Gila River Indian Cmty. v. Dep't of Child Safety

• Decision Date: 13 June 2017
• Docket Number: No. CV-16-0220-PR,CV-16-0220-PR
• Citation: 395 P.3d 286
• Parties: GILA RIVER INDIAN COMMUNITY, Appellant, v. DEPARTMENT OF CHILD SAFETY, Sarah H., Jeremy H., A.D., Appellees.
• Court: Arizona Supreme Court

395 P.3d 286

GILA RIVER INDIAN COMMUNITY, Appellant,

v.DEPARTMENT OF CHILD SAFETY, Sarah H., Jeremy H., A.D., Appellees.

No. CV-16-0220-PR

Supreme Court of Arizona.

Filed June 13, 2017

Linus Everling, Thomas L. Murphy (argued), Gila River Indian Community Office of General Counsel, Sacaton; and April E. Olson, Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Tempe, Attorneys for Gila River Indian Community

James Manley, Aditya Dynar (argued), Scharf–Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for Sarah and Jeremy H.

Amanda Lomayesva, Tamara Walters, Frederick Lomayesva, Office of the Attorney

General Pascua Yaqui Tribe, Tucson, Attorneys for Amicus Curiae Pascua Yaqui Tribe, Salt River Pima Maricopa Indian Community, Navajo Nation, Cherokee Nation, and the Native American Bar Association of Arizona

Bruce F. Peterson, Maricopa County Office of the Legal Advocate, Tiffany Mastin, Deputy Legal Advocate, Phoenix, Guardian ad Litem for the Minor Child

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, GOULD, and LOPEZ and JUDGE VÁSQUEZ joined.^*

CHIEF JUSTICE BALES, opinion of the Court:

¶ 1 This case concerns the transfer of child custody proceedings from state to tribal court under 25 U.S.C. § 1911(b) of the Indian Child Welfare Act ("ICWA"). We hold that § 1911(b) addresses transfer only of foster care placement and termination-of-parental-rights actions. Although § 1911(b) does not apply to state preadoptive and adoptive placements, such as the proceeding involved here, it also does not prohibit the transfer of such actions to tribal court.

I.

¶ 2 A.D. is a member of the Gila River Indian Community ("Community") and an Indian child for purposes of ICWA. See 25 U.S.C. § 1903(4). Having been prenatally exposed to amphetamines and opiates, A.D. was born in August 2014 in Arizona outside the Community's boundaries. Five days after her birth, the Arizona Department of Child Safety ("DCS") removed A.D. from her mother, who is also a Community member, and placed her with Sarah H. and Jeremy H. ("foster parents"). A.D. has since resided with her foster parents outside the Community's boundaries. Because the foster parents are not members of A.D.'s extended family or Indians, they do not qualify for a presumptive preference as an adoptive placement under ICWA. See id. § 1915(a) (stating that, absent good cause to the contrary, preference shall be given to a placement with members of the child's extended family, other members of the child's tribe, or other Indian families).

¶ 3 Three days after her foster care placement, DCS filed a dependency petition on behalf of A.D. in the juvenile court and notified the Community. In October 2014, the Community moved to intervene under 25 U.S.C. § 1911(c), which the court allowed. In February 2015, the court found that the state had made "active efforts ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family," see id. § 1912(d), but that those efforts were unsuccessful. The court also found that the birth parents' continued custody of A.D. was likely to result in serious emotional or physical danger to A.D., found A.D. dependent, and granted DCS's request for a case plan of severance and adoption. The Community agreed to the new case plan.

¶ 4 In March 2015, DCS moved to terminate the parental rights of A.D.'s mother and father and notified the Community. The Community requested that the child remain in her current placement until a suitable ICWA placement could be identified. In a June 2015 order, the court terminated the rights of A.D.'s parents and also found good cause to deviate from ICWA's placement preferences. The Community did not appeal from that order.

¶ 5 The foster parents moved to intervene, noting their desire to adopt A.D. The Community did not respond to the motion, and the court allowed the foster parents to intervene. On July 1, 2015, the foster parents petitioned to adopt A.D. After the court scheduled A.D.'s adoption for August 26, 2015, the Community successfully moved to stay the adoption proceedings.

