| (Cite
as: 177 Or.App. 318, 33 P.3d 1001)
Court
of Appeals of Oregon.
In
the Matter of Selana Lee Lucas, a Minor Child.
STATE
ex rel. STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES
and Selana Lee
Lucas,
Respondents-Cross-Respondents,
and
Confederated
Tribes of Siletz Indians, Respondent-Cross-Appellant,
v.
Aimee
Elizabeth LUCAS, Appellant-Cross-Respondent.
In
the Matter of Monica Ray Lucas, a Minor Child.
State
ex rel State Office for Services to Children and Families
and Monica Ray
Lucas,
Respondents-Cross-Respondents,
and
Confederated
Tribes of Siletz Indians, Respondent-Cross-Appellant,
v.
Aimee
Elizabeth Lucas, Appellant-Cross-Respondent.
In
the Matter of Eleezia Nicholl Lucas-Mata, a Minor Child.
State
ex rel State Office for Services to Children and Families
and Eleezia
Nicholl
Lucas-Mata, a Minor Child, Respondents-Cross-Respondents,
and
Confederated
Tribes of Siletz Indians, Respondent-Cross-Appellant,
v.
Aimee
Elizabeth Lucas, Appellant-Cross-Respondent.
J980891,
J980892, J980893; A112136 (Control), A112137, A112138
Argued and Submitted July
11, 2001.
Decided
Oct. 17, 2001.
**1002 *320
Liza J. Langford, Portland, argued the cause and filed the brief for appellant-cross-respondent.
Craig J. Dorsay, Portland,
argued the cause and filed the brief for respondent-cross-appellant
Confederated Tribes of Siletz Indians.
Daniel J. Casey, Assistant
Attorney General, argued the cause for respondent-cross-respondent State
Office for Services to Children and Families. With him on the brief were
Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Phillip T. Wiseman argued
the cause and filed the brief for respondents-cross-respondents Selana
Lee Lucas, Monica Ray Lucas and Eleezia Nicholl Lucas-Mata.
Before EDMONDS, Presiding
Judge, and ARMSTRONG and KISTLER, Judges.
*321
KISTLER, J.
Mother appeals from a
judgment terminating her parental rights to her three children pursuant
to ORS 419B.500 et
seq. and the
Indian Child Welfare Act (ICWA), 25 U.S.C. **1003
§ 1901 et
seq. The Confederated
Tribes of Siletz Indians cross-appeals, raising issues that parallel those
mother raises on appeal. On de
novo review,
we affirm on the appeal and on the cross-appeal.
Mother is an enrolled
member of the Siletz Indian Tribe. She has four children, the three oldest
of whom are the subjects of this case.
[FN1] The children
were born April 13, 1994, June 8, 1996, and September 9, 1998. They are
"Indian children" within the meaning of ICWA.
FN1.
The father of the eldest child remains the legal father. The father of
the middle child signed a voluntary relinquishment of his rights, and
the father of the youngest child had his rights terminated.
The State Office for
Services for Children and Families (SCF) had its first contact with the
family in August 1994, when the office received a report that mother was
neglecting her eldest, and at that time her only, child. Within the next
four years, SCF had six more contacts with the family, all resulting from
reports of drug use, neglect, and physical abuse. The last referral was
the result of the youngest child testing positive for methamphetamine
when born. All three children were taken into protective custody at that
time. After an initial hearing in September 1998, the children were placed
in foster homes and have remained there since. Shortly after the first
hearing, the tribe intervened in the proceedings pursuant to ICWA.
In October 1999, SCF
filed petitions to terminate mother's parental rights to all three children.
The petition alleged that mother was unfit due to criminal conduct, addiction,
failure to obtain suitable housing, emotional abuse, physical neglect,
and failure to present a viable plan for the return of the
children. The petition further alleged that, pursuant to ICWA, SCF had
made active efforts to provide remedial services and rehabilitative programs
to prevent the *322
break-up of the family but that those efforts had proved unsuccessful.
