Department of Human Services v. J. G.
260 Or. App. 500
Or. Ct. App.2014Background
- Mother and child are enrolled members of the Klamath Tribe; child has been in foster care since 2009 and in the current foster home since 2010.
- Juvenile court approved a permanency plan of guardianship in 2011 (court found DHS had made active efforts and mother had not progressed); plan continued in 2012.
- In 2013 DHS moved under ORS 419B.366 to establish a durable guardianship with the foster parent; the juvenile court granted the motion and entered a guardianship judgment with findings by clear and convincing evidence (including that continued custody would cause serious emotional harm).
- Mother appealed, arguing the court erred by failing to include an ICWA §1912(d) “active efforts” finding in the guardianship judgment; she had not preserved that argument below.
- The court addressed (1) whether 25 U.S.C. §1914 permits raising ICWA claims for the first time on appeal (i.e., whether §1914 preempts Oregon’s preservation rule), and (2) whether a durable guardianship is a “foster care placement” under ICWA and, if so, whether an ‘‘active efforts’’ finding was required at the guardianship hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1914 allows raising ICWA violations on appeal despite state preservation rules | §1914 authorizes parents to petition “any court of competent jurisdiction” to invalidate foster-care/termination actions for ICWA violations; that permits appellate review even if unpreserved | Oregon’s preservation rule should control; §1914 does not expressly preempt state preservation rules | §1914 preempts Oregon’s preservation rule under conflict (obstacle) preemption; mother may raise the ICWA claim on appeal |
| Whether a durable guardianship under ORS 419B.366 is a “foster care placement” under ICWA (25 U.S.C. §1903(l)(i)) | Guardianship is a placement in the home of a guardian where parent cannot have child returned on demand; ICWA’s definition covers such placements, including subsequent placements | Guardianship is not a “temporary” foster care placement and thus not covered; W. H. F. interpreted ICWA to limit active-efforts to other contexts | Durable guardianship qualifies as a “foster care placement” under ICWA; DHS’s contrary reading would except an entire class of placements from ICWA and is rejected |
| Whether the juvenile court was required to make an "active efforts" finding in the guardianship judgment itself | Because guardianship is a foster care placement, ICWA §1912(d) required a fresh active-efforts finding when the guardianship was ordered | DHS: active-efforts requirement had been satisfied earlier at the permanency hearing and need not be repeated in the later guardianship order | Court held DHS satisfied §1912(d) at the 2011 permanency hearing (when plan of guardianship was approved); ICWA does not require repeating the active-efforts finding in the subsequent guardianship judgment |
| Standard of appellate review requested by mother (de novo) | Mother sought de novo review, arguing guardianship was effectively termination-like and ICWA issues justify de novo review | DHS argued against de novo; court presumes against de novo and reserves it for exceptional circumstances | Court declined de novo review; reviewed legal conclusions for errors of law and accepted factual findings supported by any evidence |
Key Cases Cited
- Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (U.S. 1989) (ICWA enacted to protect Indian families and tribes; states historically contributed to removals)
- Crosby v. National Foreign Trade Council, 530 U.S. 363 (U.S. 2000) (analysis of preemption and how to identify obstacles to federal objectives)
- Felder v. Casey, 487 U.S. 131 (U.S. 1988) (federal causes of action cannot be defeated by state procedural forms)
- Gade v. National Solid Wastes Management Assn., 505 U.S. 88 (U.S. 1992) (state law preemption can occur where state law interferes with federal methods)
- Pliva, Inc. v. Mensing, 564 U.S. 604 (U.S. 2011) (illustrates impossibility preemption framework)
- Dept. of Human Services v. W. H. F., 254 Or App. 298 (Or. Ct. App. 2012) (discussed scope of §1912(d) and whether active-efforts required in certain non-termination proceedings)
- Dept. of Human Services v. N. S., 246 Or App. 341 (Or. Ct. App. 2011) (standard for appellate review in juvenile proceedings)