State Ex Rel. Juvenile Department v. England

640 P.2d 608, 292 Or. 545, 1982 Ore. LEXIS 718

• Court: Oregon Supreme Court
• Decided: February 10, 1982
• Docket: SC 27983, CA 18918
• Status: Published

Opinions

CAMPBELL, J.

The issue in this case is whether an Indian foster parent has “legal custody” of an Indian foster child so as to come within the definition of “Indian custodian” under the federal Indian Child Welfare Act (hereinafter ICWA), 25 USC § 1901 et seq. Persons qualifying as “Indian custodians” under the ICWA are entitled to notice and certain other rights in proceedings to terminate placement. 25 USC § 1912. The Multnomah County Circuit Court Juvenile Department denied petitioner England’s motion for reconsideration of its order revoking her status as foster parent of her niece, Sonja Charloe. The Court of Appeals affirmed, 52 Or App 843, 629 P2d 1319 (1981), finding that petitioner was not an “Indian custodian” as defined by 25 USC § 1903(6):

“Indian custodian means any Indian person who has legal custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child;”

We allowed petitioner’s petition for review.¹

Sonja Charloe was born November 4, 1970. Her mother, Eileen Charloe, was the daughter of a Seneca and Cayuga Indian father and a Scotch-Irish mother. Both Eileen Charloe and Sonja Charloe are enrolled members of the Seneca-Cayuga Indian Tribe of Oklahoma. Since 1970, Sonja’s life has been divided between living with her mother and living with her mother’s full sister and family (petitioner) or in an institution. Children’s Services Division (hereinafter CSD) has been asked to intervene in the care of Sonja at least ten times since 1970, half of these by the mother, with or without police intervention, and half by petitioner. Sonja has been committed to the legal custody of CSD and made a ward of the court four times, the last of these on February 13, 1979. At the time of the hearing at issue CSD had legal custody of Sonja, and had placed her in the foster care of her aunt, petitioner. At the hearing, held January 15, 1980, it was determined that foster care with petitioner should be terminated. The natural mother received notice of the hearing pursuant to 25 USC § 1912:

“(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.”

This provision also applies to removal from foster care. 25 USC § 1916.

Petitioner did not receive notice under 25 USC § 1912, nor did she receive actual notice of the hearing. On June 9, 1980, petitioner filed a motion to invalidate the January 15, 1980 hearing and to hold a new hearing pursuant to 25 USC § 1914. A hearing was held on the motion on August 20, 1980, at which point the circuit court denied petitioner status as an “Indian custodian” and issued an order denying the motion for reconsideration:

“This matter came before the court on the motion of the maternal aunt and uncle, Mr. and Mrs. England, for a reconsideration of the wardship order and disposition of January 15, 1980. The Court listened to the arguments of respective counsel for each of the parties, including counsel for Mr. and Mrs. England, and makes the following finding of law: Mr. and Mrs. England are not Indian custodians within the definition of 25 USC § 1903(6) for the reason that they do not have legal custody of the child under the law of the State of Oregon. Based on this finding, the motion for reconsideration is not well taken and is hereby disallowed.”

Petitioner filed a notice of appeal from the order denying the motion regarding the court’s original order revoking the Englands’ status as foster parents of Sonja Charloe. Petitioner alleges error in the Court of Appeals finding that, because legal custody of Sonja was in CSD pursuant to ORS 419.507(2),² petitioner did not fit the statutory definition of “Indian custodian” in 25 USC § 1903(6). Petitioner contends that: 1) the term “Indian custodian” should be interpreted in a way consistent with the purposes of the ICWA, which would suggest an interpretation of “legal custody” to include actual lawful physical custody for purposes of status as an Indian custodian; and 2) Federal standards in the ICWA preempt state law defining legal custody. The state counters by arguing that “legal custody” means “legal custody” and that this was in CSD, and that preemption does not apply since the federal statute refers to state law for a definition of “legal custody,” therefore there is no conflict to be resolved by resort to the doctrine of preemption.

