Dept. of Human Services v. K. C. W.

Summary

The Oregon Court of Appeals reversed juvenile court judgments establishing guardianships over three Indian children under ORS 419B.366. The court held that the mother's unpreserved challenge was reviewable under the Indian Child Welfare Act and that the Department of Human Services failed to prove by clear and convincing evidence a causal nexus between the mother's substance use and the likelihood of serious emotional or physical damage to the children. The court did not address the mother's remaining assignments of error.

Holdings

1. A parent of an Indian child may raise on appeal, without preservation, a challenge asserting that a guardianship violated ICWA's minimum protections, because ICWA section 1914 authorizes a petition in any court of competent jurisdiction and preempts conflicting state preservation requirements.
2. Before ordering a guardianship constituting a foster-care placement, the juvenile court must have clear and convincing evidence, including qualified-expert testimony, that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child; evidence of substance abuse or instability alone is insufficient without a demonstrated causal relationship to harm to the particular children.

Questions Presented

1. Whether mother's unpreserved challenge to the ICWA-required finding under 25 USC section 1912(e) was reviewable for the first time on appeal under 25 USC section 1914.
2. Whether ODHS presented clear and convincing evidence establishing a causal relationship between mother's particular conditions, including substance use and instability, and the likelihood that continued custody by mother would result in serious emotional or physical damage to the children.
3. Whether the juvenile court erred in ordering guardianships under ORS 419B.366.

Disposition

reversed