| (Cite
as: 292 Or. 545, 640 P.2d 608)
Supreme
Court of Oregon, En Banc.
In
the Matter of Sonja CHARLOE, a child.
STATE
of Oregon ex rel. JUVENILE DEPARTMENT, MULTNOMAH COUNTY, Respondent on
Review,
v.
Delores
M. ENGLAND, Petitioner on Review.
SC
27983; CA 18918.
Argued and Submitted Dec.
8, 1981.
Decided
Feb. 10, 1982.
*546 **609
Craig J. Dorsay, Portland, argued the cause and filed the brief for petitioner.
With him on the brief was Kent B. Thurber, Portland.
Richard David Wasserman,
Asst. Atty. Gen., argued the cause for respondent. With
him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch,
Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.
*547
CAMPBELL, Justice.
The issue in this case
is whether an Indian foster parent has "legal custody" of an
Indian foster child so as to come within the definition of "Indian
custodian" under the federal Indian Child Welfare Act (hereinafter
ICWA), 25 U.S.C. s 1901 et seq. Persons qualifying as "Indian custodians"
under the ICWA are entitled to notice and certain other rights in proceedings
to terminate placement. 25 U.S.C. s 1912. The Multnomah County Circuit
Court Juvenile Department denied petitioner England's motion for reconsideration
of its order revoking her status as foster parent of her niece, Sonja
Charloe. The Court of Appeals affirmed, 52 Or.App. 843, 629 P.2d 1319
(1981), finding that petitioner was not an "Indian custodian"
as defined by 25 U.S.C. s 1903(6):
"Indian
custodian means any Indian person who has legal custody of an Indian child
under tribal law or custom or under state law, or to whom temporary physical
care, custody, and control has been transferred by the parent of such
child;"
We allowed petitioner's petition for review.[FN1]
FN1.
Petitioner does not claim status as an "Indian custodian" under
tribal law or custom or by transfer from the parent. Therefore only the
state law question is before us.
Sonja Charloe was born
November 4, 1970. Her mother, Eileen Charloe, was the daughter of a Seneca
and Cayuga Indian father and a Scotch-Irish mother. Both Eileen Charloe
and Sonja Charloe are enrolled members of the Seneca-Cayuga Indian Tribe
of Oklahoma. Since 1970, Sonja's life has been divided between living
with her mother and living with her mother's full sister and family (petitioner)
or in an institution. Children's Services Division (hereinafter CSD) has
been asked to intervene in the care of Sonja at least ten times since
1970, half of these by the mother, with or without police intervention,
and half by petitioner. Sonja has been committed to the legal custody
of CSD and made a ward of the court four times, the last of these on February
13, 1979. At the time of the hearing at issue CSD had legal custody of
Sonja, and had placed her in the foster care of her aunt, petitioner.
At the hearing, held January 15, 1980, it was determined that foster care
with *548
petitioner should be terminated. The natural mother received notice of
the hearing pursuant to 25 U.S.C. s 1912:
"(a)
In any involuntary proceeding in a State court, where the court knows
or has reason to know that an Indian child is **610
involved, the party seeking the
foster care placement of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the pending
proceedings and of their right of intervention. If the identity or location
of the parent or Indian custodian and the tribe cannot be determined,
such notice shall be given to the Secretary in like manner, who shall
have fifteen days after receipt to provide the requisite notice to the
parent or Indian custodian and the tribe. No foster care placement or
termination of parental rights proceeding shall be held until at least
ten days after receipt of notice by the parent or Indian custodian and
the tribe or the Secretary: Provided, That the parent or Indian custodian
or the tribe shall, upon request, be granted up to twenty additional days
to prepare for such proceeding."
This provision also applies to removal from foster care. 25 U.S.C. s 1916.
Petitioner did not receive
notice under 25 U.S.C. s 1912, nor did she receive actual notice of the
hearing. On June 9, 1980, petitioner filed a motion to invalidate the
January 15, 1980 hearing and to hold a new hearing pursuant to 25 U.S.C.
s 1914. A hearing was held on the motion on August 20, 1980, at which
point the circuit court denied petitioner status as an "Indian custodian"
and issued an order denying the motion for reconsideration:
"This
matter came before the court on the motion of the maternal aunt and uncle,
Mr. and Mrs. England, for a reconsideration of the wardship order and
disposition of January 15, 1980. The Court listened to the arguments of
respective counsel for each of the parties, including counsel for Mr.
and Mrs. England, and makes the following finding of law: Mr. and Mrs.
