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Gila River Indian Community v. Department of Child Safety

Court of Appeals of Arizona, First Division

August 11, 2016

GILA RIVER INDIAN COMMUNITY, Appellant,
v.
DEPARTMENT OF CHILD SAFETY, SARAH H., JEREMY H., A.D., Appellees.

         Appeal from the Superior Court in Maricopa County No. JD528014 The Honorable Karen L. O'Connor, Judge

          Office of General Counsel for the Gila River Indian Community, Sacaton By Linus Everling, Thomas L. Murphy, Mandy Cisneros Co-Counsel for Appellant Gila River Indian Community

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

          Arizona Attorney General's Office, Tucson By Dawn R. Williams Counsel for Appellee Department of Child Safety

          Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix By James Manley, Aditya Dynar Counsel for Appellees S.H. and J.H.

          Office of the Legal Advocate, Phoenix By Tiffany Mastin Guardian ad Litem for Appellee A.D.

          Office of the General Counsel for the Salt River Pima-Maricopa Indian Community, Scottsdale By Cheryl J. Scott Counsel for Amici Curiae Salt River Pima-Maricopa Indian Community, Cherokee Nation, and the Native American Bar Association of Arizona

          Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.

          OPINION

          WINTHROP, Judge

         ¶1 Following termination of the parental rights of the biological parents of A.D., an Indian child and eligible member of the Gila River Indian Community ("the Community"), [1] the Community moved for an order transferring jurisdiction of the matter to its Children's Court. The Maricopa County Juvenile Court denied the motion, and the Community appealed. We hold that 25 U.S.C. § 1911(b) of the Indian Child Welfare Act ("ICWA"), [2] which the Community argues requires transfer, does not allow jurisdiction to be transferred after parental rights have been terminated. Accordingly, we affirm the denial of the motion to transfer jurisdiction.

         FACTS AND PROCEDURAL HISTORY[3]

         I. The Underlying Proceedings

         ¶2 At the time of A.D.'s birth in 2014, both she and her biological mother ("M.D.") tested positive for amphetamines and opiates.[4]Approximately one week later, the Arizona Department of Child Safety ("DCS") removed her from the hospital and placed her with S.H. and J.H. ("the foster parents"), with whom she has since remained.[5]

         ¶3 On August 27, 2014, DCS filed a dependency petition on behalf of A.D. The Community was provided notice of the dependency proceedings, and on October 3, 2014, formally moved to intervene pursuant to 25 U.S.C. § 1911(c).[6] The juvenile court granted the motion to intervene, and the Community continued to be involved throughout the case.

         ¶4 On February 20, 2015, the juvenile court found A.D. dependent.[7] Pursuant to DCS's request, the court ordered a case plan of severance and adoption, and on March 4, 2015, DCS moved for termination of the parent-child relationship. The Community received notice of the motion for termination. See 25 U.S.C. § 1912.

         ¶5 On March 18, 2015, the juvenile court terminated the parental rights of A.D.'s biological parents. At that time, the court found the foster parents were an adoptive placement meeting all of A.D.'s needs. The court also found the foster parents had demonstrated a willingness to honor A.D.'s cultural heritage, including by making arrangements to ensure her continued exposure to the Community's culture. The Community had not provided an alternative ICWA-compliant placement and agreed that good cause existed to deviate from the ICWA placement preferences.[8] See 25 U.S.C. § 1915(a)-(b). DCS, as the legal guardian of A.D., was granted authority by the juvenile court to consent to her adoption. No objection or notice of appeal was filed challenging termination of the biological parents' parental rights.

         ¶6 On June 2, 2015, the foster parents moved to intervene under Rule 24, Ariz. R. Civ. P., and expressed a desire to adopt A.D. At a June 5 Report and Review hearing, the Community requested additional time to respond in writing to the motion to intervene, but failed to file a response, and the juvenile court granted the foster parents' motion to intervene. Soon thereafter, the foster parents filed a petition to adopt A.D., and although adoption hearings were scheduled, the juvenile court granted the Community's motion to stay the adoption proceedings.

         II. The Motion to Transfer Jurisdiction

         ¶7 On August 18, 2015, the Community moved to transfer jurisdiction of the remaining proceedings to the Community's Children's Court pursuant to 25 U.S.C. § 1911(b).[9] In its motion, the Community noted that the State of Arizona, through DCS, supported the motion, but the foster parents and A.D.'s guardian ad litem ("GAL") objected to the motion.[10] The GAL filed a written objection to the motion to transfer on September 11, 2015, and, pursuant to the juvenile court's minute entry order issued after the September 29 Report and Review hearing, the foster parents filed a response to the motion to transfer on October 13, 2015.

         ¶8 On December 9, 2015, and January 5, 2016, the juvenile court heard testimony on whether good cause existed to deny the Community's motion to transfer jurisdiction.[11]See generally 25 U.S.C. ยง 1911(b). Both sides offered evidence regarding several factors, including whether the Community's Children's Court was a convenient forum, the degree to which A.D. had bonded with her foster family, and the possible ...


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