as: 198 Ariz. 154, 7 P.3d 960)
of Appeals of Arizona,
1, Department E.
J., Jr., Appellant,
J., Sr., Arizona Department of Economic Security, and Tohono O'odham
1 CA-JV 99-0127.
Court of Appeals reviews de novo the interpretation and application
of a statute.
court's role when deciding jurisdictional issues under the Indian Child
Welfare Act (ICWA) is to decide who should make the
custody determination concerning the child, not what the outcome of
that determination should be. Indian Child Welfare Act of 1978,
25 U.S.C.A. § 1911.
reviewing de novo the Indian Child Welfare Act's (ICWA) applicability,
the Court of Appeals reviews the juvenile court's order transferring
a case to a tribal court for an abuse of
discretion. Indian Child Welfare Act of 1978, § 101,
25 U.S.C.A. § 1911.
tribe member who acknowledged paternity before the juvenile court and
who subsequently underwent a paternity test that confirmed he was
the child's biological father established he was a "parent," within
meaning of Indian Child Welfare Act (ICWA). Indian Child Welfare
Act of 1978, § 4(9),
25 U.S.C.A. § 1903(9).
written confirmation that father was an enrolled member of the
tribe and that child was eligible for enrollment established that
the child was an "Indian child," within meaning of Indian
Child Welfare Act (ICWA). Indian
Welfare Act of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
was not required to file a paternity action or to
seek legal custody of the child in order for the
child to be an "Indian Child" under the Indian Child
Welfare Act (ICWA). Indian Child Welfare Act of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
of Appeals would not adopt the judicially created "existing Indian
family exception" to the Indian Child Welfare Act (ICWA), under
which some courts have refused to apply the Act unless
an Indian child is being removed from
an existing Indian family, that is, a family with a
significant connection to the Indian community. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
Child Welfare Act's (ICWA) goals include not only preserving Indian
families, but also protecting the tribe's interests in the welfare
of its Indian children and the maintenance of its culture.
Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
the language of the statute is plain and unambiguous, the
court is counseled to simply follow the plain meaning.
ad litem's unfounded claim that Indian tribe would not provide
medical care adequate to address Indian child's needs, and fact
that Indian tribe had not specifically assured that it would
be able to meet the child's medical needs, did not
establish good cause for denying transfer of the child dependency
proceeding from the juvenile court to the tribal court. Indian
Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
Hamilton Law Office by Lynn T. Hamilton, Mesa, for Appellant.
Janet A. Napolitano, Arizona Attorney General, by Stacy L. Hill,
Assistant Attorney General, Phoenix, for Appellee Arizona Department of Economic
Tohono O'odham Advocate Program by Frederick Lomayesva and Michele Martin,
Sells, for Appellee Michael J., Sr.
Office Of Attorney General, Tohono O'odham Nation by Mark E.
Curry, Deputy Attorney General and Ida B. Wilbur, Assistant Attorney
General, Sells, for Appellee Tohono O'odham Nation.
P I N I O N
Appellant, Michael J., Jr., seeks to avoid transfer of his
dependency case from superior court to tribal court. Through his
guardian ad litem ("GAL"), Michael raises the following issues for
Whether the juvenile court erred by applying the Indian Child
Welfare Act of 1978 to this case;
Whether the juvenile court erred by failing to apply an
"existing Indian family" exception; and
Whether the juvenile court abused its discretion when it granted
Father's motion to transfer the dependency proceeding to the Tohono
O'odham Indian Nation tribal court.
AND PROCEDURAL HISTORY
Michael was born on December 11, 1998, exposed to cocaine
and experiencing severe medical problems. Mother, a non-Indian woman who
tested positive for cocaine use at the time of Michael's
birth, had not received any prenatal care, was not employed,
had no insurance, and was not prepared to raise a
baby in her home. She requested services from the Arizona
Department of Economic Security ("DES").
At the time of Michael's birth, Father, an enrolled member
of the Tohono O'odham Indian Nation (the "Nation"), was incarcerated.
Mother and Father were not married at the time of
Michael's birth, Father was not named on Michael's
birth certificate, and paternity had not been officially established, although
Father acknowledged paternity.
