| (Cite
as: 76 Or.App. 673, 710 P.2d 793)
Court
of Appeals of Oregon.
In
the Matter of Leilani Tucker, a child.
STATE
of Oregon ex rel JUVENILE DEPARTMENT OF LANE COUNTY and
Children's
Services
Division, Respondents-Cross-Respondents,
Leilani
Tucker, Respondent-Cross-Appellant,
v.
Faith
Marie TUCKER, Appellant-Cross-Respondent.
81-128;
CA A31461.
Argued and Submitted April
12, 1985.
Decided
Dec. 4, 1985.
**794 *674
Terrance P. Gough, Eugene, argued the cause for appellant-cross-respondent
Faith Marie Tucker. With him on briefs was Thomsen, Gough & Gough,
Eugene.
Linda J. DeVries, Asst.
Atty. Gen., Salem, argued the cause for respondents-cross-respondents
Juvenile Dept. and Children's Services Div. With her on brief were Dave
Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
William A. Furtick, Eugene,
argued the cause and filed brief for respondent-cross-appellant.
Before BUTTLER, P.J.,
and WARREN and ROSSMAN, JJ.
*675
ROSSMAN, Judge.
The state brought this
action to terminate mother's parental rights. The father is unknown. The
court determined that the child is an "Indian child," according
to the Indian Child Welfare Act, 25 U.S.C. § 1901 et
seq. (ICWA),
and that, therefore, the termination proceedings are governed by the ICWA,
as well as by ORS 419.523, 419.525 and 419.527. Mother appeals from an
order terminating her parental rights, contending that the ICWA was not
complied
with in several respects. The child cross-appeals, arguing that it was
error to apply the ICWA, because she is not an Indian child. We affirm.
On March 17, 1981, Children's
Services Division (CSD) petitioned the juvenile court, alleging that the
child, then two and one-half years old, was within the jurisdiction of
the court, because mother had failed to provide for her well-being. ORS
419.476(1)(e); 419.482(1). The petition identified mother's mental and
emotional state as the cause of her failure to provide for the child.
A temporary commitment order was granted the following day. ORS 419.482(3).
On July 2, 1981, mother
admitted the allegations of the March 17 petition, which had been renewed
in an amended petition dated July 1, thus empowering the court to exercise
dispositional authority over the child. ORS 419.500(1); 419.505. The child
was then returned to mother under the supervision of CSD. Mother had the
child only a few days, however, before returning her to CSD, which in
turn requested another order of temporary commitment. On January 22, 1982,
the court held a dispositional hearing and, on January 25, it made the
child a ward of the court, placed her in the legal custody of CSD and
ordered CSD to place the child in foster care. ORS 419.507(1); 419.507(1)(b).
**795
In the spring of 1982, mother became aware that the ICWA might apply to
her case, and on November 5, 1982, she moved the court to "invalidate"
the foster care placement for failure to apply the ICWA. On December 14,
1982, having
considered mother's petition, the court granted a continuance to allow
the parties additional time to gather and present evidence on whether
the child is an Indian child, as defined by the ICWA. There is no record
that the court ever ruled on the November 5 motion.
*676
On April 4, 1983, the state filed a petition to terminate mother's parental
rights.
[FN1] ORS 419.523; 419.525. The parties continued to gather information
on whether the child is an Indian child and, on December 13, 1983, the
court determined that the child is an Indian child for purposes of the
ICWA. On March 21, 1984, mother petitioned the court to "invalidate"
the termination proceedings, again arguing that the state had failed to
comply with the ICWA. That petition was denied on March 27, 1984, the
day trial began.
FN1.
The petition alleged, in part:
"4)
The parental rights of Faithe [sic
] Marie Tucker to the above-named child, should be terminated on the grounds
that Faithe [sic
] Marie Tucker is unfit by reason of conduct or condition seriously detrimental
to the child and integration of the child into her home is improbable
in the foreseeable future due to conduct or conditions not likely to change,
to wit:
"a)
the mother's relinquishment of the child to the care and custody of public
child caring agencies for substantial periods of time with little or no
contact with the child during those times.
