Dep't of Human Servs. v. S.R.H. (In re A.R.V.S.), 11088J, 11089J

• Decision Date: 18 May 2016
• Docket Number: A157977, A157952 (Control), A157978.,11088J, 11089J,Petition Numbers 11088J01, 11089J01
• Citation: 381 P.3d 1059,278 Or.App. 427
• Parties: In the Matter of A.R.V.S., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent, v. S.R.H., Appellant, and A.R.V.S., Appellant and Respondent. In the Matter of J.R.H., a Child. Department of Human Services, Petitioner–Respondent, v. J.D.H., Appellant. In the Matter of J.R.H., a Child. Department of Human Services, Petitioner–Respondent, v. S.R.H., Appellant, and J.R.H., Appellant and Respondent.
• Court: Oregon Court of Appeals

278 Or.App. 427
381 P.3d 1059

In the Matter of A.R.V.S., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner–Respondent,
v.
S.R.H., Appellant,
and
A.R.V.S., Appellant and Respondent.

In the Matter of J.R.H., a Child.

Department of Human Services, Petitioner–Respondent,
v.
J.D.H., Appellant.

In the Matter of J.R.H., a Child.

Department of Human Services, Petitioner–Respondent,
v.
S.R.H., Appellant,
and
J.R.H., Appellant and Respondent.

11088J, 11089J
Petition Numbers 11088J01, 11089J01
A157977, A157952 (Control), A157978.

Court of Appeals of Oregon.

A157977 and A157952 Control/A157978 Argued and Submitted individually April 14, 2015.
Decided May 18, 2016.

381 P.3d 1060

In A157977, Valerie Colas, Deputy Public Defender, argued the cause for appellant S.R.H. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

In A157977, Ginger Fitch argued the cause and filed the briefs for appellant-respondent A.R.V.S.

In A157977, Erin K. Galli, Assistant Attorney General, argued the cause for respondent Department of Human Services. With her on the brief were Ellen F. Rosenblum,

381 P.3d 1061

Attorney General, and Anna M. Joyce, Solicitor General.

In A157952, Megan L. Jacquot filed the brief for appellant J.D.H.

In A157978, Valerie Colas, Deputy Public Defender, argued the cause for appellant S.R.H. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

In A157978, Ginger Fitch argued the cause and filed the briefs for appellant-respondent J.R.H.

In A157952 and A157978, Erin K. Galli, Assistant Attorney General, argued the cause for respondent Department of Human Services. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before LAGESEN, Presiding Judge, and FLYNN, Judge, and HASELTON, Senior Judge.^*

HASELTON, S.J.

278 Or.App. 430

These separate juvenile dependency appeals, consolidated for purposes of this opinion only, involve two Indian children, A and J, and arise from judgments continuing jurisdiction as to each child and continuing, as to each child, a permanency plan of “another planned permanent living arrangement” (APPLA), ORS 419B.476(5)(f). Mother, father, A, and J all appeal.¹ Mother assigns error to the juvenile court's denial of her “motion[s] to dismiss” the predicate dependency proceedings based on purported noncompliance with the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 –1963, including requirements that apply when the court “knows or has reason to know that an Indian child is involved,” 25 USC § 1912. Mother contends that, as a result of the court's error, the proceedings are invalid and the jurisdictional petitions must be dismissed as void. Father joins in mother's arguments and, alternatively, contends that, even if dismissal is not required, the case must be remanded with instructions for the juvenile court to make an “active efforts” determination pursuant to 25 USC section 912(d). A and J each contend that the juvenile court erred in determining that “compelling reasons,” ORS 419B.476(5)(f), precluded changing the permanency plan from APPLA to adoption.