On December 14, 1998, after determining that Michael was at
risk of harm because of the unsafe and hazardous living
environment at Mother's home, DES assumed custody of the infant.
A DES case manager served Mother and Father with temporary
custody notices and notified the Nation of Michael's birth. Two
days later, DES filed a dependency petition regarding Michael.
On January 6, 1999, following a hearing, the juvenile court
found Michael dependent as to his parents. Within two weeks,
DES filed an amended dependency petition indicating that Michael was
an "Indian child" who might be subject to the Indian
Child Welfare Act ("ICWA") and requesting that a guardian ad
litem be appointed to represent Michael in the dependency proceedings.
The Nation moved to intervene, acknowledging Michael's eligibility for enrollment
with the Nation. Father's counsel, DES, and an advocate for
the Nation acknowledged the Nation's *156
jurisdiction over Michael's siblings. The court granted the Nation's motion
and appointed the GAL to represent Michael in all further
proceedings. On May 19, 1999, at the continued initial dependency
hearing, Father acknowledged paternity of Michael and agreed to submit
to confirmatory paternity testing. Following receipt of the test results
confirming paternity, the court granted Father's motion to transfer jurisdiction
to the Nation's tribal court.
The GAL filed a timely notice of appeal.
This Court reviews de
novo the interpretation
and application of a statute. See
Columbia Parcar Corp. v. Arizona Dep't of Transp.,
193 Ariz. 181, 183, ¶ 11, 971 P.2d 1042, 1044 (App.1999). Our
role when deciding jurisdictional issues under ICWA is to decide "who
should make the custody determination concerning [the] child[ ]--not what
the outcome of that determination should be." Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 53, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). After
reviewing de novo
ICWA's applicability, we review the juvenile court's order transferring
a case to a tribal court for an abuse of discretion. See
Maricopa County Juv. Action No. JS-8287,
171 Ariz. 104, 107, 828 P.2d 1245, 1248 (App.1991).
and Application of the Indian Child Welfare Act
Congress adopted the Indian Child Welfare Act of 1978 ("ICWA"),
25 U.S.C. §§ 1901-1963,
in response to concerns regarding the consequences to Indian children,
Indian families, and Indian tribes of state child welfare practices
that separated Indian children from their families and tribes. See
H.R.Rep. No. 95-1386 (1978), reprinted
1978 U.S.C.C.A.N. 7530. The Indian Child Welfare Act provides "minimum
Federal standards for the removal of Indian
children from their families and the placement of such children
in foster or adoptive homes which will reflect the unique
values of Indian culture." 25 U.S.C. § 1902
The Act applies to any "child custody proceeding," see
25 U.S.C. § 1903(1)
also Maricopa County Juv. Action No. A-25525,
136 Ariz. 528, 531, 667 P.2d 228, 231 (App.1983), involving
an "Indian child," a term that includes "any unmarried person
who is under age eighteen and ... either (a) [is]
a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological
child of a member of an Indian tribe." 25 U.S.C.
The Act grants tribal courts exclusive jurisdiction over child custody
proceedings involving Indian children domiciled on a reservation, see
25 U.S.C. § 1911(a)
(1994), and concurrent but presumptively tribal jurisdiction in proceedings involving
Indian children not domiciled on a reservation:
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child's
tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction of
the tribe, absent objection by either parent, upon the petition
of either parent or the Indian custodian or the Indian
child's tribe: Provided,
that such transfer shall be subject to declination by the
of such tribe.
25 U.S.C. § 1911(b).
All of the parties to this action agree that if
ICWA applies, section 1911(b) provides the juvenile court and tribal
court concurrent jurisdiction.
The GAL concedes that this dependency action is a child custody proceeding,
but contends that ICWA does not apply because Father never established
"legal" paternity. Thus, she asserts, Father has
not established that he is a "parent" or that Michael is an
"Indian child" within the meaning of ICWA. We disagree.