England are not Indian custodians within the definition of 25 U.S.C. s
1903(6) for the reason that they do not have legal custody of the child
under the law of the State of Oregon. Based on this finding, the motion
for reconsideration is not well taken and is hereby disallowed."
Petitioner filed a notice
of appeal from the order denying the motion regarding the court's original
order *549
revoking the Englands' status as foster parents of Sonja Charloe. Petitioner
alleges error in the Court of Appeals finding that, because legal custody
of Sonja was in CSD pursuant to ORS 419.507(2),[FN2]
petitioner did not fit the statutory definition of "Indian custodian"
in 25 U.S.C. s 1903(6). Petitioner contends that: 1) the term "Indian
custodian" should be interpreted in a way consistent with the purposes
of the ICWA, which would suggest an interpretation of "legal custody"
to **611
include actual lawful physical custody for purposes of status as an Indian
custodian; and 2) Federal standards in the ICWA preempt state law defining
legal custody. The state counters by arguing that "legal custody"
means "legal custody" and that this was in CSD, and that preemption
does not apply since the federal statute refers to state law for a definition
of "legal custody,"
therefore there is no conflict to be resolved by resort to the doctrine
of preemption.
FN2.
ORS 419.507 provides:
"A
child found to be within the jurisdiction of the court as provided in
subsection (1) of ORS 419.476, may be made a ward of the court. Where
a child has been found to be within its jurisdiction, and when the court
determines it would be in the best interest and welfare of the child,
the court may:
"(1)
Place the child on probation or under protective supervision. The court
may direct that the child remain in the legal custody of his parents or
other person with whom he is living or may direct that the child be placed
in the legal custody of some relative or some person maintaining a foster
home approved by the court, or in a child care center or a youth care
center authorized to accept the child. The court may specify particular
requirements to be observed during the probation or protective supervision
consistent with recognized juvenile court practice, including but not
limited to restrictions on visitation by the child's parents, restrictions
on the child's associates, occupation and activities, restrictions on
the requirements to be observed by the person having the child's legal
custody and requirements for visitation by and consultation with
a juvenile counselor or other suitable counselor. Restitution for property
taken, damaged or destroyed by the child may be required as a condition
of probation.
"(2)
Place the child in the legal custody of the Children's Services Division
for care, placement and supervision.
"(a)
The division may place the child in a child care center authorized to
accept the child.
"(b)
If the child has been placed in the custody of the Children's Services
Division, the court shall make no commitment directly to any residential
facility, but shall cause the child to be delivered into the custody of
the Children's Services Division at the time and place fixed by rules
of the division. * * * "
*550
The primary controversy in this case revolves around interpretation of
the term "legal custody" as used in the definition of "Indian
custodian," 25 U.S.C. s 1903(6). We first look to the express language
of this section, and then refer to the legislative history surrounding
passage of the ICWA for elaboration. "Indian custodian" is defined
by 25 U.S.C. s 1903(6) as:
"...
any Indian person who has legal custody of an Indian child under tribal
law or custom or under state law, or to whom temporary physical care,
custody, and control has been transferred by the parent of such child;"
The literal language of this section indicates a clear intent that "legal
custody" be used in its legal sense, i.e., as defined by state law
or by tribal custom or law. Where the parent transfers temporary physical
care, physical custody, and physical control to any other Indian person,
such other person is to be considered an Indian custodian as well.
The context lends support
to a literal reading of 25 U.S.C. s 1903(6). Other definitions in 25 U.S.C.
s 1903 include the following:
"(1)(i)
'foster care placement' (which) shall 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; ...
"(7)
'Indian organization' means any group, association, partnership, corporation,
or other legal entity owned or controlled by Indians, or a majority of
whose members are Indians ...
