|
(Cite
as: 2010 WL 3155320 (Or.App.)) |
Only
the Westlaw citation is currently available.
Court
of Appeals of Oregon.
In
the Matter of K.R.C. and I.A.C., Children.
Department
of Human Services, Petitioner-Respondent,
and
K.R.C.,
I.A.C., C.R., and D.R., Respondents,
v.
Three
Affiliated Tribes of Fort Berthold Reservation, Appellant.
J06073,
J06096, J0607301, J0609601, A143921.
Argued
and submitted on May 10, 2010.
Decided
Aug. 11, 2010.
Wasco
County Circuit Court.
John
V. Kelly, Judge.Lea Ann Easton argued the cause for appellant. With her on the
brief was Dorsay & Easton LLP.
Leigh
A. Salmon, Assistant Attorney General, argued the cause for respondent
Department of Human Services. With her on the brief were John R. Kroger,
Attorney General, and Jerome Lidz, Solicitor General.
Megan
L. Jacquot argued the cause and filed the brief for respondents K.R.C. and
I.A.C.
No
appearance for respondents C.R. and D.R.
Before
HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
HASELTON,
P.J.
*1
The Three Affiliated Tribes of Fort Berthold Reservation (the tribes) appeal a
judgment in which the trial court concluded that ?good cause? under the Indian
Child Welfare Act (ICWA) existed to designate the adoptive placement for two
Indian children as the home of their current foster parents rather than the home
designated by the tribes. On appeal, the legal issue is whether ?good cause?
exists to depart from ICWA's placement preferences. 25 USC ? 1915(a).
FN1
As we will explain, we are bound by the trial court's findings of fact if there
is any evidence in the record to support them, but independently assess whether
those findings are sufficient to support the trial court's legal conclusion that
?good cause? exists under the circumstances of this case. Applying that
standard, we affirm.
[1]
Before turning to the facts of this case, we begin by identifying the
appropriate standard of review. Historically, pursuant to ORS 19.415(3) (2007)
and ORS 419A.200(6) (2007), in juvenile cases such as this one, we reviewed the
facts de
novo.FN2
In other words, we ?independently assess[ed] and evaluate[d] the evidence,?
State
ex rel SOSCF v. Frazier,
152 Or.App. 568, 572, 955 P.2d 272, rev
den,
327 Or. 305, 966 P.2d 220 (1998), and ?reweigh[ed] the facts and reassess[ed]
the persuasive force of the evidence,? Marvin
Wood Products v. Callow,
171 Or.App. 175, 180, 14 P.3d 686 (2000). In 2009, however, the legislature
amended ORS 19.415(3) to change our standard of review.FN3
Specifically,
ORS 19.415(3) now provides:
?Upon
an appeal in an equitable action or proceeding, review by the Court of Appeals
shall be as follows:
?(a)
Upon an appeal from a judgment in a proceeding for the termination of parental
rights, the Court of Appeals shall try the cause anew upon the record;
and
?(b)
Upon an appeal in an equitable action or proceeding other than an appeal from a
judgment in a proceeding for the termination of parental rights, the Court of
Appeals, acting in its sole discretion, may try the cause anew upon the record
or make one or more factual findings anew upon the record.?
Pursuant
to ORS 19.415(3)(b), because this case does not concern the termination of
parental rights, we need not review de
novo
but have discretion to do so.
Our
decision whether to exercise that discretion is governed by a temporary
amendment to ORAP 5.40 that is embodied in Chief Judge Order 09-06.FN4
Specifically, ORAP 5.40 provides, in part:
?The
appellant's opening brief shall open with a clear and concise statement of the
case, which shall set forth in the following order under separate
headings:
?
* * * * *
?(8)(a)
In those proceedings in which the Court of Appeals has discretion to try the
cause anew on the record and the appellant seeks to have the court exercise that
discretion, the appellant shall concisely state the reasons why the court should
do so.
?(b)
In those proceedings in which the Court of Appeals has discretion to make one or
more factual findings anew on the record and the appellant seeks to have the
court exercise that discretion, the appellant shall identify with particularity
the factual findings that the appellant seeks to have the court find anew on the
record and shall concisely state the reasons why the court should do
so.
*2
?(c) The Court of Appeals will exercise its discretion to try the cause anew on
the record or to make one or more factual findings anew on the record only in
exceptional cases. Consistently with that presumption against the exercise of
discretion, requests under paragraph (a) or (b) of this section are
disfavored.?
(Footnote
omitted.)
