                            Oklahoma Indian Child Welfare Act applies to &l state
                            voluntary and involuntary child custody court proceedings
I                           involving Indian children, regardless of whether or not the
                            children involved are in the uhvsical or legal custodv of an
                            Indian narent or Indian custodian at the time state nroceedines
8                           are initiated. (Emphasis added)

            The intent of the Legislature in enacting the amendment to subparagraph B was manifest: it
I   is the status of the child as an Indian that invokes the application of the ICWAs and triggers their

I   protections, and not the custodial or familial situation. In the absence of the two specified


8   exemptions in 10 O.S. 9 40.3(A),4 these protections will apply when the court is to determine

    custody of an Indian child. The language is free from ambiguity, and, for Oklahoma Indian children,
1   is clearly intended to vitiate the “Existing Indian Family” doctrine. It is a reasonable conclusion, as

I   a result of the trial court’s express findings of fact, that the respondent judge overlooked, ignored,

    or misunderstood the import of the referenced amendments to 10 O.S. $ 40.3 when the ruling was
I   made.

I           Oklahoma’s ICWA states its primary purpose succinctly at 10 O.S. $ 40. 1:

                   The purpose of the Oklahoma Indian Child Welfare .J\ct is the cZarr$cation of state
I                  policies andprocedures regarding the implementation by the State of Oklahoma of
                   the federal Indian Child Welfare Act . . . _

I   Thus, Oklahoma’s ICWA does not create out of whole cloth a separate, and different, set of


I   substantive policies and procedures from the federal Act. It does, however, dictate Oklahoma’s

    policies and procedures in the impzementation of that federal law.
I           Federal law, on the other hand, has recognized that states may provide even broader

    protections in its own law than exist under the federal ICWA. 25 L.S.C. $ 1921 recites:


I            4.     The case at bar is not a custody proceeding %rising -cm a divorce proceeding”:
    nor is it one arising from a juvenile delinquency proceeding under O!&homa’s Juvenile Code, 10
    O.S. $ 7301-1.1 etseq.
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8           4 1921. Higher State or Federal standard applicable to protect rig&s of parent or Indian
            custodian of Indian child

I                  In any case where State or Federal law applicable to a child custody proceeding
           under State or Federal law provides a higher standard of protection to the rights of the
           parent or Indian custodian of an Indian child than the rights provided under this
I          subchapter, the State or Federal court shall apply the State or Federal standard.

    The Federal mandate is for the state to apply the statute that provides the greatest protection.
1
    Therefore, if the Oklahoma Act requires ICWA’s applicability, even when an arguable

I   interpretation of the federal Act may not so require,’ the Oklahoma standard for applicability


I   prevails. The 1994 amendments to 10 O.S. $ 40.3(B) “clarifly] . . . state policies and procedures

    regarding the implementation by the State of Oklahoma of the federal [ICWA]” by broadening its
I   application beyond that contemplated in Matter of S. C., supra.

1           Oklahoma has thus legislatively abrogated the “Existing Indian Family” doctrine -

    insofar as that doctrine might remove the instant custody proceeding from the ambit of either the
I   State or the federal ICWA.

I   PROPOSITION III:       THE INDIAN CHILD WELFARE ACTS
                           REQUIRE CLEAR AND CONVINCING

I                          EVIDENCE AND THE TESTIMONY OF -AT .
                           LEAST ONE QUALIFIED EXPERT WITXESS,
                           THAT CUSTODY OF THE CMLD BY THE
I                          PARENT OR INDIAN CUSTODIAN IS LIKELY
                           TO RESULT IN SERIOUS EMOTIONAL OR
                           PHYSICAL DAMAGE TO THE CHKD PRIOR
                           TO THE REMOVAL OF AN INDIAN CHILD
                           FROM THE CARE OF A PARENT
                           REGARDLESS OF HERITAGE.
I           Any action requesting guardianship over the person of a minor child is one for “cusrody”

I   of the child. Guardianship of Walling, 1996 OK 50, 727 P.2d 586. Here, two third parties are

    asking, through the guardianship proceeding, that the court remove custody from the parent(s)
I
            5.
I                  E.g., Matter of S. C., supra.