"(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 under trial law or custom. It does not include the unwed father
where paternity has not been acknowledged or established; ..." (Parenthesis
added).
The definitions quoted above illustrate the variety of terms deliberately
used in the ICWA. It is unlikely that Congress, while taking care to distinguish
meanings by the use *551
of certain terms in its definition sections, would inadvertantly use a
term of art such as "legal custody" to mean actual custody.
The ICWA was enacted
in 1978 to effectuate the dual policies of protection of the best interests
of Indian children and promotion of the stability and security of Indian
tribes and families. 25 U.S.C. s 1902. Congress found that because of
the special relationship between the federal government and Indian tribes,
and because of Congress' plenary power over Indian affairs (United States
Constitution, Art. I, s 8, cl. 3), federal action was necessary to avoid
the alarmingly high percentage of Indian family breakups resulting from
the removal of Indian children from their homes by nontribal public and
private agencies and their placement in non-Indian foster and adoptive
homes and institutions. Congress also found that administrative and judicial
bodies have often failed to recognize the essential tribal relations of
Indian people and their cultural and social standards. 25 U.S.C. s 1901.
The ICWA therefore aims to promote its stated policies 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, and by providing
for assistance to Indian tribes in the operation of child and family service
programs." 25 U.S.C. s 1902. Among such minimum federal standards
are the requirements
of notice to parents **612
and Indian custodians of any hearing regarding change in foster care placement
or any termination of parental rights, 25 U.S.C. s 1912; the affording
such persons other rights such as the right to intervene and the right
to appointed counsel, 25 U.S.C. s 1911; s 1912; and the requirement that
preference be given in adoptive or foster placement to members of the
Indian child's extended family and members of the child's tribe, 25 U.S.C.
s 1915.
Several things appear
upon an examination of the ICWA itself. First, a distinction is drawn
between those standing in the shoes of parents, whether by adoption or
Indian custodian status or by blood, and foster parents or state agencies.
Foster care is temporary in nature. It does not deprive the parent of
his ultimate right to the child. See 25 U.S.C. s 1903(1)(i). Those having
some form of permanent *552
custodial responsibility for an Indian child, or those receiving custody
from a parent, are given the benefit of certain minimum protections before
they are deprived of an Indian child, even for temporary foster care.
Such custodians also have the right to invoke the ICWA's protections regarding
preferences to be given to Indian families in foster and adoptive care.
Second, foster parents are given no express rights under the ICWA. Third,
Congress expressly intended to use the term "legal custody"
as a term of art, as is illustrated by its use of "lawful" and
"legal" elsewhere in the ICWA, giving rise to the inference
of different meanings.
The legislative history does not contradict our reading of the ICWA. As
originally proposed, the definition of "Indian custodian" included
only those extended family members having temporary physical custody given
by a parent or those having custody in accordance with tribal law or custom.
S 1214, 95th Cong., 1st Sess. (1977). The final act broadened coverage
to include "any Indian person," not merely extended family members
to whom legal custody is given by state law or by tribal custom or law.
Petitioner argues that the changes in drafting show the legislative intent
to broaden the definition of Indian custodian. We agree, but we do not
find this broadening intent to encompass petitioner's claim regarding
related foster parents. All Indian persons coming within the definition
of "Indian custodian" are allowed such status regardless of
their status as relatives. This intent does not relate to the situation
where an Indian extended family member does not come within the definition
of "Indian custodian."
Petitioner quotes the
following passage from the legislative history in support of its contention
that "legal custody" means actual physical custody rather than
legal custody as defined by state law:
"Paragraph
(6) defines 'Indian custodian.' Where the custody of an Indian child is
lodged with someone other than the parents under formal custom or law
of the tribe or under State law, no problem arises. But, because of the
extended family concept in the Indian community, parents often transfer
physical
custody of the Indian child to such *553
extended family member on an informal basis, often for extended periods
of time and at great distances from the parents. While such a custodian
may not have rights under State law, they do have rights under Indian
custom which this bill seeks to protect, including the right to protect
the parental interests of the parents." H.R.Rep.No. 1386 at 20 (1978),
U.S.Code Cong. & Admin.News 1978, pp. 7530, 7543.