To
summarize, ORAP 5.40(8)(a) and (b) require that, if an appellant seeks to have
us exercise our discretion to review de
novo,
the appellant must include a concise statement explaining the reasons why we
should do so in its statement of the case in the opening brief. In the face of
such a request, our decision whether to exercise discretion is guided by the
nonexclusive list of considerations stated in ORAP 5.40(8)(d).FN5
However, a presumption exists ?against the exercise of discretion? and we will
exercise it ?only in exceptional cases.? ORAP 5.40(8)(c).
In
its opening brief in this case, the tribes appear to have assumed that, as had
been the case historically, our review is de
novo.
In their brief, the tribes do not acknowledge the 2009 amendments to ORS 19.415
and, contrary to the requirements of ORAP 5 .40(8)(a), do not request that we
exercise our discretion to review de
novo
or explain the reasons that we should do so. In the absence of such a request
and in light of the ?presumption against the exercise of discretion,? ORAP
5.40(8)(c), we decline, under the circumstance of this case, to exercise our
discretion under ORS 19.415(3)(b) to review de
novo.FN6
[2]
Consequently, our standard of review in this case is governed by ORS 19.415(1),
which provides:
?[U]pon
an appeal in an action or proceeding, without regard to whether the action or
proceeding was triable to the court or a jury, the scope of review shall be as
provided in section 3, Article VII (Amended) of the Oregon
Constitution.?
Stated
differently, ?[o]ur review * * * is limited to examining the record to determine
if there is any evidence to support the trial court's factual findings.?
G.I.
Joe's, Inc. v. Nizam,
183 Or.App. 116, 123, 50 P.3d 1282 (2002).
Here,
our review of the record confirms that we are bound by the relevant trial court
findings, because they are supported by evidence in the record. Accordingly, we
state the facts consistently with those findings and augment them where
necessary with uncontroverted background and procedural facts.
Mother
and father moved to The Dalles from Pierre, South Dakota, in 2006 when their
daughter, K, was a few months old and mother was pregnant with their son,
I.FN7
In December 2006, I was born. Shortly after I's birth, he and K were placed in
foster parents' home, where they have lived ever since.
In
July 2008, mother's and father's parental rights were terminated. Father
stipulated to the termination of his parental rights. We affirmed the judgment
that terminated mother's rights without opinion in May 2009.
During
the course of this ongoing dependency proceeding, two significant events
occurred. First, mother became an enrolled member of the tribes. As a result,
the children became eligible for membership under the tribes' rules and were
considered Indian children under ICWA.FN8
Second, a couple (grandparents) who lived in Pierre, and had been mother's
guardians when she was a child, adopted her as an adult-and, consequently,
became the children's grandparents. The tribes, consistently with their law and
customs, considered grandparents to be ?extended family members? for purposes of
ICWA's placement preferences.FN9
*3
Foster parents want to adopt the children-and so do grandparents. Neither foster
parents nor grandparents are ?Indian.? FN10
The tribes seek to have grandparents designated as the children's adoptive
placement in accordance with ICWA's placement preferences, which provide, in
part, that ?preference shall be given, in
the absence of good cause to the contrary,
to a placement with * * * a member of the child's extended family[.]? 25 USC ?
1915(a) (emphasis added).
As
noted by the trial court in its detailed letter opinion, foster parents' home
and grandparents' home ?have some similarities .? For example, ?[b]oth are
experienced foster homes,? and both have previously adopted children, including
children of Native American heritage.FN11
However, as the trial court noted,
?[t]he
two homes also have distinctions.
?There
are no children presently in [grandparents'] home. However, [grandparents] have
an ongoing relationship with [mother], who has returned to Pierre. She visits
them, and brings her new son to visit. She uses a day care facility on their
property * * *. [Grandparents] also have ongoing relationships with other
members of [mother's] biological family. The members of [mother's] biological
family described by [grandmother] suffer from similar problems of addiction,
criminality, unemployment, homelessness, and under-education that have plagued
[mother]. [Grandparents] intend [the children] to have ongoing relationships
with [mother], her new son, and [mother's] biological family, if they deem it
?safe.?
?[Foster
parents'] home is probably the only home [K] remembers, and is the only home [I]
has ever known. It is decorated with Indian art. [Foster parents] have taken
their children, including [K] and [I] to local Indian festivals, and have
contacted a local Indian woman to help [K] and [I] understand their Indian
heritage. They intend to travel to the Tribes' reservation to help [K] and [I]
understand their specific cultural heritage.
