D.R. v. Three Affiliated Tribes Of Fort Berthold Reservation

• Citation: 238 P.3d 40,236 Or.App. 535
• Decision Date: 11 August 2010
• Docket Number: J06073, J06096; Petition Numbers J0607301, J0609601; A143921.
• Parties: In the Matter of K.R.C. and I.A.C., Children. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, and K.R.C., I.A.C., C.R., and D.R., Respondents, v. THREE AFFILIATED TRIBES OF FORT BERTHOLD RESERVATION, Appellant.
• Court: Court of Appeals of Oregon

236 Or.App. 535

238 P.3d 40

In the Matter of K.R.C. and I.A.C., Children.DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,andK.R.C., I.A.C., C.R., and D.R., Respondents,

v.THREE AFFILIATED TRIBES OF FORT BERTHOLD RESERVATION, Appellant.

J06073, J06096; Petition Numbers J0607301, J0609601; A143921.

Court of Appeals of Oregon.

Argued and Submitted May 10, 2010.

Decided Aug. 11, 2010.

Lea Ann Easton, Portland, argued the cause for appellant. With her on the brief was Dorsay & Easton LLP.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent Department of Human Services. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Megan L. Jacquot argued the cause and filed the brief for respondents K.R.C. and I.A.C.

No appearance for respondents C.R. and D.R.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

HASELTON, P.J.

The Three Affiliated Tribes of Fort Berthold Reservation (the tribes) appeal a judgment in which the trial court concluded that “good cause” under the Indian Child Welfare Act (ICWA) existed to designate the adoptive placement for two Indian children as the home of their current foster parents rather than the home designated by the tribes. On appeal, the legal issue is whether “good cause” exists to depart from ICWA's placement preferences. 25 U.S.C. § 1915(a). ¹ As we will explain, we are bound by the trial court's findings of fact if there is any evidence in the record to support them, but independently assess whether those findings are sufficient to support the trial court's legal conclusion that “good cause” exists under the circumstances of this case. Applying that standard, we affirm.

Before turning to the facts of this case, we begin by identifying the appropriate standard of review. Historically, pursuant to ORS 19.415(3) (2007) and ORS 419A.200(6) (2007), in juvenile cases such as this one, we reviewed the facts de novo. ² In other words, we “independently assess[ed] and evaluate [d] the evidence,” State ex rel. SOSCF v. Frazier, 152 Or.App. 568, 572, 955 P.2d 272, rev. den., 327 Or. 305, 966 P.2d 220 (1998), and “reweigh[ed] the facts and reassess[ed] the persuasive force of the evidence,” Marvin Wood Products v. Callow, 171 Or.App. 175, 180, 14 P.3d 686 (2000). In 2009, however, the legislature amended ORS 19.415(3) to change our standard of review. ³

Specifically, ORS 19.415(3) now provides:

“Upon an appeal in an equitable action or proceeding, review by the Court of Appeals shall be as follows:

“(a) Upon an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals shall try the cause anew upon the record; and

“(b) Upon an appeal in an equitable action or proceeding other than an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record.”

Pursuant to ORS 19.415(3)(b), because this case does not concern the termination of parental rights, we need not review de novo but have discretion to do so.

Our decision whether to exercise that discretion is governed by a temporary amendment to ORAP 5.40 that is embodied in Chief Judge Order 09-06. ⁴ Specifically, ORAP 5.40 provides, in part:

“The appellant's opening brief shall open with a clear and concise statement of the case, which shall set forth in the following order under separate headings:

“ * * * * *

“(8)(a) In those proceedings in which the Court of Appeals has discretion to try the cause anew on the record and the appellant seeks to have the court exercise that discretion, the appellant shall concisely state the reasons why the court should do so.

“(b) In those proceedings in which the Court of Appeals has discretion to make one or more factual findings anew on the record and the appellant seeks to have the court exercise that discretion, the appellant shall identify with particularity the factual findings that the appellant seeks to have the court find anew on the record and shall concisely state the reasons why the court should do so.

“(c) The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases. Consistently with that presumption against the exercise of discretion, requests under paragraph (a) or (b) of this section are disfavored.”

(Footnote omitted.)