This section describes
the reasoning behind allowing Indian custodian status to some persons
other than those accorded legal custody under state law or under formal
tribal law or custom. The ICWA expressly allows for "Indian custodian"
status to Indian persons given physical custody by a parent. This informal
custom would not yield such status unless expressly so provided by the
ICWA. Petitioner does not claim Indian custodian status pursuant to the
ICWA's provision regarding informal transfers from a parent. Since petitioner
did not receive Sonja from a parent, she cannot qualify under that provision.
**613
As a general matter,
foster parents who are paid for their temporary provision of room and
board to children of others have no statutory rights on termination of
their status. In Oregon, legal custody is in CSD where public funds are
to be expended for foster care. CSD "purchases care" for foster
children and supervises such care until adoption or majority. ORS 418.280;
418.480; 419.507(2). Indian foster parents are not included
in the definition of "Indian custodian." We cannot say such
persons are included in direct contradiction of the language of the Act.
It is therefore unnecessary to invoke the constructional rules appellant
argues for, since the legislative intent is clear on the face of the statute.
A paid caretaker has very different concerns as to a child's welfare than
does a family member who takes on the costs of care himself. We cannot
say that the case is different where the paid caretaker also is a member
of the child's extended family. Such a determination is up to Congress
to make. We therefore hold that a member of a child's extended family
who assumes foster care of such child and accepts state funds for such
purpose does not become an "Indian custodian" and is therefore
not entitled to notice of a hearing to terminate its parental status any
more than a normal foster parent would be.
*554
Petitioner's preemption
argument is unpersuasive to us because Congress expressly left the determination
of "legal custody" up to state law. Even if the federal legislation
totally preempted the field, such an express intent would allow state
law to govern the determination of legal custody. Since preemption was
not clearly intended by Congress, we cannot now read such intent into
the legislation. Florida Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct.
1210, 10 L.Ed.2d 248 (1963).
Affirmed.
TANZER, Justice, concurring.
I concur in the result.
I do not disagree with the majority, but I believe that a threshold issue
is dispositive. I would hold that the notice provisions of 25 U.S.C. s
1912 have been complied with. The statute is phrased in the alternative:
The moving party "shall notify the parent or Indian custodian and
the Indian child's tribe." (Emphasis supplied.) Because the parent
had actual notice, there was no need to notify the Indian custodian. The
statute was fully complied with by notice to the parent.[FN1]
FN1.
At oral argument before this court, the state declined to urge this construction
of the statute because, it contended, we should not impute to Congress
an intention to violate the constitutional rights of foster parents. That
contention is erroneous. First, the unambiguous words of the statute leave
no room for judicial construction. If the statute is constitutionally
deficient, that determination can be made in a proper proceeding which
challenges the validity of the statute or asserts a constitutional claim.
In this proceeding, petitioner seeks enforcement of her rights under the
statute; she makes no constitutional claim. Second, whatever due process
rights a legally established foster parent of less than
18 months may have, those rights do not include notice of and participation
in judicial proceedings. See Smith v. Organization of Foster Families,
431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).
TONGUE, Justice, dissenting.
The majority holds that
a member of an Indian child's extended family, such as petitioner, who
becomes the foster parent of such a child through the operation of state
law, does not qualify under the Indian Child Welfare Act of 1978, 25 U.S.C.
ss 1901-1963, as an "Indian custodian" so as to be entitled
to the procedural protections provided by the ICWA for "Indian custodians"
in cases in which the *555
placement of an Indian child is at issue.[FN1]
"Indian custodian" is defined by 25 U.S.C. s 1903(6) as follows:
FN1.
25 U.S.C. s 1912(a) and (b) provide as follows:
"(a)
In any involuntary proceeding in a State court, where the court knows
or has reason to know that an Indian child is involved, the party seeking
the foster care placement of, or termination of parental rights to, an
Indian child shall notify the parent or Indian custodian and the Indian
child's tribe, by registered mail with return receipt requested, of the
pending
proceedings and of their right of intervention. If the identity or location
of the parent or Indian custodian and the tribe cannot be determined,
such notice shall be given to the Secretary in like manner, who shall
have fifteen days after receipt to provide the requisite notice to the
parent or Indian custodian and the tribe. No foster care placement or
termination of parental rights proceeding shall be held until at least
ten days after receipt of notice by the parent or Indian custodian and
the tribe or the Secretary: Provided, That the parent or Indian custodian
or the tribe shall, upon request, be granted up to twenty additional days
to prepare for such proceeding.