?[K]
is now an apparently untroubled little girl, although her life was disrupted
when her parents' behavior made it necessary to first place her in foster care.
[I] is delayed in receptive language, and to a greater degree, expressive
language. He suffers from a swallowing disorder. * * * [Foster parents] have
taken him to specialists, and work regularly with him on his language skills.
[K] often acts as his interpreter, and as his boss. Both children are bonded to
[foster parents] as their father and mother. Despite his delays, [I] calls them
?dada? and ?momma.? [Grandparents] have spent no more than a few hours in [K's]
presence since [her parents] brought her to The Dalles, and no more than a few
hours with [I] in his lifetime.
?[Foster
parents] and the Tribes have intervened in [K's] and [I's] dependency cases,
making them parties to those cases. [Grandparents] have not intervened, but
[grandmother has] ?rights of limited participation.? The State filed a motion
for a review hearing ? * * * to address * * * placement of the children,
including ICWA issues * * *.? The motion [raised] the present issue, whether
there is good cause to place the children in an adoptive home, [foster parents']
home, that is not [ICWA's] preferred home nor the Tribes' preferred home of
extended family. The State proposes to place [the children] in [grandparents']
home.
*4
?Several experts testified at the hearings on the State's motion, regarding the
risks and benefits of adoption in either home. Ms. Strickland is a clinical
social worker who evaluated [the children] * * *. Ms. Smutz is [the children's]
DHS caseworker. Mr. St. Martin is the social services director for the Yurok
Tribe of Northern California. Ms. Felix is the Tribes' ICWA representative.
Generally, I found Ms. Strickland and Ms. Smutz credible regarding [the
children], and the effect on them of moving them from [foster parents'] home. I
also found Mr. St. Martin and Ms. Felix credible regarding the more general
effect on Indian children of being isolated from their Indian
culture.
?Although
the experts disagreed about where [the children] should be placed, they agreed
on two major points. [The children] will be harmed by a move, and it is
important that they grow up aware of their own tribal culture. I accept both
propositions. I
also accept Ms. Strickland's testimony that the harm to [the children] will be
serious and lasting, if they are moved from [foster parents'] home.?
(Brackets
in original omitted; third and fourth omissions in original; emphasis
added.)
In
light of those findings, the court ultimately reasoned that foster parents had
demonstrated that ?good cause? existed to depart from ICWA's placement
preferences. Specifically, the court stated:
?If
the Indian Child Welfare Act did not apply to the present case, [K] and [I's]
adoptive placement would be a simple issue. ?The primary purpose of adoption
proceedings is the promotion and protection of a child's best interests.?
P
and P[v.] Children's Services Division,
66 Or.App. 66, 72 [, 673 P.2d 864] (1983).[K] has been in [foster parents'] home
almost all of her life. [I] has been in [foster parents'] home all of his life.
From their perspective as children, [foster parents] are their mother and
father: the people they know to love, nurture and protect them. [Foster parents]
meet [I's] special needs. [Foster parents] will raise [K] and [I] in a
multi-racial home, connect them to local Indian culture, and take them to the
Tribes' reservation to learn of their specific tribal culture, achieving each of
the goals the various experts testified are important for [K's] and [I's] well
being. It would serve no purpose, and certainly would not be in [K's] and [I's]
best interests, to take them from their good home with the hope that another
will be better. * * *
?Since
the Act does apply to the present case, I must also examine the suitability of
[grandparents'] home as a placement for [K] and [I]. I am sure it is a home with
many virtues. However, * * * [i]t is a home in which [mother] * * * claimed to
have been sexually abused. * * * It is a home in which [K] and [I] will be
exposed to biological family, a circumstance which Ms. Strickland credibly
testified will damage [K]. It is also a home in which [I's] special needs may or
may not be met. * * *
*5
? * * * [T]he right placement of these children is a question of balancing
degrees of harm against degrees of benefit. When I balance those, I conclude
that the harm to these children in removing them from their home outweighs any
other consideration by a degree of magnitude.?
Ultimately,
the court entered a judgment in which it concluded that ?good cause exists to
place the * * * children in an adoptive home that is contrary to the home
designated by the [tribes].? The tribes appeal.
On
appeal, the tribes contend that the trial court erred in determining that good
cause existed to deviate from ICWA's placement preferences. The tribes' position
is based on their understanding that
?the
intent of [ICWA's] placement provisions * * * are to whenever possible place
Indian children within their tribal community and extended family by
establishing placement preferences and requiring state court and state child
protective agencies to follow an Indian Tribe's placement preference for tribal
children in the absence of a finding of good cause to the
contrary.?
