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(Cite
as: 153 Ariz. 346, 736 P.2d 829)
Court
of Appeals of Arizona,
Division
1, Department D.
In
the Matter of the APPEAL IN COCONINO COUNTY JUVENILE ACTION
NO. J-10175.
No.
1 CA-JUV 362.
April
28, 1987.
Indian
Child Welfare Act applied to determination of custody of Indian
child even though child had not been living on the
reservation but had been living with her non-Indian mother. Indian
Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
Once
it is determined that dependency proceeding involves Indian child, judge
must, in the absence of good cause to the contrary,
follow the provisions of the Indian Child Welfare Act. Indian
Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
Good
cause for failing to apply provisions of Indian Child Welfare
Act in dependency
proceeding was not presented by fact that child had spent
only a few hours on the reservation and had been
raised as a non-Indian child, where child had a real
attachment to and affection for her Indian father and other
members of his family. Indian Child Welfare Act of 1978,
§ 105(b),
25 U.S.C.A. § 1915(b).
Finding
that putative father was father of child was supported by
evidence that father, a Navajo Indian, had acknowledged paternity and
enrolled child in Navajo Tribe, that he was listed as
father on birth certificate, that mother thought that he was
probably the father, and that, following birth, he helped care
for the child.
**830
*347
Navajo Legal Aid and Defender Service by Peter Breen, Window
Rock, for appellant Father.
Navajo Nation Dept. of Justice by Donna C. Bradley, Window
Rock, for intervenor-appellant.
Robert K. Corbin, Atty. Gen. by Macre S. Monson, Asst.
Atty. Gen., Phoenix, for appellee ADES.
J. Michael Flournoy, Flagstaff, for appellee Mother.
KLEINSCHMIDT, Presiding Judge.
This case presents the question whether the trial court erred
when it placed an Indian child in a non-Indian foster
home. We hold that the court did err because it
refused to apply the provisions of the Indian Child Welfare
Act, 25 U.S.C.A. §§ 1901-1963.
The seven-year-old minor child, Jessica Brown/Jensen, is the daughter of
Alan Brown, a Navajo, and Cindy Jensen, a non-Indian. The
child is an enrolled member of the Navajo Tribe. The
child's parents never married but lived together for over three
years in Page, Arizona, a community adjacent to the Navajo
Reservation. Thereafter, the child lived with her mother and stepfather.
State authorities intervened when the stepfather abused the child. A
dependency petition was filed in which the natural father intervened,
seeking custody of the child. The court heard evidence on
all issues.
At the hearing, Virginia Hannon, a social worker employed by
the Navajo Tribe, testified that she had investigated Alan Brown's
home and circumstances. She found that Brown lived in a
new house, which was well furnished and had modern conveniences.
Brown's parents lived nearby. She observed a visit that the
child, Jessica, had with the Brown family in the summer
of 1986. She described
the child as affectionate towards her father and said that
the whole family, including the child, acted as though they
had always been together. She believed that placement with the
father would not entail any physical or emotional suffering and
recommended that Alan Brown be given custody of the child
after Jessica became accustomed to his home.
James Cox, a psychotherapist who was familiar with the child,
with the mother, and with Alan Brown, felt that Brown
had the potential to be an adequate parent, but that
he needed to be more consistent in keeping in contact
with the child when she was living in a foster
home.
Kate Johnson, a psychologist who had performed an evaluation of
the child, had reservations about placing the child with her
father because she was unsure of how familiar the child
was with him. She believed a resolution of this question
would require further study, and she did not want to
make a firm judgment on the issue. She believed that
it would involve considerable adjustment to place the child in
a traditional Navajo home but saw no contraindications to placing
her in an Indian home in Page. She believed that
although the child had adapted well to her foster home,
she could be moved again without trouble.
Daniel Cady, a psychologist, had performed an evaluation of Alan
Brown. He found that Brown would be an adequate parent.
He described Brown as neither a completely traditional Navajo nor
a completely Anglicized individual.
A caseworker for the Department of Economic Security, Nancy Garduno,
advised the court that she had prepared a case plan
that called for the child to live with her father
pending a final custody determination. This plan was modified because
two of the natural mother's younger sisters had accused Alan
Brown of molesting them while he was residing with them.