¶ 6 On August 18, 2015, the Community moved to transfer the proceedings to its tribal court under 25 U.S.C. § 1911(b). The Community noted that DCS supported the motion to transfer, but the foster parents and A.D.'s guardian ad litem objected. After holding evidentiary hearings, the juvenile court in January 2016 denied the Community's motion to transfer A.D.'s case to tribal court, finding the foster parents had met their burden of showing that good cause existed under § 1911(b) to deny the motion.

¶ 7 The Community appealed, and the court of appeals addressed whether " 25 U.S.C. § 1911(b) of ICWA allow[s] transfer to tribal court of state preadoptive and adoptive placement proceedings occurring after parental rights have terminated[.]" Gila River Indian Cmty. v. Dep't ofChild Safety , 240 Ariz. 385, 389 ¶ 11, 379 P.3d 1016 (App. 2016). The court ruled that § 1911(b) does not. Id.

¶ 8 We granted review to determine whether § 1911(b) of ICWA governs the transfer of preadoptive and adoptive placement actions from state to tribal court, a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 9 The Community first argues that § 1911(b)'s application was not properly before the court of appeals because the foster parents did not cross-appeal the juvenile court's denial of the Community's transfer motion. The foster parents, however, were not aggrieved by the juvenile court's order and therefore were not required to cross-appeal. See CNL Hotels & Resorts, Inc. v. Maricopa County , 230 Ariz. 21, 25 ¶ 20, 279 P.3d 1183 (2012) ("Arizona's long-settled rule is that if [an] appellee in its brief seeks only to support or defend and uphold the judgment of the lower court from which the opposing party appeals, a cross-appeal is not necessary.") (internal quotation marks omitted). In opposing the Community's transfer motion, the foster parents argued that § 1911(b) did not apply, and they repeated that argument in their answering appellate brief. Thus, whether § 1911(b) applied was an issue properly before the court of appeals.

¶ 10 On the merits, the Community argues that the court of appeals erred in holding that § 1911(b) does not allow transfer of a dependency case after parental rights have been terminated. We review the interpretation of statutes de novo. Valerie M. v. Ariz. Dep't of Econ. Sec. , 219 Ariz. 331, 334 ¶ 10, 198 P.3d 1203 (2009).

¶ 11 With respect to 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. Nonetheless, we "will not look beyond the clear meaning of express statutory terms unless a literal interpretation would thwart the purpose of the statutory scheme or lead to absurd results." Steven H. v. Ariz. Dep't of Econ. Sec. , 218 Ariz. 566, 570 ¶ 14, 190 P.3d 180 (2008) (quoting Navajo Nation v. Hodel , 645 F.Supp. 825, 827 (D. Ariz. 1986) ).

¶ 12 Congress enacted ICWA in 1978 to address the removal of an alarmingly high percentage of Indian children from their Indian families by nontribal public and private agencies and the placement of such children in non-Indian foster and adoptive homes and institutions. See 25 U.S.C. § 1901(4). In response to these concerns, ICWA provides a dual jurisdictional scheme over Indian child custody proceedings. See Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). ICWA delineates "child custody proceeding" into four categories: foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. 25 U.S.C. § 1903(1)(i)–(iv).

¶ 13 The first jurisdictional component of ICWA, § 1911(a), concerns all four categories of actions and acknowledges exclusive tribal jurisdiction over actions involving Indian children who reside or are domiciled within the tribe's reservation and over cases involving Indian children who are wards of tribal courts regardless of residence or domicile. The Community does not assert exclusive jurisdiction under § 1911(a) as A.D. has never resided or been domiciled within the Community's reservation, nor is she a ward of the Community's court.

¶ 14 The second jurisdictional component of ICWA, § 1911(b), concerns transfer proceedings. It addresses two of the four categories of actions involving Indian children by acknowledging concurrent but presumptively tribal jurisdiction over foster care placement and termination-of-parental-rights actions. See Holyfield , 490 U.S. at 36, 109 S.Ct. 1597. Section 1911(b) states:

In any State court proceeding for the foster care placement of, or termination of parental rights to , an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, [t]hat such transfer shall be subject to declination by the tribal court of such tribe.

25 U.S.C. § 1911(b) (emphasis added). Thus, § 1911(b) by its terms governs only foster care placement and termination-of-parental-rights actions.

¶ 15 ICWA defines "foster care placement" as:

[A]ny action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated ....

Id. § 1903(1)(i) (emphasis added). And ICWA defines "termination of parental rights" as "any action ...