from the Superior Court in Maricopa County The Honorable
Karen L. O'Connor, Judge No. JD528014
of the Court of Appeals, Division One 240 Ariz. 385 (App.
Everling, Thomas L. Murphy (argued), Gila River Indian
Community Office of General Counsel, Sacaton; and April E.
Olson, Rothstein, Donatelli, Hughes, Dahlstrom &
Schoenburg, LLP, Tempe, Attorneys for Gila River Indian
Manley, Aditya Dynar (argued), Scharf-Norton Center for
Constitutional Litigation at the Goldwater Institute,
Phoenix, Attorneys for Sarah and Jeremy H.
Lomayesva, Tamara Walters, Frederick Lomayesva, Office of the
Attorney General Pascua Yaqui Tribe, Tucson, Attorneys for
Amicus Curiae Pascua Yaqui Tribe, Salt River Pima Maricopa
Indian Community, Navajo Nation, Cherokee Nation, and the
Native American Bar Association of Arizona
F. Peterson, Maricopa County Office of the Legal Advocate,
Tiffany Mastin, Deputy Legal Advocate, Phoenix, Guardian ad
Litem for the Minor Child
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
GOULD, and LOPEZ and JUDGE VÁSQUEZ joined.
This case concerns the transfer of child custody proceedings
from state to tribal court under 25 U.S.C. § 1911(b) of
the Indian Child Welfare Act ("ICWA"). We hold that
§ 1911(b) addresses transfer only of foster care
placement and termination-of-parental-rights actions.
Although § 1911(b) does not apply to state preadoptive
and adoptive placements, such as the proceeding involved
here, it also does not prohibit the transfer of such actions
to tribal court.
A.D. is a member of the Gila River Indian Community
("Community") and an Indian child for purposes of
ICWA. See 25 U.S.C. § 1903(4). Having been
prenatally exposed to amphetamines and opiates, A.D. was born
in August 2014 in Arizona outside the Community's
boundaries. Five days after her birth, the Arizona Department
of Child Safety ("DCS") removed A.D. from her
mother, who is also a Community member, and placed her with
Sarah H. and Jeremy H. ("foster parents"). A.D. has
since resided with her foster parents outside the
Community's boundaries. Because the foster parents are
not members of A.D.'s extended family or Indians, they do
not qualify for a presumptive preference as an adoptive
placement under ICWA. See id. § 1915(a)
(stating that, absent good cause to the contrary, preference
shall be given to a placement with members of the child's
extended family, other members of the child's tribe, or
other Indian families).
Three days after her foster care placement, DCS filed a
dependency petition on behalf of A.D. in the juvenile court
and notified the Community. In October 2014, the Community
moved to intervene under 25 U.S.C. § 1911(c), which the
court allowed. In February 2015, the court found that the
state had made "active efforts . . . to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the Indian family, " see id. §
1912(d), but that those efforts were unsuccessful. The court
also found that the birth parents' continued custody of
A.D. was likely to result in serious emotional or physical
danger to A.D., found A.D. dependent, and granted DCS's
request for a case plan of severance and adoption. The
Community agreed to the new case plan.
In March 2015, DCS moved to terminate the parental rights of
A.D.'s mother and father and notified the Community. The
Community requested that the child remain in her current
placement until a suitable ICWA placement could be
identified. In a June 2015 order, the court terminated the
rights of A.D.'s parents and also found good cause to
deviate from ICWA's placement preferences. The Community
did not appeal from that order.
The foster parents moved to intervene, noting their desire to
adopt A.D. The Community did not respond to the motion, and
the court allowed the foster parents to intervene. On July 1,
2015, the foster parents petitioned to adopt A.D. After the
court scheduled A.D.'s adoption for ...