| (Cite
as: 106 Or.App. 637, 810 P.2d 393)
Court
of Appeals of Oregon.
In
the Matter of Jade Ann Charles, a Child.
STATE
ex rel. JUVENILE DEPARTMENT OF CLACKAMAS COUNTY, Respondent,
v.
Jamesyn
L. CHARLES, Appellant.
J88-3-5;
CA A62213.
Argued and Submitted Aug.
13, 1990.
Decided
April 17, 1991.
**394 *638
Arthur P. Stangell, Oregon City, argued the cause and filed the brief
for appellant.
Wendy J. Paris, Asst.
Atty. Gen., Salem, argued the cause for respondent. With her on the brief
were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael
D. Reynolds, Asst. Sol. Gen., Salem.
Howard Clyman, West Linn,
argued the cause and filed the brief for child.
Before RICHARDSON, P.J.,
and WARREN and De MUNIZ, JJ.
*639
RICHARDSON, Presiding Judge.
Mother appeals an order
that found her child, Jade Ann, age 8, to be within the jurisdiction of
the court. The court made the child a ward and directed that she be transferred
to Alaska to be placed in the physical custody of her paternal aunt. The
child's father, Dean Charles, is a Tlingit Indian; consequently, she is
an Indian as defined in the Indian Child Welfare Act (ICWA), 25 USC §§
1901-1963, and that act applies to this proceeding.
Mother has two other
children who were also made wards of the court. They are not Indian children,
and mother has also appealed the order as to them. State
ex rel. Juv. Dept. v. Charles/Austin,
106 Or.App. **395
628, 810 P.2d 389 (decided this date). All three children were taken into
protective custody at the same time, and the facts are set out in our
opinion in the other case. There are factual and procedural variations
that we will discuss in relation to the assignments of error.
Jade Ann was removed
from the home on February 28, 1988, and on the next day a preliminary
hearing was held. Mother was present. The court awarded temporary legal
and physical custody to CSD. On March 3, 1988, a petition was filed alleging
that the child was within the jurisdiction of the juvenile court, because
mother had failed to provide for her physical and emotional needs. On
June 19, 1988, mother moved to dismiss the petition for failure to comply
with the notice requirements of ICWA, 25 USC § 1912(a). The court
denied the motion, and mother contests that ruling in her first assignment.
Her argument appears to
be that the preliminary hearing after an emergency removal of the child
must be preceded by a notice under 25 USC § 1912(a). That statute requires
notice to an Indian child's parents and the child's tribe and that "no
foster care placement or termination of parental rights proceeding shall
be held until at least ten days after" notice. ICWA does not prevent
the emergency removal of an Indian child under state law, pursuant to ORS
419.569, and does not require notice in that situation to the parents and
the tribe until a custody proceeding is initiated. 25 USC § 1922. 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).
*640
Mother also argues that 25 USC § 1912(a) requires that a hearing
be held within 10 days and, because no hearing had been held on the petition
by the time that she moved to dismiss it, the court was required to grant
her motion. ICWA does not require a hearing within 10 days; it requires
a notice at least 10 days before a hearing. The amended petition was filed
on July 10, 1989, and all required notices were given. The jurisdictional
hearing was based on the amended petition. The court did not err.
In her second and third
assignments, mother contends that the court erred by allowing the filing
of an amended petition and by refusing to strike it. For the reasons expressed
in State ex
rel. Juv. Dept. v. Charles/Austin, supra,
106
Or.App. at 632, 810 P.2d at 391, the court did not err.
Mother contends, in her
fourth assignment, that the court erred "when it made findings that
services had been provided under the provisions of" ICWA. 25 USC
§ 1912(d) provides:
"Any
party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State law shall satisfy the
court that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful."
Part of mother's argument is based on portions of the record in the criminal
proceeding involving mother. We denied her motion to supplement the record
on review with that evidence. It is difficult to separate the parts of
her argument that relate to evidence not in the record. We have essentially
disregarded her recitation of facts and, on de
novo review
of the record properly received, we conclude that the state made the proper
showing under 25 USC § 1912(d).
Mother's fifth and sixth assignments are that the court did not appoint
competent counsel for her or Jade Ann under 25 USC § 1912(b). The
standards of performance for counsel appointed under ICWA are not different
from those for counsel appointed pursuant to state statute. See
State ex rel. Juv. Dept. v. Geist,
310 Or. 176, 796 P.2d 1193 (1990). We addressed and rejected
the identical claims of error in State
ex rel. Juv. Dept. v. Charles/Austin, supra.
*641
In her final assignment, mother contends that the court erred by ordering
that the child be placed in the physical custody of her paternal aunt,
who is an active member **396
of the Tlingit Indian tribe in Alaska.
[FN1] Mother's argument is that it is not in the child's best interest
to place her outside the state and away from mother's home.
FN1.
Mother contends that the court ordered
placement of the child in Alaska. The court cannot order any placement;
it can only make a recommendation. ORS 419.507(1)(b)(B), (D); State
ex rel. Juv. Dept. v. Cooke,
88 Or.App. 176, 744 P.2d 596 (1987).
Before a court may seek
foster care placement of an Indian child, it must be satisfied by clear
and convincing evidence, including testimony of a qualified expert on
Indian culture, that continued custody by the parents is likely to result
in serious physical or emotional damage to the child. 25 USC § 1912(e);
State ex rel.
Juv. Dept. v. Charles, supra; State ex rel. Juv. Dept. v. Cooke,
88 Or.App. 176, 744 P.2d 596 (1987). Mother and the state produced expert
witnesses who testified about Indian culture and placement of the child.
Although experts qualified to talk about Indian
culture are required under ICWA, State
ex rel. Juv. Dept. v. Cooke, supra,
the court need not accept an expert's opinion regarding placement. The
expert testimony is intended to provide the court with information regarding
the relevant Indian culture. We need not sort out which expert was more
qualified and which opinion regarding placement should be followed. On
de novo
review, we conclude, as did the trial court, that continued custody by
mother would likely result in serious damage to the child. We also agree
with the recommendation of the court that the child be placed with her
aunt in Alaska. That placement is consistent with the evidence and 25
USC § 1915(b).
Affirmed.
106 Or.App. 637, 810
P.2d 393
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