Specifically,
the tribes assert that the trial court's decision contravened the intent
underlying ICWA's placement provisions in two ways. First, the tribes contend
that the court misunderstood its role in examining the suitability of
grandparents' home and used that consideration ?to justify comparison of the two
homes based on subjective factors that were culturally biased? and ?to
substitute [its] judgment * * * for that of the * * * professional determination
of the suitability of [grandparents'] home? that was made by the tribes as well
as the states of Oregon and South Dakota. Second, we understand the tribes to
contend that the trial court's determination that it was in the children's best
interests to be adopted by their foster parents was erroneous because, ?[i]f
th[at] were the standard for good cause under * * * ICWA, no Indian child could
ever be removed from any non-Indian placement and the policies and intent of * *
* ICWA would be completely negated.?
Conversely,
the children contend on appeal that the trial court did not abuse its discretion
in determining that good cause existed to deviate from ICWA's placement
preferences. According to the children, in making that determination, the trial
court properly considered the best interests of the children. FN12
Specifically, the children contend that they
?had
been in [foster parents'] home for almost all of their lives. They were bonded
to the entire family, relying heavily on the family to meet their ordinary and
extraordinary needs. [K] had been subject to multiple moves, and Ms. Strickland
testified that there would be damage lasting at least a few years if she was
required to move again. With regard to [I], he would not be understood in the
new home for a period of time. He was likely to regress even further if
subjected to the stress and confusion a move would cause.?
The
parties' competing contentions present two issues of first impression in Oregon
that we must resolve: (1) What considerations properly bear on a court's
determination of the existence of ?good cause? for purposes of 25 USC section
1915(a)? (2) What is the proper appellate standard of review of a trial court's
?good cause? determination? The resolution of those two questions determines our
disposition here.
*6
Before addressing those two questions in detail, we begin with a general
overview of the ICWA provisions and policies that inform our inquiry. ICWA
embodies a congressional policy
?to
protect the best interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the
unique values of Indian culture * * *.?
25
USC ? 1902. To further that policy, ICWA establishes preferences for the
adoptive placements of Indian children. Specifically, 25 USC section 1915(a)
provides:
?In
any adoptive placement of an Indian child under State law, a preference shall be
given, in the absence of good cause to the contrary, to a placement with (1) a
member of the child's extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families.?
[3][4]
Section 1915(a) embodies the federal policy that, ?where possible, an Indian
child should remain in the Indian community? and is ?[t]he most important
substantive requirement imposed on state courts.? Mississippi
Choctaw Indian Band v. Holyfield,
490 U.S. 30, 36-37, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). In practical terms,
section 1915(a) establishes a presumption that an adoptive placement in
accordance with the preference criteria is in an Indian child's best interests.
See
In
re C.H.,
299 Mont. 62, 67, 997 P.2d 776, 780 (2000) (?ICWA expresses the presumption that
it is in an Indian child's best interests to be placed in an Indian home in
conformance with the ? 1915 placement preferences.?).
Although
that presumption may be rebutted if the court determines that ?good cause?
exists, ICWA does not define the term ?good cause? as used in section 1915(a)
and does not identify the considerations on which a good cause determination may
be predicated. However, the Bureau of Indian Affairs (BIA) has promulgated
guidelines that set forth three circumstances that may constitute good cause to
depart from ICWA's placement provisions:
?
?F.3. Good Cause to Modify Preferences
?
?(a) For purposes of * * * adoptive placement, a determination of good cause not
to follow the order of preference * * * shall be based on one or more of the
following considerations:
?
?(i) The request of the biological parents or the child when the child is of
sufficient age.
?
?(ii) The extraordinary physical or emotional needs of the child as established
by testimony of a qualified expert witness.
?
?(iii) The unavailability of suitable families for placement after a diligent
search has been completed for families meeting the preference criteria.?
FN13
Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed Reg 67,594
(1979).
We
have noted in related contexts that the BIA guidelines are not an exclusive
statement of the considerations that are pertinent to a ?good cause?
determination under ICWA. For example, in State
ex rel SOSCF v. Lucas,
177 Or.App. 318, 324 n. 4, 33 P.3d 1001 (2001), rev
den,
333 Or. 567, 42 P.3d 1245 (2002), the issue was whether ?good cause? existed to
deny a motion to transfer jurisdiction of an ICWA proceeding to the tribe. We
reasoned that, ?[a]lthough we have declined to adopt the BIA guidelines, we have
recognized that they may be instructive.? Id.
