Valerie M. v. Ades

• Citation: 219 Ariz. 155,195 P.3d 192
• Decision Date: 17 June 2008
• Docket Number: No. 1 CA-JV 07-0033.,1 CA-JV 07-0033.
• Parties: VALERIE M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Kaydee V., Randy V., Zachary V., Appellees.
• Court: Court of Appeals of Arizona

195 P.3d 192

219 Ariz. 155

VALERIE M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Kaydee V., Randy V., Zachary V., Appellees.

No. 1 CA-JV 07-0033.

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

June 17, 2008.

Review Granted October 28, 2008.

Terry Goddard, Attorney General By William V. Hornung, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Sandra L. Massetto, Phoenix, Attorney for Appellant.

OPINION

HALL, Judge.

¶ 1 Following a jury trial, the juvenile court issued an order terminating the parental rights of Valerie M. (Mother) as to her children Kaydee V., Randy V., and Zachary V. On appeal, Mother asserts that the burden-of-proof jury instructions violated the Indian Child Welfare Act (ICWA or the Act), 25 U.S.C. sections 1901-1963 (1978), and Arizona Rule of Procedure for the Juvenile Court 66(C). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The facts relevant to the issue on appeal are undisputed. The children are members of the Cherokee Tribe and subject to the Act. On February 25, 2005, the children's paternal grandmother filed a dependency petition alleging that the children were dependent as to Mother. At a mediation hearing held April 1, 2005, the Arizona Department of Economic Security (ADES) requested to substitute for paternal grandmother as petitioner on the dependency proceeding, alleging that the children were dependent as to Mother and biological father (Father). On May 13, 2005, the juvenile court found, by a preponderance of the evidence, that the children were dependent as to Mother and Father. Two months later, the Cherokee Nation intervened in the matter. The juvenile court continued the dependency disposition hearing to receive testimony from an ICWA caseworker. The juvenile court then found the children were dependent as to Mother and Father by clear and convincing evidence.

¶ 3 On June 7, 2006, ADES filed a motion seeking termination of Mother's and Father's parental rights to the children. ADES alleged three statutory bases for termination: (1) Mother and Father were unable to discharge their parental responsibilities because of mental illness, mental deficiency, and/or a history of chronic drug abuse, with reasonable grounds to believe that the condition will continue for a prolonged and indeterminate period pursuant to Arizona Revised Statutes (A.R.S.) section 8-533(B)(3) (Supp.2007); (2) the children had been in an out-of-home placement pursuant to a court order for a cumulative period of nine months or longer and Mother and Father had substantially neglected or willfully refused to remedy the circumstances causing the out-of-home placement pursuant to § 8-533(B)(8)(a); and (3) the children had been in an out-of-home placement pursuant to a court order for a cumulative period of fifteen months or longer and Mother and Father had been unable to remedy the circumstances causing the out-of-home placement and there was a substantial likelihood that they would not be capable of exercising proper and effective parental care and control in the near future pursuant to § 8-533(B)(8)(b).

¶ 4 At her initial severance hearing, Mother entered a denial and timely requested a jury trial. Father failed to appear at his initial severance hearing and an official from the Cherokee Nation testified that the Nation was in agreement with the plan of severance and adoption. The juvenile court then proceeded with Father's severance trial. After receiving testimony and exhibits, the juvenile court found, beyond a reasonable doubt, that the State proved the statutory bases for termination, that the State made active efforts to prevent the "break-up of the Indian family," that Father's continued custody of the children would likely result in serious emotional or physical damage to the children, and that termination of the parent-child relationship was in the children's best interests. Based on these findings, the juvenile court terminated Father's parental rights.¹

¶ 5 Before trial, ADES filed a motion in limine regarding the burden of proof required in Mother's termination case, in which it asserted that the "beyond a reasonable doubt" standard applied only to the findings required by the Act, that the "clear and convincing evidence" standard applied to the findings on state statutory termination grounds, and that the "preponderance of the evidence" standard applied to the best interests determination. The purpose of the motion was to preclude any party from making any different statement to the jury regarding the burdens of proof. ADES contemporaneously submitted a requested jury instruction incorporating these three differing standards of proof. Mother did not disagree with the State's motion and the juvenile court granted it.

