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Gila River Indian Cmty. v. Dep't of Child Safety

Court of Appeals of Arizona, First Division

December 8, 2015

GILA RIVER INDIAN COMMUNITY, DESTINY O., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, D.B., J.L., S.L. [1], Appellees

Appeal from the Superior Court in Maricopa County. No. JD 510468. The Honorable Shellie F. Smith, Judge Pro Tem.

Office of General Counsel, Sacaton, By Sunshine Whitehair, Linus Everling, Julian Nava, Co-Counsel for Appellant Gila River Indian Community.

Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Tempe, By April E. Olson, Co-Counsel for Appellant Gila River Indian Community.

Arizona Attorney General's Office, Mesa, By JoAnn Falgout, Amanda L. Adams, Counsel for Appellee Department of Child Safety.

Law Office of Sara J. Smith, PLLC, Goodyear, By Sara J. Smith, Counsel for Foster Parent Intervenors.

Presiding Judge Margaret H. Downie delivered the Opinion of the Court, in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

OPINION

Page 149

Margaret H. Downie, Judge.

[¶1] The Gila River Indian Community (the " Community" ) appeals the denial of its motion to change physical custody of a dependent Indian child in foster care. The Community challenges the juvenile court's determination that good cause exists to deviate from placement preferences set forth in the Indian Child Welfare Act (" ICWA" ). We hold that good cause to deviate from ICWA placement preferences must be established by clear and convincing evidence. Because it is not apparent that the juvenile court applied this heightened standard of proof, we vacate its good cause determination and remand for reconsideration applying the clear and convincing evidence standard.

FACTS AND PROCEDURAL HISTORY

[¶2] D.B. was born in November 2012 and is the second youngest of four daughters born to Destiny O. (" Mother" ). Three months after D.B.'s birth, the Department of Child Safety (" DCS" ) filed a dependency petition, alleging on information and belief that D.B. was not an Indian child.[2] Mother had advised the agency that D.B.'s father had Indian blood but was not an enrolled member of a tribe.

Page 150

[¶3] In March 2013, DCS placed D.B. with a non-Indian foster family. D.B.'s father subsequently enrolled in the Community, and in June 2013, the Community intervened in the juvenile court proceedings. D.B. also became an enrolled member of the Community.

[¶4] The initial case plan called for reunification with Mother. DCS placed D.B. back in Mother's care in February 2014 but returned her to the foster home one week later upon learning that Mother had allowed D.B.'s father to be present in the home, notwithstanding a no-contact order as to the children due to his guilty plea to felony child abuse.

[¶5] The juvenile court changed the case plan to severance and adoption in April 2014. In July 2014, DCS placed D.B.'s youngest sister in the same foster home with D.B. Shortly thereafter, the Community advised it had found an ICWA-compliant placement, and it moved to change D.B.'s custody.[3] The Community urged the court to place D.B. with her father's cousin, whom the Community refers to as D.B.'s " aunt."

[¶6] After an evidentiary hearing, the juvenile court denied the Community's motion to change D.B.'s custody. The court found good cause to deviate from ICWA placement preferences, ...


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