Appeal in Pima County Juvenile Action No. S-903, Matter of, S-903

• Decision Date: 14 September 1981
• Docket Number: No. 2,S-903,CA-CIV,2
• Citation: 635 P.2d 187,130 Ariz. 202
• Parties: In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO.4083.
• Court: Arizona Court of Appeals

Page 187

635 P.2d 187

130 Ariz. 202

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO. S-903.

No. 2 CA-CIV 4083.

Court of Appeals of Arizona, Division 2.

Sept. 14, 1981.

Review Denied Oct. 14, 1981.

Southern Arizona Legal Aid, Inc. by Joyce Edline Holsey, Tucson, for appellant

Ann M. Haralambie, Tucson, for appellee.

OPINION

HOWARD, Judge.

Appellant, natural mother of an Indian child, brings this appeal from a juvenile court order severing her parental rights. This case is governed by the federal Indian Child Welfare Act of 1978 and is one of first impression in this state. We agree with appellant that reversal is required.

Congressional investigation of child custody proceedings involving Indian children culminated in passage of the Act. In the Act, 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. 25 U.S.C.A. § 1902. To prevent the separation of Indian children from family and tribal heritage, the Act established minimum federal standards applicable to child custody proceedings.

Hearings conducted in 1974 before the Senate Committee on Indian Affairs revealed a pattern of discrimination against American Indians in child welfare and child custody. Testimony indicated that for decades officials had removed a disproportionately large number of Indian children from their homes and reservations, and had placed them in non-Indian homes and that many of the removals were unwarranted because officials showed too little deference to Indian cultural norms and denied due process in child custody proceedings. These practices deprived many children of their tribal and cultural heritage.

To reverse this erosion of Indian family life, Congress enacted the Act. See H.R.Rep.No. 1386, 95th Cong., 2d Sess. 8, reprinted in (1978) U.S.Code Cong. & Ad.News 7530.

The concept that Indian tribes are independent communities possessing their own natural rights permeates the Act. In its allocation of jurisdiction in custody proceedings the Act defers to the inherent sovereignty of the tribe over matters affecting this internal welfare. 25 U.S.C.A. § 1911(a). More significantly, it provides mechanisms whereby the tribe can exert its jurisdiction or influence beyond reservation boundaries in child custody actions involving off-reservation tribal members. 25 U.S.C.A. § 1911(b). This latter section modifies the general rule that Indians off the reservation are subject to state jurisdiction by requiring state courts to transfer to the tribe most child custody proceedings upon petition by the Indian child's parent, Indian custodian, or tribe. Only if a parent objects, or the tribal court declines, or there is "good cause" not to transfer the proceeding, may this referral jurisdiction be prevented. In addition, 25 U.S.C.A. § 1911(c) allows representation of tribal interests, even when the state court retains jurisdiction, by affording the parent, Indian custodian or child's tribe the right to intervene in the state court proceeding.

The Act is based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected. ¹ By its enactment, Congress legislatively created a new jurisdictional framework in Indian child welfare, replacing the outmoded geographical concepts of presence or domicile with a jurisdictional standard based on the ethnic origin of the child. This standard avoids the problems of forum shopping and gives real authority to tribal courts to adjudicate child custody issues. The Act reflects Congressional recognition of the importance of child rearing to the tribe.

The Act defines certain procedures to be followed in state court proceedings involving Indian children. These procedures protect the Indian parent or custodian from a moving party's abuse of either voluntary or involuntary placement procedures. Even if the state court retains jurisdiction, the tribe is protected against the possibility of state court bias against tribal culture as it may intervene at any point in the custody proceeding 25 U.S.C.A. § 1911(c), and the parent-child relationship can be terminated only by a showing of parental unfitness beyond a reasonable doubt. 25 U.S.C.A. § 1912(f). Additionally, the party seeking to effect termination of parental rights is required to satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. 25 U.S.C.A. § 1912(d). The effectiveness of the changed jurisdictional structure is insured by inclusion in the Act of a full faith and credit provision. 25 U.S.C.A. § 1911(d). We shall discuss these and other provisions of the Act in addressing the merits of this case.