"b)
Emotional or mental illness of the mother.
"c)
Lack of effort of the mother to adjust her circumstances, conduct or conditions
or make return of the child possible or failure of the mother to effect
a lasting adjustment after reasonable efforts by available social service
agencies for such extended duration of time that it appears reasonable
that no lasting adjustment can be effected.
"5)
The parental rights of Faithe [sic
] Marie Tucker should be terminated because she has failed or neglected
without reasonable and lawful cause to provide for the basic physical
and psychological needs of the child for one year prior to the filing
of this petition as shown by:
"a)
The mother's failure to provide care or pay a reasonable portion of substitute
physical care and maintenance while the child has been lodged with others."
These
allegations state grounds for termination under ORS 419.523(2) and (3).
On March 30, 1984, the
court found that the state had proved the allegations in the petition
beyond a reasonable doubt and that it was in the best interests of the
child to terminate mother's parental rights. The court also found beyond
a reasonable doubt that rehabilitative efforts were made to prevent the
breakup
of the family and that mother's continued custody of the child would cause
the child serious emotional damage. The court ordered termination of mother's
parental rights.
Mother first contends
that the court erred when it denied her petition to invalidate the foster
care placement, *677
arguing that the state and the court failed to comply with the ICWA during
the jurisdictional and dispositional proceedings that led to placement.
[FN2] The state concedes that the ICWA was not complied with but contends
that the 1982 placement need not be invalidated, because the ICWA did
not apply to those proceedings. We agree with the state.
FN2.
It is not clear whether mother refers here to the November 5, 1982, petition
to invalidate foster care placement, which, apparently, the court never
ruled on, or the March 21, 1984, petition to invalidate the termination
proceedings. In the latter petition, she seems to have renewed her challenge
to the foster care placement. This uncertainty does not affect our discussion
of mother's argument. The petitions were brought under 25 U.S.C. §
1914, which provides:
"Any
Indian child who is the subject of any action for foster care placement
or termination of parental rights under State law, any parent or Indian
custodian from whose custody such child was removed, and the Indian child's
tribe may petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision of sections
1911, 1912, and 1913 of this title."
The ICWA applies to involuntary
proceedings for foster care placement or termination of parental rights
when the court **796
"knows or has reason to know that an Indian child is involved."
25 U.S.C. § 1912(a); 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).
25 U.S.C. § 1903
provides, in part:
"(4)
'Indian child' means any unmarried person who is under age 18 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;
"
* * *
"(8)
'Indian tribe' means any Indian tribe, band, nation, or other organized
group or community of Indians recognized as eligible for the services
provided to Indians by the Secretary [of the Department of the Interior]
because of their status as Indians, including any Alaska Native village
as defined in section 1602(c) of Title 43 * * *."
Before a parent or a tribe
qualifies for the benefit of the ICWA, it must be established that the
child meets the definitional criteria. Angus
v.
Joseph, supra.
Here, there was no determination that the child was an Indian child within
the meaning of the ICWA until December 12, 1983, approximately *678
two years after the dispositional order of foster care placement. Therefore,
the proceedings underlying the placement cannot be invalidated for failure
to comply with the ICWA, unless the court had reason to know during those
proceedings that the child was an Indian child.
The proceedings began
on March 17, 1981. On April 27, 1981, CSD wrote to Alaskan authorities
to obtain information concerning mother's Indian status. On May 5, 1981,
the Bristol Bay Native Association confirmed that mother is a three-eighths
Alaskan native. Concerning the child's status, they stated:
"According
to the Alaska Claims Settlement Act anyone born after December 18, 1971,
cannot be enrolled as a shareholder. Therefore, [the child] is not a shareholder
but is the dependent of an Alaskan native."
