Nation v. Ariz. Dep't of Econ. Sec.

• Decision Date: 05 September 2012
• Docket Number: No. 1 CA–JV 11–0123.,1 CA–JV 11–0123.
• Citation: 230 Ariz. 339,284 P.3d 29,642 Ariz. Adv. Rep. 17
• Parties: NAVAJO NATION, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Z., Appellees.
• Court: Arizona Court of Appeals

230 Ariz. 339

284 P.3d 29

642 Ariz. Adv. Rep. 17

NAVAJO NATION, Appellant,

v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Z.,¹ Appellees.

No. 1 CA–JV 11–0123.

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

Aug. 28, 2012.

As Amended Sept. 5, 2012.

Navajo Nation Department of Justice By Cherie Espinosa, Staff Attorney, Window Rock, Attorney for Appellant.

Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg By April E. Olson, Tempe, Attorneys for Appellant.

Thomas C. Horne, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson, Attorneys for Appellee.

OPINION

KESSLER, Judge.

¶ 1 The Navajo Nation (“the Nation”) appeals the juvenile court's judgment finding good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2006), and allowing the child (“Z.”) to remain with his current non-relative, non-Indian adoptive placement. We affirm. The juvenile court properly found good cause to deviate from ICWA placement preferences because the placement family provided good care for Z., Z. had attached and bonded with the family, Z. would suffer severe distress if he was removed from that placement, the placement family would expose Z. to his Navajo culture, and the placement family had been approved to adopt Z. While the interest of the Nation and the Congressionally-presumed interest of Z. in maintaining his heritage weighed against a finding of good cause to deviate from ICWA's preferences, on this record we cannot say the court erred in weighing all these interests.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The alleged father's (“B.”) brother and sister-in-law (“the current placement”) rescued Z. from his parents' home and began caring for him when he was one month old.² In August 2010, a private dependency petition was filed against Z.'s biological mother (“Mother”) and B., based on neglect and abandonment. At the time of the petition, Z. had been living with the current placement for six months.

¶ 3 At the preliminary protective hearing in August 2010, the juvenile court substituted the Arizona Department of Economic Security (“DES”) as the petitioner and was informed that ICWA applied. The court ordered genetic testing and scheduled a dependency hearing for October 2010. DES notified the Nation in writing of the pending dependency and the October hearing on September 20. The Nation appeared at the October 12 hearing but did not provide any placement information. At the request of DES, the court continued the hearing until December to permit ICWA testimony.

¶ 4 In December 2010, the court held a continued initial dependency and permanency planning hearing. The Nation did not appear. At this point, Z. had been with the current placement for approximately ten months. Based on the evidence presented, the court authorized DES to file a motion to terminate parental rights, but did not make a dependency finding because no ICWA evidence had been presented. The court scheduled the continued dependency hearing and initial severance hearing for January 18, 2011, to permit ICWA evidence to be introduced. The court dismissed B. as a party when genetic testing revealed he was not Z.'s biological father.³

¶ 5 On January 7, 2011, DES filed its motion to sever Mother's and the John Doe father's parental rights, and alleged Mother was an enrolled member of the Navajo Nation. That same day, DES sent the Nation the motion and notice of the hearing by certified mail. The Nation appeared telephonically at that hearing. The court found DES presented a factual foundation for termination of parental rights. As to the current placement with B.'s relatives, the Nation conceded Z. was currently “in a healthy, loving home.” The court recognized that the current placement was not consistent with ICWA placement preferences and deferred any final findings as to whether good cause existed for such placement until after a March 1 hearing.⁴ However, the court indicated DES had shown good cause to deviate from ICWA placement preferences because Z. had been in the current placement almost his entire life where he caught up on developmental milestones, and no party offered alternative homes consistent with ICWA.

¶ 6 On January 27, the Nation successfully moved to intervene, confirming that it had verified in December that Z. was eligible for enrollment.⁵ At this point, Z. had been with the current placement for almost eleven months. While the motions were pending, the Foster Care Review Board issued a report stating that Z. was bonding with the current placement and that DES wrote Mother a letter requesting information on relatives. The Nation indicated that the case had been assigned in December 2010, that it visited Z. once in the current placement, and that although Mother's whereabouts was unknown, it intended to identify an adoptive home for Z.