The facts disclosed by the record are as follows. Appellant is a member of the Assiniboine Tribe in Montana and was fifteen years old when her child was born on February 27, 1980, in Henderson, Nevada. On March 18, 1980, she executed a voluntary relinquishment of her parental rights which was subsequently accepted by the Nevada District Court. The document recited that the minor child was relinquished to the Nevada Catholic Welfare Bureau, Inc. for the purpose of adoption and the bureau was authorized to consent to the child's adoption. One paragraph of the document recited:

"That Affiant has been advised and understands that this relinquishment may be withdrawn anytime prior to the entry of a final decree of adoption. This may be done by executing, under oath, a document stating her intention to revoke this relinquishment in the same court that the relinquishment was signed."

On September 29, 1980, appellant requested the return of her child and the appropriate document was filed on October 2 in the Nevada court. By letter dated October 8, 1980, the Nevada Catholic Welfare Bureau was advised by the Nevada court clerk of the revocation of relinquishment and that arrangements should be made promptly for the return of the child to appellant. In the interim, however, the Nevada agency had made arrangements with appellee, Catholic Social Service of Tucson, to place the child with an adoptive family and in fact the baby was picked up in Nevada on May 24 and taken to Tucson. The Nevada agency was unable to return the child to appellant as the Arizona agency informed Nevada "that the parents were unwilling to give up the child, and they wanted to take it to Court."

On October 27, 1980, a petition for termination of parental rights was filed in Arizona alleging that the natural mother had abandoned the child. The same day a temporary custody order was entered directing that temporary custody of the child remain with his prospective adoptive parents under the supervision of the petitioner, Catholic Social Service of Tucson. Appellant was served on October 31 in Montana and the tribal council was served on November 3. A letter from the attorney for the Nevada Catholic Welfare Bureau, with an enclosed certified copy of appellant's revocation of voluntary relinquishment, was filed on November 18, 1980.

By letter dated November 7, 1980, appellant and her mother requested the tribal chairman in Montana to intervene in this Arizona custody proceeding. The record reflects that on January 20, 1981, a letter was written to the presiding judge of Pima County Superior Court by the vice-chairman of the Assiniboine and Gros Ventre tribes of the Fort Belknap Indian Community Tribal Government of the Fort Belknap Indian Reservation, Montana. The writer advised the court that the tribal government wished to intervene in this custody matter and have jurisdiction transferred to the tribal court in Montana. The letter concluded by stating: "Please advise me if there are any additional documents which needs to be filed prior to the date of hearing on this matter."

On March 11, 1981, appellant filed a petition to transfer this case to the tribal court in Montana. The petition alleged that the tribal court had exclusive jurisdiction under the Indian Child Welfare Act, that appellant did not object to transfer, and that the tribal court was willing to accept jurisdiction. Appellee's opposition, filed April 7, asserted that "good cause" existed for retention of state court jurisdiction in that (1) Montana, the proposed tribal forum, would have no evidence concerning the best interests of the child as he had never lived in Montana and (2) separation from his adoptive parents would cause a substantial risk of serious emotional harm to him.

By April 10 minute entry, a hearing on the severance petition and the petition to transfer was ordered to be held on May 8, 1981. On May 6, appellant filed a reply to the opposition to her petition for transfer. Appended were copies of various documents supporting her position that state court jurisdiction was improper.

At the commencement of the May 8 hearing, the court took under advisement the petition to transfer and proceeded to hear evidence on the severance petition. At the conclusion of the hearing, the petition to transfer was denied and severance of appellant's parental rights was ordered. The court made the following findings of fact: That appellant and her tribe had been notified of the hearing, that the minor child was domiciled in Arizona inasmuch as his mother had relinquished her parental rights on March 18, 1980, and the child has resided continuously in Arizona since May 24, 1980; that the mother had had no contact with the child for more than six months and had abandoned the child, that the mother had filed a revocation of her relinquishment in Nevada on October 2, 1980, and that the tribe had filed notice of intervention but had not otherwise participated in this matter; that the child was eligible for membership into the Assiniboine tribe; and that the best interests of the child were...