The case went to trial in December 1999.
[FN2]
FN2.
The trial consisted of five separate hearings: December 20, 1999; February
14, 2000; March 17, 2000; May 8, 2000; and September 18, 2000.
At trial, numerous witnesses
testified about mother's drug addiction, her poor parenting skills, and
the prognosis for the child who was born drug affected. The testimony
established that mother has been addicted to methamphetamine since the
age of 13. Both the tribe and SCF offered mother a range of services and
drug counseling, but mother failed to follow through with treatment for
any significant period of time. There were numerous instances in which
mother promised to go to drug treatment but did not go or in which mother
attended drug treatment for a brief time but left before the end of the
program. Shortly before the trial began, mother entered another rehabilitation
program. Although she ultimately transferred to a longer-term program,
she left against medical advice after six days. Finally, mother admitted
that she used methamphetamine while pregnant with her fourth child.
In December 1998, mother was arrested for shoplifting and drug possession.
A similar arrest followed in August 1999, when mother shoplifted merchandise
to exchange for drugs. She later spent time in jail for those crimes.
During the pendency of these proceedings, mother moved eight times, and
there were several periods of time when SCF did not know where she was
living. Mother signed two visitation agreements, granting her visits with
her children under an agreed-upon schedule. However, mother failed to
fulfill her portion of the visitation agreements, missing many of the
scheduled visits.
Medical professionals
testified that, as a drug-affected baby, the youngest child suffered withdrawal
symptoms, quit breathing on one occasion, suffered recurring ear infections,
and was constantly irritable. When the two older children arrived in foster
care, they had dirty faces and ears, had not been bathed for days, their
teeth were rotted, and their gums were diseased.
*323
In April 2000, after the majority of the trial had been completed, the
tribe filed a motion to transfer jurisdiction of the case to the tribal
court. Mother also moved to dismiss all petitions to terminate her parental
**1004
rights because the state had failed to present the testimony of a qualified
expert witness as required under ICWA. The trial court denied both motions
and terminated mother's rights to all three children.
On appeal, mother and the tribe raise multiple assignments of error. We
write only to address their arguments that the trial court erred in denying
the
motions to transfer jurisdiction and to dismiss the petitions to terminate
her parental rights because SCF failed to present the testimony of a qualified
expert witness. We have considered the other rulings to which mother and
the tribe assign error and affirm them without discussion.
Midway through the trial,
the tribe filed a motion to transfer jurisdiction over the two older children
to the tribe.
[FN3] Neither mother nor the state opposed the motion. However, the trial
court denied the motion because it was filed too late in the proceedings
and because it was not in the best interests of the children. Mother and
the tribe assign error to that ruling. They argue that, pursuant to ICWA,
the decision to deny a transfer of jurisdiction must be based on good
cause, which was lacking in this case. The state responds that the trial
court correctly denied the motion because the tribe's petition was filed
too late.
FN3.
The tribe orally moved to transfer jurisdiction on February 28, 2000.
It filed a motion to transfer jurisdiction on April 3, 2000. The tribe
did not request jurisdiction over the youngest child.
Section 1911(b) of ICWA
provides:
"In
any State court proceeding for the * * * termination of parental rights
to * * * an Indian child not domiciled or residing within the reservation
of the
Indian child's tribe, the court, in
the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe, absent
objection by either parent, upon the petition of either parent or the
Indian custodian or the Indian child's tribe[.]"
*324
25 U.S.C. § 1911(b) (emphasis added); see
also ORS 419B.100(6)(b)
(implementing ICWA). ICWA does not define "good cause." However,
the Bureau of Indian Affairs (BIA) has promulgated guidelines that set
forth circumstances that may constitute good cause. One of those circumstances
is that "[t]he proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file the petition
promptly after receiving notice of the hearing."
[FN4] 44 Fed Reg 67591 (1979). The commentary to the guidelines notes
that "[w]hen a party who could have petitioned earlier waits until
the case is almost complete to ask that it be transferred to another court
and retried, good cause exists to deny the request." Id.
at 67590. As the commentary explains, last-minute transfers have a disruptive
effect on the adjudicative process. See
id.
