No Contested Hearing Required to Accept Tribal Customary Adoption: Oregon Supreme Court Clarifies ORS 419B.656 and Affirms Tribal–State Shared Roles under ORICWA

No Contested Hearing Required to Accept Tribal Customary Adoption: Oregon Supreme Court Clarifies ORS 419B.656 and Affirms Tribal–State Shared Roles under ORICWA

Introduction

In Dept. of Human Services v. M.G.J., 374 Or 228 (2025), the Oregon Supreme Court issued the first statewide guidance on how courts must implement Tribal Customary Adoption (TCA) under the Oregon Indian Child Welfare Act (ORICWA). The decision answers a pivotal procedural question: when a tribe has completed its own TCA process and filed its order or judgment with the juvenile court, must the court hold a contested evidentiary hearing before accepting the tribal filing and entering a judgment of adoption? The Court holds it need not.

The case concerns two Indian children, S and P, who are members of the Pit River Tribe. The Department of Human Services (DHS), joined by the Tribe and the children, supported changing the permanency plan from reunification to TCA. After a fully contested permanency hearing under ORS 419B.476, the juvenile court made the predicate findings and ordered the plan change to TCA, then requested the Tribe to submit its TCA order or judgment. Upon the Tribe’s submission, the court set and held the TCA hearing, accepted the Tribe’s resolution, entered judgments of tribal customary adoption, and terminated jurisdiction.

On review, the mother argued that the court was required to hold a contested evidentiary hearing at the TCA stage and to make an independent best-interests determination based on evidence adduced at that hearing. The Supreme Court affirmed, clarifying the distinct roles of the permanency hearing and the TCA hearing, the content of the best-interests finding “as described in ORS 419B.612,” and the statute’s respect for tribal sovereignty and full faith and credit principles.

Summary of the Opinion

The Court, per Justice DeHoog, affirms the Court of Appeals and the Jackson County juvenile court. It holds that neither ORICWA nor ORS 419B.656 requires a juvenile court to conduct a contested evidentiary hearing after a tribe submits its completed TCA order or judgment. The required determination that TCA is an “appropriate permanent placement” is made at the permanency hearing and need not be relitigated. At the TCA hearing, the court:

  • Confirms that the permanency-stage determination remains satisfied;
  • Makes a best-interests finding “as described in ORS 419B.612,” in consultation with the Tribe, which may be based on the case record, the tribal filing, and the TCA home study; and
  • Verifies the tribal order or judgment includes the statutory components in ORS 419B.656(3)(a)(C).

The Court explicitly rejects the notion that the TCA hearing is a vehicle to relitigate permanency; it is not a “second bite” at the evidentiary apple for objecting parents. It also emphasizes that TCA does not terminate parental rights and therefore does not trigger the procedures and burdens of proof applicable to termination-of-parental-rights (TPR) trials.

On preservation, the Court finds the mother preserved two statutory arguments: (1) that the court had to make its own best-interests finding at the TCA stage, and (2) that the statute entitled her to an evidentiary hearing. The Court rejects both on the merits. Any freestanding constitutional due-process challenge or argument for a beyond-a-reasonable-doubt standard at the TCA stage was not before the Court.

Justice Bushong, joined by Justice Masih, concurs, underscoring that ORICWA’s TCA provisions embody shared sovereignty: the juvenile court decides whether TCA is the appropriate permanency option; the Tribe defines and completes the TCA under tribal custom; and, upon acceptance, the juvenile court must afford full faith and credit to the tribal TCA.

Background and Procedural Posture

S and P, members of the Pit River Tribe, came under dependency jurisdiction. After efforts toward reunification, DHS sought to change the plan to TCA. Following a two-day permanency hearing, with the Tribe’s participation and testimony from a qualified expert witness (QEW) on tribal standards and the proposed placement, the court:

  • Found by clear and convincing evidence the “active efforts” required by ORICWA, that the children could not safely return, and that mother had not made sufficient progress; and
  • Determined that TCA complied with ORS 419B.654 placement preferences and was the appropriate plan (the Tribe did not support TPR).

The court then requested the Tribe’s TCA filing pursuant to ORS 419B.476(7)(d)(A). The Tribe submitted a TCA resolution and agreement; DHS submitted proposed orders and judgments reflecting the statutory findings. The court accepted the tribal resolution, entered judgments of tribal customary adoption, and terminated jurisdiction. On appeal, the Court of Appeals affirmed in a memorandum opinion, treating certain issues as unpreserved. The Supreme Court allowed review and affirmed on the merits.

Analysis

A. Statutory Framework and Key Questions

ORICWA (ORS 419B.600–419B.654) recognizes the inherent jurisdiction of tribes over custody decisions concerning Indian children and aims to protect Indian children’s health, safety, and connections to family, culture, and tribe. In 2021, the legislature added ORS 419B.656 to expressly authorize TCA—a tribal adoption accomplished “by and through the tribal custom, traditions or law of the child’s tribe,” which “may be effected without the termination of parental rights.” ORS 419B.656(1).

