Department of Human Services v. S. R. H.
2016 WL 2898479
Lane Cty. Cir. Ct., O.R.2016Background
- Two Indian children (A and J) were removed in Feb 2011; DHS placed them with foster parents who became prospective adoptive guardians.
- DHS records contained a 2004 Karuk Tribe notation for mother, but the Karuk Tribe then informed DHS mother and her children were not tribal members; that negative response remained relevant in 2011.
- At removal and initial shelter, mother declined to complete ICWA forms and later (June 2011) signed a DHS form denying Native ancestry; mother did not obtain an enrollment card until May 2012 and did not notify DHS.
- Court assumed jurisdiction May 9, 2011 (reunification plan) and changed plan to APPLA June 19, 2012; ICWA was not invoked at those times in the juvenile court proceedings.
- Karuk Tribe later determined (Oct 2013) that mother and the children were "Enrolled Descendant Tribal Members," DHS thereafter treated the children as Indian children; mother moved to dismiss in 2014 alleging ICWA violations.
- Juvenile court (and appellate court) found ICWA did not apply at the May 2011 and June 2012 benchmarks, denied dismissal, held no retroactive ICWA application required, and upheld continuation of APPLA pending tribal input.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juvenile court should have dismissed jurisdictional petitions for ICWA noncompliance because DHS/ court "knew or had reason to know" in Feb–May 2011 | Mother: DHS had constructive knowledge in 2011 (database Karuk flag; mother said she had a membership card) so ICWA applied and proceedings are void for using preponderance standard | DHS: 2004 tribal response disconfirmed membership; mother refused/failed to complete ICWA forms until later; no prima facie showing of Indian child status in 2011 | Denied dismissal — record did not establish DHS/court knew or should have known in 2011, so ICWA did not apply then |
| Whether juvenile court must make an ICWA "active efforts" finding for the June 2012 change to APPLA | Father: Once children later found to be Indian, court must revisit June 2012 APPLA change and make active efforts finding under 25 U.S.C. §1912(d) | DHS: ICWA was not triggered in June 2012, so only state "reasonable efforts" standard applied; later ICWA applicability does not operate retroactively | No remand — ICWA was not applicable in June 2012, so active efforts were not required then and need not be retroactively imposed |
| Whether continuation of APPLA (instead of adoption) without Tribe’s express position satisfied ORS 419B.476(5)(f) compelling-reasons requirement | Children/DHS: APPLA is least-preferred plan; absent tribal objection, court should have changed to adoption given bonding and foster parents’ willingness | Court/DHS: Court properly deferred adoption to obtain direct tribal input given ICWA purposes and evidence the Tribe had not taken a position; tribe’s preference for relative placement weighed in | Affirmed — court’s decision to defer change to adoption and continue APPLA was reasonable given totality of circumstances and need for tribal input |
| Whether later finding that children are Indian requires invalidation of earlier proceedings or different standards applied retroactively | Mother: Later tribal status renders prior proceedings invalid for failure to follow ICWA standards | State: Later recognition of Indian status does not retroactively impose ICWA obligations on past actions where court lacked reason to know earlier | Held for State — later ICWA applicability does not retroactively invalidate prior decisions when court did not know or have reason to know earlier |
Key Cases Cited
- Dept. of Human Services v. N. P., 257 Or. App. 633 (discussing standard of review and viewing evidence in light most favorable to juvenile court)
- State ex rel. Juvenile Dept. v. Tucker, 76 Or. App. 673 (1985) (later finding of Indian status does not render prior non-ICWA proceedings retroactively invalid)
- Dept. of Human Services v. J. G., 260 Or. App. 500 (discussing when ICWA active-efforts requirement applies to changes in foster-care placement)
- Quinn v. Walters, 320 Or. 233 (1994) (BIA Guidelines not binding but are important guidance for ICWA application)
- Hofmann v. Anderson, 176 Or. App. 311 (burden on party asserting ICWA applicability to make prima facie showing)