The primary controversy in this case revolves around interpretation of the term “legal custody” as used in the definition of “Indian custodian,” 25 USC § 1903(6). We first look to the express language of this section, and then refer to the legislative history surrounding passage of the ICWA for elaboration. “Indian custodian” is defined by 25 USC § 1903(6) as:

“.. . any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;”

The literal language of this section indicates a clear intent that “legal custody” be used in its legal sense, i.e., as defined by state law or by tribal custom or law. Where the parent transfers temporary physical care, physical custody, and physical control to any other Indian person, such other person is to be considered an Indian custodian as well.

The context lends support to a literal reading of 25 USC § 1903(6). Other definitions in 25 USC § 1903 include the following:

“(l)(i) ‘foster care placement’ (which) shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;. . .

“(7) ‘Indian organization’ means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians. . .

“(9) ‘parent’ means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under trial law or custom. It does not include the unwed father where paternity has not been acknowledged or established; ...” (Parenthesis added).

The definitions quoted above illustrate the variety of terms deliberately used in the ICWA. It is unlikely that Congress, while taking care to distinguish meanings by the use of certain terms in its definition sections, would inadvertantly use a term of art such as “legal custody” to mean actual custody.

The ICWA was enacted in 1978 to effectuate the dual policies of protection of the best interests of Indian children and promotion of the stability and security of Indian tribes and families. 25 USC § 1902. Congress found that because of the special relationship between the federal government and Indian tribes, and because of Congress’ plenary power over Indian affairs (United States Constitution, Art. I § 8, cl 3), federal action was necessary to avoid the alarmingly high percentage of Indian family breakups resulting from the removal of Indian children from their homes by nontribal public and private agencies and their placement in non-Indian foster and adoptive homes and institutions. Congress also found that administrative and judicial bodies have often failed to recognize the essential tribal relations of Indian people and their cultural and social standards. 25 USC § 1901. The ICWA therefore aims to promote its stated policies by “the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 USC § 1902. Among such minimum federal standards are the requirements of notice to parents and Indian custodians of any hearing regarding change in foster care placement or any termination of parental rights, 25 USC § 1912; the affording such persons other rights such as the right to intervene and the right to appointed counsel, 25 USC § 1911; § 1912; and the requirement that preference be given in adoptive or foster placement to members of the Indian child’s extended family and members of the child’s tribe, 25 USC § 1915.

Several things appear upon an examination of the ICWA itself. First, a distinction is drawn between those standing in the shoes of parents, whether by adoption or Indian custodian status or by blood, and foster parents or state agencies. Foster care is temporary in nature. It does not deprive the parent of his ultimate right to the child. See 25 USC § 1903(l)(i). Those having some form of permanent custodial responsibility for an Indian child, or those receiving custody from a parent, are given the benefit of certain minimum protections before they are deprived of an Indian child, even for temporary foster care. Such custodians also have the right to invoke the ICWA’s protections regarding preferences to be given to Indian families in foster and adoptive care. Second, foster parents are given no express rights under the ICWA. Third, Congress expressly intended to use the term “legal custody” as a term of art, as is illustrated by its use of “lawful” and “legal” elsewhere in the ICWA, giving rise to the inference of different meanings.

The legislative history does not contradict our reading of the ICWA. As originally proposed, the definition of “Indian custodian” included only those extended family members having temporary physical custody given by a parent or those having custody in accordance with tribal law or custom. S 1214, 95th Cong., 1st Sess. (1977). The final act broadened coverage to include “any Indian person,” not merely extended family members to whom legal custody is given by state law or by tribal custom or law. Petitioner argues that the changes in drafting show the legislative intent to broaden the definition of Indian custodian. We agree, but we do not find this broadening intent to encompass petitioner’s claim regarding related foster parents. All Indian persons coming within the definition of “Indian custodian” are allowed such status regardless of their status as relatives. This intent does not relate to the situation where an Indian extended family member does not come within the definition of “Indian custodian.”