On September 18, 1981,
CSD contacted the United States Bureau of Indian Affairs (BIA), which
responded on September 21, 1981:
"In
view of the fact that the father is unknown, we researched the records
of the mother * * *. The Alaska enrollment office advised me that [mother]
is three-eighths Aleut and a registered member of the Bristol Bay Corporation.
[The child's] blood degree would be three-sixteenths Aleut. The criteria
[sic
] for enrollment is one-quarter degree Indian blood; therefore, [the child]
would not be eligible for enrollment nor is she eligible for Bureau services.
"Because
[the child] is not eligible for enrollment, the provisions of P.L. 95-608,
Indian Child Welfare Act, do not apply."
At that point, CSD concluded that the child was not an Indian child for
purposes of the ICWA, and that conclusion was supported by the record
as it existed at that time.
[FN3]
FN3.
The "guidelines for state courts," 44 Federal Register 67584,
67586 (1979), identify criteria for determining that a child is an Indian
child:
"(a)
When a state court has reason to believe a child involved in a child custody
proceeding is an Indian, the court shall seek verification of the child's
status from either the Bureau of Indian Affairs or the child's tribe.
* * *
"
* * *
"(b)(i)
The determination by a tribe that a child is or is not a member of that
tribe, is or is not eligible for membership in that tribe, or that the
biological parent is or is not a member of that tribe is conclusive.
"(ii)
Absent a contrary determination by the tribe that is alleged to be the
Indian child's tribe, a determination by the Bureau of Indian Affairs
that a child is or is not an Indian child is conclusive." Although
the "guidelines" do not have legislative effect, 44 Federal
Register 67584 (1979), they are helpful, and we agree that, in the absence
of a contrary determination by the tribe, a determination by the BIA concerning
the child's Indian status is conclusive.
*679
No other evidence was presented to CSD or the court before the final dispositional
order on January 22, 1982. Therefore, we hold that the ICWA did not apply
to the jurisdictional and dispositional proceedings **797
and that the court did not err in denying mother's petition to set aside
the court's order of foster care placement.
We turn now to the child's
argument that the court erred in finding that she is an Indian child and
in applying the ICWA.
As noted above, on November
5, 1982, mother filed a petition to invalidate the foster care placement,
asserting that the child was an Indian child. The court reserved its determination
through two hearings and allowed the parties to obtain further information
on that issue. At the second hearing, on March 2, 1983, mother said that
she was waiting for a response from the Chignik village in Alaska, which
was her ancestral village. Before that time, the state did not know the
name of mother's ancestral village. On March 7, 1983, the Attorney General
wrote to the Chignik Traditional Council to request its assistance in
determining whether the child was a village member or was eligible
for membership. The department also advised the council that the child
was a ward of the juvenile court and that it had a right to intervene.
The return receipt indicated that the village council president received
the letter on March 15, 1983. There was no response.
On December 7, 1983,
the president was deposed by telephone. She testified that the village
council had concluded that the child was eligible for village membership.
On December 12, 1983, the court determined that the child is an Indian
child, as defined by the ICWA. The child contends that that determination
was improper, because she does not meet the definition of "native"
under the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et
seq (ANCSA).
*680
We reject the child's argument, because it is irrelevant whether she is
a "native," as defined by ANCSA. The provisions of ANCSA generally
apply to issues regarding
"
* * * compensation for the extinguishment of claims to land, and shall
not be deemed to substitute for any governmental programs otherwise available
to the Native people of Alaska as citizens of the United States and State
of Alaska." 43 U.S.C. § 1626(a).
ANCSA created profit-making business corporations to manage lands and
funds distributed under the Act. ANCSA did not affect the ability of traditional
village governments to carry out their sovereign powers. See
generally Cohen,
Handbook
of Federal Indian Law
752-56 (1982). One of those powers is to determine membership criteria
and to decide who meets those criteria.