"(b)
In any case in which the court determines indigency, the parent or Indian
custodian shall have the right to court-appointed counsel in any removal,
placement, or termination proceeding. The court may, in its discretion,
appoint counsel for the child upon a finding that such appointment is
in the best interest of the child. Where State law makes no provision
for appointment of counsel in such proceedings, the court shall promptly
notify the Secretary upon appointment of counsel, and the Secretary, upon
certification of the presiding judge, shall pay reasonable fees and expenses
out of funds which may be appropriated pursuant to section 13 of this
title." (Emphasis added)
**614
" 'Indian custodian' means any Indian person who has legal custody
of an Indian child under tribal law or custom or under State law or to
whom temporary physical care, custody, and control has been transferred
by the parent of such child; * * *." (Emphasis added)
The majority concludes that Congress intended to use the phrase "legal
custody" in its "legal sense"; therefore, the majority
reasons, because CSD had legal custody of the child, petitioner could
not have had such custody and, therefore, could not qualify as an "Indian
custodian." Because I do not believe that such a conclusion is compelled
by the language of the ICWA and because, in my opinion, such a conclusion
leads to results which are contrary to the stated purposes of the ICWA,
I respectfully dissent.
The Indian Child Welfare
Act of 1978 was enacted based upon certain findings by Congress. Among
those are the following:
"
* * *
"(3)
that there is no resource that is more vital to the continued existence
and integrity of Indian tribes than *556
their children and that the United States has a direct interest, as trustee,
in protecting Indian children who are members of or are eligible for membership
in an Indian tribe;
"(4)
that an alarmingly high percentage of Indian families are broken up by
the
removal, often unwarranted, of their children from them by nontribal public
and private agencies and that an alarmingly high percentage of such children
are placed in non-Indian foster and adoptive homes and institutions; and
"(5)
that the States, exercising their recognized jurisdiction over Indian
child custody proceedings through administrative and judicial bodies,
have often failed to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing in Indian communities
and families." 25 U.S.C. s 1901(3), (4), (5). (Emphasis added)
Furthermore, the ICWA contains the following declaration:
"
* * * it is the policy of this Nation 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, and by providing for assistance to Indian tribes in
the operation of child and family service programs." 25 U.S.C. s
1902. (Emphasis added)
Petitioner contends that
Congress intended the term "legal custody" to be interpreted
in a manner consistent with the stated purposes of the ICWA and that,
consequently, a proper interpretation of the term includes any Indian
who has actual lawful custody of an Indian child, however determined.[FN2]
Petitioner
further contends that **615
the federal standards established by the ICWA preempt state laws defining
"legal custody." In support of her construction of the term
"legal custody," petitioner sets out five *557
"rules of judicial construction" which, she asserts, apply here.
Of these, the principle that "statutes passed for the benefit of
Indians are to be construed in favor of Indians," citing Bryan v.
Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710
(1976), seems particularly appropriate in this case because the remedial
character of the ICWA is not in dispute.[FN3]
FN2.
Although there are facts below which would support petitioner's claim
to "Indian custodian" status under the second part of 25 U.S.C.
s 1903(6), " * * * (one) to whom temporary physical care, custody,
and control has been transferred by the parent of such child," petitioner's
argument on appeal is focused upon her being in "legal custody"
of the child.
FN3.
Petitioner further contends that because of the Congressional intent to
promote the stability of Indian families, Congress did not intend to limit
the class of "Indian custodians" only to those satisfying the
state definition of "legal custody." She points to a portion
of the House committee
report which refers to 25 U.S.C. s 1903(6), the definition of "Indian
custodian":
"
'Paragraph (6) defines "Indian custodian." Where the custody
of an Indian child is lodged with someone other than the parents under
formal custom or law of the tribe or under State law, no problem arises.
