Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The Navajo Nation v. Department of Child Safety

Court of Appeals of Arizona, First Division

April 18, 2019

THE NAVAJO NATION, Appellant,
v.
DEPARTMENT OF CHILD SAFETY, R.Y., WHITEFLUTEE Y., NATASHA S., Appellees.

          Appeal from the Superior Court in Maricopa County No. JD527942 The Honorable Arthur T. Anderson, Judge

          The Shanker Law Firm PLC, Tempe By Tamara Crites Shanker Counsel for Appellant

          Arizona Attorney General's Office, Tucson By Autumn Spritzer Counsel for Appellee Department of Child Safety

          Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellee Whiteflutee Y.

          Natasha S., Tempe Appellee

          Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie joined. Judge Jennifer B. Campbell specially concurred.

          OPINION

          HOWE, JUDGE:

         ¶1 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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.

         ¶3 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.

         ¶4 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 qualified.

         ¶5 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.

         ¶6 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.