from the Superior Court in Maricopa County No. JD527942 The
Honorable Arthur T. Anderson, Judge
Shanker Law Firm PLC, Tempe By Tamara Crites Shanker Counsel
Arizona Attorney General's Office, Tucson By Autumn
Spritzer Counsel for Appellee Department of Child Safety
D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli
Counsel for Appellee Whiteflutee Y.
Natasha S., Tempe Appellee
Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie joined. Judge Jennifer B.
Campbell specially concurred.
The Navajo Nation appeals the juvenile court's order
appointing a permanent guardian for a child subject to the
Indian Child Welfare Act ("ICWA") without the
testimony of a qualified expert witness that the parent's
or the Indian-relative custodian's continued custody
would likely result in serious emotional or physical damage
to the child. We hold that ICWA applies to guardianships and
that it requires a qualified expert witness to provide this
testimony. Because such testimony was not provided in this
case, we vacate the juvenile court's order and remand the
case for a new hearing.
AND PROCEDURAL HISTORY
Whiteflutee Y. ("Mother") gave birth to R.Y. in
September 2012. The Department of Child Safety removed R.Y.
from Mother's care in August 2014 alleging neglect and
substance abuse. Mother had become impaired, allegedly by
methamphetamine, and threatened to kill a man who lived in
her home. She waved a gun at the man and barricaded herself
in the home with R.Y. She was arrested for aggravated assault
with a deadly weapon and the Department moved for dependency.
Because Mother is a member of the Navajo Nation, the
dependency proceedings had to comply with ICWA. In April
2015, the court adjudicated R.Y. dependent.
In January 2017, Mother moved to appoint Natasha S.,
R.Y.'s foster placement, as R.Y.'s permanent
guardian. Guardianship hearings were held over several dates
beginning in March 2017. In June 2017, the Navajo Nation
informed the court and parties that it would not actively
oppose Mother's guardianship motion. It also stated,
however, that the Navajo Nation's family services
department would not provide the expert-witness testimony
ICWA required and that Mother or the Department would need to
provide an expert witness if Mother wished to proceed with
the guardianship. The Department stated that it would attempt
to schedule its own expert witness to testify.
In August 2017, the issue of expert-witness testimony was
discussed again, and the court reiterated that such testimony
was necessary to satisfy ICWA. But in September 2017, the
Department informed the court and parties that its designated
expert witness was unwilling to provide the requisite
testimony for the guardianship. That same month, Mother
proposed Ian Service as her expert witness. The Department
took no position on Service's qualifications as an expert
witness, but the Navajo Nation objected. The court held a
voir dire hearing to determine whether Service was
During that hearing, Service testified that he had been an
attorney for about ten years, mostly as a public defender or
prosecutor in Idaho. He stated that 10 to 15 percent of his
cases involved ICWA in some way and that he had served as an
expert witness in two cases. He admitted, however, that both
cases were before the same judge and involved the
Shoshone-Bannock Tribe-not the Navajo Nation. He also
acknowledged that he was not a member of any Indian tribe,
was not recognized as an expert witness by the Navajo Nation,
had never been contacted by the Navajo Nation to testify as
an expert witness, and was not familiar with the Navajo
Nation's parenting customs. Service further stated that
he had only minimally reviewed the record and that he had not
talked to the proposed Indian-relative placement, R.Y., the
Department's expert witness who had refused to testify,
or the Navajo Nation case specialist assigned to this case.
Before determining if Service qualified as an expert witness,
the court allowed him to testify that continued custody by
Mother or the Indian-relative custodian would likely result
in serious emotional or physical damage and that the
guardianship was in R.Y.'s best interests. The court
asked Service how he could come to such a conclusion when he
had not seen R.Y. with the relative placement or with Mother.
Service responded that although he had not read any of the
reports, he had heard from Mother's attorney that visits
with the relative placement had not gone well and that Mother
was unable to parent due to her incarceration. ...