Oregon Court of Appeals

Oregon DHS v. Three Affiliated tribes (MHA Nation): ICWA Case in Oregon Court of Appeals

Matthew L.M. Fletcher

Here.

An excerpt:

The Three Affiliated Tribes of Fort Berthold Reservation (the tribes) appeal a judgment in which the trial court concluded that “good cause” under the Indian Child Welfare Act (ICWA) existed to designate the adoptive placement for two Indian children as the home of their current foster parents rather than the home designated by the tribes. On appeal, the legal issue is whether “good cause” exists to depart from ICWA’s placement preferences. 25 USC § 1915(a). As we will explain, we are bound by the trial court’s findings of fact if there is any evidence in the record to support them, but independently assess whether those findings are sufficient to support the trial court’s legal conclusion that “good cause” exists under the circumstances of this case. Applying that standard, we affirm

Oregon COA Applies Tobacco MSA to New York Seneca Member

Matthew L.M. Fletcher

The opinion is State v. Maybee.

An excerpt:

In sum: The trial court had subject matter jurisdiction over those aspects of defendant’s activities that occur in Oregon. The court did not err in concluding that ORS 180.440(1)(b) applies to those activities and that, therefore, defendant cannot lawfully offer for sale or sell unlisted cigarettes to consumers in Oregon.

Oregon Court of Appeals Decides ICWA Case Involving Yurok Children

Matthew L.M. Fletcher

Here is the opinion in In re J.S.B., where the Oregon Court of Appeals reversed a trial court decision terminating parental rights. An excerpt:

The issue then is whether, under the circumstances of this case, the juvenile court was required at the August hearing to make the assessments required by ORS 419B.476(2)(a).  Mother, for her part, sought reunification at both the June and August hearings.  The juvenile court, apparently relying on its earlier findings in the June hearing, did not undertake to reconsider mother’s circumstances for purposes of reunification at the time of the August hearing, even though that opportunity through mother’s advocacy presented itself.  We conclude, in light of the policies of the ICWA to afford an opportunity for reunification at every dispositional step that could result in contributing to the permanent removal of children subject to its protections, that it was incumbent on the juvenile court at the August hearing to either make new findings under ORS 419B.476(2)(a) or to find that the circumstances regarding reunification had not changed since the last hearing held under ORS 419.476(2)(a).  Otherwise, the policies articulated in 25 USC sections 1901 and 1902 could be frustrated in a hearing held pursuant to ORS 419.476(2)(b) and (c) by a court’s reliance to deny reunification on circumstances that no longer exist at the time of the instant hearing. For that reason, we conclude that the August 2008 judgments are also defective and must also be reversed so that the juvenile court can make the determinations that ICWA contempates.

Oregon Court of Appeals Revives Suit on Oregon Gaming Compacts

Matthew L.M. Fletcher

The case is Dewberry v. Kulongowski, and it involves my favorite court rule, the indispensable party!

From the opinion:

Relators appeal from a judgment dismissing their petition for an alternative writ of mandamus. They argue that the trial court erred in concluding that they failed to establish that they do not have a “plain, speedy and adequate remedy in the ordinary course of the law,” ORS 34.110, and that the trial court misapplied ORCP 29 and ORS 28.110 in the present proceeding. As explained below, we agree with relators in certain respects, albeit at some points for reasons not advanced by the parties, and conclude that relators did not have a “plain, speedy and adequate remedy in the ordinary course of the law,” ORS 34.110, in the form of a declaratory judgment action. Accordingly, we reverse and remand.