I.L. v. Ariz. Dep't of Econ. Sec.
| Decision Date | 21 March 2014 |
| Docket Number | No. 2 CA-JV 2013-0125,2 CA-JV 2013-0125 |
| Parties | I.L., L.L., AND A.L., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, JULIA J., DANIEL L. AND GILA RIVER INDIAN COMMUNITY, Appellees. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
The Honorable Catherine M. Woods, Judge
AFFIRMED
Pima County Office of Children's Counsel
By Sara E. Goldfarb, Tucson
Counsel for Appellants
Thomas C. Horne, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Arizona Department of Economic Security
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶1 Minors I.L., L.L., and A.L.,1 "Indian child[ren]" pursuant to the Indian Child Welfare Act (ICWA),2 appeal from the juvenile court's order granting the Arizona Department of Economic Security's (ADES's) motion to dismiss the dependency proceeding it had initiated, denying the children's request to substitute as petitioners, and denying their emergency motion for removal from the home. Because the children have failed to show the court erred as a matter of law or abused its discretion, we affirm the court's order.
¶2 We generally review a juvenile court's rulings on motions to modify a child's placement, to substitute a party, or to dismiss a dependency for an abuse of discretion. See, e.g., Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, ¶ 8, 187 P.3d 1115, 1117 (App. 2008) (placement orders); In re Yuma Cnty. Juv. Action No. J-90-283, 168 Ariz. 497, 498, 815 P.2d 424, 425 (App. 1991) (dependency dismissal); cf. Preston v. Kindred Hospitals W, L.L.C., 226 Ariz. 391, ¶ 13, 249 P.3d 771, 774 (2011) (). But we review de novo a challenge to the court's resolution of legal issues. In re Maricopa Cnty. Juv. Action No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994).
¶3 Essentially, the children maintain the court's order of dismissal left them "unable to protect their right to proper andeffective parental care because they cannot file a dependency petition and pursue adjudication," even though the court expressly granted children's counsel "leave to file a private dependency petition if [she] believes grounds exist to support it, and is ready to assume [the] burden of proof on such a petition."3 Although the children's arguments are legal in nature, their resolution requires a review of the procedural history of this dependency proceeding.
¶4 Julia J. is the mother of the three children; Daniel L. is the father of L. and appears to be A.'s father as well.4 In January 2013, ADES filed a dependency petition alleging that Julia had failed to provide proper pre-natal care for A., who had "tested positive for Valium and methadone" at birth, and that Julia's "ongoing substance abuse impairs her ability to parent and care for all three of the children." ADES alleged that I.'s father had failed to support or protect him; it alleged Daniel was "aware of [Julia's] behaviors and ongoing struggle with substances" but "failed to take any legal steps to protect the children or ensure that [she] was not using substances while pregnant with [A.]" According to the petition, Child Protective Services (CPS) had taken I. into temporary physical custody, but L. and A. remained in the home.5
¶5 In February, the Gila River Indian Community ("the Tribe") intervened, after notifying the juvenile court that Julia was an enrolled member of the Tribe, her children were eligible for enrollment, and the proceedings were therefore subject to ICWA. After discussion with the Tribe's counsel, the court ordered that I. be placed with Daniel, as his half-siblings had been, finding it "appropriate [and] in the minor's best interest." And, at a status conference in May, the juvenile court scheduled a contested dependency adjudication hearing for July 26, 2013, finding extraordinary circumstances warranted an extension of the presumptive, ninety-day deadline prescribed by rule. See Ariz. R. P. Juv. Ct. 55(B) ().
¶6 But on July 16, ADES filed a motion to terminate the dependency. ADES reported that Julia, Daniel, and the Tribe had no objections to the dismissal, but that it had been unable to determine the children's position. On July 26, counsel for the children orally opposed the motion, arguing there was no "reason to say that this dependency doesn't exist now as it existed in January." After initially granting ADES's motion to dismiss, the juvenile court vacated its ruling in order to afford the children an opportunity to file a written response, and all parties agreed the court would rule on the motion to dismiss without further hearing.
¶7 On August 1, the children filed an opposition to ADES's motion for dismissal, urging that the motion be denied on the ground ADES owed a "fiduciary duty" to the children and had not offered "clear evidence that dismissing the action [would] not put the child[ren] at risk." Relying on Rule 17 and Rule 41, Ariz. R. Civ. P., they also suggested the juvenile court was without authority to dismiss the dependency "[a]bsent a stipulation to dismiss" in which they had joined. They told the court they were "willing and able tobe substituted as Petitioners in this action to proceed to trial on the merits."6
¶8 Then, in mid-August, the children filed pre-trial statements and an emergency motion for their removal from the home. In these filings, they stated witnesses would testify that on June 18, 2013, CPS had been called to a daycare facility to investigate possibly non-accidental injuries to L. and that, in early July, Daniel had told a law enforcement officer, who responded to a domestic violence call, that Julia "took off with his son." The children did not request an evidentiary hearing on their motion.
It also expressly ordered that "minors' counsel [the Pima County Office of Children's Counsel,] is granted leave to file its own dependency action if it believes there are reasonable and good faith grounds" to do so, adding that "whoever may file any new dependency action in the future will have all of the burdens of proof going forward. . . . includ[ing] the burdens under [ICWA] that might apply."7
¶10 The juvenile court signed its minute entry "as its final order dismissing the Dependency Petition, denying Minors' Request to Substitute, and denying Minors' Motion for Emergency Removal." The minute entry included the court's finding that "the Office of Children's Counsel does have a legitimate interest in the health, safety and welfare of these three children" and expressly granted children's counsel "leave to file a private dependency petition if it believes grounds exist to support it, and is ready to assume its burden of proof on such a petition." The signed minute entry did not reflect any other findings by the court.
¶11 "A dependency petition invokes the authority of the court to act on behalf of a child who is alleged to be a dependent child." Ariz. R. P. Juv. Ct. 48(A). As relevant here, a "[d]ependent child" is defined as one who is "[i]n need of proper and effective parental care and control and who has . . . no parent or guardian willing to exercise or capable of exercising such care and control." A.R.S. § 8-201(13)(a)(i). To prevail at a contested adjudication hearing, a petitioner must establish the existence of a dependency by a preponderance of the evidence. Ariz. R. P. Juv. Ct. 55(C).
¶12 But when, as here, a petitioner has alleged the dependency of Indian children subject to ICWA, additional standards and burdens of proof apply throughout the course of dependency proceedings. See, e.g., Ariz. R. P. Juv. Ct. 8 (). And in order to prevail at a dependency adjudication for an Indian child, a petitioner must not only establish, by a preponderance of evidence, that the child is dependent but "[i]n addition . . . must prove, by clear and convincing evidence, including testimony from a qualified expert witness, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" and "must also 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 those efforts have proven unsuccessful." Ariz. R. P....
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