At a permanency hearing (ORS 419B.476), the juvenile court may choose TCA as the permanency plan if, after a contested evidentiary hearing and in consultation with the tribe, DHS proves by clear and convincing evidence the statutory criteria including “active efforts” and placement preferences. If the court so determines and the tribe consents, the court must request the tribe’s TCA order or judgment and set a hearing to consider acceptance. ORS 419B.476(7)(d)(A).

The TCA statute then directs the court to “accept an order or judgment for tribal customary adoption that is filed by the Indian child’s tribe” if:

  • The court determines TCA is an “appropriate permanent placement option” (ORS 419B.656(3)(a)(A));
  • The court finds TCA is in the child’s “best interests, as described in ORS 419B.612” (ORS 419B.656(3)(a)(B)); and
  • The tribal order or judgment includes specific content: (i) how the child–parent legal relationship is modified (including contact and inheritance), (ii) the child’s legal relationship with the tribe, and (iii) no child support obligation (ORS 419B.656(3)(a)(C)).

Upon acceptance, the court enters a judgment of tribal customary adoption and its jurisdiction ends. ORS 419B.656(4)(d), (f). The accepted tribal TCA order or judgment receives full faith and credit. ORS 419B.656(3)(b).

B. Precedents and Authorities Cited and Their Roles

  • Dept. of Human Services v. S.J.M., 364 Or 37 (2018) and Dept. of Human Services v. Y.B., 372 Or 133 (2024): The Court used these to frame the permanency context and to emphasize that permanency decisions occur within a structured statutory scheme focusing on the child’s safety and stability.
  • PGE v. BOLI, 317 Or 606 (1993) and State v. Gaines, 346 Or 160 (2009): Provided the interpretive framework—text, context, and legislative history—to construe ORS 419B.656(3)(a)(A)–(B) and ORS 419B.612.
  • State v. Skotland, 372 Or 319 (2024) and Peeples v. Lampert, 345 Or 209 (2008): Guided the preservation analysis; preservation is about fairness and efficiency, not technicalities; mother’s arguments at the TCA hearing sufficiently teed up statutory issues.
  • DCBS v. Muliro, 359 Or 736 (2016), State v. Fries, 344 Or 541 (2008), State v. Cloutier, 351 Or 68 (2011), and State v. McNally, 361 Or 314 (2017): Informed the Court’s approach to dictionary meaning and statutory context when construing “determines” and “finds.”
  • State v. A.R.H., 371 Or 82 (2023) and Arvidson v. Liberty Northwest Ins. Corp., 366 Or 693 (2020): Clarified that “find” often denotes factual determinations but can sometimes refer more generally to making a decision; context controls.
  • Statutory comparators: The Court contrasted the TCA pathway with guardianship (ORS 419B.366) and adoption via TPR (ORS 419B.498, 419B.500–.521). This comparison underscored that the permanency statute itself supplies the contested evidentiary process for selecting TCA, while separate, later-stage evidentiary proceedings exist for guardianship and TPR, but not for TCA.

C. The Court’s Legal Reasoning

1) No contested evidentiary hearing at the TCA stage

The Court’s core holding is textual and contextual. ORS 419B.656(3)(a)(A)–(B) requires the court to “determine” appropriateness and to “find” best interests before accepting a tribal TCA filing. But context matters: the identically worded “appropriate permanent placement” determination is already made—after a contested evidentiary hearing—at the prior permanency stage under ORS 419B.476(7)(d)(A). Requiring a second contested hearing would duplicate the same determination and impede timeliness and stability for the child. Nothing in ORS 419B.656 reimposes evidentiary burdens at acceptance; where the legislature wanted evidentiary hearings for later-stage implementation (e.g., guardianship motions or TPR trials), it said so expressly. It did not for TCA.

The Court therefore reads ORS 419B.656(3)(a)(A) at the TCA hearing as a confirmatory step, not a relitigation. The juvenile court may rely on the existing record—permanency findings, the tribal TCA order or judgment (and TCA home study), and any other materials before the court—to confirm that the TCA matches what was authorized at permanency and complies with statutory content requirements.

2) The best-interests finding “as described in ORS 419B.612”

ORS 419B.656(3)(a)(B) requires the juvenile court to “find” that TCA is in the Indian child’s best interests “as described in ORS 419B.612.” ORS 419B.612 does not define “best interests” generally; it mandates that, “in consultation with the Indian child’s tribe,” the court consider specific factors:

  • Safety, well-being, development, and stability;
  • Prevention of unnecessary out-of-home placement;
  • Prioritization consistent with ORS 419B.654 placement preferences;
  • Value of maintaining political, cultural, social, and spiritual relationships with the tribe and tribal community; and
  • The importance of the tribe’s ability to maintain existence and integrity to promote stability and security of Indian children and families.

