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Gila River Indian Community v. Department of Child Safety

Supreme Court of Arizona

June 13, 2017

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 The Honorable Karen L. O'Connor, Judge No. JD528014

         Opinion of the Court of Appeals, Division One 240 Ariz. 385 (App. 2016)

          Linus 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 Community

          James Manley, Aditya Dynar (argued), Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for Sarah and Jeremy H.

          Amanda 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

          Bruce F. Peterson, Maricopa County Office of the Legal Advocate, Tiffany Mastin, Deputy Legal Advocate, Phoenix, Guardian ad Litem for the Minor Child

          CHIEF 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. [*]

          OPINION

          BALES CHIEF JUSTICE

         ¶1 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.

         I.

         ¶2 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).

         ¶3 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.

         ¶4 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.

         ¶5 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 ...


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