Although ICWA's definition of "parent" excludes an "unwed
father [whose] paternity has not been acknowledged or established,"
25 U.S.C. § 1903(9) (1994), the record reflects ample evidence
that Father acknowledged paternity before the juvenile **963
court and subsequently underwent a paternity test that confirmed that
he is Michael's biological father. In addition, Father submitted
the Nation's written confirmation that Father is an enrolled member of
the Tohono O'odham Nation and that Michael is eligible for enrollment
as a member. The GAL nevertheless contends that Michael is
not an "Indian child" because Father never filed a paternity
action or sought legal custody of him. These actions, however,
are not required. The Act merely requires that a putative Indian
father acknowledge or establish paternity. See,
e.g., Coconino County Juv. Action No. J-10175,
153 Ariz. 346, 350, 736 P.2d
829, 833 (App.1987) (court applied ICWA despite the lack of a formal paternity
proceeding, where the putative father acknowledged paternity and enrolled
the child in his tribe). The record contains ample evidence
to support the trial court's finding that Michael is an "Indian child,"
and Father, his parent.
Indian Family Exception
The GAL next contends that ICWA should not apply because DES did not remove
Michael from an "existing Indian family." Notwithstanding
ICWA's explicit provisions, some courts have refused to apply the Act
unless an Indian child is being removed from an existing Indian family--that
is, a family with a significant connection to the Indian community. See
In re Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d 168, 175-76 (1982) (first state court to adopt
the "existing Indian family" exception); see
also In re Bridget R.,
41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507, 516 (1996); In
re Adoption of Crews,
118 Wash.2d 561, 825 P.2d 305, 309-10 (1992). For several
reasons, we join a growing number of jurisdictions in rejecting this judicially
created exception. [FN1]
The following courts reject the "existing Indian family" exception: In
re Adoption of T.N.F.,
781 P.2d 973 (Alaska 1989); In
re Alicia S.,
65 Cal.App.4th 79, 76 Cal.Rptr.2d 121 (1998); In
226 Cal.App.3d 655, 276 Cal.Rptr. 619 (1990); In
re Baby Boy Doe,
123 Idaho 464, 849 P.2d 925 (1993); In
218 Mich.App. 196, 554 N.W.2d 32 (1996); In
re Adoption of Baade,
462 N.W.2d 485 (S.D.1990); and In
933 P.2d 993 (Utah App.1997).
First among our reasons is to support ICWA's goal not only of preserving
Indian families, but also of protecting the tribe's interests in the welfare
of its Indian children and the maintenance of its culture. See
In re D.A.C., 933 P.2d
993, 1000 (Utah App.1997); see
also In re Elliott,
218 Mich.App. 196, 554 N.W.2d 32, 34 (1996) (interest "in long-term
tribal survival"). Adopting an existing Indian family
exception frustrates the policy of protecting the tribe's interest in
[FN2] The Act is also based on the notion that protecting tribal
interests best serves the interests of Indian children, another policy
that adopting such an exception would thwart. See
Pima County Juv. Action No. S-903,
130 Ariz. 202, 204, 635 P.2d 187, 189 (1981).
Section 1901 of the Act provides "that there is no
resource that is more vital to the continued existence and
integrity of Indian tribes than their children and that the
United States has a direct interest, as trustee, in protecting
Indian children who are members of or are
eligible for membership in an Indian tribe."
Second, the language of the Act contains no such requirement or exception.
If the language of the statute is plain and unambiguous, we
are counseled to simply follow the plain meaning. See
State v. Roscoe, 185
Ariz. 68, 71, 912 P.2d 1297, 1300 (1996); see
also Dugan v. Fujitsu Bus. Communs. Sys.,
188 Ariz. 516, 518, 937 P.2d 706, 708 (App.1997) (court construes statutes
to give effect to legislature's intent). The language of the
Act does not require either that the child be part of an existing Indian
family or that the family be involved with the tribe; thus, requiring
an "existing Indian family" before applying ICWA engrafts a
judicially created condition not warranted by the language of the Act,
and one that frustrates the policy of the Act. See
City of Tempe v. Fleming,
168 Ariz. 454, 457, 815 P.2d 1, 4 (App.1991) (citing Town
of Scottsdale v. State ex rel. Pickrell,
98 Ariz. 382, 386, 405 P.2d 871, 873 (1965)) ("As a rule of statutory
construction, we will not read into a statute something which is not within
the manifest intent of the legislature as indicated by the statute **964
itself."). We agree with the following statement by the
Idaho Supreme Court:
passed ICWA to limit state court power by creating mandatory
protective procedures and minimum evidentiary standards that must be applied
custody proceedings concerning Indian children. In light of the structure
and nature of ICWA, it is inappropriate to use a
judicially created exception to circumvent the mandates of ICWA.
