| (Cite
as: 176 Or.App. 311, 31 P.3d 510)
Court
of Appeals of Oregon.
In
the Matter of the Adoption of Theodore Charles Anderson, nka
Theodore
Charles
Hofmann, a Minor Child.
Terrence
L. HOFMANN; and Deborah L. Hofmann, Respondents,
v.
Alan
Maxwell ANDERSON, Appellant.
40-98-04978;
A106561
Submitted on Record and
Brief Dec. 1, 2000.
Decided
Aug. 29, 2001.
**511 *311
James A. Palmer, Eugene, filed the brief for appellant.
*312
No appearance for respondents.
Before EDMONDS, Presiding
Judge, and ARMSTRONG and KISTLER, Judges.
*313
ARMSTRONG, J.
Father appeals from a
judgment that granted stepfather's petition for adoption. He assigns error
to the trial court's failure to apply the requirements of the Indian Child
Welfare Act (ICWA), 25 U.S.C. § 1901 et
seq., to this
proceeding. We affirm.
Father is currently incarcerated
on a conviction for sexual abuse in the first degree, ORS 163.427. At
the time of the adoption proceeding, he had been incarcerated in state
prison for just over three years. Child was five years old at the time
of the hearing. He had lived with stepfather for three years. Stepfather
and mother both testified that child had a good relationship with stepfather,
and stepfather said that he loved child very much. Father had
seen child only once since father was first detained on the sexual abuse
charge in 1995. The record suggests that father's lack of contact with
child was due to transportation problems rather than an absence of affection
or interest. Father had sent child birthday and Christmas cards and had
written letters to mother in an attempt to arrange visits with child.
Although both parents
testified to having some degree of Indian heritage, nothing in the record
suggests that either mother or father was a member of any federally recognized
Indian tribe. Mother testified, based on information provided by her own
mother, that she believed herself to be one-quarter Blackfoot. However,
her Blackfoot heritage was from her maternal grandfather and neither she
nor her mother could remember his name. Moreover, mother was not and never
has been an enrolled member of the Blackfoot Tribe, nor did she know whether
she was eligible for membership. Father testified that his own father
was "at least a quarter of either Crow or Blackfoot and then some
of the other. I can't remember how much." Father's mother had been
adopted as a small child and knew nothing about the genetic makeup of
her biological parents. Father himself was not a member of either the
Crow or Blackfoot tribe and did not know whether his father had been a
member of either tribe. Moreover, he did not know whether he himself was
eligible for membership.
*314
ORS 109.322 allows
a court to grant a petition for adoption when the adoption will serve
the child's best interests and the nonconsenting
parent is serving a term of incarceration of at least three years and
has actually served three years. The parties do not dispute that the requirements
of ORS 109.322 were met in this case. However, father contends that the
adoption petition should be denied because mother and stepfather were
required to demonstrate compliance with the ICWA and failed to do so.
Because we conclude that father had the burden to produce sufficient evidence
as to the applicability of the ICWA and that he did not produce the necessary
evidence, we affirm. Father is correct that, when an Indian child is involved
in a court proceeding for **512
termination of parental rights, ICWA imposes heightened requirements on
the party petitioning for termination.
[FN1] See, e.g.,
25 U.S.C. § 1912.
[FN2] However, father fails to recognize that those requirements do not
*315
come into play until the court makes a threshold determination that an
Indian child is involved in the case.
[FN3] As the party asserting the applicability of ICWA, father had the
burden to produce sufficient evidence to support a determination that
child was an Indian child. Matter
of Baby Boy Doe,
123 Idaho 464, 849 P.2d 925, 931, cert.
den. 510 U.S.
860, 114 S.Ct. 173, 126 L.Ed.2d 133 (1993); In
the Interest of A.G.-G.,
899 P.2d 319, 322 (Colo.App.1995); see
also Quinn v. Walters,
320 Or. 233, 242-43, 881 P.2d 795 (1994).
FN1.
Father attempts to buttress his federal argument by pointing to a
state statute that cites to the ICWA. The statute that he refers to, ORS
109.310(6), was repealed in 1993. Or. Laws 1993, ch.717, § 1. However,
ORS 109.309 was enacted in its place. Or. Laws 1993, ch. 717, § 2.
ORS 109.309(10) provides that "[t]he adoption shall comply with [the
ICWA], if applicable."
(Emphasis added.) Because we conclude that the ICWA does not apply to
this case, ORS 109.309(10) adds nothing to our analysis.
FN2.
25 U.S.C. § 1912 provides, in pertinent part:
"(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. * * * 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. * * *
"(c)
Each party to a foster care placement or termination of parental rights
proceeding under State law involving an Indian child shall have the right
to examine all reports or other documents filed with the court upon which
any decision with respect to such action may be based.
"(d)
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.
"
* * * * *
"(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.)
FN3.
We accept for purposes of this case the parties' implicit assumption that
ICWA applies to intra-family disputes in which one parent seeks
to have the parental rights of the other terminated. See
State, In Interest of D.A.C.,
933 P.2d 993, 1000-01 (Utah App.1997) (concluding that ICWA applies in
such circumstances and discussing the holdings of other state courts on
the issue). However, we do not decide whether the assumption is correct.
ICWA defines an "Indian
child" as "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 U.S.C. § 1903(4). Because father made no claim that
child was a member of any tribe, 25 U.S.C. § 1903(4)(a), he was required
to produce evidence sufficient to show both that child was eligible for
membership in a federally recognized tribe and
that child was the biological child of a tribal member, 25 U.S.C. §
1903(4)(b). See
also Angus v. Joseph,
60 Or.App. 546, 549, 655 P.2d 208 (1982), rev.
den. 294 Or.
569, 660 P.2d 683, cert.
den. 464 U.S.
830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983). Although one could argue whether
there is evidence in the record as to the first issue, there is a total
lack of evidence as to the second. In fact, both parents testified that
they were not tribal members. In light of that gap in the evidence, the
trial court did not have a basis on which to conclude that ICWA applied,
and it was entitled to proceed with the adoption under state law. See,
e.g., State ex rel SOSCF v. Klamath Tribe,
170 Or.App. 106, 11 P.3d 701 (2000). Father *316
makes no argument that the termination **513
did not comport with state law, and, accordingly, we affirm.
Affirmed.
176 Or.App. 311, 31 P.3d
510
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