The Court emphasizes two points. First, much of this analysis overlaps with determinations already made (e.g., safety, prevention of unnecessary out-of-home placement, compliance with placement preferences) at permanency. Second, the remaining factors—tribal relationships and the tribe’s integrity—lie squarely within tribal expertise, and ORS 419B.612 requires the court to consider best interests “in consultation with the Indian child’s tribe.” This consultative requirement reflects shared sovereignty; it does not authorize unilateral judicial veto of the tribe’s TCA determination where the statutory prerequisites are met.

The Court concludes that the juvenile court must make a best-interests finding at the TCA stage, but it may do so based on the record (including the tribal filing and home study) and its ongoing consultation with the tribe. A new contested evidentiary hearing is not required. Here, the court expressly made the finding, and mother did not challenge the sufficiency of the record to support it.

3) TCA is not TPR; heightened TPR procedures do not apply

The mother argued that because TCA transfers significant rights to adoptive parents, it should trigger TPR-like safeguards. The Court rejects that premise. By statute, TCA “may be effected without the termination of parental rights” (ORS 419B.656(1)). ORS 419B.090(4)’s direction to construe dependency provisions consistent with federal constitutional rights of parents does not transform TCA into a TPR. The Court accordingly declines to graft TPR-specific procedures or burdens (such as beyond a reasonable doubt proofs applicable in certain ICWA contexts) onto the TCA acceptance stage. Any freestanding constitutional due-process claim was not preserved and is not decided.

4) ORICWA’s policy and full faith and credit reinforce the limited scope of the TCA hearing

ORS 419B.600 recognizes the “inherent jurisdiction of Indian tribes to make decisions regarding the custody of Indian children,” and ORS 419B.090(6) articulates Oregon’s policy to safeguard an Indian child’s connections with family, culture, and tribe. ORS 419B.663 requires juvenile courts to afford full faith and credit to tribal acts in Indian child custody proceedings, and ORS 419B.656(3)(b) specifically extends full faith and credit to accepted TCA orders or judgments. These provisions confirm that, once a juvenile court has selected TCA after a contested hearing and requested the tribe to complete the TCA, the acceptance stage is not designed to let an objecting parent reopen the merits of permanency or to “pull the rug out” from the tribal decision that followed the court’s request.

D. Practical Effects and Impact

1) For juvenile courts

  • No requirement to hold a contested evidentiary hearing at the TCA acceptance stage.
  • Do make explicit findings that:
    • TCA remains an appropriate permanent placement (confirmatory);
    • TCA is in the child’s best interests “as described in ORS 419B.612,” noting consultation with the tribe; and
    • The tribal TCA order or judgment includes all items listed in ORS 419B.656(3)(a)(C).
  • Review and, if applicable, accept the tribal TCA home study when it:
    • Contains the required information (e.g., background checks and safety/health information); and
    • Uses the tribe’s prevailing social and cultural standards. ORS 419B.656(2)(b).
  • Upon acceptance, enter the judgment of tribal customary adoption and terminate jurisdiction. ORS 419B.656(4)(d), (f).

2) For tribes

  • Once the court orders TCA as the permanency plan and requests a tribal filing, the tribe’s TCA process and the content of the TCA order or judgment drive the terms of adoption under tribal custom.
  • Ensure the order or judgment expressly addresses: modification of child–parent legal relationships (including contact and inheritance), the child’s legal relationship with the tribe, and no child support obligation. ORS 419B.656(3)(a)(C)(i)–(iii).
  • File at least 20 days before the TCA hearing (unless granted an extension). ORS 419B.476(7)(d)(A)–(B).
  • Upon acceptance by the juvenile court, the TCA receives full faith and credit. ORS 419B.656(3)(b).

3) For DHS and children’s counsel

  • Build a comprehensive permanency record on:
    • Active efforts and safety grounds;
    • Compliance with placement preferences; and
    • Tribal consultation and QEW testimony as required.
  • At TCA stage, submit proposed orders/judgments that track the statute and recite required findings, including the ORS 419B.612 best-interests finding.
  • Ensure the court’s acceptance order and judgment are clear that TCA is under ORICWA/ORS 419B.656 and that jurisdiction terminates.

4) For parents and parent counsel

  • The time to contest whether TCA is the appropriate plan is the permanency hearing. ORS 419B.476 provides the evidentiary forum with a clear-and-convincing standard and tribal consultation.
  • Post-permanency, if circumstances have materially changed, request a new permanency hearing under ORS 419B.470(6). The TCA acceptance hearing is not designed for relitigation.
  • At the TCA hearing, you may raise compliance issues:
    • Whether the tribal order or judgment includes all ORS 419B.656(3)(a)(C) items;
    • Whether the tribal home study satisfies ORS 419B.656(2)(b) (including use of tribal social and cultural standards); and
    • Whether the court’s best-interests finding “as described in ORS 419B.612” is articulated on the record in consultation with the tribe.
  • Because TCA does not terminate parental rights, challenges premised on TPR-specific constitutional or statutory protections were not decided here and, as framed, are unlikely to apply.