The same is true here.FN14
*7
Indeed, the introduction to the guidelines indicates that ?they are not intended
to have binding legislative effect? and that courts that decide ICWA cases have
?primary responsibility? for ?interpreting? the term ?good cause.? 44 Fed Reg
67,584 (1979). In particular, the introduction states that ?the legislative
history of the Act states explicitly that the use of the term ?good cause? was
designed to provide state courts with flexibility in determining the disposition
of a placement proceeding involving an Indian child.? FN15
Id.
In
exercising their responsibility for amplifying and applying the term ?good
cause,? courts across the country have identified a variety of considerations on
which their decisions in individual cases have been predicated. ?These include
but are not necessarily limited to the best interests of the child, the wishes
of the biological parents, the suitability of persons preferred for placement,
the child's ties to the tribe, and the child's ability to make any cultural
adjustments necessitated by a particular placement .? Adoption
of M.,
66 Wash.App. 475, 482, 832 P.2d 518, 522 (1992) (citations omitted). ?[T]he
certainty of psychological and emotional trauma if the child is removed from the
adoptive parents? and ?the likelihood of emotional damage? to a child from
contact with his or her biological parent if placed according to ICWA's
preferences are also relevant considerations. Matter
of Baby Boy Doe,
127 Idaho 452, 462-63, 902 P.2d 477, 487-88 (1995).
Against
that statutory backdrop of ICWA and the case law interpreting it, we return to
the dispositive issue in this case-viz.,
whether ?good cause? existed to depart from ICWA's placement preferences.
Resolution of that issue requires that we first examine the nature of a ?good
cause? determination as well as the proper standard by which to review
it.
In
their briefs, DHS and the children contend, without elaboration, that most
courts that have addressed the issue have concluded that a trial court's good
cause determination should be reviewed for abuse of discretion. See,
e.g., Adoption
of M.,
66 Wash.App. at 482, 832 P.2d at 522 (?Good cause is a matter of
discretion[.]?). However, for the reasons that we will explain, we disagree that
a ?good cause? determination is a matter of judicial discretion.
Generally,
?good cause? is a legal standard. In State
v. Johnson,
339 Or. 69, 86, 116 P.3d 879 (2005), the Supreme Court discussed the nature of a
?good cause? determination in the context of a trial court's ruling on a motion
to dismiss a criminal case on statutory speedy trial grounds:
?We
acknowledge the temptation to treat indefinite terms like ?good cause,?
?sufficient reason,? and ?reasonable period of time? as calling for a subjective
determination and, thus, as invoking personal judgment. However, it is clear
that, when such terms appear in a statutory context, they are focused on real,
albeit sometimes difficult to discern, legal standards: the legislature's
view of what is ?good,? ?sufficient,? or ?reasonable.? As such, in the absence
of a factual dispute, a determination that ?good cause? not to dismiss has been
shown under former
section 320 (or that ?sufficient reason? not to dismiss has been shown under
present-day ORS 135.750) invokes an objective standard and must be reviewed for
legal error. In no case would judicial discretion
play any role in the ?good cause? determination of former
section 321.?
*8
(Footnote omitted; emphasis in original.) See
also State
v. Rogers,
330 Or. 282, 312, 4 P.3d 1261 (2000) (?If there is only one legally correct
outcome, then ?discretion? is an inapplicable concept.?); Black's
Law Dictionary
251 (9th ed 2009) (defining ?good cause? to include ?[a] legally sufficient
reason?).
The
Supreme Court's reasoning in Johnson
applies equally to a ?good cause? determination in the context of ICWA's
placement preferences. That is so because, as we previously explained, one
purpose of ICWA was to establish ?minimum Federal standards? for the placement
of Indian children in adoptive homes. The ?good cause? exception to the
placement preferences described in section 1915(a) is one such standard.
Moreover, as the Court explained in Holyfield,
?[i]t is clear from the very text of the ICWA, not to mention its legislative
history and the hearings that led to its enactment, that Congress was concerned
with the rights of Indian families and Indian communities vis-?-vis state
authorities.? 490 U.S. at 44-45. More specifically, citing various provisions of
ICWA, including the placement preferences in section 1915, the Court noted that
?[that] conclusion is inescapable from a reading of the entire statute, the main
effect of which is to curtail state authority.? Id.
at 45 n. 17. With the purposes underlying the statute so understood, it is
likely that Congress intended a single set of facts in a given case to be either
legally sufficient or legally insufficient to establish ?good cause.?