It is undisputed that,
as an Alaskan native and a shareholder in an ANCSA corporation, mother
is a member of an Indian tribe. It is also undisputed that the native
village of Chignik has determined that the child is eligible for membership
in the village. The only issue, therefore, is whether that determination
supports the court's ruling that the child is an Indian child, even though
the village does not have established membership criteria.
In Angus
v. Joseph, supra,
60 Or.App. at 552-53, 655 P.2d 208, we stated:
"[T]he
ICWA itself contains no definition of membership in an Indian tribe. In
the absence of a congressional definition, an Indian tribe has authority
to determine its own membership. * * * Formal membership requirements
differ from tribe to tribe, as do each tribe's method of keeping track
of its own membership. There is thus no one method of proof of membership,
but the testimony of a representative of the tribal government would be
probative evidence of membership." (Citations omitted.)
We conclude that the testimony of the president of the native village
council was sufficient to prove that the child is eligible for membership
in an Indian tribe and that, therefore, she is an Indian child.
[FN4]
FN4.
The child argues that the absence of formal membership criteria violates
her due process rights. We do not address that argument, because it was
not raised at trial. State
v. Evans, 290
Or. 707, 713-14, 625 P.2d 1300 (1981).
*681
**798
We now return
to mother's appeal and consider her second contention: that the court
erred in terminating her parental rights. That contention is based on
several arguments. First, she argues that the state made no effort to
involve her tribe in the proceedings. We disagree.
25 U.S.C. § 1912(a)
provides, in part:
"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 * * * termination of parental rights to, an Indian child shall notify
* * * the Indian child's tribe, by registered mail with return receipt
requested, of the pending proceedings and of their right of intervention.
* * * "
As noted above, when the state learned the name and location of mother's
ancestral tribe, it wrote to the village council. That letter requested
the council's assistance in determining whether the child was eligible
for village membership and advised it that the child was a ward of the
court and its right to intervene at any stage of the proceedings. The
letter was received by the village council president on March 15, 1983,
approximately one year before trial in the termination proceedings. There
was no response to the letter. Further,
during the deposition of the president on December 6, 1983, she stated
that the tribe did not intend to intervene. Finally, on January 20, 1984,
the state provided formal notice by certified mail to the village council
of the pendency of the termination proceedings. The notice was received
by the village council president, but again the tribe chose not to intervene.
We hold that the state complied with the notice requirements of 25 U.S.C.
§ 1912(a).
Mother next argues that
the state made no effort to provide her with remedial services and rehabilitative
programs. 25 U.S.C. § 1912(d) provides:
"Any
party seeking to effect * * * 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."
The court found that CSD had provided remedial services designed to prevent
the breakup of the family and that they were unsuccessful. The evidence
in the record supports the court's conclusion.
*682
Finally, under
her second assignment, mother argues that the order terminating parental
rights was not supported by evidence beyond a reasonable doubt, because
the state did not present qualified expert testimony, as required by the
ICWA. She contends that the experts were not qualified, because
they possessed no special knowledge of the social and cultural aspects
of Indian life. The state does not argue persuasively that the experts
did possess special knowledge of Indian life, but it contends that they
were nevertheless qualified, because they had the necessary expertise
to establish beyond a reasonable doubt that mother's continued custody
of the child would likely result in serious physical or emotional damage
to the child, which is the proof required by the ICWA for termination
of parental rights.
25 U.S.C. § 1912(f)
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."
In State ex
rel. Juv. Dept. v. Charles,
70 Or.App. 10, 15, 688 P.2d 1354 (1984), rev.
allowed 298
Or. 427, 698 P.2d 48, petition
dismissed 299
Or. 341, 701 P.2d 1052 (1985), a child custody proceeding under the ICWA,
we interpreted the meaning of the phrase "qualified expert witness"
in 25 U.S.C. § 1912(e).