E. Complex Concepts Simplified

  • Tribal Customary Adoption (TCA): An adoption completed according to a tribe’s custom, traditions, or law. It can occur without terminating parental rights. The tribe sets the terms—such as contact with parents—and the juvenile court enters a judgment of tribal customary adoption after confirming statutory criteria. ORS 419B.656(1), (3)–(4).
  • Permanency hearing vs. TCA hearing: The permanency hearing (ORS 419B.476) is a fully contested evidentiary hearing about which permanency plan best serves the child; TCA is one option. The TCA hearing (ORS 419B.656) is a limited proceeding to accept the tribal TCA order or judgment if statutory prerequisites are satisfied; no new contested evidentiary hearing is required.
  • Best interests “as described in ORS 419B.612”: Not a free-floating standard; the court must weigh specific factors keyed to Indian child welfare and must consult with the tribe in doing so.
  • Active efforts: Enhanced efforts required in ICWA/ORICWA cases to prevent removal and to reunify the family, proven by clear and convincing evidence at permanency. See ORS 419B.476(5)(k)(A); ORS 419B.645.
  • Qualified Expert Witness (QEW): An expert who can testify about tribal social and cultural standards, among other issues, at certain ORICWA stages (e.g., removal findings). ORS 419B.642.
  • Placement preferences (ORS 419B.654): A ranked list prioritizing Indian placements (extended family, other tribal members, other Indian families). Compliance is a required finding at permanency.
  • Full faith and credit: Once accepted by the juvenile court, the tribal TCA order or judgment must be given full faith and credit (ORS 419B.656(3)(b)), reflecting respect for tribal sovereignty (see also ORS 419B.663).
  • “Ministerial” vs. “rubber stamp”: The Court did not adopt labels, but it clarified that acceptance is limited in scope—not a second merits trial. Still, courts must make statutory findings and confirm compliance; acceptance is not automatic.

F. The Concurrence: Tribal Sovereignty and Shared Decision-Making

Justice Bushong’s concurrence situates the holding within ORICWA’s architecture of shared sovereignty. The juvenile court’s role is to decide—after a contested permanency hearing—whether TCA is appropriate. The Tribe’s role is to define and complete the TCA consistent with tribal custom and law, including conducting the home study using tribal social and cultural standards. Once the juvenile court confirms the statutory predicates and accepts the tribal TCA, it must give full faith and credit to the Tribe’s decision. The concurrence thus emphasizes that the limited nature of the TCA acceptance hearing flows from a structural, sovereignty-respecting allocation of responsibilities between state and tribe.

Practice Checklist for TCA Acceptance Hearings

  • Confirm the permanency record includes all ORS 419B.476(5)(k) findings (active efforts; safety; parental progress; placement preferences).
  • Ensure the court’s TCA acceptance order expressly:
    • States that TCA remains an “appropriate permanent placement option” (confirmatory);
    • Makes a best-interests finding “as described in ORS 419B.612” and references consultation with the Tribe; and
    • Finds the tribal order/judgment contains all ORS 419B.656(3)(a)(C) elements.
  • Verify the tribal home study meets ORS 419B.656(2)(b) (content + tribal social/cultural standards) and was completed at the right time (subject to the current-foster-placement exception).
  • Upon acceptance, enter judgment of tribal customary adoption and terminate dependency jurisdiction. ORS 419B.656(4)(d), (f).

Conclusion

Dept. of Human Services v. M.G.J. establishes a clear, workable rule: once a juvenile court has, at a contested permanency hearing, determined that TCA is the appropriate permanency plan with the Tribe’s consent, the subsequent TCA acceptance hearing under ORS 419B.656 is not a second trial. The court must:

  • Confirm the permanency determination and statutory compliance;
  • Make a best-interests finding “as described in ORS 419B.612,” in consultation with the Tribe, based on the record; and
  • Verify the tribal order or judgment’s statutory contents and the home study criteria.

This framework respects ORICWA’s policies—expediting permanency for Indian children, honoring tribal sovereignty and expertise, preventing unnecessary relitigation, and securing full faith and credit for tribal determinations—while preserving a meaningful, but appropriately limited, judicial role. The decision provides essential guidance to courts, tribes, agencies, and counsel on how to complete TCAs in Oregon consistent with both statutory text and the broader objectives of Indian child welfare law.

Case Details

Year: 2025
Court: Supreme Court of Oregon

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