FN16
[5][6]
Accordingly, we conclude that ?good cause? as used in the placement preferences
of section 1915(a) is a legal standard and that, consequently, we review a trial
court's ?good cause? determination for errors of law. More particularly, that
means that we must determine whether the facts, as found by the trial court and
as supported by evidence in the record, are legally sufficient to establish
?good cause? to depart from ICWA's placement preferences .FN17
That
inquiry, in turn, requires some identification of those considerations that
properly pertain to a judicial determination as to whether good cause exists to
depart from ICWA's placement preferences. As we previously explained, courts
across the country have relied on the BIA guidelines as well as other
considerations in determining whether good cause exists in a given case. ---
Or.App. at ---- (slip op at 13-16). In this case, however, we need not identify
the universe or totality of considerations that might bear on ?good cause.? That
is so, because, regardless of whether, as an abstract proposition, in a
different case or on a different record other considerations might properly
pertain to a ?good cause? determination, the trial court's ?good cause?
determination in this case was ultimately predicated on a consideration that is
legally sufficient by itself to establish ?good cause? and that is supported by
evidence in this record.
*9
Here, as noted, the trial court emphasized in its findings that ?the harm to [K]
and [I] will be serious and lasting, if they are moved from [foster parents']
home? and that, in grandparents' home, ?[K] and [I] will be exposed to
biological family, a circumstance which Ms. Strickland credibly testified will
damage [K].? Given those findings, which were based substantially on the trial
court's assessment of expert testimony, the court concluded that ?the harm to
these children in removing them from their home outweighs any other
consideration by a degree of magnitude.? Thus, the court's reasoning
demonstrates that its ?good cause? determination was fundamentally predicated on
two considerations: (1) the serious and lasting harm that will result from the
removal of the children from their current home and (2) the significant
potential that the preferred caretakers will engage in conduct or conditions
will exist in their home that would be seriously detrimental to the
children.
[7][8]
We agree with the trial court that both of those considerations are pertinent in
determining whether good cause exists to depart from ICWA's placement
preferences. We further conclude that, regardless of the trial court's
assessment of the latter, the former is conclusive.
We
fully appreciate the fundamental and compelling policies that underlie ICWA. We
are also mindful of the tribes' expressed concerns that those policies can be
subverted or eroded through judicial decision-making that partakes of cultural
biases, either implicit or explicit, especially with respect to ?good cause?
determinations. Further, we are fully cognizant from our extensive experience in
juvenile dependency matters that in virtually every case involving a change of
custody from a well-established placement, the affected child or children will
suffer some degree of emotional distress and dislocation. The nature, severity,
and durability of that harm can vary greatly from case to case.
[9]
We are mindful of all of those things-and of our sworn obligation to apply ICWA
consistently with that statute's mandates. But ICWA does not mandate
effectuation of its placement preferences in every case. Rather, the statute
explicitly provides that, notwithstanding a strong presumption of deference to
the placement preferences, the presumption can, in special cases, be overcome by
a showing of ?good cause.? ?Good cause? properly and necessarily includes
circumstances in which an Indian child will suffer serious and irreparable
injury as a result of the change of placement.FN18
Here, as noted, the trial court explicitly accepted as credible and persuasive
expert testimony that ?the harm to [the children] will be serious and lasting,
if they are moved from [foster parents'] home.? That finding, substantiated by
evidence in this record, is legally sufficient to establish ?good cause? for
purposes of 25 USC section 1915(a).
Affirmed.
FN1.
The text of 25 USC section 1915(a) is set out below. --- Or.App. at ---- (slip
op at 12).
FN2.
ORS 19.415(3) (2007), amended
by
Or Laws 2009, ch 231, ? 2, provided that,?[u]pon an appeal from a judgment in an
equitable proceeding, the Court of Appeals shall try the cause anew upon the
record.? Relatedly, with regard to juvenile cases, ORS 419A.200(6) (2007),
amended
by
Or Laws 2009, ch 231, ? 6, provided, in part:
?
?An appeal to the Court of Appeals must be conducted in the same manner as an
appeal under ORS chapter 19 except that:
?
? * * * * *
?
?(b) The court's scope of review is de novo on the record.?
FN3.
Those amendments to ORS 19.415 apply to appeals, such as this one, in which the
notice of appeal was filed on or after June 4, 2009. Or Laws 2009, ch 231, ? 3.
