| (Cite
as: 108 Or.App. 352, 816 P.2d 623)
Court
of Appeals of Oregon.
In
the Matter of Loren Woodruff, Edith Woodruff and Abraham Woodruff,
Children.
STATE
ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Loren Woodruff, Edith
Woodruff
and Abraham Woodruff, Respondents,
v.
Loren
WOODRUFF, Appellant.
8610-81564
B, 8610-81564C, 8610-81564D; CA A66344.
Argued and Submitted Jan.
18, 1991.
Decided
Aug. 14, 1991.
**624 *353
John P. Manning, Portland, argued the cause and filed the brief for appellant.
John Reuling, Jr., Asst.
Atty. Gen., Salem, argued the cause for respondent Juvenile Dept. With
him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder,
Sol. Gen., Salem.
No appearance for respondents
Loren Woodruff, Edith Woodruff and Abraham Woodruff.
Before RICHARDSON, P.J.,
and JOSEPH, C.J.,
[FN*] and DEITS, J.
FN*
Joseph, C.J., vice
Newman, J.
*354
DEITS, Judge.
Father appeals an order
terminating his parental rights to his three children, who are members
of the Chickasaw Indian Nation. He argues that the termination order is
invalid because of the state's failure to comply with the Indian Child
Welfare Act (ICWA). We affirm.
The children, a girl,
9, and two boys, 11 and 2 1/2 , were made wards of the court in November,
1987. Both parents have a long history of addictive use of alcohol and
controlled substances. The youngest child was born with methadone in his
urine. The mother has been incarcerated intermittently. Father is currently
imprisoned on one forgery and four robbery convictions. He is serving
four ten-year sentences and one three-year sentence, to be served consecutively.
Both parents had sexually abused their daughter. The mother was convicted
on one count of sexual abuse, and father was convicted on three counts.
Father was sentenced on those convictions to five years in the state penitentiary
with a two and one-half year minimum to be served consecutively to the
sentences previously recited. He will not be out of prison until 1995,
at the earliest. Neither parent has been steadily employed. Except for
brief periods, the mother's whereabouts have been unknown since September,
1987. She was notified of the termination hearing, but did not appear.
Her parental rights were also terminated, but she has not appealed.
From July, 1987, until
January, 1988, father received assistance from CSD, including probation
services, alcohol and drug evaluation and referrals for treatment, the
Salvation Army Adult Rehabilitation Center-Residential Alcohol Program
and community health nurse services. In late 1987, the mother was gone
from the home, and father requested CSD to care for the children temporarily.
CSD placed them in two foster homes with non-Indian parents. Father had
regular contact with them until January, 1988, when he was arrested for
the robberies. He was convicted and sentenced in April, 1988. The daughter
disclosed to her therapist that her father abused her and, in November,
1988, he was convicted of sexual abuse. Father still denies abusing his
daughter. He has not made lasting progress in his ability to care for
the children, even aside from his being in prison. *355
They remained in the same foster homes until the termination proceedings.
When father requested
assistance with the children in September, 1987, he told CSD that they
were of Indian heritage. ICWA applies to child custody proceedings
involving an "Indian child" as defined in 25 U.S.C. § 1903(4).
[FN1] On December 11, 1987, CSD sent a letter to the Chickasaw Indian
Nation, in Oklahoma, asking if the children or either parent were members
of the tribe. Eleven days later, the tribe responded with a request for
more information; it enclosed an application for CSD to fill out and to
return along with birth certificates. There is no evidence that CSD returned
the form. Instead, CSD sent another letter, similar to **625
the previous one, in June, 1988. The tribe responded two weeks later,
sending copies of the earlier correspondence and again requesting more
information.
FN1.
Under 25 U.S.C. § 1903(4),
"
'Indian child' means any unmarried person who is under age eighteen 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[.]"
On December 8, 1988,
after a request by the juvenile court to document the efforts made to
comply with ICWA, CSD telephoned the tribal headquarters. In response,
it again requested CSD to submit applications and birth certificates.
On December 23, 1988, CSD submitted the applications and the children's
birth certificates. A week later, the tribe replied:
"These
children are eligible for membership within the Chickasaw tribe. [Their
great grandparents] were enrolled members of the Chickasaw tribe.
"The
Chickasaw tribe will not intervene in these proceedings. We are confident
that the mandates of Indian Child Welfare Act, P.L. 95-608, will be followed.
Interpretation for placement is extended family, tribal placement, other
Indian families and non-Indian placement is the last consideration."
The mother and the children were finally enrolled in the Chickasaw Indian
Nation in December, 1989, (a year later) *356
shortly after CSD submitted the mother's and the grandmother's birth certificates.
[FN2]
FN2.
In April, 1989, CSD began trying to establish father's tribal affiliation
but was unable to do so.
CSD filed a petition
to terminate the mother's and the father's parental rights on September
1, 1989. A hearing on the petition was originally scheduled for January,
1990. However, it was postponed in order to give the tribe sufficient
notice of the hearing. The tribe again notified CSD that it would not
intervene in the termination proceedings. A hearing was held in April,
1990, and the trial court granted the petition to terminate.
Father assigns error to the trial court's denial of his motion to dismiss
the petition to terminate and its conclusion that the allegations in the
petition were proven beyond a reasonable doubt, as required by ICWA. He
first asserts that the placement of the children in foster care violated
the provisions establishing preferences for foster placement. 25 U.S.C.
§ 1915(b) provides that, "in the absence of good cause to the
contrary," preference in placement shall be given to:
"(i)
a member of the child's extended family;
"(ii)
a foster home licensed, approved, or specified by the Indian child's tribe;
"(iii)
an Indian foster home licensed or approved by an authorized non-Indian
licensing authority; or
"(iv)
an institution for children approved by an Indian tribe or operated by
an Indian organization which has a program suitable to meet the Indian
child's needs."
