State ex rel. Juvenile Dept. of Lane County v. Tucker

• Decision Date: 04 December 1985
• Citation: 710 P.2d 793,76 Or.App. 673
• Parties: In the Matter of Leilani Tucker, a child. STATE of Oregon ex rel JUVENILE DEPARTMENT OF LANE COUNTY and Children's Services Division, Respondents-Cross-Respondents, Leilani Tucker, Respondent-Cross-Appellant, v. Faith Marie TUCKER, Appellant-Cross-Respondent. 81-128; CA A31461.
• Court: Oregon Court of Appeals

Page 793

710 P.2d 793

76 Or.App. 673

In the Matter of Leilani Tucker, a child.

STATE of Oregon ex rel JUVENILE DEPARTMENT OF LANE COUNTY and Children's Services Division, Respondents-Cross-Respondents, Leilani Tucker, Respondent-Cross-Appellant, v. Faith Marie TUCKER, Appellant-Cross-Respondent.

81-128; CA A31461.

Court of Appeals of Oregon.

Argued and Submitted April 12, 1985.

Decided Dec. 4, 1985.

Terrance P. Gough, Eugene, argued the cause for appellant-cross-respondent Faith Marie Tucker. With him on briefs was Thomsen, Gough & Gough, Eugene.

Linda J. DeVries, Asst. Atty. Gen., Salem, argued the cause for respondents-cross-respondents Juvenile Dept. and Children's Services Div. With her on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

William A. Furtick, Eugene, argued the cause and filed brief for respondent-cross-appellant.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

The state brought this action to terminate mother's parental rights. The father is unknown. The court determined that the child is an "Indian child," according to the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (ICWA), and that, therefore, the termination proceedings are governed by the ICWA, as well as by ORS 419.523, 419.525 and 419.527. Mother appeals from an order terminating her parental rights, contending that the ICWA was not complied with in several respects. The child cross-appeals, arguing that it was error to apply the ICWA, because she is not an Indian child. We affirm.

On March 17, 1981, Children's Services Division (CSD) petitioned the juvenile court, alleging that the child, then two and one-half years old, was within the jurisdiction of the court, because mother had failed to provide for her well-being. ORS 419.476(1)(e); 419.482(1). The petition identified mother's mental and emotional state as the cause of her failure to provide for the child. A temporary commitment order was granted the following day. ORS 419.482(3).

On July 2, 1981, mother admitted the allegations of the March 17 petition, which had been renewed in an amended petition dated July 1, thus empowering the court to exercise dispositional authority over the child. ORS 419.500(1); 419.505. The child was then returned to mother under the supervision of CSD. Mother had the child only a few days, however, before returning her to CSD, which in turn requested another order of temporary commitment. On January 22, 1982, the court held a dispositional hearing and, on January 25, it made the child a ward of the court, placed her in the legal custody of CSD and ordered CSD to place the child in foster care. ORS 419.507(1); 419.507(1)(b).

In the spring of 1982, mother became aware that the ICWA might apply to her case, and on November 5, 1982, she moved the court to "invalidate" the foster care placement for failure to apply the ICWA. On December 14, 1982, having considered mother's petition, the court granted a continuance to allow the parties additional time to gather and present evidence on whether the child is an Indian child, as defined by the ICWA. There is no record that the court ever ruled on the November 5 motion.

On April 4, 1983, the state filed a petition to terminate mother's parental rights. ¹ ORS 419.523; 419.525. The parties continued to gather information on whether the child is an Indian child and, on December 13, 1983, the court determined that the child is an Indian child for purposes of the ICWA. On March 21, 1984, mother petitioned the court to "invalidate" the termination proceedings, again arguing that the state had failed to comply with the ICWA. That petition was denied on March 27, 1984, the day trial began.

On March 30, 1984, the court found that the state had proved the allegations in the petition beyond a reasonable doubt and that it was in the best interests of the child to terminate mother's parental rights. The court also found beyond a reasonable doubt that rehabilitative efforts were made to prevent the breakup of the family and that mother's continued custody of the child would cause the child serious emotional damage. The court ordered termination of mother's parental rights.

