- Court: Oregon Court of Appeals
- Area(s) of Law: Juvenile Law
- Date Filed: 01-02-2014
- Case #: A153864
- Judge(s)/Court Below: Nakamoto, J. for the Court; Armstrong, P.J.; and Egan, J.
- Full Text Opinion
Mother appealed a juvenile court's judgment establishing a durable guardianship for her child under ORS 419B.366. Both Mother and child are members of the Klamath Tribe. Mother argued that the juvenile court erred by failing to make a finding the Department of Human Services (DHS) made "active efforts" required by section 1912(d) of the Indian Child Welfare Act (ICWA) to provide remedial services and rehabilitative programs to prevent the breakup of an Indian family and that such efforts had failed. Although this argument was unpreserved, she argued that section 1914 of ICWA allowed her to raise it for the first time on appeal. The Court held that section 1914 of ICWA preempts Oregon's preservation rule under principles of conflict preemption, but that the "active efforts" requirement in section 1912(d) of ICWA is met when a party seeking to effect the foster care placement of an Indian child satisfies the court that it made active efforts to prevent the breakup of the Indian family and that such efforts failed. When a juvenile court makes an "active efforts" finding at a permanency hearing in which it changes an Indian child's permanency plan from return to parent to establishment of a durable guardianship, section 1912(d) of ICWA does not require the juvenile court to renew that "active efforts" finding at a later proceeding in which the court effects that guardianship placement under ORS 419B.366. Affirmed.