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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.

Page 983

[Copyrighted Material Omitted]

Page 984

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

         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 ...


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