As amplified below, we reject each of those challenges. Specifically: (1) The juvenile court did not err in denying parents' motions to dismiss, because the record did not substantiate the essential premise of those motions, viz., that, as of May 9, 2011, when the court found jurisdiction and directed that A and J be placed in foster care, the court knew or had reason to know that “an Indian child [was] involved.” ORS 419B.878. Accordingly, ICWA was, at that time, inapplicable. (2) Similarly, a remand to the juvenile court to make an “active efforts” determination would be appropriate only if, as of the time the court changed J's permanency plan from reunification to APPLA (in June

278 Or.App. 431

2012), the court knew or had reason to know that J was an Indian child, triggering ICWA's requirements; again, the record does not substantiate that premise. (3) Finally, the juvenile court did not err in determining that, in the totality of the circumstances, deferring action pending the tribe's “express[ion of] an opinion as to adoption” constituted a compelling reason for not immediately changing the children's permanency plan from APPLA to adoption. Accordingly, we affirm.

In juvenile proceedings that do not involve the termination of parental rights, it is within this court's discretion to review the record de novo. ORS 19.415(3). The parties do not seek de novo review, and we conclude that this is not an exceptional case that justifies de novo review. See ORAP 5.40(8)(c), (d). Accordingly, in reviewing the juvenile court's judgments, we “view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the [juvenile] court's disposition and assess whether, when so viewed, the record

381 P.3d 1062

was legally sufficient to permit that outcome.” Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013).

Thus, here, as in every case, our threshold “statement of facts” is, necessarily, a statement of material facts—that is, our narrative is, at least implicitly, informed by, and circumscribed by, an assessment of legal materiality. Here, for reasons that will become apparent presently, see 278 Or.App. at 440, 381 P.3d at 1066–67, the significance of various events and circumstances is properly assessed by reference to two benchmarks: the juvenile court's assumption of jurisdiction on May 9, 2011, and the change of the permanency plan from reunification to APPLA on June 19, 2012.

With that understanding, the record discloses the following material facts. In 2004, long before the initiation of this dependency proceeding in 2011, mother had contact with the Department of Human Services (DHS) in connection with a child welfare assessment of A and A's older sister, R.² At that time, mother indicated that she had an affiliation with the Karuk Indian tribe, and DHS, after making

278 Or.App. 432

a preliminary notation of tribal affiliation in its database, contacted the tribe regarding membership eligibility for A and R. The tribe's enrollment officer responded by letter, on December 15, 2004, that mother is a “documented descendent” but “does not meet the Karuk Blood Degree requirement for [tribal] membership. ” (Emphasis added.) The letter further stated that A and R “are not Karuk Tribal members” and “do not qualify for ICWA.”³

In February 2011, A and J came into protective custody when they were removed from the family home based on concerns about abuse and neglect as a result of father's suspected sexual abuse of R and two of his daughters from a prior relationship, and mother's substance abuse, mental health, and inability to protect the children from father. A and J were placed in shelter care with the foster parents with whom they have resided since that time and who are now a prospective adoptive placement.

At the time of the children's removal, the “Karuk Tribe” notation from 2004 automatically “popped up” in DHS's database. Accordingly, the caseworker asked mother about tribal membership, and mother responded that she had a membership card but did not know if she was enrolled in the tribe. However, mother refused to complete any ICWA-related forms; although the DHS caseworker dropped ICWA forms off at the office of an attorney who was representing parents at that time, those forms were never completed and returned. The shelter order of February 23, 2011, stated that DHS had not yet made “full inquiry” about ICWA.

The court assumed jurisdiction on May 9, 2011, under ORS 419B.100(1)(c), with a permanency plan of reunification. The issue of ICWA applicability was not raised at the hearing, either by parents or by DHS, and the jurisdictional and dispositional judgments did not mention ICWA.⁴ The court ordered the children to be placed in foster care and directed parents to participate in services. However, the

278 Or.App. 433

parents subsequently declined to engage in court-ordered services and requested that the court not continue to order participation in such services.

On June 1, 2011, a new caseworker was able to get parents to complete forms entitled “Verification of ICWA Eligibility.” In response to the question “Do you have any American Indian or Alaskan Native Ancestry?” they answered “No.” At no time thereafter until July 2013, did mother mention Indian tribal heritage or possible tribal membership to DHS personnel.

After a disposition review hearing in February 2012, the court continued jurisdiction, ordered that the children continue in their foster care placement, and ordered the parents to participate in services. The judgments made no mention of ICWA.

In May 2012, mother received an enrollment card from the Karuk Tribe that identified

381 P.3d 1063

her as an “Enrolled...