State ex rel. C.D.

Decision Date26 December 2008
Docket NumberNo. 20070978-CA.,20070978-CA.
Citation2008 UT App 477,200 P.3d 194
PartiesSTATE of Utah, in the interest of C.D., A.D., J.T., and S.T., persons under eighteen years of age. A.D.T. and L.D., Appellants, v. State of Utah, Appellee.
CourtUtah Court of Appeals

Joyce G. Smith, Blanding, and William L. Schultz, Moab, for Appellants.

Mark L. Shurtleff, atty gen., and John M. Peterson, asst. atty. gen., Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before Judges BILLINGS, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 This case requires us to interpret the federal Indian Child Welfare Act (the ICWA), see 25 U.S.C. §§ 1901-63 (2000), and determine its proper application within the framework of the abuse, neglect, and dependency provisions of Utah's Juvenile Court Act of 1996, see Utah Code Ann. §§ 78A-6-301 to -324 (Supp.2008).1 Mother and Grandfather appeal the juvenile court's December 5, 2007 Findings of Fact, Conclusions of Law, and Adjudication Order wherein custody and guardianship of C.D., A.D., J.T., and S.T. were granted to the Division of Child and Family Services (DCFS). We affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

BACKGROUND

¶ 2 Mother has four children: C.D. was born in 2000; A.D. was born in 1992; J.T. was born in 1995; and S.T. was born in 1996. Mother, Grandfather (collectively Appellants), and all four children are members of the Navajo Nation. On December 5, 2002, the State filed a Verified Petition for Protective Services and sought to remove the children from Mother, who could not parent them due to mental health issues. The exact details of that proceeding are not relevant to this appeal, other than the fact that on October 20, 2003, the parties stipulated that Grandfather would maintain permanent guardianship and custody of the children.2 Mother's parental rights were not terminated; she and her children moved in with Grandfather.

¶ 3 In July 2007, after learning of abuse by Grandfather, the State removed the children and again initiated child custody proceedings. Notice of the proceedings was sent to the Navajo Nation on August 6, 2007. The Navajo Nation did not respond or seek to intervene in the matter, which proceeded to trial.

¶ 4 The State presented evidence of abuse, resulting in findings of fact entered by the juvenile court that Grandfather hit S.T. "on the side of her head on her temple area and on her forehead many times," "pushed [S.T.] down the stairs," "hit [A.D.] in the head with a heavy, filled garbage bag," "put [C.D.] in a closet when he cried," "caused [S.T.] great emotional distress by taking away a kitten . . . and later telling [S.T.] that he had . . . run over the kitten with his car," and "push[ed A.D.]'s head into a door so hard that it left a dent in the door."3 The juvenile court also found that, while away visiting her grandmother, A.D. "wrote a suicide letter and was intending to take her life the same night but was discovered [and that]. . . . [A.D.]'s suicide attempt or threat . . . was genuine and serious and was caused by her despair over [Grandfather]'s abuse of her and her siblings."

¶ 5 The juvenile court, in an apparent attempt to address the ICWA, also determined that "Grandfather was in a unique position to raise and protect these children." "[Grandfather] has had years of experience, education, and training in the area of child welfare and has worked for many years for the Division of Child and Family Services in various capacities, including that of a foster care caseworker." Based on this evidence and the prior proceedings involving Mother, the court found that

[t]he [d]ivision has made active efforts to prevent the break[u]p of the Indian family as is evidenced by the previous proceedings where the children were removed and placed in the custody and guardianship of [Grandfather] while [Mother] still lived in the home. [Grandfather]'s education, employment and training should have ensured that the [d]ivision had made a placement where no abuse o[f] the children would occur. The efforts of the [d]ivision to prevent the breakup of the family were unsuccessful.

