Guardian ad Litem v. State ex rel. C.D.

• Court: Supreme Court of Utah
• Citation: 2010 UT 66,245 P.3d 724
• Docket Number: No. 20090052.,20090052.
• Parties: GUARDIAN AD LITEM, Petitioner and Cross-Respondent, v. STATE of Utah, in the interest of C.D., A.D., J.T. and S.T., persons under eighteen years of age, Respondent and Cross-Respondent, v. A.D.T. and L.D., Respondents and Cross-Petitioners.
• Decision Date: 19 November 2010

245 P.3d 724
2010 UT 66

GUARDIAN AD LITEM, Petitioner and Cross-Respondent,
v.
STATE of Utah, in the interest of C.D., A.D., J.T. and S.T., persons under eighteen years of age, Respondent and Cross-Respondent,
v.
A.D.T. and L.D., Respondents and Cross-Petitioners.

No. 20090052.

Supreme Court of Utah.

Nov. 19, 2010.

245 P.3d 726

Martha M. Pierce, Salt Lake City, for petitioner.

Mark L. Shurtleff, Att'y Gen., John M. Peterson, Carol L.C. Verdoia, Asst. Att'ys Gen., Salt Lake City, Joyce G. Smith, Blanding, William L. Schultz, Moab, Gregory Thornock, Lake Stevens, WA, Garvin Alfonso Hamilton, Baldwin Park, CA, for respondents.

On Certiorari to the Utah Court of Appeals

PARRISH, Justice:

INTRODUCTION

¶ 1 This case involves the State of Utah, Division of Child and Family Services' removal of Indian children from their Grandfather's custody and presents issues regarding the interpretation of the Indian Child Welfare Act (the "ICWA"). 25 U.S.C. §§ 1901-1963 (2006). We granted certiorari to determine whether the Utah Court of Appeals erred when it (1) determined that it had appellate jurisdiction to review whether the juvenile court complied with the ICWA's active efforts and placement requirements, and (2) affirmed the juvenile court's determination that, pursuant to the ICWA, further active efforts to prevent the breakup of the Indian family would be futile and thus were not required. After we granted certiorari, the children were placed with their respective biological fathers. Because the children's subsequent placement with their fathers renders the ICWA's active efforts and placement requirements moot, we decline to address the issues raised on certiorari.

FACTUAL BACKGROUND

¶ 2 On December 2, 2002, the Division of Child and Family Services (the "Division") filed a Verified Petition for Protective Supervision (the "Petition") to remove children C.D., A.D., J.T., and S.T. from their Mother. Because the Mother and children are all members of or are eligible for membership in the Navajo Indian Tribe, the ICWA governs any "abuse and neglect" proceedings involving the children. A trial was held on the Petition and findings of fact, conclusions of law, and an order were filed on April 3, 2003. The juvenile court found that the Mother was incapable of caring for her children, and it ordered that the children's Grandfather be granted permanent custody and guardianship. However, the court did not terminate the Mother's parental rights. The Mother

245 P.3d 727

and the children then moved in with the Grandfather.

¶ 3 On July 23, 2007, upon belief that the Grandfather was abusing the children, the Division removed the children from the Grandfather and initiated "abuse and neglect" proceedings. The juvenile court found that the Grandfather had abused the children on several occasions and placed custody and guardianship of the children with the Division. The juvenile court also found that the Division satisfied the provisions of the ICWA, which require active efforts to prevent the breakup of an Indian family. Specifically, the court held that the ICWA's active efforts requirement was satisfied in the previous placement, when the Division removed the children from their Mother and placed the children in the custody of the Grandfather, and that no further active efforts were required to keep the family together. The court then directed the Division to actively search for a placement for the children with relatives or members of the Navajo Nation. While awaiting a permanent placement, the Division separated the children and placed them in non-Indian foster homes.

¶ 4 Grandfather and Mother appealed the juvenile court's combined adjudication and dispositional order. The court of appeals issued two per curiam decisions affirming the juvenile court's findings but ordered further briefing on two issues related to the ICWA. See L.D. v. State (State ex rel. A.D.), 2008 UT App 111, para. 10, 2008 WL 802930 (per curiam) (Grandfather's appeal); A.D.T. v. State (State ex rel. C.D.), 2008 UT App 62, para. 7, 2008 WL 802934 (per curiam) (Mother's appeal). These issues were "(1) [w]hether the juvenile court properly determined that [the Division] made active efforts to prevent the break up of the Indian family, and; (2) [w]hether the juvenile court complied with [the] ICWA ... in the placements of the children." State ex rel. A.D., 2008 UT App 111, para. 10, 2008 WL 802930.

¶ 5 In the court of appeals, the Mother and Grandfather argued that the juvenile court failed to comply with the ICWA in two respects. First, they argued that the juvenile court did not comply with the ICWA's active efforts requirement when the court removed the children from the Grandfather and denied him reunification services. A.D.T. v. State (State ex rel. C.D.), 2008 UT App 477, ¶ 22, 200 P.3d 194. Second, they argued that the children's subsequent placement in non-Indian foster homes did not comply with the ICWA's preference placements. Id. ¶ 42. In addition to these issues, the State and the Guardian ad Litem (the "Guardian") raised the issue of whether the court of appeals had jurisdiction to review the juvenile court's adjudication and dispositional order for compliance with the ICWA's active efforts and placement requirements. Id. ¶¶ 11, 42. Specifically, they argued that a determination of compliance with the ICWA's active efforts and placement requirements is not required until the permanency hearing, which had not yet occurred and therefore was not before the court on appeal. Id.

¶ 6 The court of appeals first addressed whether it had jurisdiction over the two issues on appeal. It concluded that because compliance with the ICWA's active efforts and placement requirements are dispositional determinations, the juvenile court's combined adjudication and dispositional order was final as to these two issues and was properly before the court. Id. ¶¶ 19, 51. However, as to the merits of the placement preferences issue, because the Division was not on notice of the deadline for compliance, the court of appeals remanded the issue so that the Division could place the children according to the ICWA's placement preferences or so that it could "create a record demonstrating its attempts to comply and good cause for deviating from those preferences." Id. ¶¶ 52-54.

¶ 7 Next, the court of appeals addressed "[w]hether the juvenile court properly determined that [the Division] made active efforts to prevent the break[up] of the Indian family." Id. ¶ 7 (second alteration in original). It held that the active efforts expended towards the Mother in the previous proceeding did not satisfy the ICWA's active efforts requirement and that the Grandfather was entitled to active efforts in the case...