Dep't of Human Servs. v. J. G. (In re C. G.)

Decision Date02 January 2014
Docket NumberA153864
PartiesIn the Matter of C. G., Jr., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. J. G., fka J. G., Appellant.
CourtOregon Court of Appeals

Klamath County Circuit Court


Petition Number


Cameron F. Wogan, Judge.

Megan L. Jacquot argued the cause and filed the brief for appellant.

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.




This juvenile dependency case involves a mother and child who are enrolled members of the Klamath Tribe. Under the Indian Child Welfare Act (ICWA), 25 USC §§ 1901 - 1963, involuntary child custody proceedings involving Indian children must comply with certain federal requirements. Among those is a requirement that any party seeking to effect a foster care placement of an Indian child shall satisfy the court that active efforts have been made to provide services to prevent the breakup of the Indian family, and that such efforts have failed. 25 USC § 1912(d). Relying on that section of ICWA, mother appeals a judgment establishing a durable guardianship for her son under ORS 419B.366,1 arguing that the juvenile court's failure to make an "active efforts" finding in the guardianship judgment is reversible error.2 Mother failed to preserve that issue below, but nonetheless argues that section 1914 of ICWA allows her to raise it for the first time on appeal. For the reasons that follow, we agree with mother that her argument is reviewable despite not being preserved, but nonetheless conclude that the juvenile court was not required under ICWA to make an "active efforts" findingin the guardianship judgment. Accordingly, we affirm.


Before turning to the facts of this case, we must establish the appropriate standard of review. Mother requests that we review this case de novo. In juvenile proceedings that do not involve the termination of parental rights, exercise of de novo review is within our sole discretion. ORS 19.415(3). Nonetheless, there is a presumption against granting de novo review, and we do so only in exceptional cases. Dept. of Human Services v. N. S., 246 Or App 341, 344, 265 P3d 792 (2011), rev den, 351 Or 586 (2012); ORAP 5.40(8)(c).

Mother argues that this is an exceptional case for three reasons. First, mother asserts that the guardianship is like a termination of her parental rights because, she contends, she cannot seek to have it modified due to ORS 419B.368(7). We disagree. That subsection provides that "a parent may not move the court to vacate a guardianship once a guardianship is granted under ORS 419B.365." The guardianship in this case, however, was established under ORS 419B.366, and, accordingly, can be vacated upon a motion from a parent. See ORS 419B.368(1) ("The court, on its own motion or upon the motion of a party * * * may * * * modify or vacate a guardianship order.").

Second, mother argues that this case is exceptional because it involves an Indian child and thus implicates a different evidentiary standard than a review involving a non-Indian child. However, we have already rejected the argument that a case implicating ICWA mandates de novo review. See DHS v. Three Affiliated Tribes of FortBerthold, 236 Or App 535, 541 n 6, 238 P3d 40 (2010) (noting that the importance of the policies involved in a case does not dictate the standard of review). Furthermore, the dispositive issue in this appeal is legal, not factual.

Finally, mother contends that this case requires de novo review because the juvenile court failed to make certain factual findings. We have only exercised our discretion to grant de novo review in two juvenile dependency cases--each of which involved a situation where crucial findings made by the court were inconsistent with uncontroverted evidence in the record. Dept. of Human Services v. M. E., 255 Or App 296, 299, 297 P3d 17 (2013); Dept. of Human Services v. B. B., 248 Or App 715, 718, 274 P3d 242, adh'd to on recons, 250 Or App 566, 281 P3d 653 (2012). Here, mother does not contend that the juvenile court's findings were inconsistent with the evidence, but rather that the juvenile court failed to make a required finding altogether. We conclude that de novo review is not warranted in such a situation. Thus, for the reasons stated, we reject mother's invitation to review this case de novo.

Accordingly, we review the juvenile court's legal conclusions for errors of law and are bound by its findings of historical fact if there is any evidence in the record to support them. N. S., 246 Or App at 344. As stated above, the dispositive issues are legal, and the facts are largely undisputed.