We also note that, in 2009, the legislature amended ORS 419A.200(6) to eliminate
the reference to the de
novo
standard of review in juvenile cases. Or Laws 2009, ch 231, ? 6. Those
amendments also apply to this case. Or Laws 2009, ch 231, ? 10.
FN4.
The text of Chief Judge Order 09-06 may be found on the Oregon Judicial
Department's website at http:/
FN5.
ORAP 5.40(8)(d) provides:
?
?The Court of Appeals considers the items set out below to be relevant to the
decision whether or not to exercise its discretion to try the cause anew on the
record or make one or more factual findings anew on the record. These
considerations, which are neither exclusive nor binding, are published to inform
and assist the bar and the public.
?
?(i) Whether the trial court made express factual findings, including
demeanor-based credibility findings.
?
?(ii) Whether the trial court's decision comports with its express factual
findings or with uncontroverted evidence in the record.
?
?(iii) Whether the trial court was specifically alerted to a disputed factual
matter and the importance of that disputed factual matter to the trial court's
ultimate disposition of the case or to the assignment(s) of error raised on
appeal.
?
?(iv) Whether the factual finding(s) that the appellant requests the court find
anew is important to the trial court's ruling that is at issue on appeal
(i.e.,
whether an appellate determination of the facts in appellant's favor would
likely provide a basis for reversing or modifying the trial court's
ruling).
?
?(v) Whether the trial court made an erroneous legal ruling, reversal or
modification of which would substantially alter the admissible contents of the
record (e.g.,
a ruling on the admissibility of evidence), and determination of factual issues
on the altered record in the Court of Appeals, rather than remand to the trial
court for reconsideration, would be judicially efficient.?
FN6.
Nonetheless, we note that, at oral argument, the attorney for the tribes
requested for the first time that we exercise our discretion to review
de
novo.
We understand that the tribes' belated request was fundamentally predicated on
the contention that, because the outcome of this proceeding could effectively
sever the Indian children's relationship with the tribes, this proceeding is
sufficiently similar to a termination of parental rights proceeding such that
our standard of review in both types of proceedings should be the same-that is,
de
novo. See
ORS 19.415(3)(a) (providing for de
novo
review in a proceeding for the termination of parental rights).
Although
we agree with the tribes that this case implicates important federal policies
underlying ICWA's placement preferences in proceedings involving the adoptive
placement of Indian children-a placement that will critically alter the course
of the children's lives and their relationships-our standard of review is not
governed by the importance of the policies implicated in a given case. We
routinely resolve legal issues that implicate important federal and state
policies and the rights and duties, as well as the liberty interests, of the
citizens of this state. Moreover, we routinely resolve those issues without
engaging in de
novo
review. Accordingly, even if we were to consider the tribes' belated request, we
would decline to exercise our discretion to review de
novo,
particularly where, as here, the trial court issued extensive factual findings,
ORAP 5.40(8)(d)(i), and its decision comports with those findings, ORAP
5.40(8)(d)(ii).
FN7.
As we will explain, see
--- Or.App. at ---- (slip op at 6), mother's and father's parental rights were
eventually terminated. Nonetheless, for ease of reference, throughout this
opinion, we use the terms ?mother,? ?father,? or ?parents? when we refer to
those individuals.
FN8.
An ?Indian child? for purposes of ICWA ?means any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological child of a member of an
Indian tribe[.]? 25 USC ? 1903(4).
FN9.
An ? ?extended family member? shall be as defined by the law or custom of the
Indian child's tribe or, in the absence of such law or custom, shall be a person
who has reached the age of eighteen and who is the Indian child's grandparent,
aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent[.]? 25 USC ? 1903(2).
FN10.
Under ICWA, ?Indian? is defined, in part, as a ?member of an Indian tribe.? 25
USC ? 1903(3).
FN11.
Our understanding of the record is that grandparents adopted an Indian child
before ICWA was enacted and foster parents are currently raising an adopted
child of Native American heritage.
FN12.
The Department of Human Services (DHS) also appeared as a respondent on appeal.
DHS ?takes no position on the merits of the various parties' arguments
concerning the actual placement of the * * * children.? Nevertheless, DHS,
consistently with the children's position, asserted that ?a trial court may
permissibly consider a wide range of factors and is not limited to those three
factors identified in the Bureau of Indian Affairs[ ] interpretive
guidelines.?
FN13.
We note that the commentary to the BIA guidelines significantly limits the
application of the three considerations to particular, narrowly defined
circumstances:
?