But, because of the extended family concept in the Indian community, parents
often transfer physical custody of the Indian child to such extended family
member on an informal basis, often for extended periods of time and at
great distances from the parents. While such a custodian may not have
rights under State law, they do have rights under Indian custom which
this bill seeks to protect, including the right to protect the parental
interests of the parents.' " H.R.Rep.No. 1386, 95th Cong., 2d Sess.
20 (1978), reprinted in 1978, U.S.Code Cong. & Ad.News 7530, 7543.
(Emphasis added)
The state contends that
the ICWA requires an "Indian custodian" (other than one who
obtained physical control from the parent) to have "legal custody"
and that in this case "legal custody" was in CSD.[FN4]
In response to the preemption argument, the state asserts that because
the federal statute refers to state law for a definition of "legal
custody" and there is no federal definition
of "legal custody," there is no conflict to be resolved by resort
to preemption.
FN4.
In its Response to the Petition for Review, the state argues that:
"An
examination of the other portions of 25 USCA s 1903 shows that Congress
understood the distinction between legal custody and other custodial or
caretaking, relationships, and that it used the term 'legal custody' in
its technical sense."
and
that because:
"Both
the original bill and the final Act distinguished between 'legal custody'
and mere 'custody' or 'temporary physical care, custody, and control.'
Under fundamental principles of statutory construction this Court must
presume that Congress had a purpose in mind for all of the language it
used. * * * The most logical interpretation of the statute is that, in
using the term 'legal custody,' Congress intended to denote a particular
legal relationship not sufficiently defined by the term 'custody.' "
(Emphasis added)
*558
The Court of Appeals agreed with the state, holding that:
"Petitioner's
argument that Congress intended a broad class of 'Indian custodians' and
did not intend to refer only to persons who have legal custody as defined
by state law reaches too far. Congress expressly provided that an 'Indian
custodian' may be an Indian person to whom a parent temporarily transfers
the care or physical custody of the child, thereby recognizing transfers
to extended family members. While an informal transfer of care or physical
custody gives rise to the procedural rights provided in the ICWA, where
there is a formal, statutory foster placement, as here, involving CSD
as legal custodian, a foster parent, not having legal custody, is not,
by the terms of the statute, afforded the procedural safeguards of the
ICWA." 52 Or.App. at 850-51, 629 P.2d 1319. (Emphasis added)
The majority opinion,
although purporting to analyze the language of the ICWA in order to find
Congressional intent in using the term "legal custody," in essence,
follows the same path as used by the Court of Appeals in reaching the
result here. The majority states that:
"The
literal language of this section (25 U.S.C. s 1903(6) ) indicates a clear
intent that 'legal custody' be used in its legal sense, i.e., as defined
by state law or by tribal custom or law." 611 (Emphasis added)
**616
The premise of the argument becomes its conclusion. The question here
is whether "legal custody" was intended in its "legal sense."
The majority
answers the question by concluding, in effect, that the question does
not exist. I am not convinced by the majority's reasoning that Congress
intended the term "legal custody" to be limited to mean the
result of a state determination of status rather than a functional custody
lawfully achieved through the operation of tribal or state legal processes.
The ICWA on its face does not disclose an unequivocal choice for either
position.
The definition of "legal
custody" adopted by the majority means that in the future where,
as here, CSD has "legal custody" of an Indian child and foster
placement results in that child's living with members of her extended
family, those family members will not qualify as "Indian custodians."
This situation, given the remedial character of the statute, is indeed
ironic; i.e., although the policy of the *559
ICWA is served by allowing "Indian custodians" to intervene
in child placement proceedings to insure placement in "foster * *
* homes which will reflect the unique values of Indian culture * * *,"
25 U.S.C. s 1902, the Indian member of the child's extended family who
becomes custodian because of such placement [FN5]
will not be able to intervene in any future decision to transfer placement,
even though that proposed placement would be inconsistent with the express
policy of the ICWA.[FN6]
Petitioner's interpretation of the term "legal custody" is more
consistent with the elimination of evils Congress sought to remedy, because
both Congressional findings
and petitioner's interpretation focus on the conditions of actual custody
rather than the abstract legal status of the Indian child.