FN4.
Although we have declined to adopt the BIA guidelines, we have recognized
that they may be instructive. See
State ex rel. Juv. Dept. v. Charles,
70 Or.App. 10, 17 n. 3, 688 P.2d 1354 (1984), rev.
dismissed 299
Or. 341, 701 P.2d 1052 (1985).
In this case, the tribe
received notice of the dependency action and intervened in October 1998.
It did not request a transfer of jurisdiction until April 2000, 18 months
after first receiving notice. The request was made between the third and
the fourth hearing, approximately four months into the trial, when nearly
all the evidence had been heard. We agree with the BIA guidelines that
late requests for a transfer constitute good cause for denying the request.
See Kerotest
Manufacturing v. C-O-Two Fire Equipment Co.,
342 U.S. 180, 183, 72 S.Ct. 219, 96 L.Ed. 200 (1952) (recognizing the
need to give due "regard to conservation of judicial resources and
comprehensive disposition of litigation" in ruling on similar motions).
Other jurisdictions have held that a similar delay in requesting a transfer
constitutes good cause to deny it. See,
e.g., Matter of Wayne R.N.,
107 N.M. 341, 343-44, 757 P.2d 1333, 1335-36 (1988) (upholding denial
of request to transfer that was made on the morning of trial, six months
after the tribe was served with notice); In
the Interest of J.W.,
528 N.W.2d 657, 660 (Iowa App.1995) (upholding denial of request to transfer
because the case was at an advanced stage and petition to transfer was
not filed until seven months after tribe **1005
received notice); Matter
of Dependency and Neglect of A.L.,
442 N.W.2d 233, 237 (S.D.1989) (upholding *325
denial of request to transfer due to the untimeliness of the petition,
filed approximately one year after tribe received notice).
We hold that good cause existed to deny the motion to transfer jurisdiction
to the tribe.
Mother and the tribe also
assign error to the trial court's denial of her motion to dismiss the
petitions. They argue that the state failed to fulfill its requirement
under ICWA to produce a qualified expert witness to testify that mother's
continued custody of the children posed a risk of emotional or physical
harm to them. The state responds that a number of witnesses satisfied
this requirement. Before turning to the parties' arguments, it is helpful
to clarify the governing standard.
Section 1912(f) of 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 Indian custodian
is likely to result in serious emotional or physical damage to the child."
25 U.S.C. § 1912(f) (emphasis added). See
also 419B.521(4)
(implementing ICWA). The question whether the state has complied with
the expert witness requirement of section 1912(f) presents two separate
issues. The first is what qualifications must an expert witness possess.
The second is what sort of testimony must the expert provide to comply
with the statute.
On
the first issue, the BIA has promulgated nonbinding guidelines. According
to those guidelines, the witnesses who are most likely to meet the requirements
for a qualified expert witness are:
"(i)
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization
and childrearing practices[; or]
"(ii)
A lay expert having substantial experience in the delivery of child and
family services to Indians, and extensive knowledge of prevailing social
and cultural standards *326
and childrearing practices within the Indian child's tribe[; or]
"(iii)
A professional person having substantial education and experience in the
area of his or her specialty."
44 Fed Reg 67593.
[FN5] We have found those guidelines instructive in answering the first
question-what qualifications must an expert possess. See
State ex rel. SCF v. Amador,
176 Or.App. 237, 242-43, 30 P.3d 1223 (2001).
FN5.
Where cultural bias is not implicated, the expert witness need not possess
special knowledge of Indian life. State
ex rel. Juv. Dept. v. Tucker,
76 Or.App. 673, 683, 710 P.2d 793 (1985), rev.
den. 300 Or.
605, 717 P.2d 1182 (1986). Both parties concede that this case is not
one involving cultural bias.
