State ex rel Juvenile Department v. Bertrand

7 P.3d 662, 168 Or. App. 617, 2000 Ore. App. LEXIS 1102
CourtCourt of Appeals of Oregon
DecidedJune 28, 2000
Docket9606-81768; CA A107172
StatusPublished

This text of 7 P.3d 662 (State ex rel Juvenile Department v. Bertrand) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel Juvenile Department v. Bertrand, 7 P.3d 662, 168 Or. App. 617, 2000 Ore. App. LEXIS 1102 (Or. Ct. App. 2000).

Opinion

LINDER, P. J.

Father and mother appeal from a juvenile court order terminating their parental rights to five children. Their primary contention on appeal is that the state cannot terminate their parental rights because the State Office of Services to Children and Families (SOSCF) and the juvenile court failed to comply with the refugee child statutes, ORS 418.925 through ORS 418.945. We write to address whether noncompliance with those statutes affects termination of parental rights under ORS 419B.500 through ORS 419B.524, and to identify the appropriate standard of proof in these kinds of cases. We affirm.

Father and mother are Haitian refugees who arrived in the United States in 1994. Since then, numerous public and private agencies have offered them extensive services. Despite those services, their living circumstances have not improved. Between June 1996 and February 1998, the state filed dependency petitions for each of the five children, alleging conditions that endangered their welfare. The juvenile court found all of the children to be within its jurisdiction pursuant to ORS 419B.100. The orders declared the children to be wards of the court and removed them from parents’ care. Specific reasons for the juvenile court’s intervention included parents’ mental health problems, a history of residential and financial instability, insufficient parenting skills, the use of excessive disciplinary measures, and a failure to cooperate with SOSCF. Plans to return the children were unsuccessful because parents were unable to maintain employment or adequate housing. The three oldest children have significant special needs.

In November 1998, SOSCF filed a petition to terminate father’s and mother’s parental rights on several grounds, including unfitness and neglect.1 ORS 419B.504; ORS 419B.506. At the termination hearing, parents urged the juvenile court to deny the petition, arguing that SOSCF did not comply with the requirements of the refugee child statutes. Specifically, they maintained that SOSCF did not [620]*620follow the proper placement preferences or use a Refugee Child Welfare Advisory Committee in cooperation with refugee community resources. In response, the state argued that it complied with the statutes. The juvenile court rejected parents’ argument, reasoning:

“The court heard much about SOSCF’s lack of compliance with the Refugee Child Welfare Act. While the act has some similarities to the Indian Child Welfare Act [(ICWA)] and the court has previously ruled that the proof standards are the same as ICWA[J the statute is not a carbon copy of ICWA and should not be treated that way. The legal file is replete with judicial findings that SOSCF has complied with this act and this court concurs with those rulings.”

The court also found that the state proved all of the allegations pertaining to parents, and it granted the petition to terminate.

On appeal, parents renew the argument that they made below based on the refugee child statutes, pointing to specific statutory violations. The state responds that violation of those statutes does not invalidate a termination order and that parents should have raised any challenge based on those statutes when the children were initially removed. We agree with the state.

The refugee child statutes provide that SOSCF and the juvenile court must comply with several requirements when dealing with the removal and placement of a “refugee child.”2 See ORS 418.925 through ORS 418.945. For example, ORS 418.927(1) provides that SOSCF shall not remove a refugee child unless “removal is necessary to prevent imminent serious emotional or physical harm to the child and the provision of preventative or remedial services do not alleviate the harm.” The statutes also specify the procedures by which [621]*621SOSCF and the juvenile court should effectuate a refugee child’s removal and placement. See ORS 418.930 (requiring SOSCF to file a petition with the juvenile court detailing the circumstances which led to removal); ORS 418.933 (requiring SOSCF to include specific information in its petition and a judicial determination on removal); ORS 418.937 (requiring SOSCF and the juvenile court to consider the child’s culture and tradition and follow placement preferences); ORS 418.941 (requiring SOSCF to establish a Refugee Child Welfare Advisory Committee). None of the refugee child statutes, however, purports to govern the juvenile court’s jurisdiction generally or termination proceedings in particular.

The dependency chapter of the juvenile code provides that, after appropriate proceedings, the juvenile court may terminate parental rights to any child who is within the court’s jurisdiction under ORS 419B.100. Typically, the state must prove that the grounds for termination exist by clear and convincing evidence, and the state must demonstrate by the same standard that termination would be in the best interests of the child. ORS 419B.500; ORS 419B.521(1). Although the sections of the juvenile code dealing with jurisdiction and termination proceedings cross-reference and require compliance with the Indian Child Welfare Act (ICWA),3 any similar reference to the provisions regarding refugee children is noticeably absent.

The question presented in this case is analogous to one addressed in State ex rel Juv. Dept. v. Woodruff, 108 Or App 352, 816 P2d 623 (1991). In Woodruff, the father argued that, because Children’s Services Division (CSD)4 violated various provisions of the ICWA, the order terminating his parental rights was invalid. See 25 USC § 1901 et seq.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Ex Rel. Juvenile Department v. Woodruff
816 P.2d 623 (Court of Appeals of Oregon, 1991)
In re the Marriage of Mannix
932 P.2d 70 (Court of Appeals of Oregon, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
7 P.3d 662, 168 Or. App. 617, 2000 Ore. App. LEXIS 1102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-v-bertrand-orctapp-2000.