Michelle M. v. Dcs, H.N. ( 2017 )


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  •                                   IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    MICHELLE M., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, H.N., Appellees.
    No. 1 CA-JV 17-0019
    FILED 8-31-2017
    Appeal from the Superior Court in Maricopa County
    No. JD527671
    The Honorable James T. Blomo, Judge
    APPEAL STAYED; JURISDICTION REVESTED IN SUPERIOR
    COURT
    COUNSEL
    Vierling Law Offices, Phoenix
    By Thomas A. Vierling
    Counsel for Appellant
    Arizona Attorney General’s Office, Tucson
    By Cathleen E. Fuller
    Counsel for Appellee Department of Child Safety
    OPINION
    Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in
    which Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.
    MICHELLE M. v. DCS, H.N.
    Opinion of the Court
    T H U M M A, Judge:
    ¶1            Michelle M. (Mother) appeals from an order terminating her
    parental rights to her biological daughter H.N. On appeal, Mother argues
    the superior court erred in finding that termination was in H.N.’s best
    interests and that the Department of Child Safety (DCS) did not comply
    with the notice requirements of the Indian Child Welfare Act (ICWA). See
    
    25 U.S.C. § 1912
    (a) (2017).1 Although the best interests finding was proper,
    the appeal is stayed for 90 days and jurisdiction is revested in the superior
    court to allow for proper notice under ICWA and any appropriate
    proceedings as a result of that notice.
    FACTS2 AND PROCEDURAL HISTORY
    ¶2             H.N. was born in October 2015 substance-exposed to opiates
    and was hospitalized for more than a month. DCS filed a dependency
    petition, claiming H.N. is an Indian child based on her alleged father’s self-
    report that he was registered with the Navajo Nation. DCS provided proper
    notice under ICWA to the Navajo Nation. Father, however, did not
    establish paternity and the Navajo Nation did not appear in the proceeding.
    ¶3            At an April 2016 hearing, DCS argued ICWA did not apply,
    noting father had refused to participate in paternity testing. Because
    paternity had “not been established and therefore an ICWA finding cannot
    be made,” the superior court found H.N. was “not eligible for enrollment
    in the Navajo Nation,” meaning ICWA did not apply. The court then found
    H.N. dependent as to Mother, who had failed to attend the hearing, and
    adopted a case plan of family reunification.
    ¶4            In June 2016, the court changed the case plan to severance and
    adoption. DCS’ motion to terminate alleged, as to Mother, substance abuse
    and six-months time-in-care and that severance would be in H.N.’s best
    interests. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3) & (B)(8)(b). After a
    severance adjudication in December 2016, the court granted the motion to
    terminate, finding DCS proved by clear and convincing evidence both
    1Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    2 This court views the evidence in the light most favorable to affirming the
    juvenile court’s order. Denise R. v. Ariz. Dep’t of Econ. Sec., 
    221 Ariz. 92
    , 95 ¶
    10 (App. 2009).
    2
    MICHELLE M. v. DCS, H.N.
    Opinion of the Court
    statutory grounds and proved by a preponderance of the evidence that
    termination would be in H.N.’s best interests. This court has jurisdiction
    over Mother’s timely appeal from that order pursuant to Article 6, Section
    9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(A) and 12-
    120.21(A) and Arizona Rules of Procedure for the Juvenile Court 103 and
    104.
    DISCUSSION
    I.     Mother Has Shown No Error In The Superior Court’s Best Interests
    Finding.
    ¶5             In a case not governed by ICWA, to terminate parental rights,
    the superior court must find by clear and convincing evidence that at least
    one statutory ground listed in A.R.S. § 8-533(B) has been proven and must
    find by a preponderance of the evidence that termination is in the best
    interests of the child. See Kent K. v. Bobby M., 
    210 Ariz. 279
    , 288 ¶ 41 (2005);
    Michael J. v. Ariz. Dep’t of Econ. Sec., 
    196 Ariz. 246
    , 249 ¶ 12 (2000). Because
    the superior court “is in the best position to weigh the evidence, observe the
    parties, judge the credibility of witnesses, and resolve disputed facts,” this
    court will affirm an order terminating parental rights if it is supported by
    reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 
    223 Ariz. 86
    , 93 ¶
    18 (App. 2009) (citation omitted).
    ¶6            Mother does not challenge the finding that DCS proved both
    statutory grounds for severance, meaning those issues are waived. See
    Crystal E. v. Dep’t of Child Safety, 
    241 Ariz. 576
    , 577-78 ¶ 5 (App. 2017).
