| (Cite
as: 122 Or.App. 371, 857 P.2d 888)
Court
of Appeals of Oregon.
In
the Matter of Sean Allen Davis, a Child.
STATE
ex rel. CHILDREN'S SERVICES DIVISION, Respondent,
v.
Judy
Lynn CAMPBELL, Appellant.
J-7323;
CA A77533.
Argued and Submitted April
5, 1993.
Decided
Aug. 18, 1993.
Reconsideration
Denied Oct. 13, 1993.
**888 *372
Kevin M. McCallie, McMinnville, argued the cause and filed the brief for
appellant.
Michael C. Livingston,
Asst. Atty. Gen., Salem, argued the cause for respondent. With him on
the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder,
Sol. Gen., Salem.
Before DEITS, P.J., and
RIGGS and DURHAM, JJ.
*373
RIGGS, Judge.
Mother appeals an order
terminating her parental rights pursuant to ORS 419.523 and the Indian
Child Welfare Act (ICWA), 25 U.S.C. § 1901 et
seq. We affirm.
Mother is an enrolled
member of the Iowa Tribe of Kansas-Nebraska (Tribe). Child was born on
August 19, 1991. On August 22, 1991, the Yamhill County Juvenile Department
filed a petition with the juvenile court to terminate mother's parental
rights. On that same date, the court granted Children's Services
Division (CSD) temporary custody of the child. Mother has a schizoid personality
disorder and a history of alcohol dependence. Because she also suffers
from a severe seizure disorder, she requires a 24-hour caregiver. Both
of her other children have been removed from her care due to life threatening
endangerment. Child was placed with his maternal aunt who also has custody
of child's sister. Pursuant to the ICWA, CSD **889
notified the Tribe of the hearing to terminate parental rights but the
Tribe declined to intervene. Mother's parental rights were terminated.
At oral argument on appeal,
the state notified this court that it had recently discovered that a petition
seeking jurisdiction of child was pending at the time mother's parental
rights were terminated. There is, therefore, a question whether the court
had authority to terminate mother's rights. Because the issue was not
raised below, we gave the parties leave to respond.
The issue of jurisdiction may be raised at any time and is not waived.
Comley v. State
Bd. of Higher Ed.,
35 Or.App. 465, 468 n. 3, 582 P.2d 443 (1978). ORS 419.482 provides, in
relevant part:
"(1)
Any person may file a petition in the juvenile court alleging that a child
named therein is within the jurisdiction of the court as provided in ORS
419.476(1).
[FN[1]]
FN1. ORS 419.476(1) provides,
in relevant part: "The
juvenile court has exclusive original jurisdiction in any case involving
a person who is under 18 years of age * * *."
" * * * * *
"(3)
At any time after a petition is filed, the court may make an order providing
for temporary custody of the child."
*374
ORS 419.482 does not require that the juvenile court make a separate ruling
accepting jurisdiction before it grants temporary custody of the child.
It simply states that after
the petition is filed,
the court can grant temporary custody. We do not condone courts' failing
to rule on jurisdictional petitions before terminating parental rights.
[FN2] However, in this case, it is clearly established that the court
assumed jurisdiction of the child when it granted CSD temporary custody.
FN2.
The grounds for juvenile court jurisdiction and termination may be alleged
and established in the same proceeding. See
State ex rel. Juv. Dept. v. Moyer,
42 Or.App. 655, 601 P.2d 821 (1979), rev.
den. 288 Or.
633 (1980).
Mother assigns error
to the use of expert witnesses who had no specific knowledge of Indian
culture. We review de
novo. See State ex rel. Juv. Dept.
v. Tucker,
76 Or.App. 673, 710 P.2d 793 (1985), rev.
den. 300 Or.
605 (1986). The ICWA provides:
"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 the Indian custodian
is likely to result in serious emotional or physical damage to the child."
25 USC § 1912(f). (Emphasis supplied.)
Mother argues that State
ex rel. Juv. Dept. v. Charles,
70 Or.App. 10, 688 P.2d 1354 (1984) rev.
dismissed 299
Or. 341, 701 P.2d 1052 (1985), controls. We disagree. In Charles,
which involved cultural bias, we said that a "qualified expert witness"
must possess special knowledge of social and cultural aspects of Indian
life. 70 Or.App. at 16 n. 3, 688 P.2d 1354.
[FN3]
FN3.
According to the House Report, the purpose of the "qualified expert
witness" provision in the ICWA is to avoid problems with cultural
bias:
"The
courts tend to rely on the testimony of social workers who often lack
the training and the insights necessary to measure the emotional risk
the child is running at home. * * * Rejecting the notion that poverty
and cultural
differences constitute social deprivation and psychological abuse, the
Association argues that the State must prove that there is actual physical
or emotional harm resulting from the acts of the parents." H.R. 1386,
95 Cong.2d Sess. 10.
In
Charles,
the state presented as witnesses two social workers who had no special
knowledge of Indian culture. The mother's expert witness was a board-certified
psychiatrist and had been a consultant to the Urban Indian Council.
In State
ex rel. Juv. Dept. v. Tucker, supra,
we clarified and distinguished our holding in Charles:
"[W]hen *375
cultural bias is clearly not implicated, the necessary proof may be provided
by expert witnesses who do not possess special knowledge of Indian life."
76 Or.App. at 683, 710 P.2d 793. The issue in Charles
was cultural bias. The termination of parental rights in **890
Tucker,
as in this case, was due to the mother's mental illness. Here, the state
has presented evidence beyond a reasonable doubt that mother's emotional
illness, mental deficiency, neurological disorders, and failure to adjust
to these conditions, combined to leave her incapable of parenting for
extended periods of time. Mother presented no evidence or witnesses to
refute those claims or to show that the issue was cultural bias rather
than her mental illness. We conclude that continued custody
by mother would likely result in serious damage to the child. That ruling
is consistent with the evidence and with 25 U.S.C. § 1901, et
seq.
The other arguments do
not merit discussion.
Affirmed.
122 Or.App. 371, 857
P.2d 888
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