?The Act indicates that the court is to give preference to confidentiality
requests by parents in making placements. Paragraph (i) is intended to permit
parents to ask that the order of preference not be followed because it would
prejudice confidentiality or for other reasons. The wishes of an older child are
important in making an effective placement.
?
?In a few cases a child may need highly specialized treatment services that are
unavailable in the community where the families who meet the preference criteria
live. Paragraph (ii) recommends that such considerations be considered as good
cause to the contrary.
?
?Paragraph (iii) recommends that a diligent attempt to find a suitable family
meeting the preference criteria be made before consideration of a non-preference
placement be considered. A diligent attempt to find a suitable family includes
at a minimum, contact with the child's tribal social service program, a search
of all county or state listings of available Indian homes and contact with
nationally known Indian programs with available placement
resources.?
Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed Reg 67,594-95
(1979).
FN14.
See
State
ex rel Juv. Dept. v. Charles,
70 Or.App. 10, 16, 688 P.2d 1354 n .3, 70 Or.App. 10, 688 P.2d 1354 (1984),
rev
dismissed,
299 Or. 341, 701 P.2d 1052 (1985) (declining to adopt the guidelines concerning
the meaning of the term ?expert witness?).
FN15.
Notwithstanding that qualification, courts in other jurisdictions have
characterized the BIA guidelines concerning the ?good cause? determination as
being exclusive. See,
e.g., Matter
of Custody of S.E.G.,
521 N.W.2d 357, 363 (Minn.1994), cert
den,
513 U.S. 1127, 115 S.Ct. 935, 130 L.Ed.2d 881 (1995) (?[A] determination that
good cause exists to avoid the placement preferences of ? 1915 should be based
upon a finding of one or more of the factors described in the
guidelines.?).
FN16.
Cf.
Holyfield,
490 U.S. at 45 (looking, in part, to the purposes of ICWA to ascertain the
intended meaning of the undefined term ?domicile?; reasoning that ?it is most
improbable that Congress would have intended to leave the scope of the statute's
key jurisdictional provision subject to definition by state courts as a matter
of state law? and that ?Congress could hardly have intended the lack of
nationwide uniformity that would result from state-law definitions of
domicile?).
FN17.
In their brief, children suggest in passing that a ?good cause? determination
must be based on clear and convincing evidence. We disagree for two
reasons.
First,
Congress did not expressly establish a heightened standard of proof with regard
to the placement preferences in section 1915(a) even though it did so in other
contexts. See
25 USC ? 1912(e) (?No foster care placement may be ordered in such proceeding in
the 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 damage to the child.? (Emphasis added.)); 25 USC ? 1912(f)
(?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.)).
Second,
at least one state looked to its own law in determining the standard of proof
that applies to a ?good cause? determination. See
Matter
of Adoption of F.H.,
851 P.2d 1361, 1363 (Alaska 1993) (?Under state law, the [adoptive parents] have
the burden of proof by a preponderance of the evidence that there is good cause
for allowing a non-preferred placement.?). Even if we were to do that here, a
heightened standard of proof would be inappropriate because the children's
adoptive placement is an issue related to the children's permanency plan of
adoption and a preponderance standard of proof applies in permanency hearings.
See
ORS 419B.476(1) (providing, in part, that ?[a] permanency hearing shall be
conducted in the manner provided in ORS * * * 419B.310?); ORS 419B.310(3)
(providing that ?[t]he facts alleged in the petition showing the child to be
within the jurisdiction of the court as provided in ORS 419B.100(1), unless
admitted, must be established by a preponderance of competent
evidence?).
FN18.
In Matter
of Baby Boy Doe,
127 Idaho at 462, 902 P.2d at 487, the Idaho Supreme Court held that the trial
court did not err in determining that good cause to deviate from ICWA's
placement preferences existed, in part, because of ?the certainty of
psychological and emotional trauma if the child is removed from the adoptive
parents.? There, the court reasoned:
?The
trial court stated there was little disagreement among the expert witnesses that
a change in custody would have adverse consequences on the child's psychological
and emotional well being. Rather, the conflict among the experts involved the
degree of harm and the outlook for mitigating the trauma through planning,
cooperation and counseling. Nevertheless, there was substantial agreement among
the experts that emotional trauma would result from a change of custody. We
recognize that the law cannot be applied to automatically reward those who
maintain custody during protracted litigation. * * * But the certainty of
emotional damage need not be ignored by the trial court in the balancing of
interests.?
Id.