Angus, Application of

• Decision Date: 01 March 1983
• Docket Number: No. D8204-68177,D8204-68177
• Citation: 655 P.2d 208,60 Or.App. 546
• Parties: In the Matter of the Application of Tracy ANGUS and Cyrus M. Waters for a Writ of Habeas Corpus. Peggy Doreen ANGUS next friend of Tracy Angus and Susan Rose Waters Case next friend of Cyrus M. Waters, Respondents, v. Thomas P. JOSEPH; Edward J. Woodruff and Mary C. Woodruff, Appellants, Sitka Community Association, Intervenor-Respondent. ; CA A25245.
• Court: Oregon Court of Appeals

Page 208

655 P.2d 208

60 Or.App. 546

In the Matter of the Application of Tracy ANGUS and Cyrus M.

Waters for a Writ of Habeas Corpus.

Peggy Doreen ANGUS next friend of Tracy Angus and Susan Rose

Waters Case next friend of Cyrus M. Waters, Respondents, v. Thomas P. JOSEPH; Edward J. Woodruff and Mary C. Woodruff, Appellants, Sitka Community Association, Intervenor-Respondent.

No. D8204-68177; CA A25245.

Court of Appeals of Oregon.

Argued and Submitted Sept. 21, 1982.

Decided Dec. 8, 1982.

Reconsideration Denied Jan. 21,1983.

Review Denied Mar. 1, 1983.

Richard C. Goss, Portland, argued the cause and filed the brief for appellants.

R. Randy Harrison, Portland, argued the cause for respondents. With him on the brief were Craig J. Dorsay and Kent B. Thurber, Portland.

Leroy W. Wilder, Portland, argued the cause and filed the brief for intervenor.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

WARDEN, Judge.

Plaintiffs, ¹ the biological parents of a one-year old child, brought this habeas corpus proceeding to obtain the release of their child from the physical custody of defendants, who in another proceeding were petitioning for adoption of the child. ² Defendants have custody of the child pursuant to the consent of the natural mother. ³ The basis for plaintiffs' demand for the return of their child is the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901et seq. (Supp.1981) (hereinafter ICWA). It is undisputed that, if the ICWA applies and is constitutional, plaintiffs are entitled to return of the child. ⁴ The trial court granted the relief sought, and defendants appeal. We affirm.

The ICWA was passed in part because of a Congressional finding

"that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies * * * ", 25 U.S.C. § 1901(4),

and because

"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 * * *." 25 U.S.C. § 1902.

The issue at trial was whether the biological parents qualified for the protections of the ICWA.

The relevant definitions are as follows:

" * * *

"(4) 'Indian child' means any unmarried person who is under age eighteen 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;

"(9) 'Parent' means any biological parent or parents of an Indian child * * *. It does not include the unwed father where paternity has not been acknowledged or established." 25 U.S.C. § 1903.

Thus, a parent can qualify for protection under the ICWA if his or her child (1) is a member of an Indian tribe or (2) is merely eligible for membership in an Indian tribe and either parent (excepting unwed fathers who have not established or acknowledged paternity) is a member of an Indian tribe. ⁵ The parent must also prove that the Indian tribe in which he or she claims membership for either the parent or the child is recognized as eligible for the services provided to Indians by the Department of the Interior.

In this case, both biological parents were age 14 and unwed at the time of the birth of their child. The mother consented to the adoption of her child three days after its birth. The father formally acknowledged paternity about seven months after the birth. Both parents have signed a revocation of the consent to adoption. The father claims membership in the Nez Perce tribe; the mother in the Sitka Community Association. Defendants assign as error the trial court's (1) failure to grant defendants' motion to dismiss made at the close of plaintiffs' case, (2) allowance of plaintiffs' motion to reopen their case after both parties had rested, (3) decision in favor of plaintiffs and (4) holding that the ICWA is constitutional. ⁶

Defendants first contend that the trial court erred in not granting their motion to dismiss. Mistakenly denominated a motion for a directed verdict, the motion came after plaintiffs had rested their case and after defendants had reserved putting on their case until additional pleadings were received. After the trial judge denied the motion, she allowed plaintiffs' motion to reopen their case. Treating defendants' motion as a motion to dismiss under ORCP 54 B(2), we find no error. The standard for that motion is that, if the plaintiff has introduced credible evidence on the essential elements of the cause of action, the trial judge having the discretion to discount impeachment evidence, the motion should be denied. Castro and Castro, 51 Or.App. 707, 713, 626 P.2d 950 (1981).

