Michael J., Jr. v. Michael J., Sr., 1 CA-JV 99-0127.

• Court: Court of Appeals of Arizona
• Citation: 7 P.3d 960,198 Ariz. 154
• Docket Number: No. 1 CA-JV 99-0127.,1 CA-JV 99-0127.
• Parties: MICHAEL J., Jr., Appellant, v. MICHAEL J., Sr., Arizona Department of Economic Security, and Tohono O'odham Nation, Appellees.
• Decision Date: 03 July 2000

7 P.3d 960
198 Ariz. 154

MICHAEL J., Jr., Appellant,
v.
MICHAEL J., Sr., Arizona Department of Economic Security, and Tohono O'odham Nation, Appellees

No. -0127.

Court of Appeals of Arizona, Division 1, Department E.

July 3, 2000.

7 P.3d 961

Hamilton Law Office by Lynn T. Hamilton, Mesa, for Appellant

Janet A. Napolitano, Arizona Attorney General, by Stacy L. Hill, Assistant Attorney General, Phoenix, for Appellee Arizona Department of Economic Security.

Tohono O'odham Advocate Program by Frederick Lomayesva and Michele Martin, Sells, for Appellee Michael J., Sr.

Office Of Attorney General, Tohono O'odham Nation by Mark E. Curry, Deputy Attorney General and Ida B. Wilbur, Assistant Attorney General, Sells, for Appellee Tohono O'odham Nation.

OPINION

BERCH, Judge.

¶ 1 Appellant, Michael J., Jr., seeks to avoid transfer of his dependency case from superior court to tribal court. Through his guardian ad litem ("GAL"), Michael raises the following issues for review:

(1) Whether the juvenile court erred by applying the Indian Child Welfare Act of 1978 to this case;

(2) Whether the juvenile court erred by failing to apply an "existing Indian family" exception; and

(3) Whether the juvenile court abused its discretion when it granted Father's motion to transfer the dependency proceeding to the Tohono O'odham Indian Nation tribal court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Michael was born on December 11, 1998, exposed to cocaine and experiencing severe medical problems. Mother, a non-Indian woman who tested positive for cocaine use at the time of Michael's birth, had not received any prenatal care, was not employed, had no insurance, and was not prepared to raise a baby in her home. She requested services from the Arizona Department of Economic Security ("DES").

¶ 3 At the time of Michael's birth, Father, an enrolled member of the Tohono O'odham Indian Nation (the "Nation"), was incarcerated. Mother and Father were not married at the time of Michael's birth, Father was not named on Michael's birth certificate, and paternity had not been officially established, although Father acknowledged paternity.

¶ 4 On December 14, 1998, after determining that Michael was at risk of harm because of the unsafe and hazardous living environment at Mother's home, DES assumed custody of the infant. A DES case manager served Mother and Father with temporary custody notices and notified the Nation of Michael's birth. Two days later, DES filed a dependency petition regarding Michael.

¶ 5 On January 6, 1999, following a hearing, the juvenile court found Michael dependent as to his parents. Within two weeks, DES filed an amended dependency petition indicating that Michael was an "Indian child" who might be subject to the Indian Child Welfare Act ("ICWA") and requesting that a guardian ad litem be appointed to represent Michael in the dependency proceedings. The Nation moved to intervene, acknowledging Michael's eligibility for enrollment with the Nation. Father's counsel, DES, and an advocate for the Nation acknowledged the Nation's

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jurisdiction over Michael's siblings. The court granted the Nation's motion and appointed the GAL to represent Michael in all further proceedings. On May 19, 1999, at the continued initial dependency hearing, Father acknowledged paternity of Michael and agreed to submit to confirmatory paternity testing. Following receipt of the test results confirming paternity, the court granted Father's motion to transfer jurisdiction to the Nation's tribal court

¶ 6 The GAL filed a timely notice of appeal.

ANALYSIS

1. Standard of Review

¶ 7 This Court reviews de novo the interpretation and application of a statute. See Columbia Parcar Corp. v. Arizona Dep't of Transp., 193 Ariz. 181, 183, ¶ 11, 971 P.2d 1042, 1044 (App.1999). Our role when deciding jurisdictional issues under ICWA is to decide "who should make the custody determination concerning [the] child[ ]—not what the outcome of that determination should be." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). After reviewing de novo ICWA's applicability, we review the juvenile court's order transferring a case to a tribal court for an abuse of discretion. See Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 107, 828 P.2d 1245, 1248 (App. 1991).

2. Background and Application of the Indian Child Welfare Act

¶ 8 Congress adopted the Indian Child Welfare Act of 1978 ("ICWA"), 25 U.S.C. §§ 1901-1963, in response to concerns regarding the consequences to Indian children, Indian families, and Indian tribes of state child welfare practices that separated Indian children from their families and tribes. See H.R.Rep. No. 95-1386 (1978), reprinted in 1978 U.S.C.C.A.N. 7530. The Indian Child Welfare Act provides "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 (1994).

¶ 9 The Act applies to any "child custody proceeding," see 25 U.S.C. § 1903(1) (1994); see also Maricopa County Juv. Action No. A-25525, 136 Ariz. 528, 531, 667 P.2d 228, 231 (App.1983), involving an "Indian child," a term that includes "any unmarried person who is under age eighteen and ... either (a) [is] a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4) (1994).

¶ 10 The Act grants tribal courts exclusive jurisdiction over child custody proceedings involving Indian children domiciled on a reservation, see 25 U.S.C. § 1911(a) (1994), and concurrent but presumptively tribal jurisdiction in proceedings involving Indian children not domiciled on a reservation:

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, that such transfer shall be subject to declination by the tribal court of such tribe.

25 U.S.C. § 1911(b). All of the parties to this action agree that if ICWA applies, section 1911(b) provides the juvenile court and tribal court concurrent jurisdiction.

¶ 11 The GAL concedes that this dependency action is a child custody proceeding, but contends that ICWA does not apply because Father never established "legal" paternity. Thus, she asserts, Father has not established that he is a "parent" or that Michael is an "Indian child" within the meaning of ICWA. We disagree.

¶ 12 Although ICWA's definition of "parent" excludes an "unwed father [whose] paternity has not been acknowledged or established," 25 U.S.C. § 1903(9) (1994), the record reflects ample evidence that Father acknowledged paternity before the juvenile

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court and subsequently underwent a paternity test that confirmed that he is Michael's biological father. In addition, Father submitted the Nation's written confirmation that Father is an enrolled member of the Tohono O'odham Nation and that Michael is eligible for enrollment as a member. The GAL nevertheless contends that Michael is not an "Indian child" because Father never filed a paternity action or sought legal custody of him. These actions, however, are not required. The Act merely requires that a putative Indian father acknowledge or establish paternity. See, e.g., Coconino County Juv. Action No. J-10175, 153 Ariz. 346, 350, 736 P.2d 829, 833 (App.1987) (court applied ICWA despite the lack of a formal paternity proceeding, where the putative father acknowledged paternity and enrolled...