Maricopa County Juvenile Action No. JS-8287, Matter of, JS-8287

• Decision Date: 29 November 1991
• Docket Number: CA-JV,No. 1,JS-8287,1
• Citation: 171 Ariz. 104,828 P.2d 1245
• Parties: In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO.90-011.
• Court: Arizona Court of Appeals

Page 1245

828 P.2d 1245

171 Ariz. 104

In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO. JS-8287.

No. 1 CA-JV 90-011.

Court of Appeals of Arizona Division 1, Department B.

Nov. 29, 1991.

As Amended Dec. 6, 1991.

Review Denied May 5, 1992.

[171 Ariz. 105] Rosenfelt, Barlow & Borg, P.A. by Scott E. Borg, Albuquerque, for appellant Pueblo of Santo Domingo.

Friedl, Richter & Buri by Charles E. Buri, Phoenix, for appellant Biological Mother.

Grant Woods, Atty. Gen. by C. Eileen Bond, Asst. Atty. Gen., Phoenix, for appellee Arizona Dept. of Economic Sec.

Hendrickson & Fuller by Richard T. Fuller, Mesa, for appellee Juvenile.

OPINION

EHRLICH, Judge.

The Pueblo of Santo Domingo and K.J.R., ¹ the biological mother of the child of concern in this action and a Pueblo member, appeal from a trial court order terminating K.J.R.'s parental rights. We affirm the order.

FACTS AND PROCEDURAL HISTORY

The child was born on January 28, 1987, in Phoenix. On March 6, 1987, the Arizona Department of Economic Security (DES) filed a dependency petition, primarily alleging that although K.J.R. acknowledged a serious alcohol problem, she had not accepted her inability to consume alcohol and had not consistently participated in sufficient treatment. K.J.R. then disappeared with the child for over three months. However, in June 1987, K.J.R. was jailed for assault and on an outstanding warrant for marijuana possession. By then, K.J.R. had left the child for an undetermined period of time with a friend, who unsuccessfully had tried to sell the child for $25.00. On June 24, 1987, the child was placed in foster care off the reservation where she continues to reside. The Pueblo received notice of a dependency proceeding in July 1987. On July 28, 1987, the child was found to be dependent and made a ward of the court in an uncontested proceeding at which neither the Pueblo nor K.J.R. appeared.

On April 7, 1989, after repeated unsuccessful efforts to provide K.J.R. with services to improve her parenting skills, DES petitioned the trial court for termination of K.J.R.'s parental rights as to three of her five children, including the child in this action. The petition also requested the termination of the parental rights of two named alleged fathers of the child and any other man claiming paternity. DES alleged in the petition that despite its diligent efforts, K.J.R. was unable to be a parent to the child due to mental illness and/or chronic alcohol or substance abuse. The petition also alleged that any man claiming paternity had abandoned the child.

On June 16, 1989, the Pueblo was notified of the hearing on the termination petition scheduled for June 26, 1989, and it later was notified of its right to intervene and/or petition the trial court for transfer of the matter to tribal court. Attached to the second notice was DES' termination social study which stated that the Foster Care Review Board's plan for the child had changed from returning the child to her mother to severance and adoption. The termination hearing was continued because the Pueblo had indicated that it was considering intervening or petitioning for transfer of the matter to tribal court.

At the time set for the termination hearing on July 17, 1989, the trial court granted the Pueblo's motion to intervene and a DES motion to amend its termination petition. A DES caseworker informed the court that the Pueblo still was considering petitioning for transfer to tribal court and the hearing again was continued. At the time of a pretrial conference on September 20, 1989, the Pueblo still had not filed a transfer petition and the court again continued the hearing, allowing the Pueblo until November 15, 1989, to file a petition. On October 30, 1989, the trial court held an uncontested severance hearing as to the child's alleged fathers. The court found beyond a reasonable doubt that the two men named had abandoned the child and terminated their parental relationship.

On November 14, 1989, the Pueblo filed a petition to transfer termination proceedings for three of K.J.R.'s children, including the child in this matter, claiming that "[t]here is no justifiable reason to deny Santo Domingo's assumption of jurisdiction over this proceeding." DES objected to a transfer regarding the child in this matter, stating that "the child is fully bonded with the foster family and the foster family has indicated a serious intent in adopting the child." The children also objected to the transfer petition. Later, K.J.R. joined the Pueblo's petition. The trial court granted the petition as to K.J.R.'s two other children, but found good cause to deny the transfer petition for the child in this action.