However, because of the decision of the trial judge to allow plaintiffs to reopen their case, which is also assigned as error and discussed below, we need not judge the sufficiency of plaintiffs' evidence at the time of the motion to dismiss under the Castro test. A denial of a motion for involuntary dismissal under ORCP 54 B(2) is only a tentative and inconclusive ruling on the quantum of plaintiffs' proof. The rule states that, instead of dismissing, the court "may decline to render any judgment until the close of all the evidence," and a denial of the motion has the same effect. If plaintiffs' quantum of proof when they first rested failed to meet the Castro standard, the failure was cured after plaintiffs submitted additional evidence. ⁷

Defendants next assign as error the granting of plaintiffs' motion to reopen their case.

"It is well established that the reopening of a case at any time for the introduction of additional evidence rests in the sound discretion of the trial court, the exercise of which will not be disturbed unless a manifest abuse has occurred." Arbogast v. Pilot Rock Lumber Co., 215 Or. 579, 595, 336 P.2d 329 (1959).

An abuse of discretion has been defined in another context as "arbitrary or oppressive" action. State v. Lewis, 113 Or. 359, 364, 230 P. 543 (1924), reh. den. 113 Or. 370, 232 P. 1013 (1925). Defendants cite no case in which a decision allowing a motion to reopen was held to be reversible error and we find no abuse of discretion here. The trial judge stated that her reason for allowing the motion was that the case involved custody of a child. A case in which the interests of a child are at stake is a particularly inappropriate place in which to apply a "sporting theory" of justice. We also agree with plaintiffs that the broad remedial purposes of the ICWA supports the trial court's decision to grant the motion.

Defendants next assign as error the trial court's decision on the merits. Because this was a trial to the court, our scope of review would normally be limited to whether, considering the evidence in the light most favorable to the prevailing party, there was substantial evidence to support the trial court's findings. White v. Bello, 276 Or. 931, 933, 556 P.2d 1362 (1976). ⁸ We recognize that application of the ICWA may result in disruption of a bond formed between the child and the adoptive parents. The essential determinations to be made here also involve mixed questions of fact and law, e.g., membership in an Indian tribe. Nonetheless this is a law action, and we review it as a law action. With respect to the factual side of our review,

we find that there was substantial evidence to uphold each of the trial court's findings.

The trial judge made the following findings of fact:

"1. TRACY ANGUS and CYRUS M. WATERS are the biological parents of Baby Boy Angus, born September 8, 1981;

"2. CYRUS M. WATERS has acknowledged and established paternity as of April 2, 1982;

"3. CYRUS M. WATERS is and has continuously been an enrolled member of the Nez Perce Indian Tribe since at least September 12, 1978;

"4. TRACY ANGUS is an Alaska Native and has been an enrolled member in the Sitka Community Association since April 27, 1982. She was not an enrolled member, although she was eligible for enrollment, at the time of the birth of the child;

"5. The Nez Perce Tribe is a federally recognized Indian tribe within the meaning of the Indian Child Welfare Act (ICWA);

"6. The Sitka Community Association is a federally recognized Indian tribe within the meaning of the ICWA;

"7. Baby Boy Angus is an enrolled member of the Sitka Community Association and would be eligible for membership in the Nez Perce Tribe, should his enrolled status with the Sitka Community Association ever terminate;

"8. CYRUS M. WATERS never consented to the adoption of Baby Boy Angus;

"9. TRACY ANGUS consented to the adoption of Baby Boy Angus on September 10, 1981, three (3) days after birth, in Emanuel Hospital before two (2) lay-witnesses "10. TRACY ANGUS has formally revoked and withdrawn consent to the adoptive placement of Baby Boy Angus."

We point out one general consideration: the 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. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 1684 n. 32, 56 L.Ed.2d 106 (1978); see F. Cohen, Handbook of Federal Indian Law 20-23 (1982). 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 tribal government would be probative evidence of membership.

Plaintiffs offered the following evidence....