Jean K. v. Jeremy M., J.K. ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JEAN K., Appellant,
v.
JEREMY M., J.K., Appellees.
No. 1 CA-JV 15-0135
FILED 8-11-2015
Appeal from the Superior Court in Maricopa County
No. JS517359
The Honorable Rodrick J. Coffey, Judge
REVERSED AND REMANDED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Law Office of Anne M. Williams, P.C., Mesa
By Anne M. Williams
Counsel for Appellees
JEAN K. v. JEREMY M., J.K.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.
N O R R I S, Judge:
¶1 This appeal arises out of an order entered by the juvenile
court terminating the parental rights of appellant, Jean K., to her minor
child. On appeal, Jean argues the juvenile court’s finding that the Indian
Child Welfare Act (“ICWA”) was inapplicable was “clearly erroneous.”
The child’s father, appellee Jeremy M., “concedes error” regarding ICWA,
a concession we accept.
¶2 ICWA applies to any “child custody proceeding,” 25 U.S.C. §
1903(1) (2012), which includes a proceeding to terminate parental rights,
25 U.S.C. 1903(1)(ii), and which involves an “Indian child.” ICWA defines
an “Indian child” as “any unmarried person who is under age eighteen
and is either (a) 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. § 1903(4).
¶3 At the termination hearing, Jeremy testified he is a member
of the Navajo Nation. Further, before the hearing, Jeremy submitted a
letter from the Navajo Nation’s Division of Social Services, which verified
child is an enrolled member of the Navajo Nation. Accordingly, because
this termination proceeding constituted a child custody proceeding
involving an Indian child, ICWA applied. Indeed, even though the record
contains no evidence Jean was a member of an Indian tribe, ICWA defines
“parent” to include “any biological parent” of an Indian child. 25 U.S.C. §
1903(9).
¶4 Finally, ICWA was applicable even though Jean had not
visited child since 2011; Jean had parented child for approximately four
years after her birth, and the record contains no evidence Jean had
attempted to relinquish her parental rights. Cf. Adoptive Couple v. Baby
Girl, ___U.S. ___, 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013) (ICWA
inapplicable when Indian child’s biological father, a registered member of
an Indian tribe, never had custody of child); In re Adoption of T.A.W., No.
47364-0-II, 2015 WL 4093335 (Wash. App. July 7, 2015) (ICWA applicable
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JEAN K. v. JEREMY M., J.K.
Decision of the Court
to proceeding to terminate Indian child’s non-Indian biological father’s
parental rights when father had both legal and physical custody of child
for a period of time and record contains no evidence he ever wanted or
was willing to terminate his parental rights to child).
CONCLUSION
¶5 As Jean argues and Jeremy concedes, ICWA was applicable
here. We reverse the juvenile court’s order terminating Jean’s parental
rights to child and remand for further proceedings consistent with this
order. We express no opinion on Jean’s other arguments on appeal.
:RT
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