These accusations first surfaced after Brown sought custody of the
child. At the time of the hearing, the accusations were
being investigated by the police. Ms. Garduno said that from
all that she had observed, the child's relationship with her
Navajo extended family was positive. She had no reason to
think there was good cause to **831
*348
place the child outside a Navajo home. She had investigated
the school in Gallup which the child would attend if
she lived with her father and found the curriculum appropriate
to Jessica's needs.
The trial judge also heard testimony from Alan Brown, Cindy
Jensen, and Cindy Jensen's husband. The judge then made the
following findings and issued the following order:
The court finds facts as follows:
1.
The minor child, Jessica Brown/Jensen, is the daughter of Cindy
Jensen and Alan Brown.
2.
Cindy Jensen, the mother, is an Anglo.
3.
Alan Brown, the father, is an Indian, being an enrolled
member of the Navajo Tribe.
4.
The mother and father never married, but lived together for
three and one-half years after the child was born. They
lived in Page, Arizona, off of any reservation.
5.
The mother and father separated, with the mother keeping the
child. There has never been any formal court order concerning
custody.
6.
The mother married and continued to live in Page. She
is still married to this husband, Bradley Jensen.
7.
From the time of the child's birth until the initiation
of this action, she has spent only a few hours
on the Navajo Reservation and has had only minimum contacts
with her Indian relatives. She has in all meaningful respects
been raised as a non-Indian child.
8.
In March, 1986, the child came to the attention of
state agents because of an alleged act of abuse committed
against her by her stepfather, Bradley Jensen.
9.
The child was thereupon removed from the Jensen home and
placed in an Anglo foster home in Page, where she
is today.
10.
Although Alan Brown had had very infrequent contacts with the
child up to that point, he has been more assertive
since being notified of these proceedings by DES, although he
has without justifiable excuse missed some visits.
11.
In June, 1986, Alan Brown caused the child to be
enrolled as a member of the
Navajo Tribe. This court has considered the child to be
an Indian solely on the basis of said enrollment.
12.
Also in June, 1986, the sisters of Cindy Jensen accused
Alan Brown of having sexually assaulted them. These accusations are
unresolved.
Conclusions
of Law
1.
The Indian Child Welfare Act, 25 U.S.C. Section 1901, does
not apply.
The
act is clearly designed to prevent culture shock and disturbance
of Indian homes. It sensibly applies in situations where the
state removes an Indian child from an Indian family and
places the child in an Anglo foster home. However, it
would cause evil to remove a partly Indian child who
has always been raised as an Anglo from her Anglo
home and place her in an Indian foster home. This
is simply the other side of the culture shock coin.
2.
It is in the best interests of this child to
keep her in a situation most like that to which
she is accustomed, namely an Anglo home in Page.
3.
The mother's home is not a fit placement at present
because of Bradley Jensen's [the stepfather] presence there.
4.
The father's home is not a fit placement because it
is remote, thrusts the child into a totally unfamiliar lifestyle,
school and environment and due to the doubts about the
father's character raised by the sexual claims are unresolved.
ORDER
Therefore
the Court orders that the child shall remain in a
foster home at the discretion of DES until she can
be returned to the home of her mother.
We disagree with the judge's conclusion that the Indian Child
Welfare Act does not apply. As we have previously recognized,
the Act was enacted to " 'protect the best interests
of Indian children and to promote **832
*349
the stability and security of Indian tribes and families.' "
In
re Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 531, 667 P.2d 228, 231 (App.1983) (quoting
25 U.S.C.A. § 1902).
Congress acknowledged that " 'an alarmingly high percentage of Indian
families are broken up by the removal ... of their
children' and placement in non-Indian homes." Id.
(quoting 25 U.S.C.A. § 1201(4)).
The Act sets out " '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' " Id.
(quoting 25 U.S.C.A. § 1902).
The
Act applies if the proceeding is a "child custody proceeding"
as defined in the Act and the child is an "Indian child." An
Indian child is a child who is a member of an Indian Tribe or a biological
child of a member and eligible for membership in a tribe. 25 U.S.C.A.
§ 1903(4). It is undisputed that the proceeding
was a child custody proceeding, and the trial judge expressly found that
the child was an Indian child. The mother contests this
latter finding on appeal. As we discuss in more detail later,
however, the judge's finding was amply supported by the record.