    Mother does argue the superior court erred in finding termination was in
    H.N.’s best interests because Mother and H.N. have a relationship that
    should be allowed to continue. To support a best interests finding, “the
    court must find either that the child will benefit from the termination of the
    relationship or that the child would be harmed by continuation of the
    parental relationship.” Mario G. v. Ariz. Dep’t of Econ. Sec., 
    227 Ariz. 282
    , 288
    ¶ 26 (App. 2011) (citation omitted).
    ¶7            The superior court properly found that “[t]he evidence is clear
    that [H.N.] would be endangered by Mother” unless severance was
    granted, given Mother’s “long history of drug abuse and mental health
    issues.” The court also found Mother refused to participate in services and,
    instead, “has chosen to continue to abuse drugs rather than take the
    necessary steps to allow her to care for” H.N. The record amply supports
    these findings.
    3
    MICHELLE M. v. DCS, H.N.
    Opinion of the Court
    ¶8            Mother, who has been incarcerated during some of the
    relevant time, testified she is making some effort to address her substance
    abuse issues. It is unclear, however, how long it would take for her to
    resolve those issues and whether she could maintain sobriety when not in
    custody. Moreover, the court properly could conclude that affording
    Mother an indeterminate amount of additional time to address her
    substance abuse issues was not in H.N.’s best interests. Maricopa Cty. Juv.
    Action No. JS-501568, 
    177 Ariz. 571
    , 577 (App. 1994). On this record, the
    superior court properly found severance was in H.N.’s best interest.
    II.    Mother’s Testimony Regarding Eligibility For Enrollment In A
    Native American Tribe Requires Remand.
    ¶9            During her direct examination at trial, Mother testified as
    follows:
    Q. You advised me earlier that you are affiliated
    with the Sioux tribe; is that correct?
    A. Yes.
    Q. And tell us, if you will, what your affiliation
    is?
    A. My mom is Oglala, enrolled in the Oglala
    Sioux tribe in South Dakota, and my dad is an
    enrolled member in Spirit Lake in North
    Dakota.
    Q. Okay. And are you an enrolled member?
    A. Not yet, but I can be.
    Q. You’re eligible for enrollment?
    A. Yes.
    Q. Do you know whether your daughter
    would be eligible [for] enrollment?
    A. Yes, she would.
    DCS did not cross-examine Mother about this testimony. During closing
    arguments, Mother’s counsel noted Mother “did have a tribal affiliation
    that” DCS “has never looked into,” adding that “under ICWA, the
    considerations are somewhat different than in other cases.” In rebuttal, DCS
    argued Mother testified “that she’s not eligible, so this case is not an” ICWA
    case, incorrectly characterizing Mother’s testimony. The order granting the
    motion to terminate tacitly finds this case is not governed by ICWA. Given
    her trial testimony, Mother claims the court erred in failing to comply with
    ICWA notice requirements.
    4
    MICHELLE M. v. DCS, H.N.
    Opinion of the Court
    ¶10           Although providing the starting point, ICWA’s text does not
    provide an easy answer. 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); accord
    Ariz. R.P. Juv. Ct. 37(C)(2). ICWA requires that, “[i]n any involuntary
    proceeding in a State court, where the court knows or has reason to know that
    an Indian child is involved, the party seeking . . . termination of parental
    rights” must provide notice to the relevant tribe “of the pending
    proceedings and of [the] right of intervention.” 
    25 U.S.C. § 1912
    (a)
    (emphasis added).
    ¶11            Upon receipt of such notice, if the tribe determines that an
    Indian child is involved, ICWA grants the tribe various rights, including
    the right to intervene in the state court proceeding and to seek to transfer
    proceedings to the relevant tribal court. 
    25 U.S.C. § 1911
    (b) & (c). When
    ICWA applies, it also imposes additional requirements for termination of
    parental rights not otherwise required by Arizona law and not addressed
    in the order granting the motion to terminate in this case. See 
    25 U.S.C. § 1912
    (f); see also Valerie M. v. Ariz. Dep’t of Econ. Sec., 
    219 Ariz. 331
     (2009)
    (discussing interrelationship between ICWA and Arizona law for
    termination of parental rights).
    ¶12           DCS does not argue that Mother’s testimony was insufficient
    to provide notice that H.N. might be an Indian child under ICWA. Instead,
    DCS argues that, “by the time Mother testified about her tribal affiliation,
    there were no [pending] proceedings for the tribe to intervene in.” That
    argument, however, ignores the fact that Mother’s testimony occurred
    before the motion to terminate was granted. Accordingly, DCS’ argument
    regarding the application of ICWA to “post-termination proceedings” is
    inapplicable. Cf. Gila River Indian Cmty. v. Dep’t Child Safety, 
    242 Ariz. 277
    (2017) (discussing transfer of matters under ICWA both pre- and post-
    termination).