To summarize, ORAP 5.40(8)(a) and (b) require that, if an appellant seeks to have us exercise our discretion to review de novo, the appellant must include a concise statement explaining the reasons why we should do so in its statement of the case in the opening brief. In the face of such a request, our decision whether to exercise discretion is guided by the nonexclusive list of considerations stated in ORAP 5.40(8)(d). ⁵ However, a presumption exists “against the exercise of discretion” and we will exercise it “only in exceptional cases.” ORAP 5.40(8)(c).

In its opening brief in this case, the tribes appear to have assumed that, as had been the case historically, our review is de novo. In their brief, the tribes do not acknowledge the 2009 amendments to ORS 19.415 and, contrary to the requirements of ORAP 5.40(8)(a), do not request that we exercise our discretion to review de novo or explain the reasons that we should do so. In the absence of such a request and in light of the “presumption against the exercise of discretion,” ORAP 5.40(8)(c), we decline, under the circumstance of this case, to exercise our discretion under ORS 19.415(3)(b) to review de novo. ⁶

Consequently, our standard of review in this case is governed by ORS 19.415(1), which provides:

“[U]pon an appeal in an action or proceeding, without regard to whether the action or proceeding was triable to the court or a jury, the scope of review shall be as provided in section 3, Article VII (Amended) of the Oregon Constitution.”

Stated differently, “[o]ur review * * * is limited to examining the record to determine if there is any evidence to support the trial court's factual findings.” G.I. Joe's, Inc. v. Nizam, 183 Or.App. 116, 123, 50 P.3d 1282 (2002).

Here, our review of the record confirms that we are bound by the relevant trial court findings, because they are supported by evidence in the record. Accordingly, we state the facts consistently with those findings and augment them where necessary with uncontroverted background and procedural facts.

Mother and father moved to The Dalles from Pierre, South Dakota, in 2006 when their daughter, K, was a few months old and mother was pregnant with their son, I. ⁷ In December 2006, I was born. Shortly after I's birth, he and K were placed in foster parents' home, where they have lived ever since.

In July 2008, mother's and father's parental rights were terminated. Father stipulated to the termination of his parental rights. We affirmed the judgment that terminated mother's rights without opinion in May 2009.

During the course of this ongoing dependency proceeding, two significant events occurred. First, mother became an enrolled member of the tribes. As a result, the children became eligible for membership under the tribes' rules and were considered Indian children under ICWA. ⁸ Second, a couple (grandparents) who lived in Pierre, and had been mother's guardians when she was a child, adopted her as an adult-and, consequently, became the children's grandparents. The tribes, consistently with their law and customs, considered grandparents to be “extended family members” for purposes of ICWA's placement preferences. ⁹ Foster parents want to adopt the children-and so do grandparents. Neither foster parents nor grandparents are “Indian.” ¹⁰ The tribes seek to have grandparents designated as the children's adoptive placement in accordance with ICWA's placement preferences, which provide, in part, that “preference shall be given, in the absence of good cause to the contrary, to a placement with * * * a member of the child's extended family [.]” 25 U.S.C. § 1915(a) (emphasis added).

As noted by the trial court in its detailed letter opinion, foster parents' home and grandparents' home “have some similarities.” For example, “[b]oth are experienced foster homes,” and both have previously adopted children, including children of Native American heritage. ¹¹ However, as the trial court noted,

“[t]he two homes also have distinctions.

“There are no children presently in [grandparents'] home. However, [grandparents] have an ongoing relationship with [mother], who has returned to Pierre. She visits them, and brings her new son to visit. She uses a day care facility on their property * * *. [Grandparents] also have ongoing relationships with other members of [mother's] biological family. The members of [mother's] biological family described by [grandmother] suffer from similar problems of addiction, criminality, unemployment, homelessness, and under-education that have plagued [mother]. [Grandparents] intend [the children] to have ongoing relationships with [mother], her new son, and [mother's] biological family, if they deem it ‘safe.’

“[Foster parents'] home is probably the only home [K] remembers, and is the only home [I] has ever known. It is decorated with Indian art. [Foster parents] have taken their children, including [K] and [I] to local Indian festivals, and have contacted a local Indian woman to help [K] and [I] understand their Indian heritage. They intend to travel to the Tribes' reservation to help [K] and [I] understand their specific cultural heritage.

“[K] is now an apparently untroubled little girl, although her life was disrupted when her parents' behavior made it necessary to first place her in foster care. [I] is delayed in receptive language, and to a greater degree, expressive language. He suffers from a swallowing disorder. * * * ...