The Court finds that proceedings concerning [the child] have been pending in this Court since as early as March 6, 1987, of which the Pueblo of Santo Domingo had notice. [The child] has been in foster care under the auspices of this Court for nearly three years, yet the Pueblo of Santo Domingo appears not to have taken any action in the case until November 15, 1989. In the meantime, [the child] has bonded with the foster family. Transfer of the case at this late date would result in the sudden interruption of this care. This is contrary to [the child's] best interest.

On March 7, 1990, the trial court held a termination hearing as to K.J.R.. During the hearing, the Pueblo moved for reconsideration of the denial of its transfer petition as did K.J.R. She conceded, however, that the Pueblo's transfer request "should have been done at the time of [the child's] birth or the summer of 1987 ... [w]hen she was first taken into custody by" DES. After taking both matters under advisement, the court affirmed its earlier denial of the Pueblo's transfer petition and terminated K.J.R.'s parental rights. The Pueblo and K.J.R. appealed from the termination order, raising the issues of whether the trial court erred in denying the Pueblo's petition to transfer the case to tribal court and whether the trial court's termination of K.J.R.'s parental rights is supported by the evidence and law.

DISCUSSION

The Indian Child Welfare Act of 1978 (hereinafter "the Act"), 25 U.S.C. 1901 et seq. (1983), resulted from concern over the increasing number of Indian children placed in non-Indian foster or adoptive homes. It declared:

[I]t is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, ...

25 U.S.C. 1902; see H.R.Rep. No. 1386, 95th Cong., 2d Sess. 8, 9, reprinted in (1978) U.S.Code Cong. & Admin.News 7530, 7531 (hereinafter "H.R.Rep. 1386"). The Act specifically applies to child custody proceedings ² involving Indian children. ³ See Matter of Appeal in Maricopa County Juvenile Action No. A-25525, 136 Ariz. 528, 531, 667 P.2d 228, 231 (App.1983).

A. Jurisdiction

At the "heart" of the Act are "its provisions concerning jurisdiction over Indian child custody proceedings." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 1601, 104 L.Ed.2d 29 (1989). Once a trial court determines that the Act applies to a particular Indian child custody proceeding, the court then must decide the appropriate forum. The Act provides for exclusive tribal jurisdiction in an Indian child custody matter if the Indian child "resides or is domiciled within the reservation" or is a ward of tribal court. 25 U.S.C. 1911(a). However,

[i]n 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, That such transfer shall be subject to declination by the tribal court of such tribe.

25 U.S.C. 1911(b) (first emphasis added). This essentially is concurrent jurisdiction with a preference for tribal court jurisdiction that can be overcome on a showing of good cause. In re Robert T., 200 Cal.App.3d 657, 246 Cal.Rptr. 168, 171-72 (1988). The Act does not deprive a state of its traditional jurisdiction over an Indian child within its venue; it establishes "minimum federal standards and procedural safeguards designed to protect the rights of the child as an Indian and the integrity of the Indian family." Manuel P. Guerrero, "Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture Caused by Foster and Adoptive Placements of Indian Children," 7 Am.Indian L.Rev. 51, 75 (1979).

Because the Act does not define "good cause to the contrary," a state court has discretion whether to transfer a matter to tribal court or retain jurisdiction. Russel Barsh, "The Indian Child Welfare Act of 1978: A Critical Analysis," 31 Hastings L.J. 1287, 1317-18 (1980); ⁴ see Matter of T.S., 245 Mont. 242, 801 P.2d 77, 80 (1990) (courts deciding Indian child custody matters primarily responsible for interpreting the Act) (citing 44 Fed.Reg. at 67,584 (1979)), cert. denied, 500 U.S. 917, 111 S.Ct. 2013, 114 L.Ed.2d 100 (1991); Chester County Dep't of Social Services v. Coleman, 296 S.C. 355, 372 S.E.2d 912, 914 (App.1988) (state courts have flexibility to determine disposition of Indian child placement proceeding, citing H.R.Rep. 1386); Matter of Wayne R.N., 107 N.M. 341, 757 P.2d 1333, 1335 (App.1988) (good cause determination made on case-by-case basis after careful consideration of all circumstances). On appeal, we will not upset a trial court's ruling absent an abuse of its discretion. State v. Veatch, 132 Ariz....