The text of section 1912(f) provides the answer to the second question--
what sort of testimony must the expert provide to comply with ICWA. See
Oregon Department of Revenue v. ACF Industries, Inc.,
510 U.S. 332, 339-46, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994) (in interpreting
federal statutes, the first step is to examine the statute's text and
structure and then, if necessary, its legislative history). Before a court
may terminate parental rights under ICWA, it must determine "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(f). The court's determination must be "supported
by evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses." Id.
The expert need not express a conclusion on the ultimate question that
the trial court must decide. Rather, under the plain language of the statute,
it is sufficient if the expert's testimony supports the court's determination
that continued custody is likely to result in serious emotional or physical
damage to the child. Id.
As explained below, the state produced numerous witnesses capable of satisfying
these requirements.
At trial, Dr. Robyn Blair,
a psychologist who specializes in chemical dependency, testified about
the psychological evaluation she performed on mother. Blair's education
and **1006
experience in clinical psychology date back 15 years. Blair's primary
diagnosis of mother was addiction. She believed
that, while mother alone had a good prognosis for recovery if she stayed
in a structured, rigid program, the *327
prognosis would drop significantly if mother regained custody of her children.
Blair testified that mother's risk of relapse would be high if she were
left to care for a drug-addicted baby. Blair stated that the best prognosis
would be for mother to deal with the baby whom mother was carrying at
the time of trial (and who is not the subject of this proceeding), and
that baby only. Blair determined that mother did not have the parenting
skills to parent the youngest child, who has extensive needs.
The youngest child's
pediatrician, Dr. Sudha Chandrasekhar, has approximately 11 years of pediatric
medical experience. Chandrasekhar testified that child would potentially
be at risk of being abused if she went back to an environment where mother
was using drugs. Moreover, when told that mother had been using drugs
during her fourth pregnancy, Chandrasekhar testified that an environment
where there was drug use was the least appropriate environment to which
to return child. The physician also testified that child was going to
need an environment where someone pays very close attention to her.
Maryann Scheck also testified
at the trial. Until her retirement, Scheck had been a nurse for 39 years
and had worked in outpatient drug treatment programs for 23 years. She
testified that, given the length of time mother has used drugs, the young
age at which she started, and the short time she
has been in treatment, mother has a "very guarded prognosis."
She stated that mother's chance of recovery is highest when she is responsible
only for herself. Scheck also testified that mother's recovery would likely
take one to two years.
Frank Petersen, a former
Indian Child Welfare Family Advocate for the Siletz tribe, testified as
well. His testimony established that he had worked for the tribe for 18
years as a drug and alcohol counselor, programs manager, and family advocate.
He is recognized by the tribe as being knowledgeable in tribal customs,
including knowledge of social and cultural standards relating to child
rearing practices within the tribe. Petersen testified that mother's behavior
as a parent is not culturally appropriate within the Siletz tribe. If
the neglect and drug addiction issues had arisen while the children lived
on the reservation, Petersen believed *328
that the tribe would have taken the children into protective custody.
He stated that both the tribe and the state had offered remedial services
but that mother did not take advantage of them. He believed that mother
had not demonstrated culturally appropriate parenting in rearing the children
and, as a result of her parenting, the children had suffered adversely.
In his words, mother "has not acted in the best interests of these
children."
In light of this evidence,
mother's argument that there were no qualified expert witnesses fails.
Blair, Chandrasekhar and Scheck are all professionals having
substantial education and experience in their areas of specialty. Each
gave testimony that supported the trial court's determination that mother
would likely continue to cause her children serious harm if she were to
regain custody. Moreover, Petersen is an expert who has substantial experience
in the delivery of child and family services to Indians. The tribe acknowledges
that he has extensive knowledge of prevailing social and cultural standards
and childrearing practices within the tribe. Like the other witnesses,
his testimony supported the determination that mother's continued custody
would cause the children physical and emotional harm. The record included
"qualified expert testimony," as required by ICWA, that supports
the termination of mother's parental rights.
Affirmed on appeal and
cross-appeal.
177 Or.App. 318, 33 P.3d
1001
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