¶ 6 Based on this evidence, the juvenile court orally granted custody and guardianship of the four children to DCFS on October 12, 2007. On November 13, 2007, the juvenile court held a hearing, after which the goal for the children was "changed to permanent custody and guardianship." Mother's direct appeal from the November 13 hearing was dismissed by this court for lack of jurisdiction because it did not arise from a final order. See In re C.D., 2008 UT App 37U, 2008 WL 256585 (mem.) (per curiam). The juvenile court then entered its written Findings of Fact, Conclusions of Law, and Adjudication Order on December 5, 2007. Mother and Grandfather appealed from that final order. On March 27, 2008, this court issued two memorandum decisions resolving the majority of Grandfather's and Mother's arguments on appeal. See In re C.D., 2008 UT App 111U, para. 10, 2008 WL 802930 (mem.) (per curiam) (Grandfather's appeal); In re C.D., 2008 UT App 62U, para. 7, 2008 WL 802934 (mem.) (per curiam) (Mother's appeal). However, we requested further briefing regarding Mother's and Grandfather's contentions that the State failed to comply with the ICWA, see 25 U.S.C. §§ 1901-63 (2000). We now address those arguments.

ISSUES AND STANDARDS OF REVIEW

¶ 7 As directed by our March 27, 2008 memorandum decisions, the parties have briefed two issues for this court: "(1) Whether the juvenile court properly determined that DCFS made active efforts to prevent the break[up] of the Indian family, and; (2) Whether the juvenile court complied with [the] ICWA regarding applying the required preferences or determining good cause excused the preferences in the placements of the children," see In re C.D., 2008 UT App 111U, para. 10, 2008 WL 802930; accord In re C.D., 2008 UT App 62U, para. 7, 2008 WL 802934. We "review[ ] the juvenile court's factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts." In re A.C., 2004 UT App 255, ¶ 9, 97 P.3d 706 (internal quotation marks omitted).

¶ 8 The State and the Guardian Ad Litem (GAL) (collectively Appellees) also challenge our jurisdiction. The GAL argues that this court does not have jurisdiction to consider whether DCFS made active efforts to prevent the breakup of the Indian family as required by the ICWA. See 25 U.S.C. § 1912. Further, both the State and the GAL argue that we do not have authority to review DCFS' compliance with the placement preferences mandated by the ICWA, see id. § 1915(b). To provide some context for our analysis, we address Appellees' jurisdictional arguments within the substantive discussion of the active efforts and placement preference requirements.

ANALYSIS

¶ 9 Our task of resolving the issues raised by this appeal is complicated by the fact that, since the ICWA was adopted in 1978, courts have struggled to apply it, often reaching inconsistent conclusions about the meaning of various terms.4 Despite these conflicts among the states, there have been no amendments to the ICWA. In addition, the United States Supreme Court has issued only one decision interpreting the ICWA in the thirty years since it became effective. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). With those limitations in mind, we begin our analysis, as we must, with the language of the statute. See generally Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.").

I. DCFS Was Not Required to Make Further Active Efforts With Grandfather When Those Efforts Would Be Futile.

¶ 10 Section 1912 of the ICWA provides: "Any party seeking to effect a foster care placement of . . . an Indian child under State law shall 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 these efforts have proved unsuccessful." 25 U.S.C. § 1912(d). Appellants argue that DCFS did not satisfy the active efforts requirement of the ICWA before removing the children from Grandfather. The State disagrees, claiming that the efforts made with Mother were sufficient to satisfy any obligation to this Indian family and, in the alternative, that efforts with Grandfather would be futile. The GAL joined the State's arguments in its appellate brief but during oral argument challenged the court's jurisdiction to consider this issue.5 We first consider that challenge to our jurisdiction. See Housing Auth. of Salt Lake v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724 ("[B]ecause it is a threshold issue, we address jurisdictional questions before resolving other claims.").

A. We Have Jurisdiction to Review DCFS' Compliance with the ICWA's Active Efforts Requirement.

¶ 11 The GAL does not dispute that the trial court's Findings of Fact, Conclusions of Law, and Adjudication Order is properly before us on appeal. Rather, the GAL argues that we lack jurisdiction because the State need demonstrate compliance with the active efforts requirement only as part of the permanency hearing, which is not before us on appeal. We disagree.

¶ 12 Although the ICWA expressly requires active efforts, there is a dearth of authority addressing exactly when the State must begin complying with that requirement or when the deadline for demonstrating compliance occurs. Indeed, the only authorities the parties submitted on this issue are contained in the GAL's supplemental letter pursuant to rule 24(j) of the Utah Rules of Appellate Procedure, see Utah R.App. P. 24(j). The GAL's authorities, and others like...

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