                                                     -6-

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8   over the parents’ objection, and place custody with them. Several provisions of the federal Act

    demonstrate how that Act applies to such proceedings.
I             First, what is sought below is a child custody proceeding for foster care placement within

I   the meaning of the federal Act. The term “foster care placement” is defined in 25 U.S.C. 4 1903

    as follows:
I               (1) “child custody proceeding” shall mean and include -

I                            (i) “foster care placement” which shall mean any action removing
                     an Indian childffom irs parent or Indian custodian for temporary
                     placement in a foster home or institution or the home of a guardian or
I                    conservator where the parent or Indian custodian cannot have the child
                     returned upon demand, but where parental rights have not been

I                    terminated;

    The proceeding below is clearly an “action” involuntarily removing an “Indian child” from “its
I   parent” for temporary placement in the “home of a guardian” where the parent “cannot have the

I   child returned upon demand.”

              The term “parent” in 25 U.S.C. 5 1903 is defined as follows:
I             (9) “parent” means any biological parent or parents of an Indian child or any
              Indian person who has lawfully adopted an Indian child, including adoptions
1             under tribal law or custom. It does not include the unwed father where paternity
              has not been acknowledged or established;

I   Both Petitioners are certainly “parents” of DLH within the meaning of this Act. Further, the


I   definition does not require the “parent” to be an “Indian parent”, only that the child be an “Indian

    child”.
I             The federal Act goes on to denne the substantive law applicable to such a foster care

I   placement. 25 U.S.C. $ 1912 states, in pertinent part:

              (e) Foster care placement orders; evidence; determination of damage to child
I                    No foster care placement may be ordered in such proceeding in the

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I          absence of a determination, supported by clear and convincing evidence, 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
I          damage to the child.

           Finally, the State Act, 10 O.S. 5 40.5, provides:
8                  Emergency Removal of Indian Child Ii-om Parent or Custodian -
                   Order.
I                                                 *   *     *


I                  B. No me-adiudicatorv custodv order shall remain in force or in
                   effect for more than thirtv (30) davs without a determination bv the
I                  court. sunnorted bv clear and convincirm evidence and the
                   testimony of at least one oualified expert witness, that custodv of
                   the child bv the parent or Indian custodian is likelv to result in
I                  serious emotional or phvsical damage to the child. However, the
                   court may, for good and sufficient cause shown, extend the
                   effective period of such order for an additional period of sixty (60)
I                  days. (Emphasis Added)

           Thus both the State and federal Acts require that a hearing be held at some point, at which
I   time there shall be a determination by the court, supported by clear and convincing evidence and

I   the testimony of at least one qualified expert witness, that custody of the child by the parent is


I   likely to result in serious emotional or physical damage to the child. In the absence of such

    determination, the orders for temporary custody below are invalid. The initial “temporary”
I   custody order here was entered on 6* day of December, 1999. Yet, there has not been a hearing

I   below that meets the requirements of either the federal or State ICWA.

                                               CONCLUSION
I           The trial court misconstrued the State and federal Indian Child Welfare Acts in finding

I   that it was the status of the nominal custodial parent that determines the applicability of the Acts


I   to a custody action involving an Indian child. Petitioners urge this Court to direct the trial court

    to: apply both ICWAs to the proceedings below; and take appropriate action in compliance with

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I   the Acts, including conducting a review of the legality of the present temporq cusrody orders,

    and conducting an evidentiary hearing consistent with the Acts.
I
I                                                        Respectfully Submitted,
                                                         ANGELA HOOVER and
I                                                        CHRISTOPHER HOOVER,



I
I
I                                                        Legal Aid of Western Oklahoma Inc.
                                                          2901 Classen Blvd. Suite 110
                                                         Oklahoma City, OK 73 106
I                                                        405-557-0020


I
I                                                        C. Steven Hager, OBA # 123 15
                                                         Oklahoma Indian Legal Services, Inc.
                                                         4200 Perimeter Center Drive, Suite 222
I                                                        Oklahoma City, OK 73 111
                                                         (405) 943 - OILS (405) 917 - 7060 (FU)

I                                                        ATTORNEYS FOR PETITIOXRS


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                        CERTIFICATE OF MAILING TO PARTIES

         I certify that a true and correct copy of the Brief in Support of Application to
    Assume Original Jurisdiction was mailed this         day of              ) 19-, to:

                                                   Janice Leaverton and Sharon Westbrook
                                                   Real Parties in Interest
                                                   C/O Diana G. Mueller
                                                   4334 N.W. Expressway 236
                                                   Okiahoma City, OK 73 116

                                                   Christine Gronlund,
                                                   Guardian ad Litem
                                                   Oklahoma County Public Defenders Office
                                                   320 Robert S. Kerr, Suite 611
                                                   Oklahoma City, OK 73 102


    by depositing it in the U.S.Nlails, postage prepaid.



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