Dept. of Human Services v. M. G. J. ( 2023 )

No. 585 November 8, 2023 101
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of S. H. A.,
aka S. H. P., aka S. T., aka S. T., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. G. J.,
Appellant.
Jackson County Circuit Court
20JU02316; A181035 (Control)
In the Matter of K. O. A.,
aka P. J. R. J., a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
M. G. J.,
Appellant.
Jackson County Circuit Court
20JU06985; A181037
Timothy C. Gerking, Judge.
Argued and submitted October 10, 2023.
Kristen G. Williams argued the cause and filed the briefs
for appellant.
Erin K. Galli, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Egan, Presiding Judge, and Kamins, Judge, and
DeVore, Senior Judge.
102 Dept. of Human Services v. M. G. J.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 101 (2023) 103
KAMINS, J.
Mother appeals the juvenile court’s adoption and
implementation of a Tribal Customary Adoptive Agreement
(TCAA), assigning error to the judgment as to each of her
two children. See ORS 419B.656(1) (“As used in this section,
‘tribal customary adoption’ means the adoption of an Indian
child, by and through the tribal custom, traditions or law of
the child’s tribe, and which may be effected without the ter-
mination of parental rights.”). Because two of mother’s argu-
ments in support of those assignments are not preserved, we
do not consider them on appeal. We otherwise affirm.
This case involves mother’s two children, S and P;
they are Indian children within the meaning of Oregon Indian
Child Welfare Act (ORICWA). See ORS 419B.600 - 419B.665.
In 2021, the court asserted dependency jurisdiction over both
children. In June 2022, the court held a hearing and changed
S’s and P’s permanency plans from reunification to a TCAA
because mother had not made sufficient progress for S and P
to safely return to her care. We affirmed that judgment earlier
this year in Dept. of Human Services v. M. G. J., 326 Or App
426, 532 P3d 905 (2023). In January 2023, while that appeal
was pending, the Pit River Tribe established and approved a
TCAA, which outlined the transfer of mother’s parental rights
to the adoptive parents. After the hearing, the juvenile court
adopted and implemented the TCAA over mother’s objections.
Mother contends that the juvenile court erred in
entering a TCAA “transferring all parental rights or obliga-
tions not specially retained in the judgment” as it relates to
both of her children. Mother makes three arguments: (1) the
juvenile court failed to make its own best interest determi-
nation; (2) mother’s due process rights were violated; and
(3) the juvenile court erred by accepting documents that
were prepared by the Department of Human Services (DHS).
However, for the reasons explained below, we conclude that
mother’s first two arguments are not preserved. Mother also
does not seek plain error review. We therefore do not con-
sider those arguments on appeal.
ORAP 5.45(1) provides that “[n]o matter claimed as
error will be considered on appeal unless the claim of error
104 Dept. of Human Services v. M. G. J.
was preserved in the lower court * * *.” Preserving a claim
“is not something that can be explained by a neat verbal
formula.” State v. Walker, 350 Or 540, 548, 258 P3d (2011).
A party must articulate enough information to an oppos-
ing party or a trial court “to be able to understand [a par-
ty’s] contention and to fairly respond to it.” Id. at 552. With
those preservation rules in mind, we address the first two
arguments.
In mother’s first argument, she contends that the
juvenile court did not make its own best interest determi-
nation as required by ORS 419B.656(3)(a)(B), and instead,
the court simply adopted the tribe’s best interest determi-
nation. See ORS 419B.656(3)(a)(B) (“The juvenile court shall
accept an order or judgment for tribal customary adoption
that is filed by the Indian child’s tribe if * * * [t]he court
finds that the tribal customary adoption is in the child’s best
interests.”). She asserts that she preserved that argument
below by asserting that: (1) “[t]here’s been no accommoda-
tion of contact with S and P’s other sibling, J, who “will not
be adopted and is under the jurisdiction of a juvenile court
in another county”; (2) mother now has stable housing and
employment; (3) mother has unsupervised contact with her
other daughter, J; and (4) she “continues to disagree” with
the TCAA and expressed that there should be testimony
at the hearing. Those contentions failed to preserve moth-
er’s current argument that the juvenile court did not make
its own best interest determination for two reasons. First,
mother never raised an argument that ORICWA required
the juvenile court to make an independent best interest
finding. Second, if and to the extent she is challenging the
best interest determination that the court did make, she
never alerted the court that ORICWA required something
different. Rather, mother offered argument about her own
progress, the resolution’s lack of explicit mention of S and P’s
relationship with their sibling, and a general dissatisfaction
with the lack of testimony at the hearing. Those arguments
did not preserve the legal argument that she now makes on
appeal. See State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000)
(requiring that an objection is “specific enough to ensure
that the court can identify its alleged error with enough
Nonprecedential Memo Op: 329 Or App 101 (2023) 105
clarity to permit it to consider and correct the error immedi-
ately, if the correction is warranted.”).
In mother’s second argument, she contends that the
juvenile court erred because it did not afford her a constitu-
tionally adequate process before transferring her parental
rights. Mother never attempted to introduce any evidence or
call any witnesses at the hearing. According to mother, the
due process argument was sufficiently preserved because
she complained that it was a “rubberstamp” hearing and
expressed a general desire for more evidence. However, those
statements did not signal to the juvenile court that she was
raising a constitutional due process challenge; rather, her
argument indicated that she had generalized concerns with
the way in which the hearing was conducted. See State v.
Blasingame, 267 Or App 686, 692-93, 341 P3d 182 (2014)
(explaining that even though the “defendant referred to ‘due
process’ generically, the gravamen of his objection was sim-
ply that he disagreed with the case law” and the defendant’s
“general reference to the legal concept of ‘due process’ was
insufficient to preserve his appellate challenge”).
Finally, in mother’s third argument, she asserts that
the juvenile court erred because it should not have accepted
the documents prepared by DHS; rather, she contends that
those documents can only be accepted if they were prepared
by the tribe. See ORS 419B.656(3)(a) (providing the consider-
ations required for the juvenile court to “accept an order or
judgment for tribal customary adoption that is filed by the
Indian child’s tribe”). We review a trial court’s interpreta-
tion of a statue for legal error. State v. Urie, 268 Or App 362,
363, 341 P 3d 855 (2014).
Prior to the hearing, DHS submitted two proposed
documents in each child’s case: (1) an “order accepting order/
judgment of tribal customary adoption”; and (2) a “judgment
of tribal customary adoption.” Mother argues that “the tribe”
did not file the “order or judgment for the tribal customary
adoption” as contemplated by ORS 419B.656, because those
documents were filed by DHS. In response, DHS disputes
mother’s assertions, and alternatively argues that even if
the court did err, the error was harmless. We agree that any
error was harmless. See ORS 19.415(2) (“No judgment shall
106 Dept. of Human Services v. M. G. J.
be reversed or modified except for error substantially affect-
ing the rights of a party.”); see also Doe v. First Christian
Church of the Dalles, 328 Or App 283, 290, ___ P3d ___ (2023)
(explaining that “[d]espite the court’s error here, we cannot
reverse the judgment unless the party seeking reversal can
show that the evidentiary error substantially affected the
party’s rights”). Here, mother’s rights were not substantially
affected for two reasons. First, the tribal representative was
present during the hearing and articulated that “[t]he Tribe
* * * supports this fully * * * [and] there are no objections to
the State’s representation * * * of the Tribe’s agreement.”
Second, nothing in mother’s arguments elucidate or other-
wise dispute how the judgment would be different had the
tribe filed the documents.
Affirmed.