Dept. of Human Services v. T. J.
302 Or. App. 531
Or. Ct. App.2020Background
- Infant T (4 months) is eligible for enrollment in the Klamath Tribes through father; ICWA therefore applies.
- In May 2019 father, intoxicated, assaulted mother in the small apartment; the children woke during the incident, T was asleep in another room; father was convicted of fourth-degree assault (domestic violence) and subject to a no-contact order.
- Mother initially denied/ minimized the assault, expressed wanting father to return, but later engaged in services and reported 30 days sobriety by the hearing; father had a history of alcohol-fueled assaults and denied culpability while reengaging in treatment.
- DHS removed all children and filed a dependency petition alleging risk from parents’ domestic violence and failure to remediate; the juvenile court asserted jurisdiction over both parents and ordered T placed in foster care.
- Father appealed, challenging (1) jurisdictional basis as to him and (2) the out-of-home placement of T under ICWA §1912(e).
Issues
| Issue | DHS's Argument | Father's Argument | Held |
|---|---|---|---|
| Jurisdiction over father based on domestic violence | Father’s intoxicated assault in the home created a current, nonspeculative threat to infant T (vulnerability, proximity, father’s history and denial) | Single incident; T was asleep and not exposed; parents were complying with no-contact order and services—risk speculative | Affirmed: evidence sufficed to support jurisdiction (court assumed ICWA’s heightened standard and found record adequate) |
| Burden of proof for jurisdiction when ICWA applies | Preponderance of the evidence is enough for jurisdictional findings | ICWA requires clear and convincing evidence for findings that support foster placement | Court assumed (without deciding) that ICWA’s clear-and-convincing standard applied but found the record sufficient even under that standard |
| Foster-care placement under ICWA §1912(e) as to mother (likely to result in serious emotional or physical damage) | Mother’s minimization of the violence and history with abusive partners made return likely to harm T | Mother had engaged in services, maintained sobriety, had no contact with father at hearing; DHS’s inference of likely harm was speculative | Reversed placement: DHS failed to prove by clear and convincing evidence (and expert testimony) that returning T to mother was likely to cause serious emotional or physical damage |
Key Cases Cited
- Dept. of Human Services v. D. W. M., 296 Or App 109 (comparative case on domestic violence-based jurisdictional standard)
- Dept. of Human Services v. C. M., 284 Or App 521 (domestic violence can place children at risk even if they are not aware of it)
- Dept. of Human Services v. K. C. F., 282 Or App 12 (remedial services and changed behavior relevant to assessing risk from domestic violence)
- Dept. of Human Services v. N. P., 257 Or App 633 (standard of review for juvenile court findings on dependency)
- Dept. of Human Services v. J. F. D., 255 Or App 742 (review principles for juvenile dependency and factual findings)
- Dept. of Human Services v. M. Q., 253 Or App 776 (credibility findings do not necessarily supply affirmative evidence of ongoing risk)
- Quinn v. Walters, 320 Or 233 (BIA guidelines are instructive for interpreting ICWA requirements)