¶ 6 Two days later, however, during a mid-trial discussion of the final jury instructions prepared by the juvenile court, Mother's attorney argued that the "beyond a reasonable doubt" standard should apply to all of the jury's findings. The juvenile court overruled Mother's objection and the jury was instructed in relevant part as follows:

To terminate the parental rights of Valerie [M.] relating to [the children] in this case, you must:

1. find by clear and convincing evidence that at least one of the three grounds for termination (those grounds are "mental illness," "nine months time in care," and "fifteen months time in care") have been proven; and 2. find by a preponderance of the evidence that the termination of Valerie [M.'s] parental relationship to [the children] is in the children's best interest; and

3. find that the evidence has been proved beyond a reasonable doubt that;

a. the Department of Economic Security's Child Protective Services Division has made active efforts to provide Valerie [M.] with remedial services and rehabilitative programs that were designed to prevent the breakup of the Indian family and that these efforts have been unsuccessful, and

b. returning [the children] to the custody of Valerie [M.] would likely result in serious emotional or physical damage to the children, and this finding is supported by the testimony of a qualified expert witness.

¶ 7 The jury found: (1) by clear and convincing evidence that all three grounds for termination had been proven; (2) by a preponderance of the evidence that termination of the parent-child relationship was in each child's best interests; and (3) beyond a reasonable doubt that ADES made active efforts to provide Mother with remedial services to prevent the break-up of the family and that returning the children to Mother's custody would likely result in serious emotional or physical damage to the children, a finding supported by expert testimony.

¶ 8 The juvenile court entered a signed order setting forth the jury's findings and terminating Mother's parental rights to the children. Mother timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235(A) (2007) and Arizona Rule of Procedure for the Juvenile Court 88(A).

DISCUSSION

¶ 9 As her sole issue on appeal, Mother argues that the juvenile court erred by failing to instruct the jurors that the "beyond a reasonable doubt" burden of proof applied to each of their findings. Specifically, Mother contends that the Act requires that the State prove beyond a reasonable doubt the statutory grounds for termination and that termination is in the children's best interests.

¶ 10 We review jury instructions as a whole to determine whether they accurately reflect the law. Dawson v. Withycombe, 216 Ariz. 84, 105, ¶ 63, 163 P.3d 1034, 1055 (App.2007). "We will not overturn a jury verdict on the grounds of an erroneous instruction unless there is substantial doubt as to whether the jury was properly guided in its decision." Id. To determine whether the juvenile court properly instructed the jury, we first examine the burden of proof requirements set forth in the Act, which we review de novo as a matter of law. See Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 156, ¶ 7, 7 P.3d 960, 962 (App.2000).

¶ 11 When construing a statute, our primary goal is to determine and give effect to the intent of the Legislature. In re Estate of Jung, 210 Ariz. 202, 204, ¶ 12, 109 P.3d 97, 99 (App.2005). Initially, we consider the language of the statute itself. Id. "If the statutory language is unambiguous, we must give effect to the language and do not use other rules of statutory construction in its interpretation." Primary Consultants, L.L.C. v. Maricopa County Recorder, 210 Ariz. 393, 399, ¶ 24, 111 P.3d 435, 441 (App.2005).

¶ 12 The United States Congress enacted the Act to establish minimum standards "for the removal of Indian children[²] from their families." 25 U.S.C. § 1902. Parental termination proceedings are governed by 25 U.S.C. § 1912(f), which provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, 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.

Under the unambiguous language of the statute, parental rights may not be terminated absent a finding that the continued custody of the child by the parent would result in serious emotional or physical damage to the child. By its express terms, § 1912(f) establishes that a finding of emotional or physical harm to the child must be supported by evidence beyond a reasonable doubt and that the supporting evidence must include the testimony of a qualified expert witness.

¶ 13 Contrary to Mother's claims, the Act does not establish, or even mention, the appropriate standard of proof to be applied in evaluating state-law termination grounds or making state-mandated best interests determinations. Rather, § 1912(f) protects the stability and integrity of Indian families by requiring that the fact-finder make an...