Both mother and child are enrolled members of the Klamath Tribe. The Department of Human Services (DHS) was granted jurisdiction over child in 2009, andhe has been in his current foster home since January 2010.3 Initially, child's permanency plan was return to mother; however, after a permanency hearing in February 2011, the juvenile court issued an order and judgment approving a permanency plan for establishment of a legal guardianship for child. In that order and judgment, the juvenile court found by clear and convincing evidence that DHS had "made active efforts to make it possible for [child] to safely return home," but that "mother [had] not made sufficient progress to make it possible for [child] to safely return home."4 A year later, in a May 2012 permanency hearing, the juvenile court continued the plan of guardianship for child.

In 2013, DHS filed a motion to establish a guardianship for child with his current foster parent under ORS 419B.366.5 That statute provides, in part:

"(1) A party * * * may file a motion to establish a guardianship. The motion must be in writing and state with particularity the factual and legal grounds for the motion.
"* * * * *
"(3) If an Indian child is involved, the guardianship must be in compliance with the Indian Child Welfare Act. The facts supporting any finding made to establish a guardianship for an Indian child, including the finding that continued custody by the parents or Indian custodian would result in serious emotional or physical harm to the Indian child, must be established by clear and convincing evidence.
"* * * * *
"(5) If the court has approved a plan of guardianship under ORS 419B.476, the court may grant the motion for guardianship if the court determines, after a hearing, that:
"(a) The ward cannot safely return to a parent within a reasonable time;
"(b) Adoption is not an appropriate plan for the ward;
"(c) The proposed guardian is suitable to meet the needs of the ward and is willing to accept the duties and authority of a guardian; and
"(d) Guardianship is in the ward's best interests. In determining whether guardianship is in the ward's best interests, the court shall consider the ward's wishes.
"(6) Unless vacated pursuant to ORS 419B.368, a guardianship established under this section continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328."

After a hearing, the juvenile court granted DHS's motion and entered an order and judgment appointing child's current foster parent as his legal guardian. In that order and judgment, the juvenile court found "by clear and convincing evidence" that:

"6. The ward is an Indian child within the meaning of the Indian Child Welfare Act * * *.
"* * * * *
"8. The Court approved a plan of guardianship for the ward at the permanency hearing held on May [24], 2012, pursuant to ORS 419B.476.[6]
"9. The ward cannot safely return to a parent within a reasonable time.
" 10. The continued custody of the ward by his parents will result in serious emotional harm to the ward.
"11. Adoption is not an appropriate plan for the ward.
"12. The ward should no longer be in the legal custody of DHS but should continue to be a ward of this Court.
"13. The proposed guardian is suitable to meet the needs of the child and is willing to accept the duties and authority of a guardian. Placement of the ward with the proposed guardian meets the placement preferences of the Indian Child Welfare Act.
"14. Guardianship is in the ward's best interest."

Mother now appeals that judgment.

A. Preservation

On appeal, mother argues that the juvenile court erred in failing to make a finding that DHS had made active efforts to prevent the breakup of the Indian family, which she contends is required by section 1912(d) of ICWA. However, DHS urges us to affirm the juvenile court because mother failed to raise that issue below. Thus, we first consider whether mother's assignment of error is properly before us.

Generally, for an error to be reviewable, the party asserting the error must have preserved the claim of error in the lower court. ORAP 5.45(1); Ailes v. Portland Meadows, Inc., 312 Or 376, 380, 823 P2d 956 (1991). However, even if a party has failed to preserve an issue, the appellate court "may consider an error of law apparent on the record." ORAP 5.45(1). At oral argument, mother conceded that her "active efforts" argument was not raised below, and she does not argue, nor would we agree, that anyerror is plain and apparent on the record. She nonetheless argues that under 25 USC section 1914, ICWA violations can be raised for the first time on appeal. That section provides:

"Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title."

Mother contends that...

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