Dept. of Human Services v. K. S. W. , 299 Or. App. 668 ( 2019 )

668
Submitted July 17, affirmed October 9, 2019
In the Matter of I. C.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. S. W.,
Appellant.
Washington County Circuit Court
J150626;
Petition Number J150625M;
A169905 (Control)
In the Matter of K. B. C.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
K. S. W.,
Appellant.
Washington County Circuit Court
J150629;
Petition Number J150625M;
A169906
450 P3d 1029
Father appeals judgments establishing temporary guardianships over his
two children who are enrolled members of the Confederated Tribes of the Siletz
Indians. Father argues that the Department of Human Services (DHS) failed
to prove, as is required under the Indian Child Welfare Act (ICWA), 25 USC
§§ 1901-1963, that it had made “active efforts” to provide services to prevent the
breakup of the Indian family and that those efforts failed. DHS responds that the
juvenile court had made the necessary “active efforts” findings when it changed
the children’s permanency plans from reunification to guardianship, and that it
did not need to make the findings again when it established the guardianships.
Held: The juvenile court did not err in establishing the guardianships over both
children. Under Dept. of Human Services v. J. G., 260 Or App 500, 317 P3d 936
(2017), the juvenile court was not required to make a new “active efforts” finding
when it actually ordered the guardianships, because the court had made that
finding at a prior permanency hearing where it approved the placements.
Affirmed.
Cite as 299 Or App 668 (2019) 669
Michele C. Rini, Judge pro tempore.
Shannon Storey, Chief Defender, Juvenile Appellate Section,
and Shannon Flowers, Deputy Public Defender, Office of Public
Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Cecil A. Reniche-Smith, Assistant
Attorney General, filed the brief for respondent.
Before Hadlock, Presiding Judge, and Egan, Chief Judge,
and Lagesen, Judge.
EGAN, C. J.
Affirmed.
670 Dept. of Human Services v. K. S. W.
EGAN, C. J.
This consolidated juvenile dependency case involves
a father and two children who are enrolled members of the
Confederated Tribes of the Siletz Indians. Under the Indian
Child Welfare Act (ICWA), 25 USC §§ 1901-1963, involun-
tary child custody proceedings involving Indian children
must comply with certain 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 pre-
vent the breakup of the Indian family, and that those efforts
have failed. 25 USC § 1912(d). Relying on that section of
ICWA, father appeals the judgments establishing temporary
guardianships over his two children under ORS 419B.366.
He argues that the Department of Human Services (DHS)
failed to prove that it had made “active efforts,” and, thus,
that the juvenile court erred in establishing guardianships
over the children. DHS responds that father’s argument
fails because the juvenile court made the necessary “active
efforts” findings when it changed the children’s permanency
plans from reunification to guardianship, and that it did
not need to make the findings again when it established the
guardianships. For the reasons that follow, we agree with
DHS that, under Dept. of Human Services v. J. G., 260 Or
App 500, 317 P3d 936 (2014), the juvenile court did not err.
Accordingly, we affirm.
We review a 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. Dept.
of Human Services v. N. S., 246 Or App 341, 344, 265 P3d
792 (2011), rev den, 351 Or 586 (2012). Whether DHS sat-
isfied ICWA’s “active efforts” requirement is a question of
law. J. G., 260 Or App at 504. The facts in this case are
largely undisputed, and we present only those relevant for
our review.
In 2006, mother gave birth to I. Father did not have
consistent contact with I, except for in 2014 when he lived
with mother and I “on and off for about four months.” In July
of 2015, mother gave birth to K. Father asserted that he
was K’s biological father, but he did not have much contact
Cite as 299 Or App 668 (2019) 671
with either child. About three months later, DHS removed
both I and K from mother’s care, placed them in foster care,
and filed petitions alleging that they were within the court’s
dependency jurisdiction.
In November 2015, the juvenile court ruled that
both I and K were within its dependency jurisdiction. One
of the bases for the court’s ruling with regard to I was that
father was I’s “biological and legal father,” and that he was
“incarcerated and unavailable to parent.” The court later
ruled that there were additional bases for its dependency
jurisdiction over I, namely, father’s involvement in criminal
activities and pattern of domestic violence. Regarding K, the
court did not address any jurisdictional bases concerning
father because he had not been determined to be K’s legal
father.
In September 2017, the court changed the perma-
nency plans for both I and K from reunification to guardian-
ship. At that hearing, the court found that DHS had made
“active efforts” to reunify the family in accordance with
ICWA.