re Baby Boy Doe,
123 Idaho 464, 849 P.2d 925, 932 (1993).
Third, ICWA's legislative history supports our decision not to impose
an existing Indian family requirement. Congress rejected an earlier version
of ICWA that would have required as a prerequisite to
tribal-court jurisdiction that an Indian child not living on a
reservation have "significant contacts" with a tribe. See
Indian Child Welfare Act S. 1214, 95th Cong. § 102(c)
S.Rep. No. 95-597, at 4 (1977). These provisions were deleted
in subsequent legislative action; thus, it appears that Congress considered
and rejected a "significant contacts" doctrine similar to the "existing
Indian family" exception.
In re Adoption of S.S.,
167 Ill.2d 250, 212 Ill.Dec. 590, 657 N.E.2d 935, 951
(1995) (McMorrow, J., dissenting). Thus, the legislative history of the
Act supports the conclusion that the Act's "application to a
case is contingent only upon whether an 'Indian child' is
the subject of a 'child custody proceeding' as those terms
are defined by the Act." In
re Adoption of Baade,
462 N.W.2d 485, 490 (S.D.1990); accord
Juvenile Action No. JS-8287,
171 Ariz. at 106, 828 P.2d at 1247; Juvenile
Action No. J-10175,
153 Ariz. at 349, 736 P.2d at 832.
The relevant language that was subsequently deleted from Senate Bill
1214 is as follows:
the case of any Indian child who is not a
resident of an Indian reservation or who is otherwise under
the jurisdiction of a state, if said Indian child has
significant contacts with an Indian tribe, no child placement shall
be valid or given any legal force and effect, except
temporary placements under circumstances where the physical or emotional well-being
of the child is immediately and seriously threatened unless the
Indian tribe with which such child has significant contacts has
been accorded thirty days prior written notice of a right
to intervene as an interested party in the child placement
Fourth, the United States Supreme Court has effectively undermined the
imposition of an existing Indian family exception. In Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 49, 109 S.Ct. 1597, 104 L.Ed.2d 29
[FN4] the Court noted that ICWA reflects congressional concern "not
solely about the interests of Indian children and families, but
also about the impact on the tribes themselves of the
large numbers of Indian children adopted by non-Indians." The Court
emphasized "that the tribe has an interest in the child
which is distinct from but on a parity with the
interest of the parents." Id.
52, 109 S.Ct. 1597 (quoting In
re Adoption of Halloway, 732
P.2d 962, 969 (Utah 1986)). The Court stressed that Indian
children have a corresponding interest in maintaining a relationship with
the tribe, even if the parents do not share that
at 49-50, 109 S.Ct. 1597. Thus, Holyfield
indicates that ICWA applies to child custody proceedings involving Indian
children regardless of the presence of an existing Indian family.
unwed Indian parents who resided on a reservation traveled off
the reservation for the birth of their twins and made
plans for their children to be adopted by a non-Indian
family. 490 U.S. at 37-38, 109 S.Ct. 1597. After the
births, the parents consented to the adoption, but the tribe
moved to vacate the adoption, claiming that the state court
did not have jurisdiction under ICWA. See
38, 109 S.Ct. 1597. The Supreme Court vacated the adoption,
holding that federal domicile law applies in state court proceedings
involving ICWA and that the parents' tribe had exclusive jurisdiction
over the proceeding even though the children were not born
on the reservation and did not reside with their Indian
birth parents or within the Indian culture. See
48-49, 109 S.Ct. 1597.