[FN5] The phrase has the **799
same meaning in subsection (f). In Charles,
"two experienced social workers" testified for the state in
support of foster care placement; neither possessed specialized knowledge
of the social or cultural aspects of Indian life. The mother's expert,
a board-certified psychiatrist, who had been a consultant to the Urban
Indian Council, provided contrary testimony. We held that, given the testimony
of the mother's expert, the testimony of the state's *683
witnesses did not provide the clear and convincing evidence necessary
to order foster care placement. We also stated that, as a "general
proposition * * * an expert witness within the meaning of that term in
25 USC § 1912(e) must possess special knowledge of social and cultural
aspects of Indian life." 70 Or.App. at 16 n. 3, 688 P.2d 1354.
FN5.
25 U.S.C. § 1912(e) provides:
"No
foster care placement may be ordered in such proceeding 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."
We do not question the
holding in Charles
or its statement of a general proposition. However, we conclude that this
case presents an exception. As noted in Charles,
the House Report for the Indian Child Welfare Act identifies the problem
sought to be resolved by the "qualified expert witness" provision:
"The
courts tend to rely on the testimony of social workers who often lack
the training and the insights necessary to measure the emotional risk
the child is running at home. In a number of cases, the AAIA [Association
of American Indian Affairs] has obtained evidence from competent psychiatrists
who, after examining the defendants, have been able to contradict the
allegations offered by the social workers. Rejecting the notion that poverty
and cultural differences constitute social deprivation and psychological
abuse, the association argues that the state must prove that there is
actual physical or emotional harm resulting from the acts of the parents."
70 Or.App. at 16 n. 3, 688 P.2d 1354.
The problem was identified as cultural bias, and the solution was to require
qualified expert witnesses to provide the testimony necessary to prove
that continued custody of the parents or Indian custodians is likely to
result in serious physical or emotional damage to the child. Consistently
with the purpose of the "qualified expert witness" provisions,
the "guidelines for state courts," 44 Federal Register 67584
(1979), promulgated by the BIA, state that the persons who are "most
likely" to meet the requirements for a qualified expert witness possess
special knowledge of the social and cultural aspects of Indian life. 44
Federal Register 67593. That is the general proposition the Charles
court agreed with.
However, when cultural
bias is clearly not implicated, the necessary proof may be
provided by expert witnesses who do not possess special knowledge of Indian
life. Here, the issue before the court was whether the continued custody
of the child by mother would result in serious emotional harm to the child
because of mother's mental illness. There was no dispute *684
about that condition or its severity. Termination or not had nothing to
do with mother's fitness to care for the child according to the cultural
dictates of her tribe. We hold that the state's experts provided proof
beyond a reasonable doubt that the continued custody of the child by mother
would inflict severe emotional damage on the child.
In her last assignment,
mother contends that the court erred when it applied the "best interests
of the child" standard to a termination proceeding governed by the
ICWA. We believe that mother has misinterpreted the court's ruling. The
court ruled:
"Counsel
argues that the court should not consider the best interests of the child
but should consider the best interests of the tribe. I would refer counsel
to section 3 of 25 USC 1902 which is essentially the preamble to the Act
when it says, 'the Congress hereby declares **800
that it is the policy of this nation to protect the best interests of
Indian children * * *.' That's the first thing it says.
"So
I would think that that's the first obligation upon the court, which is
the obligation of the court under the juvenile code to protect the best
interests
of the child '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 * * *.' "
The court correctly identified
the relationship between the juvenile code and the ICWA. The best interests
of a child are pertinent to a termination proceeding governed by federal
and state law. 25 U.S.C. § 1902 provides:
"The
Congress hereby declares that 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 value of Indian culture, and by providing for assistance
to Indian tribes in the operation of child and family service programs."
The policy expressed in section 1902 is implemented by the minimum federal
standards for child custody and termination proceedings. The juvenile
court realized that considering the best interests of the Indian child
and applying the minimum *685
federal standards of the ICWA were consistent obligations. The court did
not err in its ruling.
Affirmed on appeal; affirmed
on cross-appeal.
76 Or.App. 673, 710 P.2d
793
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