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FILED: December 19, 2012 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of S. W. F., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. W. H. F., Appellant. Petition Number J0703402 Hood River County Circuit Court J0703401 A150794

John A. Wolf, Judge. Argued and submitted on October 09, 2012. Megan L. Jacquot argued the cause and filed the brief for appellant. Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge. SCHUMAN, P. J. Affirmed.

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SCHUMAN, P. J. In Dept. of Human Services v. W. F., 240 Or App 443, 247 P3d 329 (2011), this court reversed a juvenile court judgment that continued a permanency plan of adoption for father's five-year-old son, S, for the reason that the judgment did not include certain statutorily required determinations. On remand, the juvenile court made the appropriate determinations and once again continued the permanency plan of adoption. The court also ordered the filing of a termination petition. Father appeals once again. We affirm.1 The facts are largely undisputed. S and mother are members of the King Island Native Community Tribe in Alaska, so this case is subject to the Indian Child Welfare Act (ICWA). Father began a sexual relationship with mother when she was 14 years old and he was 33, and mother became pregnant with S as a result. Mother was a ward of the State of Alaska at that time and had run away from foster care. S was born on June 15, 2007. DHS took custody of S, who is now five years old, in August 2007, and he has been in foster care since that time. Father was arrested in August 2007 and pleaded guilty to two counts of third-degree sexual abuse of a minor, arising out of his sexual relationship with mother. With the exception of approximately one month during April and May of 2008, father has

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Mother has previously relinquished parental rights to S and is not involved in this

case.

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been serving time in a Wyoming correctional facility since his arrest in 2007. 2 At the time of the hearing, he was in a re-entry facility with a projected release to occur some time between 2013 and January 2016. He is allowed to work in the community under supervision of a parole officer. The permanency plan for S has been adoption since December 2008. S's first potential adoptive placement fell through when the foster parents divorced. S has been with his current foster family since September 2011. The potential adoptive father is an Indian tribal member, although not of the same tribe as S. As noted, the judgment currently on appeal continues adoption as the permanency plan for S.3 Father requests that we exercise our discretion under ORS
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In September 2008, father was given a suspended sentence of six to eight years' imprisonment and placed on probation. A month later, he violated probation and the court ordered him to serve his sentence. He has remained in custody since that time.
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We quote here the entirety of the juvenile court's findings with respect to the December 23, 2011, permanency determination: "[T]he Court makes the following findings on clear and convincing evidence, because the child is an 'Indian child' under the Indian Child Welfare Act: "1. The permanency plan in effect at the time of the permanency hearing was adoption. "2. DHS has made reasonable efforts to place [S] in a timely manner in accordance with the permanency plan of adoption and has taken the steps necessary to finalize his permanent placement. Those steps include placing [S] in an Indian home that is prepared to adopt him. Adoption by this family has the approval of the King Island Native Community and DHS. "3. DHS has considered whether other permanent planning options were appropriate, including in-state placement options and interstate 2

placement options. Such options were not consistent with the plan of adoption nor were they otherwise appropriate. "4. DHS has made diligent efforts to place the child with relatives. No relatives of Father's ha[ve] been able to meet the placement requirements of the foreign state and relatives of Mother are not suitable or are unknown. [S] has no known siblings. "5. Continued substitute care is required as necessary to the plan of adoption. "6. The current placement is intended to be permanent. "7. DHS continues to make reasonable efforts to finalize the permanent plan of adoption for [S], including filing for termination of parental rights, holding an adoption committee, selecting an adoptive family, involving the native community in the placement selection, ensuring [S] is receiving needed counseling and developmental services including preschool and play therapy services, making monthly home visits with [S] in adoptive home, completion of required adoption-related paperwork (legal assistance referral, adoption child summary, medical/birth information, etc.), completing a Life Book story and photo book for [S]. "8. That the number of placements made, schools attended, face-toface contacts with the assigned caseworker, and parent visitation was established and the frequency of each of these is in the best interest of the child. "a. Number of placements: 3. "b. Number of schools: Child is not yet school aged. He is participating in Head Start and preschool. "c. Parent-child visitation: 1 visit on May 2, 2008. DHS has facilitated contact by pictures, photos, letters and audiotapes while Father has been incarcerated in Wyoming. "d. Face-to-Face Contacts between DHS worker and child (6/10 to present): 20 as set out in the Permanency Court Report (Exhibit 2). "9. Adoption will continue to be the permanent plan for [S]."

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19.415(3) to review the juvenile court's ruling de novo, "at least with regard to the ICWA issues in order to determine the facts that apply to this case." We decline to do so, as this is not an exceptional case. ORAP 5.40(8)(c) (court will review record de novo "only in exceptional cases"). In any event, as noted, the facts are largely undisputed and the dispositive issues are legal. In his first assignment of error, father asserts that, in continuing the permanency plan of adoption, the juvenile court erred by failing to require DHS to show "active efforts" to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. The state responds that, in the context of the permanency phase of a dependency proceeding, when, as here, the permanency plan at the time of the hearing is not reunification but adoption, the "active efforts" requirement set out in ORS 419B.476(2)(a) does not apply. That requirement applies only when the permanency plan is reunification. In this situation, DHS is required to make only "reasonable efforts" to find an adoptive placement. Father counters that each time a placement is changed for an Indian child, the state must show that it has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. The state's position is correct. ORS 419B.476(2) provides, in part: "At a permanency hearing the court shall: "(a) If the case plan at the time of the hearing is to reunify the family, determine whether the Department of Human Services has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the ward to safely return home and whether the

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parent has made sufficient progress to make it possible for the ward to safely return home. In making its determination, the court shall consider the ward's health and safety the paramount concerns. "(b) If the case plan at the time of the hearing is something other than to reunify the family, determine whether the department has made reasonable efforts to place the ward in a timely manner in accordance with the plan, including, if appropriate, reasonable efforts to place the ward through an interstate placement, and to complete the steps necessary to finalize the permanent placement." (Emphasis added.) Thus, in the permanency phase of a dependency case, the requirement for active efforts under ICWA applies only when the case plan at the time of the hearing is to reunify the family. ORS 419B.476(2)(a). See Dept. of Human Services v. T. C. A., 251 Or App 407, 413, 283 P3d 956 (2012) (provisions of ORS 419B.476(2)(a) apply only when case plan at time of hearing is reunification). When, as here, the case plan at the time of hearing was not reunification, the active efforts standard set forth in ORS 419B.476(2)(a) does not apply. To the extent that father is arguing that, irrespective of the requirements of ORS 419B.476(2)(a), ICWA itself requires a showing of "active efforts" at this procedural stage, we note that that was not the argument father made below. In any event, we reject it. ICWA provides, in part: "Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitate programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 USC

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