Mother first contends that the court erred when it denied her petition to invalidate the foster care placement, arguing that the state and the court failed to comply with the ICWA during the jurisdictional and dispositional proceedings that led to placement. ² The state concedes that the ICWA was not complied with but contends that the 1982 placement need not be invalidated, because the ICWA did not apply to those proceedings. We agree with the state.

The ICWA applies to involuntary proceedings for foster care placement or termination of parental rights when the court "knows or has reason to know that an Indian child is involved." 25 U.S.C. § 1912(a); Angus v. Joseph, 60 Or.App. 546, 549, 655 P.2d 208 (1982), rev. den. 294 Or. 569, 660 P.2d 683, cert. den. 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983).

25 U.S.C. § 1903 provides, in part:

"(4) 'Indian child' means any unmarried person who is under age 18 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 * * *."

Before a parent or a tribe qualifies for the benefit of the ICWA, it must be established that the child meets the definitional criteria. Angus v. Joseph, supra. Here, there was no determination that the child was an Indian child within the meaning of the ICWA until December 12, 1983, approximately two years after the dispositional order of foster care placement. Therefore, the proceedings underlying the placement cannot be invalidated for failure to comply with the ICWA, unless the court had reason to know during those proceedings that the child was an Indian child.

The proceedings began on March 17, 1981. On April 27, 1981, CSD wrote to Alaskan authorities to obtain information concerning mother's Indian status. On May 5, 1981, the Bristol Bay Native Association confirmed that mother is a three-eighths Alaskan native. Concerning the child's status, they stated:

"According to the Alaska Claims Settlement Act anyone born after December 18, 1971, cannot be enrolled as a shareholder. Therefore, [the child] is not a shareholder but is the dependent of an Alaskan native."

On September 18, 1981, CSD contacted the United States Bureau of Indian Affairs (BIA), which responded on September 21, 1981:

"In view of the fact that the father is unknown, we researched the records of the mother * * *. The Alaska enrollment office advised me that [mother] is three-eighths Aleut and a registered member of the Bristol Bay Corporation. [The child's] blood degree would be three-sixteenths Aleut. The criteria [sic ] for enrollment is one-quarter degree Indian blood; therefore, [the child] would not be eligible for enrollment nor is she eligible for Bureau services.

"Because [the child] is not eligible for enrollment, the provisions of P.L. 95-608, Indian Child Welfare Act, do not apply."

At that point, CSD concluded that the child was not an Indian child for purposes of the ICWA, and that conclusion was supported by the record as it existed at that time. ³

No other evidence was presented to CSD or the court before the final dispositional order on January 22, 1982. Therefore, we hold that the ICWA did not apply to the jurisdictional and dispositional proceedings and that the court did not err in denying mother's petition to set aside the court's order of foster care placement.

We turn now to the child's argument that the court erred in finding that she is an Indian child and in applying the ICWA.

As noted above, on November 5, 1982, mother filed a petition to invalidate the foster care placement, asserting that the child was an Indian child. The court reserved its determination through two hearings and allowed the parties to obtain further information on that issue. At the second hearing, on March 2, 1983, mother said that she was waiting for a response from the Chignik village in Alaska, which was her ancestral village. Before that time, the state did not know the name of mother's ancestral village. On March 7, 1983, the Attorney General wrote to the Chignik Traditional Council to request its assistance in determining whether the child was a village member or was eligible for membership. The department also advised the council that the child was a ward of the juvenile court and that it had a right to intervene. The return receipt indicated that the village council president received the letter on March 15, 1983. There was no response.

On December 7, 1983, the president was deposed by telephone. She testified that the village council had concluded that the child was eligible for village membership. On December 12, 1983, the court determined that the child is an Indian child, as defined by the ICWA. The child contends that that determination was improper, because she does not meet the definition of "native" under the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq (ANCSA).

We reject the child's argument, because it is irrelevant whether she is a "native," as defined by ANCSA. The provisions of ANCSA generally apply to issues regarding

" * * * compensation for the extinguishment of claims to land, and shall not be deemed to substitute for any governmental programs otherwise available to the Native people of Alaska as citizens of the United States and State of Alaska." 43 U.S.C. § 1626(a).

ANCSA created profit-making business corporations to manage lands and...