- Court: Oregon Court of Appeals
- Area(s) of Law: Family Law
- Date Filed: 05-18-2016
- Case #: A157952
- Judge(s)/Court Below: Haselton, S.J. for the Court; Lagesen, P.J.; & Flynn, J.
Parents appealed the trial court's denial of Parents' motion to dismiss for lack of jurisdiction once Parents discovered that the child was of Indian descent. According to the Indian Child Welfare Act (ICWA), the Dept. of Human Services (DHS) must inquire into the heritage of every child they assume custody over; if the child is of Indian descent, the State must notify and request permission from the child's tribe. If the tribe does not give consent, the State must have "clear and convincing evidence" rather than the typical preponderance of the evidence standard. 25 USC § 1912(e). The parents discovered and notified DHS of the Indian heritage after custody had been assumed, and filed a motion to dismiss for lack of jurisdiction on the grounds that the preponderance of the evidence standard had been used, rather than the "clear and convincing evidence" standard. The court held that ICWA applied only after DHS became aware the child was of Indian descent, since they had exercised reasonable care in discovering the child's heritage. The trial court used the correct standard. Affirmed.