Determination of Application of ICWA from Oregon Court of Appeals

We are getting a lot of questions about when the standards of ICWA apply if a child or parent is enrolled after the initiation of the child welfare case. Here’s a not particularly helpful or clear decision out of the Oregon Court of Appeals:

Parents’ position depends on a selective understanding of the record before the juvenile court. Specifically, as noted, testimony at the August 22, 2014, hearing established that the “Karuk Tribe” notation for mother in DHS’s database had been entered, as a preliminary matter, in 2004, but that, in response to subsequent, contemporaneous inquiries from DHS, the tribe had explicitly denied that mother or her children met the requirements for tribal membership. See 278 Or App at 431-32. That negative response—a response within DHS’s constructive knowledge in 2011—negated the 2004 preliminary notation. Further, the record established that, while that notation automatically “popped up,” there was no evidence that it had ever been renewed or supplemented based on any subsequent information. Similarly, parents’ reliance on mother’s reference to having a tribal membership card does not engage with the complete context that, at the same time mother made that remark in February 2011, she was adamantly refusing to complete ICWA-related forms provided by DHS. Indeed, mother did not obtain a tribal membership card until May 2012—and, even then, did not so inform DHS.15 Given the totality of the circumstances, the juvenile court did not err in denying parents’ motions to dismiss. See State ex rel Juv. Dept. v. Tucker, 76 Or App 673, 677, 10 P2d 793 (1985), rev den, 300 Or 605 (1986) (affirming juvenile court’s denial of petition to “invalidate” foster care placement based on purported ICWA noncompliance; record did not establish that, as of the time the child was placed, ICWA applied, and subsequent determination that the child was an Indian child did not render ICWA retroactively applicable to prior actions of the juvenile court).

This entry was posted in Author: Kate E. Fort, Child Welfare, ICWA and tagged , , , , . Bookmark the permalink.

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