Steven H. v. Des

Decision Date19 August 2008
Docket NumberNo. CV-08-0026-PR.,CV-08-0026-PR.
Citation190 P.3d 180,218 Ariz. 566
PartiesSTEVEN H. and Tammy H., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Matthew H., Savannah H., Appellees.
CourtArizona Supreme Court

David P. Frank, Tohono O'odham Nation Attorney General by Samuel F. Daughety, Sells, Attorneys for Amicus Curiae Tohono O'odham Nation.


RYAN, Justice.

¶ 1 In a custody proceeding involving an Indian child, a state court must comply with the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to 1963 (2000). Under ICWA, before a state court judge may order foster care placement of an Indian child, the judge must make "a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(e). We must decide if § 1912(e) requires explicit expert testimony on the ultimate issue of fact — that continued custody of the Indian child will result in serious emotional or physical damage to the child.


¶ 2 Matthew and Savannah are the biological children of Tammy H. and the adopted children of Steven H. The family has had many interactions with Child Protective Services ("CPS") in recent years concerning allegations of emotional and physical abuse of the children by Tammy and Steven. Once, during a physical examination of Savannah, a Flagstaff police officer observed bruises, some of which were seven inches wide and five inches long.

¶ 3 In July 2006, a guardian ad litem ("GAL") filed a petition requesting that the court find Savannah dependent as to the parents.1 The GAL alleged that Savannah was dependent under Arizona Revised Statutes ("A.R.S.") section 8-201(13)(a)(i) (2007), which defines a dependent child as one "[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 month later, the GAL filed a supplemental petition asking the court to declare Matthew dependent for the same reasons. Because Matthew and Savannah are of Indian descent and affiliated with the Cherokee Nation, the custody proceedings were subject to the requirements of ICWA. 25 U.S.C. § 1903(4) (defining "Indian child").2

¶ 4 The juvenile court conducted hearings over eleven days between October 2006 and March 2007. At the hearings, the GAL called several mental health professionals who had treated the children and counseled the parents. These expert witnesses testified about educational, psychological, and psychosexual evaluations of the children. The evaluations concluded that both Matthew and Savannah suffered from significant behavioral, emotional, and psychological dysfunctions. Expert witness testimony, as well as other evidence in the record, demonstrated that the children's conditions resulted from the abuse they had suffered over the years. The experts, however, did not specifically opine as to whether continued custody of the children by the parents would likely result in serious emotional or physical damage.3

¶ 5 Savannah testified that she believed that counseling had helped her and she wanted to return to her parents' custody. Matthew told the court that he had attended individual and family counseling. Tammy testified that she and Steven had made active efforts to parent the children, had sought counseling for both, and had involved them in church youth programs. Finally, the Arizona Department of Economic Security ("DES") advised the court that it did not believe there was sufficient evidence to support the dependency petition.

¶ 6 At the end of the hearings, the juvenile court found by clear and convincing evidence that the children were "dependent as to Tammy and Steve ... pursuant to A.R.S. § 8-201(13)." The court found that the parents physically abused Savannah and emotionally abused both Savannah and Matthew; the parents failed or refused entirely to participate in services offered to eliminate the need for the dependency; the parents failed to provide proper and effective control of Matthew and Savannah; and the children had serious emotional and behavioral issues. In addition, the court found that "continued custody of the children by the parent, guardian or Indian custodian is likely to result in serious emotional or physical damage to the children." The court therefore ordered that the children be made wards of the court and placed under the control of DES.4 The parents appealed.

¶ 7 The court of appeals vacated the dependency order. Steven H. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 315, 319, ¶ 12, 173 P.3d 479, 483 (App.2008). The court concluded that 25 U.S.C. § 1912(e) requires that "a qualified expert must explicitly testify that continued custody by the parents ... is likely to result in serious physical or emotional damage to the child." Id. at 318, ¶ 10, 173 P.3d at 482 (emphasis added). Solely because none of the expert witnesses explicitly testified on this issue, the court held that the GAL "failed to prove that Parents' continued custody of Children would likely have resulted in serious emotional or physical damage to them." Id. at 319, ¶ 12, 173 P.3d at 483.

¶ 8 The GAL petitioned for review, contending that the court of appeals erred by vacating the juvenile court's dependency petition for the sole reason that no expert witness had explicitly testified regarding how the court should decide the ultimate issue of fact.5

¶ 9 We granted review to clarify the role expert testimony has in meeting the requirements of 25 U.S.C. § 1912(e), an issue of first impression and statewide importance. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).


¶ 10 In Arizona, dependency adjudications are governed by A.R.S. §§ 8-841 to -847 (2007 & Supp.2007). Under § 8-844(C)(1)(a), if the court finds by a preponderance of the evidence that the allegations contained in the dependency petition are true, the court must make a finding of dependency. But a different standard of proof, along with a requirement for expert testimony, applies when a dependency proceeding involves an Indian child. 25 U.S.C. § 1912(e).6 Congress imposed these additional requirements because state courts had historically been too quick to remove Indian children from their parents and communities. See, e.g., Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 106, 828 P.2d 1245, 1247 (App.1991).


¶ 11 When it enacted ICWA in 1978, Congress recognized that "there is no resource ... more vital to the continued existence ... of Indian tribes than their children." 25 U.S.C. § 1901(3). It found that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." Id. § 1901(4).

¶ 12 To remedy this harm, Congress declared that the purpose of ICWA is

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....

Id. § 1902. The principal goal of ICWA then is to protect and preserve the integrity of America's Indian tribes, while also protecting the interests of Indian children.


¶ 13 By requiring a heightened standard of proof for foster care placement and also requiring qualified expert testimony, 25 U.S.C. § 1912(e) furthers Congress's intent to prevent state courts from too readily approving dependency dispositions that remove Indian children from their parents or native communities. The issue we must decide is how specific an expert witness's testimony must be to satisfy § 1912(e)'s requirement that expert testimony support a court's determination that "continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child." The GAL and DES contend that the court of appeals went too far in requiring explicit expert testimony on the ultimate issue. They argue that such a requirement has the effect of delegating a court's decision to an expert witness. The GAL and DES maintain that as long as there is some expert testimony in the record concerning a parent's past conduct and current inability to care for the child, a court can infer the likelihood of future emotional or physical damage to the Indian child. The parents and Indian tribes, on the other hand, argue that ICWA requires explicit expert testimony on the likelihood of future harm.


¶ 14 Because this issue requires us to interpret a statute, our review is de novo. See, e.g., State ex rel. Ariz. Dep't of Revenue v. Capitol Castings, Inc., 207 Ariz. 445, 447, ¶ 9, 88 P.3d 159, 161 (2004). In interpreting a federal statute, "[o]ur task is to give effect to the will of Congress, and where its will...

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