[Copyrighted Material Omitted]
from the Superior Court in Maricopa County; No. JD527942; The
Honorable Arthur T. Anderson, Judge. VACATED AND
Shanker Law Firm PLC, Tempe, By Tamara Crites Shanker,
Counsel for Appellant
Arizona Attorney Generals 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 courts 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 parents or
the Indian-relative custodians 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 courts order and remand the
case for a new hearing.
FACTS AND PROCEDURAL HISTORY
Whiteflutee Y. ("Mother") gave birth to R.Y. in
September 2012. The Department of Child Safety removed R.Y.
from Mothers 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 Mothers
guardianship motion. It also stated, however, that the Navajo
Nations 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 Services 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 ...