Finally, this Court has implicitly rejected the "existing Indian family"
exception. In Juvenile
Action No. J-10175,
153 Ariz. at 349, 736 P.2d at 832, this Court
stated that "[t]he fact that a child may have been
living in a non-Indian home is no reason, standing alone,
to dispense with the provisions of [ICWA]." We agree and
therefore decline to create an exception to ICWA's coverage in
Court's Grant of Motion to Transfer
The GAL submits that the juvenile court abused its discretion by determining
that the Nation could meet Michael's medical needs and by placing him
with an unknown relative in Tucson, Arizona. The statements
misrepresent the trial court's rulings. The court simply found
that the GAL had failed to meet the burden of establishing good cause
to deny the transfer.
"Once it is determined that a dependency proceeding involves an
Indian child, the judge must,
in the absence of good cause to the contrary, follow
the provisions of the Act." Id.
The Act requires the juvenile court to transfer jurisdiction unless
(1) the court finds good cause to the contrary or
(2) either parent objects to the transfer. See
25 U.S.C. § 1911(b);
also Maricopa County Juv. Action No. JD-6982, 186
Ariz. 354, 356, 922 P.2d 319, 321 (App.1996). The trial
court did not find good cause not to apply the
Act, and neither parent objected to the transfer.
Although not a party permitted by statute to thwart a
25 U.S.C. § 1911(b),
the GAL opposed the transfer.
[FN5] The Bureau of Indian Affairs
("BIA") Guidelines for interpreting ICWA, however, place the burden of
establishing good cause on the party opposing the petition to
BIA Guidelines--"Guidelines for State Courts; Indian Child Custody Proceeding," 44
Fed.Reg. 67,583, 67,584 (1979) (for assistance in interpreting ICWA, a
state court may rely on the Act's interpretative guidelines drafted
by the Bureau of Indian Affairs); see
also Juvenile Action No. JS-8287, 171
Ariz. at 108, 828 P.2d at 1249 (citing 44 Fed.Reg.
at 67,591); Juvenile
Action No. A-25525,
136 Ariz. at 532 n. 4, 667 P.2d at 232
Juvenile Action No. S-903,
130 Ariz. at 206, 635 P.2d at 191.
The parties have not questioned whether the child, through his
GAL, may oppose the transfer. We therefore do not address
the issue. See
Steiner v. Steiner,
179 Ariz. 606, 613 n. 1, 880 P.2d 1152, 1159
n. 1 (App.1994); Thompson
v. Arizona Dep't of Econ. Sec.,
127 Ariz. 293, 295, 619 P.2d 1070, 1072 (App.1980).
In this case, the GAL failed to carry the burden
of showing that good cause existed for denying the transfer
because she failed to present any evidence that the Nation
would not provide medical care adequate to address Michael's needs.
She relied upon unsupported allegations regarding the health care Michael
might receive and upon the fact that the Nation did
assure that it would be able to meet Michael's medical
needs. Such avowals were not the Nation's obligation. Moreover, the
BIA Guidelines specifically prohibit state courts from considering "[s]ocio-economic conditions
and the perceived adequacy of tribal or Bureau of Indian
Affairs social services or judicial systems" when determining the existence
of good cause. See
BIA Guidelines, 44 Fed.Reg. at 67,591(c).
Because the GAL failed to present any evidence that the
Nation would not be able to meet Michael's medical needs
or that removal from his current placement would harm him,
we agree with the juvenile court that the GAL's unfounded
claims of the superiority of DES services to those of
the Nation fail to meet the evidentiary burden of proving
"good cause." We therefore hold that the juvenile court did
not abuse its discretion in granting Father's motion to transfer
jurisdiction of the dependency proceedings to the Nation's court.
For the foregoing reasons, we affirm the juvenile court's order
transferring jurisdiction of the dependency proceedings to the Nation's court,
pursuant to ICWA.
CONCURRING: RUDOLPH J. GERBER, Judge and ANN A. SCOTT TIMMER,
198 Ariz. 154, 7 P.3d 960, 325 Ariz. Adv. Rep.