In April 2018, DHS filed an amended petition
with regard to K, alleging jurisdictional bases as to father,
including that father is the biological father of K. Then, in
May 2018, the court entered a new jurisdictional judgment.
It determined that K was within its dependency jurisdiction
as to father on the bases that father was indeed K’s “bio-
logical father” and due to his “current history of residen-
tial instability,” his “pattern of domestic violence and violent
behavior,” his “aware[ness] of * * * the [jurisdictional bases]
regarding mother,” and his failure to “engage in the ordered
services in order to gain custody.” The court also found that
DHS had made the necessary active efforts to try to make
it possible for K to return home and it continued K’s current
permanency plan of guardianship.
In July 2018, DHS filed motions to establish guard-
ianships over I and K, and the trial court held a hearing
on those motions. The court ultimately entered judgments
establishing guardianships over both children. Father
appeals from those judgments.
672 Dept. of Human Services v. K. S. W.
Father raises four assignments of error, asserting
in a single combined argument that DHS’s efforts to reunify
father with I and K did not qualify as “active efforts” and,
thus, that the juvenile court erred in establishing guard-
ianships over both children. DHS responds that the juve-
nile court made the necessary active efforts finding when
it changed the children’s plans away from reunification to
guardianship, and that, under J. G., DHS was not required
to make the findings again at the time guardianship was
established. In reply, father disputes that J. G. controls
in this case, because his challenge is to the merits of the
court’s active efforts finding. Furthermore, father argues
that even if J. G. does apply, its applicability is limited to I’s
case, because when the court made its “active efforts” ruling
at the September 2017 permanency hearing, the court had
not yet determined that it had dependency jurisdiction over
K on any bases concerning father. DHS counters that the
latter point is immaterial because, at the time it asserted
jurisdiction over K as to father, the court made a renewed
active efforts finding and continued the permanency plan
of guardianship for K. For the reasons that follow, we agree
with DHS.
Father’s argument hinges on 25 USC § 1912(d), which
provides:
“Any party seeking to effect a foster care placement of,
or termination of parental rights to, an Indian child under
State law shall satisfy the court that active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.”
Under ICWA, a “foster care placement” includes a child’s
placement in guardianship. See 25 USC § 1903(1)(i) (defin-
ing “foster care placement”); J. G., 260 Or App at 516-17(concluding that the establishment of an ORS 419B.366
temporary guardianship is a foster care placement under
ICWA).
Establishing a guardianship is a two-step process.
First, the court must find at a permanency hearing that
Cite as 299 Or App 668 (2019) 673
“active efforts were made and unsuccessful” in order to approve
the change of plan to guardianship. J. G., 260 Or App at 522.
Then, at a separate hearing, the court may grant a party’s
motion to establish the guardianship. Id. at 523. In J. G., we
explained that when a party seeking placement “has satis-
fied the court at a prior [permanency] hearing on the place-
ment at issue that active efforts were made and failed, that
party discharges its duty under [25 USC §] 1912(d), and the
court is not required to make that finding again at a later
proceeding in which it actually orders that placement.” Id.
at 521. Thus, in the context of establishing a guardianship,
if a court finds that “active efforts” were made at the per-
manency hearing, it need not make a finding on that issue
again at the hearing to establish the guardianship. Id.
In this case, it is undisputed that the juvenile court
found that DHS had made active efforts at the September
2017 permanency hearing, when the court changed the chil-
dren’s permanency plans from reunification to guardian-
ship. Thus, under J. G., the court was not required to make
a finding on that issue again at the hearing implementing
the plan and ordering guardianship.
Nonetheless, father contends that J. G.’s holding at
least does not apply to K, because, unlike in J. G., the juve-
nile court “never determined in a permanency judgment
that the department’s reunification efforts qualified as
active prior to evaluating the department’s request to estab-
lish a guardianship over K.” We disagree. As DHS points
out, in May 2018, when the juvenile court entered a juris-
dictional judgment in which it found K within its depen-
dency jurisdiction as to father, it found that DHS had made
the necessary “active efforts” to make it possible for K to
return home, and, at the same time, it continued K’s per-
manency plan as guardianship. In those circumstances,
the court was not required to make a new active efforts
finding when it established the guardianship itself over K.
J. G., 260 Or App at 521-22 (juvenile court is not required
to make a new active efforts finding at a later proceeding in
which it actually orders the placement that the court previ-
ously approved, after finding that active efforts were made
and failed).
674 Dept. of Human Services v. K. S. W.
We conclude that the juvenile court did not err in
establishing guardianships over I and K. Therefore, we affirm.
Affirmed.