    ¶13            DCS’ argument also does not address case law from other
    jurisdictions directing that “[n]otice is mandatory, regardless of how late in
    the proceedings a child’s possible Indian heritage is uncovered” and that
    the notice requirement in ICWA cannot be waived by a parent. See In re
    Suzanna L., 
    127 Cal. Rptr. 2d 860
    , 866 (App. 2002) (quoting In re Kahlen W.,
    
    285 Cal. Rptr. 507
    , 513 (App. 1991)); accord Gila River Indian Cmty., 242 Ariz.
    at 292 ¶ 27 (noting “courts have historically been reluctant to imply a
    waiver of Indian rights under ICWA”).
    5
    MICHELLE M. v. DCS, H.N.
    Opinion of the Court
    ¶14            As noted in Arizona and elsewhere, for ICWA to apply,
    “[e]nrollment is not a necessary condition of tribal membership, although
    membership may be established through proof of enrollment. Each tribe,
    however, determines its membership, and its determination that a person
    is a member of the tribe is conclusive.” Jared P. v. Glade T., 
    221 Ariz. 21
    , 24-
    25 ¶ 18 (App. 2009) (citing cases); accord In re M.C.P., 
    571 A.2d 627
    , 634 (Vt.
    1989) (citing cases); In re Dependency of Colnar, 
    757 P.2d 534
    , 535 (Wash. App.
    1988). For decades, courts have recognized that it is preferable to “err on
    the side of giving notice and examining thoroughly whether a juvenile is an
    Indian child.” M.C.P., 
    571 A.2d at 635
    ; accord In re Morris, 
    815 N.W.2d 62
    , 76
    (Mich. 2012) (requiring notice to tribe where parents informed court they
    had Indian heritage); In re M.R.P.-C., 
    794 N.W.2d 373
    , 378 (Minn. App. 2011)
    (addressing obligation to inquire when information is provided to court
    about possible Indian heritage) (citing cases).3 In short, given Mother’s
    testimony, DCS was required to provide proper notice under ICWA. It is
    undisputed, however, that no such notice was provided in response to
    Mother’s testimony.
    ¶15            Mother argues that DCS’ failure to provide ICWA notice
    requires reversal of the order terminating her parental rights. Not so. There
    are at least three possible outcomes in response to a proper notice under
    ICWA: (1) the Tribe responds that it has determined H.N. is an Indian child,
    meaning ICWA applies; (2) the Tribe responds that it has determined H.N.
    is not an Indian child, meaning ICWA does not apply; or (3) the Tribe does
    not respond, meaning there is no evidence that H.N. is an Indian child and,
    accordingly, ICWA would not apply. And even if ICWA applies, the Tribe
    may or may not intervene or take other action allowed by ICWA.
    ¶16            Because providing notice under ICWA given Mother’s
    testimony must occur before the merits of the termination order may be
    finally resolved on appeal, the appeal is stayed for 90 days. During that
    time, jurisdiction is revested in the superior court to allow for proper notice
    under ICWA and, depending upon the outcome of that notice, any
    appropriate further proceedings. Accord In re Junious M., 
    193 Cal. Rptr. 40
    ,
    47 (App. 1983); Colnar, 
    757 P.2d at 536-37
    ; M.C.P., 
    571 A.2d at 635
    ; see also
    3 Cases DCS cites in arguing to the contrary are distinguishable on their
    facts. See Ariz. Dep’t of Econ. Sec. v. Bernini, 
    202 Ariz. 562
    , 564 ¶ 10 (App.
    2002) (addressing ICWA where DCS’ predecessor “concedes that the notice
    provision of § 1912(a) had been invoked”); Maricopa Cty. Juv. Action No. A-
    25525, 
    136 Ariz. 528
    , 533 (App. 1983) (“We think Congress has . . . evidenced
    its intent not to extend the ICWA to a child whose mother is non-Indian and
    whose father has failed to come forward and lay legal claim to the child.”).
    6
    MICHELLE M. v. DCS, H.N.
    Opinion of the Court
    Suzanna L., 
    127 Cal. Rptr. 2d at 870
     (noncompliance with ICWA notice “does
    not mean the trial court must go back to square one”).
    ¶17            If, after proper notice under ICWA, the Tribe responds that
    H.N. is an Indian child, further proceedings consistent with ICWA will be
    necessary. If, however, the Tribe responds that H.N. is not an Indian child
    or does not respond, no further proceedings under ICWA will be required.
    Within five days of the superior court’s entry of a decision resolving the
    application of ICWA after proper notice, Mother’s counsel shall provide
    notice of that decision to this court, with a copy to DCS’ counsel.
    CONCLUSION
    ¶18          The appeal is stayed for 90 days and jurisdiction is revested
    in the superior court to allow for proper notice under ICWA and any
    appropriate proceedings as a result of that notice.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    7