Petitioner quotes the following passage from the legislative history in support of its contention that “legal custody” means actual physical custody rather than legal custody as defined by state law:

“Paragraph (6) defines ‘Indian custodian.’ Where the custody of an Indian child is lodged with someone other than the parents under formal custom or law of the tribe or under State law, no problem arises. But, because of the extended family concept in the Indian community, parents often transfer physical custody of the Indian child to such extended family member on an informal basis, often for extended periods of time and at great distances from the parents. While such a custodian may not have rights under State law, they do have rights under Indian custom which this bill seeks to protect, including the right to protect the parental interests of the parents.” H.R. Rep. No. 1386 at 20 (1978).

This section describes the reasoning behind allowing Indian custodian status to some persons other than those accorded legal custody under state law or under formal tribal law or custom. The ICWA expressly allows for “Indian custodian” status to Indian persons given physical custody by a parent. This informal custom would not yield such status unless expressly so provided by the ICWA. Petitioner does not claim Indian custodian status pursuant to the ICWA’s provision regarding informal transfers from a parent. Since petitioner did not receive Sonja from a parent, she cannot qualify under that provision.

As a general matter, foster parents who are paid for their temporary provision of room and board to children of others have no statutory rights on termination of their status. In Oregon, legal custody is in CSD where public funds are to be expended for foster care. CSD “purchases care” for foster children and supervises such care until adoption or majority. ORS 418.280; 418.480; 419.507(2). Indian foster parents are not included in the definition of “Indian custodian.” We cannot say such persons are included in direct contradiction of the language of the Act. It is therefore unnecessary to invoke the constructional rules appellant argues for, since the legislative intent is clear on the face of the statute. A paid caretaker has very different concerns as to a child’s welfare than does a family member who takes on the costs of care himself. We cannot say that the case is different where the paid caretaker also is a member of the child’s extended family. Such a determination is up to Congress to make. We therefore hold that a member of a child’s extended family who assumes foster care of such child and accepts state funds for such purpose does not become an “Indian custodian” and is therefore not entitled to notice of a hearing to terminate its parental status any more than a normal foster parent would be.

Petitioner’s preemption argument is unpersuasive to us because Congress expressly left the determination of “legal custody” up to state law. Even if the federal legislation totally preempted the field, such an express intent would allow state law to govern the determination of legal custody. Since preemption was not clearly intended by Congress, we cannot now read such intent into the legislation. Florida Avocado Growers v. Paul, 373 US 132, 83 S Ct 1210, 10 L Ed 2d 248 (1963).

Affirmed.

1 Petitioner does not claim status as an “Indian custodian” under tribal law or custom or by transfer from the parent. Therefore only the state law question is before us.

2 ORS 419.507 provides:

“A child found to be within the jurisdiction of the court as provided in subsection (1) of ORS 419.476, may be made a ward of the court. Where a child has been found to be within its jurisdiction, and when the court determines it would be in the best interest and welfare of the child, the court may:

“(1) Place the child on probation or under protective supervision. The court may direct that the child remain in the legal custody of his parents or other person with whom he is living or may direct that the child be placed in the legal custody of some relative or some person maintaining a foster home approved by the court, or in a child care center or a youth care center authorized to accept the child. The court may specify particular requirements to be observed during the probation or protective supervision consistent with recognized juvenile court practice, including but not limited to restrictions on visitation by the child’s parents, restrictions on the child’s associates, occupation and activities, restrictions on the requirements to be observed by the person having the child’s legal custody and requirements for visitation by and consultation with a juvenile counselor or other suitable counselor. Restitution for property taken, damaged or destroyed by the child may be required as a condition of probation.

“(2) Place the child in the legal custody of the Children’s Services Division for care, placement and supervision.

“(a) The division may place the child in a child care center authorized to accept the child.

“(b) If the child has been placed in the custody of the Children’s Services Division, the court shall make no commitment directly to any residential facility, but shall cause the child to be delivered into the custody of the Children’s Services Division at the time and place fixed by rules of the division. * * *”