¶ 7 At the March 1 hearing, the Nation did not contest the severance, but objected to the current placement because it did not fall within ICWA preferences. In addition, the Nation expressed concern over the current placement's unemployment, and one of the couple's criminal history and prior terminations of parental rights. The parties informed the court that while a home study revealed Z.'s maternal grandmother to be an inappropriate placement, Mother had recently provided the names of six additional relatives. Although the court encouraged DES to consider the relative placements, it found that good cause existed to deviate from ICWA preferences. The court issued a minute entry terminating parental rights and finding good cause to continue the current placement because Z. had established a bond with them and removal from that home could result in psychological trauma. After the Nation filed a motion for reconsideration, the court held an evidentiary hearing to determine if good cause existed to deviate from ICWA placement preferences.

¶ 8 By the time of the good cause hearing, Z. had been with the current placement for fifteen months. In opposing that placement, Cassandra Gorman (“Gorman”), the Nation's expert witness, testified about the importance of Navajo culture in child upbringing, the difficulty in teaching the culture to a child raised in a non-Navajo family, and the consequences if milestones and ceremonies are not honored or performed. Gorman also testified about the Nation's efforts in managing the case, and informed the court that the Nation had found an ICWA-compliant placement with Z.'s maternal grandmother's sister. Gorman further testified in regard to the current placement, and cited financial instability and a past criminal history as to one of the couple as a cause for concern.

¶ 9 The juvenile court also heard testimony from Dr. Glenn Moe, a licensed psychologist who performed an attachment and best interests assessment on Z. in May 2011. Dr. Moe testified it was in Z.'s best interest to remain in the current placement. Dr. Moe also testified that a reciprocal bond had been formed, and that Z. would face a significant risk of emotional disturbance if removed from the home. In addition, Dr. Moe testified to the current placement's willingness to expose Z. to Navajo culture and promote relationships with Z.'s biological family. He concluded that by staying with the current placement Z. would not suffer from loss and separation, and could still grow up with an understanding of Navajo culture, heritage, and language.

¶ 10 The juvenile court concluded there were five reasons for good cause to deviate from ICWA preferences: the current placement had rescued and provided good care to Z.; Z. had significantly attached and bonded with the current placement; removing Z. would cause emotional damage; the current placement would expose Z. to Navajo culture and heritage as well as to African–American heritage; and the current placement had been approved to adopt Z. As the court summarized its holding:

The Child ... has been [with the current placement] for 15 of the 16 months of his life. Essentially, these are the only parents the Child has ever known. The Child and the [current placement] are bonded with each other.... It was the [current placement], not the Navajo Nation who rescued the Child from deplorable living conditions.... The Child will suffer detriments—including certain emotional and psychological damage, which has the potential to be profound—if removed from the [current placement]. The proposed Navajo [relative] placement ... has no relationship or bond with the Child. The Child will be exposed to his multi-ethnic culture, including the Navajo culture, if raised by the [current placement]. And, finally, there is no need to move the Child from the [current placement], as they have been certified to adopt.

¶ 11 The court also addressed the Nation's delay in trying to find an ICWA-preferred placement, which while not dispositive, resulted in having Z. bond with the current placement. Balancing that delay against the benefits to having Z. stay with the current placement, the court concluded that “it is contrary to the best interests of the Child, and would be horribly detrimental to the Child, to rob him of the only parents he has ever known, loved and bonded with.”

¶ 12 The Nation timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8–235(A) (2007) and 12–120.21(A)(1) (2003).

DISCUSSION

¶ 13 The Nation makes two arguments why we should reverse the juvenile court's good cause determination. First, it argues the court erred as a matter of law in considering the above factors as evidence of good cause to deviate from ICWA preferences. It contends that the Bureau of Indian Affairs Guidelines (“Guidelines”) offer the exclusive factors permitting deviation from ICWA placement preferences. Alternatively, the Nation argues that any reason for deviation must be equivalent to those in the Guidelines. As part of that argument, the Nation...