FN5.
25 U.S.C. s 1915(b) provides as follows:
"Any
child accepted for foster care or preadoptive placement shall be placed
in the least restrictive setting which most approximates a family and
in which his special needs, if any, may be met. The child shall also be
placed within reasonable proximity to his or her home, taking into account
any special needs of the child. In any foster care or preadoptive placement,
a preference shall be given, in the absence of good cause to the contrary,
to a placement with-
"(i)
a member of the Indian child's extended family ;
"(ii)
a foster home licensed, approved, or specified by the Indian child's tribe;
"(iii)
an Indian foster home licensed or approved by an authorized non-Indian
licensing authority; or
"(iv)
an institution for children approved by an Indian tribe or operated by
an Indian organization which has a program suitable to meet the Indian
child's needs."
FN6.
Whether foster parents generally have procedural rights under Oregon law,
as discussed by the majority (slip op. 9) is not determinative of the
question whether this petitioner has such rights under federal law. As
stated in the following passage from the legislative history of the ICWA:
"In
Dice v. Akron, C. Y. Y. R. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed.
398 (1952), the Court held:
"
'Congress * * * granted petitioner a right * * *. State laws are not controlling
in determining what the incidents of this Federal right shall be.'
"Chief
Justice Holmes, in Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed.
143 (1923), put it succinctly:
"
'Whatever springes the State may set for those who are endeavoring to
assert rights that the State confers, the assertion of Federal rights,
when plainly and reasonably made, is not to be defeated under the name
of local practice.'
"We
will quote merely two other cases to support the proposition that Congress
may, constitutionally, impose certain procedural burdens upon State courts
in order to protect the substantive rights of Indian children, Indian
parents, and Indian tribes in State court proceedings for child custody
(citing American Railway Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11,
68 L.Ed. 140 (1923), and Second Employer's Liability Cases, 223 U.S. 1,
32 S.Ct. 169, 56 L.Ed. 327 (1912) )." H.R.Rep.No. 1386, 95th Cong.,
2d Sess. 18 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News, 7530,
7540-41.
*560
It is possible that Congress did not intend for a person in the position
of petitioner in this case to qualify as an "Indian custodian";
however, I am not convinced by the majority opinion that this is so. Because
of the consequences of any decision in this matter, it is my opinion that
this court should be more certain of its conclusions. As petitioner points
out:
"The
Indian Child Welfare Act is the result of a ten year Congressional investigation
**617
which found proof of serious problems in the handling of Indian child
custody matters by non-Indian state and public agencies. The research
disclosed that 25-35% of all Indian children are separated from their
families and placed in foster or adoptive homes or institutions, and that
85% of all Indian children in foster care were living in non-Indian homes.
House Report, supra, at 9. The evidence showed that in Oregon that 8.2
times as many Indian children as non-Indian children were in foster care
relative to their percentage of the population; in Multnomah County the
figure was
6.3 times as many. American Indian Policy Review Comm'n, Task Force Four:
Federal, State, and Tribal Jurisdiction 224-30, 94th Cong., 1st Sess.
(1976)."
"Since
approximately 95% of all foster care placements in Oregon are made with
the state retaining 'legal custody' of the child, exclusion of foster
parents from coverage under the ICWA will exclude Indian extended family
members who become foster parents from the protections of the Act. Dept.
of Health, Educ. & Welf., Office of Civil Rights, The 1980 Children
and Youth Referral Survey: Public Welfare and Social Services (1980)."
[FN7]
(Emphasis added).
FN7.
Upholding petitioner's claim to "Indian custodian" status would
not bar CSD from making foster care placements, but would have the effect
of allowing those in petitioner's position certain procedural protections
when such placements are made. Such a result would be consistent with
the requirements of 25 U.S.C. s 1915(b)(i), cited in note 5, supra.
*561
With these considerations in mind and because the majority opinion adopts
a definition of "legal custody" which reaches a result inconsistent
with the remedial purposes of the Indian Child Welfare Act, I respectfully
dissent.
292 Or. 545, 640 P.2d
608
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