The children were not
given any of those placements. However, even assuming that there was not
good cause not to place the children properly and that the provision was
therefore violated, the act does not make the violation of the placement
preferences a basis for dismissing a petition for termination.
[FN3] ICWA provides that an Indian child who is the *357
subject of foster care placement or parental rights termination, the parent
of the child or an Indian custodian may petition the court to invalidate
the court's action "upon
a showing that such action violated any provision of [25 U.S.C. §§
1911, 1912, 1913]." Failure to comply with the foster care placement
preferences in § 1915(b) is not a basis for invalidating a court
order terminating parental rights. 25 U.S.C. § 1914.
FN3.
We do not decide whether those provisions of 25 U.S.C. § 1915(b)
were satisfied. We note, however, that the trial court found that "the
children were in non-ICWA placements even after it was clear that they
were covered by the Act," and it ordered:
"2.
That Children's Services Division immediately comply with the placement
preferences specified by the Tribe and the Indian Child Welfare Act.
"3.
That if the children are not in an ICWA placement within 60 days, this
matter will be scheduled before this judicial officer for an immediate
placement review."
Father also argues that
the act was violated, because he was not advised of his **626
rights as required by 25 U.S.C. § 1913(a).
[FN4] However, that requirement applies only when a person voluntarily
consents to termination, which is not the case here. Although father's
initial request for CSD assistance in caring for his children was voluntary,
the termination proceedings were involuntary and were initiated by CSD
after he had been convicted
of sexually abusing his daughter.
FN4.
25 U.S.C. § 1913(a) provides:
"Where
any parent or Indian custodian voluntarily consents to a foster care placement
or to termination of parental rights, such consent shall not be valid
unless executed in writing and recorded before a judge of a court of competent
jurisdiction and accompanied by the presiding judge's certificate that
the terms and consequences of the consent were fully explained in detail
and were fully understood by the parent or Indian custodian. The court
shall also certify that either the parent or Indian custodian fully understood
the explanation in English or that it was interpreted into a language
that the parent or Indian custodian understood. Any consent given prior
to, or within ten days after, birth of the Indian child shall not be valid."
Father contends that CSD violated 25 U.S.C. § 1912(d) by not offering
him "remedial services and rehabilitation programs designed to prevent
the breakup of the Indian family." The trial court found that CSD
had provided such services. There was evidence that father had been offered
such services, including drug and alcohol treatment programs, anger management
and sex offender treatment. However, he denies that he has sexual or substance
abuse
problems and has declined to participate in those programs. We conclude
that, in view of the nature of father's problems, the services provided
were appropriate. See
State ex rel. Juv. Dept. v. Tucker,
76 Or.App. 673, 683, 710 P.2d 793 (1985), rev.
den. 300 Or.
605, 717 P.2d 1182 (1986).
*358
Father also argues that CSD violated 25 U.S.C. § 1912(f) by not providing
appropriate expert testimony. Section 1912(f) provides:
"No
termination of parental rights may be ordered in any proceeding in the
absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or custodian is likely to result in
serious emotional or physical damage to the child."
We have held that, as a general proposition, an expert witness within
the meaning of this statute is a person with specialized knowledge of
"social and cultural aspects of Indian life." State
ex rel. Juv. Dept. v. Charles,
70 Or.App. 10, 16 n 3, 688 P.2d 1354 (1984), rev.
dismissed 299
Or. 341, 701 P.2d 1052 (1985).
A counseling psychologist,
herself an Indian, reviewed the children's files and testified. She specializes
in Indian culture and has approximately 20 years experience in treating
Indian families and adolescents. She first described similarities among
Indian tribes in child-rearing practices, particularly non-physical discipline
methods, freedom given to children and the importance
of extended families. She testified that neither substance nor sexual
abuse is acceptable in Indian culture. Responding to a question about
the impact of substance abuse on the children, she testified that they
would feel no security, would mature much faster than they should and
would have no chance to be children. When asked about the impact of the
sexual abuse, she testified:
"[I]t
has the same impact it would have with any family. Sex abuse * * * affects
the child so much more than anything else that could ever happen to that
child emotionally for the rest of her life."
She also testified that the children suffered from neglect and the extended
absences of their parents and that "the chances of these parents
ever being able to care for these children is highly unlikely." We
conclude that the trial court properly denied father's motion to dismiss
the petition to terminate.
[FN5]
FN5.
Father also argues that CSD violated its own administrative rules by not
following ICWA when it knew that the children and parents are of Indian
heritage. OAR 412-26-035(8) provides:
"If
the child is not a member of his or her tribe, but is applying to become
a member, the caseworker shall proceed as though the child is a member
and follow the requirements of the Act. Division staff shall assist
the family in filling out and returning required paperwork to the appropriate
tribe and, as necessary, counsel parents hesitant to enroll a child by
emphasizing the positive benefits of tribal membership."
Again,
failure to comply with that provision does not provide a statutory basis
to invalidate the termination, and we need not decide whether CSD complied
with the rule.
*359
**627
Finally, father argues that, under ICWA, termination must be proven beyond
a reasonable doubt and that the state failed to do so. The standard of
proof for the termination of rights to Indian children is beyond a reasonable
doubt, 25 U.S.C. § 1912(a), and we conclude that the standard was
met. We find that the evidence establishes beyond a reasonable doubt that
father is unfit as a parent and that reintegration into the home is not
likely to occur in the foreseeable future. ORS 419.523(2).
Affirmed.
108 Or.App. 352, 816
P.2d 623
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