Appeal in Coconino County Juvenile Action No. J-10175, Matter of, J-10175

• Court: Court of Appeals of Arizona
• Writing for the Court: KLEINSCHMIDT
• Citation: 153 Ariz. 346,736 P.2d 829
• Parties: In the Matter of the APPEAL IN COCONINO COUNTY JUVENILE ACTION NO.362.
• Docket Number: J-10175,CA-JUV,No. 1,1
• Decision Date: 28 April 1987

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736 P.2d 829 153 Ariz. 346 In the Matter of the APPEAL IN COCONINO COUNTY JUVENILE ACTION NO. J-10175. No. 1 CA-JUV 362. Court of Appeals of Arizona,
Division 1, Department D. April 28, 1987.

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[153 Ariz. 347] Navajo Legal Aid and Defender Service by Peter Breen, Window Rock, for appellant Father.

Navajo Nation Dept. of Justice by Donna C. Bradley, Window Rock, for intervenor-appellant.

Robert K. Corbin, Atty. Gen. by Macre S. Monson, Asst. Atty. Gen., Phoenix, for appellee ADES.

J. Michael Flournoy, Flagstaff, for appellee Mother.

KLEINSCHMIDT, Presiding Judge.

This case presents the question whether the trial court erred when it placed an Indian child in a non-Indian foster home. We hold that the court did err because it refused to apply the provisions of the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-1963.

The seven-year-old minor child, Jessica Brown/Jensen, is the daughter of Alan Brown, a Navajo, and Cindy Jensen, a non-Indian. The child is an enrolled member of the Navajo Tribe. The child's parents never married but lived together for over three years in Page, Arizona, a community adjacent to the Navajo Reservation. Thereafter, the child lived with her mother and stepfather. State authorities intervened when the stepfather abused the child. A dependency petition was filed in which the natural father intervened, seeking custody of the child. The court heard evidence on all issues.

At the hearing, Virginia Hannon, a social worker employed by the Navajo Tribe, testified that she had investigated Alan Brown's home and circumstances. She found that Brown lived in a new house, which was well furnished and had modern conveniences. Brown's parents lived nearby. She observed a visit that the child, Jessica, had with the Brown family in the summer of 1986. She described the child as affectionate towards her father and said that the whole family, including the child, acted as though they had always been together. She believed that placement with the father would not entail any physical or emotional suffering and recommended that Alan Brown be given custody of the child after Jessica became accustomed to his home.

James Cox, a psychotherapist who was familiar with the child, with the mother, and with Alan Brown, felt that Brown had the potential to be an adequate parent, but that he needed to be more consistent in keeping in contact with the child when she was living in a foster home.

Kate Johnson, a psychologist who had performed an evaluation of the child, had reservations about placing the child with her father because she was unsure of how familiar the child was with him. She believed a resolution of this question would require further study, and she did not want to make a firm judgment on the issue. She believed that it would involve considerable adjustment to place the child in a traditional Navajo home but saw no contraindications to placing her in an Indian home in Page. She believed that although the child had adapted well to her foster home, she could be moved again without trouble.

Daniel Cady, a psychologist, had performed an evaluation of Alan Brown. He found that Brown would be an adequate parent. He described Brown as neither a completely traditional Navajo nor a completely Anglicized individual.

A caseworker for the Department of Economic Security, Nancy Garduno, advised the court that she had prepared a case plan that called for the child to live with her father pending a final custody determination. This plan was modified because two of the natural mother's younger sisters had accused Alan Brown of molesting them while he was residing with them. These accusations first surfaced after Brown sought custody of the child. At the time of the hearing, the accusations were being investigated by the police. Ms. Garduno said that from all that she had observed, the child's relationship with her Navajo extended family was positive. She had no reason to think there was good cause to

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[153 Ariz. 348] place the child outside a Navajo home. She had investigated the school in Gallup which the child would attend if she lived with her father and found the curriculum appropriate to Jessica's needs.

The trial judge also heard testimony from Alan Brown, Cindy Jensen, and Cindy Jensen's husband. The judge then made the following findings and issued the following order:

The court finds facts as follows:

1. The minor child, Jessica Brown/Jensen, is the daughter of Cindy Jensen and Alan Brown.

2. Cindy Jensen, the mother, is an Anglo.

3. Alan Brown, the father, is an Indian, being an enrolled member of the Navajo Tribe.

4. The mother and father never married, but lived together for three and one-half years after the child was born. They lived in Page, Arizona, off of any reservation.

5. The mother and father separated, with the mother keeping the child. There has never been any formal court order concerning custody.

6. The mother married and continued to live in Page. She is still married to this husband, Bradley Jensen.

7. From the time of the child's birth until the initiation of this action, she has spent only a few hours on the Navajo Reservation and has had only minimum contacts with her Indian relatives. She has in all meaningful respects been raised as a non-Indian child.

8. In March, 1986, the child came to the attention of state agents because of an alleged act of abuse committed against her by her...