| (Cite
as: 88 Or.App. 176, 744 P.2d 596)
Court
of Appeals of Oregon.
In
the Matter of Cooke, Richard; Cooke, Elizabeth, Children.
STATE
ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY and Children's Services
Division,
Respondents,
v.
Sandra
COOKE, Appellant.
66666,
66666A; CA A42543.
Argued and Submitted Sept.
11, 1987.
Decided
Oct. 28, 1987.
**597 *176
Caryanne C. VanCoevering, Portland, argued the cause and filed the brief
for appellant.
Michael Livingston, Asst.
Atty. Gen., Salem, argued the cause for respondents. With him on the brief
were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen. and Charlene
Woods, Asst. Atty. Gen., Salem.
Before WARDEN, P.J.,
and VAN HOOMISSEN and YOUNG, JJ.
*178
VAN HOOMISSEN, Judge.
Mother, a Lummi Indian,
appeals a trial court order which found her children to be within the
jurisdiction of the juvenile court because of her neglect of them.
The court made the children wards of the court and committed them to the
legal custody of the Children's Services Division (CSD). The court recommended
that the children remain in mother's physical custody. The dispositive
issue is whether the court was required to comply with the Indian Child
Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, before finding that
the children were within its jurisdiction. We hold that it was required
to do so and that it did not. Therefore, we reverse.
Under the ICWA, a state
court may not order foster care placement of an Indian child
"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."
25 U.S.C. § 1912(e). (Emphasis supplied.)
We have held that the expert witness must usually be someone with special
knowledge of and sensitivity to Indian culture. State
ex rel Juv. Dept. v. Charles,
70 Or.App. 10, 16-17, 688 P.2d 1359 (1984), rev.
dismissed 299
Or. 341, 701 P.2d 1052 (1985); but
see State ex rel Juv. Dept. v. Tucker,
76 Or.App. 673, 682-84, 710 P.2d 793 (1985), rev.
den. 300 Or.
605, 717 P.2d 1182 (1986). In this case, no
expert witness testified, although a social worker did make suggestions
concerning placement of the children. There is no suggestion
that that social worker had any expertise in Indian culture. If the ICWA
applies, the court's order violates it.
Plaintiff asserts that
the ICWA does not apply. It points out that the act defines "foster
care placement" to mean
"any
action removing an Indian child from its parent or Indian custodian for
temporary placement in a foster home or institution or the home of a guardian
or conservator where the parent or Indian custodian cannot have the child
returned upon demand, but where parental rights have not been terminated
[.]" 25 U.S.C. § 1903(1)(i).
Although the court could
have ordered the children placed in *179
foster care after finding jurisdiction in this case, it did not do so.
Therefore, plaintiff says, the court did not need to follow ICWA procedures
and will not need to do so unless there is a later attempt to change the
placement of the children. In short, plaintiff argues, the actual rather
than the potential result of the proceeding should determine the role
which the ICWA plays in it.
Plaintiff's argument
would require the court to speculate about the outcome of a **598
juvenile proceeding in order to determine what role ICWA would play and
would encourage the agency to base its recommended disposition on issues
other than the children's best interests. It would allow the court and
the agency to become deeply involved in the children's family while ignoring
the requirement that they consider the children's cultural heritage. They
could avoid
providing the required procedural protections until almost the very end
of the process, making the ultimate decision a fait
accompli. We
agree with the Iowa Supreme Court:
"A
proceeding to determine whether the children are in need of assistance
due to the mother's unfitness could
result in temporary foster home placement of these Indian children and
clearly falls under the ICWA." In
Interest of J.R.H.,
358 NW2d 311, 321, (Iowa 1984). (Emphasis supplied.)
Plaintiff also misunderstands
the effect of the court's order. The court made the children wards of
the court and placed them in the legal custody of CSD. Although it ordered
that physical custody remain with mother while she underwent in-patient
alcohol treatment, that order was in fact a recommendation. The court
cannot order
any placement. ORS 419.507(1)(b)(B), (D). The formal commitment order
shows as much, describing the court's order as a "placement preference."
In explaining his decision at the hearing, the judge said that he thought
that the children should be with mother during the in-patient treatment
"unless there ends up being a problem."
When the court found
the children to be within its jurisdiction, it changed the framework of
future decisions. Issues would then be treatment and placement, not jurisdiction.
Plaintiff's argument would require a full retrial on the jurisdictional
issue before either CSD or the court could make a new placement decision.
There would thus be two separate *180
trials on one
issue in ICWA cases. The law simply does not distinguish, as plaintiff
would have it do, between regular juvenile court jurisdiction and ICWA
jurisdiction. If the ICWA is to play the role which Congress intended,
it must be when the merits are first decided. The court did not allow
that here.
[FN1]
FN1.
Mother's assignments of error concerning evidentiary issues do not require
discussion.
Reversed and remanded
for further proceedings not inconsistent with this opinion.
88 Or.App. 176, 744 P.2d
596
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