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. The child may not be placed in foster care unless
the judge finds by clear and convincing evidence that parental custody
is likely to result in serious physical or emotional harm to the child.
25 U.S.C.A. § 1912(e). The specific provision
which governs foster care placement is 25 U.S.C.A. § 1915(b).
It reads:
(b)
Foster care or preadoptive placements; criteria; preferences
Any
child accepted for foster care or preadoptive placement shall be
placed in the least restrictive setting which most approximates a
family and in which his special needs, if any, may
be met. The child shall also be placed within reasonable
proximity to his or her home, taking into account any
special needs of the child. In any foster care or
preadoptive placement, a preference shall be given, in
the absence of good cause to the contrary,
to a placement with--
(i)
a member of the Indian child's extended family;
(ii)
a foster home licensed, approved, or specified by the Indian
child's tribe;
(iii)
an Indian foster home licensed or approved by an authorized
non-Indian licensing authority; or
(iv)
an institution for children approved by an Indian tribe or
operated by an Indian organization which has a program suitable
to meet the Indian child's needs.
25 U.S.C.A. § 1915(b)
(emphasis added).
The prerequisites for the application of the Act are clearly
met. We assume, therefore, that the trial judge's comments about
its "sensible application," the "evil" of removing a child from
a non-Indian to an Indian home when culture shock would
result, and the remoteness of the father's home were made
in an attempt to establish the necessary good cause not
to follow the Act.
The
question thus becomes whether the reasons articulated by the judge constitute
good cause to avoid the provisions of the Act. In our opinion
they do not. We realize that most cases dealing with the placement
of Indian children will involve children who have been living in an Indian
home. The fact that a child may have been living in a non-Indian
home is no reason, standing alone, to dispense with the provisions of
the Act. See
In re Adoption of Halloway,
732 P.2d 962 (Utah 1986). When the Act is read as a whole,
it is clear that Congress has made a very strong policy choice that Indian
children, including those who have a non-Indian parent, belong in an Indian
home. Assuming that the remoteness of the Indian home and
"culture shock" may be valid considerations in deciding whether
there is good cause not to follow the preferences expressed in the Act
in a given case, on the record before
the trial court in this matter, we find that it was an abuse of discretion
not to apply the **833
*350
preferences. The child had actually lived with her Indian
father for three years, although concededly not in a purely reservation
setting. The evidence shows that the child had a real attachment
to, and affection for, her father and the other members of his family.
None of the professionals familiar with the people involved
raised any substantial objection to placement in an Indian home. The
mother expressed no objection to Jessica's exposure to Indian culture
but thought that another move would not be good for the child. The
father lived in a small community within twenty miles of Gallup, where
the evidence showed that services and schooling for the child were adequate.
We do not rule that the trial judge must order
this child placed with her father. The judge never resolved
the allegations that the father was a child molester. These
are accusations that the trial judge must resolve in making
a decision, based on all of the evidence now before
him or which may come before him in subsequent proceedings.
The judge may not order foster care, however, unless he
determines, by clear and convincing evidence, including testimony from a
qualified expert, that parental placement is likely to result in
serious emotional or physical harm to the child. 25 U.S.C.A.
§ 1912(e).
If the trial judge finds that the father is not
a fit parent he must, in the absence of good
cause based on something more than has been presented in
this case so far,
follow the placement hierarchy dictated by 25 U.S.C.A. § 1915(b).
Finally,
we address the question raised by the mother as to whether Alan Brown
was really the father of the child. While Brown's fatherhood
was never the subject of a formal paternity proceeding, he has acknowledged
paternity and enrolled the child in the Navajo Tribe. Brown
is listed as the father on the birth certificate. Cindy Jensen
said that he was probably the father, although she was unsure. She
remembered when and where she believed the child was conceived, and while
she was carrying the child she told Brown that she was pregnant by him.
After Cindy became pregnant, her parents directed Cindy to
approach Brown's parents for money for an abortion. Brown
took Cindy to a Public Health Service Hospital on the reservation to have
the child delivered, and following the birth Brown helped care for the
child. The evidence adequately supports the court's finding
that Alan Brown is the natural father of the child.
The order of the trial court is vacated and this
matter is remanded for further proceedings consistent with this opinion.
SHELLEY and BROOKS, JJ., concur.
153 Ariz. 346, 736 P.2d 829
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