Gila River Indian Cmty. v. Dep't of Child Safety
Decision Date | 08 December 2015 |
Docket Number | No. 1 CA–JV 15–0178.,1 CA–JV 15–0178. |
Parties | GILA RIVER INDIAN COMMUNITY, Destiny O., Appellants, v. DEPARTMENT OF CHILD SAFETY, D.B., J.L., S.L., Appellees. |
Court | Arizona Court of Appeals |
Office of General Counsel By Sunshine Whitehair, Linus Everling, Julian Nava, Sacaton, Co–Counsel for Appellant Gila River Indian Community.
Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP By April E. Olson, Tempe, Co–Counsel for Appellant Gila River Indian Community.
Arizona Attorney General's Office By JoAnn Falgout, Amanda L. Adams, Mesa, Counsel for Appellee Department of Child Safety.
Law Office of Sara J. Smith, PLLC By Sara J. Smith, Goodyear Counsel for Foster Parent Intervenors.
OPINION
¶ 1 The Gila River Indian Community (the "Community") appeals the denial of its motion to change physical custody of a dependent Indian child in foster care. The Community challenges the juvenile court's determination that good cause exists to deviate from placement preferences set forth in the Indian Child Welfare Act ("ICWA"). We hold that good cause to deviate from ICWA placement preferences must be established by clear and convincing evidence. Because it is not apparent that the juvenile court applied this heightened standard of proof, we vacate its good cause determination and remand for reconsideration applying the clear and convincing evidence standard.
¶ 2 D.B. was born in November 2012 and is the second youngest of four daughters born to Destiny O. ("Mother"). Three months after D.B.'s birth, the Department of Child Safety ("DCS") filed a dependency petition, alleging on information and belief that D.B. was not an Indian child.2 Mother had advised the agency that D.B.'s father had Indian blood but was not an enrolled member of a tribe.
¶ 3 In March 2013, DCS placed D.B. with a non-Indian foster family. D.B.'s father subsequently enrolled in the Community, and in June 2013, the Community intervened in the juvenile court proceedings. D.B. also became an enrolled member of the Community.
¶ 4 The initial case plan called for reunification with Mother. DCS placed D.B. back in Mother's care in February 2014 but returned her to the foster home one week later upon learning that Mother had allowed D.B.'s father to be present in the home, notwithstanding a no-contact order as to the children due to his guilty plea to felony child abuse.
¶ 5 The juvenile court changed the case plan to severance and adoption in April 2014. In July 2014, DCS placed D.B.'s youngest sister in the same foster home with D.B. Shortly thereafter, the Community advised it had found an ICWA-compliant placement, and it moved to change D.B.'s custody.3 The Community urged the court to place D.B. with her father's cousin, whom the Community refers to as D.B.'s "aunt."
¶ 6 After an evidentiary hearing, the juvenile court denied the Community's motion to change D.B.'s custody. The court found good cause to deviate from ICWA placement preferences, articulating the following findings:
¶ 7 The Community timely appealed. We have jurisdiction pursuant to Arizona Rule of Procedure for the Juvenile Court 103(A) and Arizona Revised Statutes ("A.R.S.") sections 8–235(A) and 12–120.21(A)(1).
¶ 8 The Community argues the juvenile court erred by refusing to move D.B. to an available ICWA-preferred placement. The Community further contends the good cause determination is not supported by sufficient evidence. We first address the applicable standard of proof.
¶ 9 The juvenile court found that the record offered "substantial support" for its good cause determination. The court did not, however, articulate the standard of proof it applied—likely because no one raised the issue. Although we could, as DCS urges, find that the Community has waived the issue, we instead exercise our discretion to consider the matter on the merits because it presents a pure question of law that affects important rights and is likely to recur. Cf. Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, 419, ¶¶ 17–18, 258 P.3d 233, 237 (App.2011) ( ); City of Tempe v. Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App.1991) ( ). "In a case where the placement of a young child is at issue, allocation of the burden of proof in the trial court's assessment of good cause is an issue of vital importance and sufficient magnitude to warrant relaxation of the rule of [waiver]."4 In re Alexandria P., 228 Cal.App.4th 1322, 176 Cal.Rptr.3d 468, 489 (2014).
¶ 10 We interpret ICWA provisions de novo. See Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 331, 334, ¶ 10, 198 P.3d 1203, 1206 (2009). "In interpreting ICWA, we attempt to give effect to the will of Congress as expressed in the statutory language, which we construe liberally in favor of the interest in preserving tribal families." Id.
¶ 11 Congress has delineated placement preferences for dependent Indian children in 25 U.S.C. § 1915. In making adoptive placements, preference shall be given, "in the absence of good cause to the contrary," to: (1) a member of the child's extended family; (2) other members of the child's tribe; or (3) other Indian families. 25 U.S.C. § 1915(a). In the context of foster and "preadoptive" placements, preference shall be given, "in the absence of good cause to the contrary," to a placement with: (1) extended family; (2) a foster home licensed, approved, or specified by the child's tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) "an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs." 25 U.S.C. § 1915(b).
¶ 12 Although Congress has dictated standards of proof elsewhere in ICWA, see, e.g., 25 U.S.C. § 1912(e) ( ); 25 U.S.C. § 1912(f) ( ), it has not done so in the context of good cause determinations under § 1915. When Congress has not mandated a standard of proof under ICWA, we typically look to state law. Cf. Valerie M., 219 Ariz. at 334–35, ¶¶ 10, 16–17, 198 P.3d at 1206–07 ( ).
¶ 13 This Court has addressed other ICWA-related proof issues, see, e.g., Yvonne L., 227 Ariz. at 421, ¶ 26, 258 P.3d at 239 ( ), but the question before us is one of first impression under Arizona law. And because the issue is how to lawfully deviate from federally mandated placement preferences, it is difficult to identify a true state law analog. We therefore find instructive the legislative history of ICWA, as well as other jurisdictions' resolution of the question. See Alexandria P., 176 Cal.Rptr.3d at 491 ().
¶ 14 The impetus for ICWA was a concern that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children" and "an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." 25 U.S.C. § 1901(4). Congress found that states "have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. § 1901(5). By enacting ICWA, "Congress declared a two-fold national policy: the protection of the best interests of Indian children, and the promotion of stable and secure Indian tribal entities."Pima Cty. Juv. Action No. S–903, 130 Ariz. 202, 203, 635 P.2d 187, 188 (App.1981); see also 25 U.S.C. § 1902 (...
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