as: 202 Ariz. 562, 48 P.3d 512)
of Appeals of Arizona,
2, Department A.
DEPARTMENT OF ECONOMIC SECURITY, Petitioner,
Deborah BERNINI, Judge of the Superior Court of the State
of Arizona, in
for the County of Pima, Respondent,
H. and Michael J., Real Parties in Interest.
2 CA-SA 2002-0040.
as Opinion June 25, 2002.
Indian Child Welfare Act (ICWA) did not apply in child
dependency proceeding, even though child's father alleged that child's paternal
great-grandmother and maternal grandmother were members of Indian tribes; child,
his siblings, and child's parents were not registered members of
an Indiana tribe, father's allegation merely invoked the Act's notice
provision which required to court to inquire whether the child
was a member of an Indian tribe, and the Act
was inapplicable pending a determination that a child was a
member of a tribe. Indian Child Welfare Act of 1978,
4), 102(a), 25 U.S.C.A. §§ 1903(1,
4), 1912(a); 17B A.R.S. Juv.Ct.Rules of Proc., Rule 50, subd.
B, par. 1, subd. C, par. 3.
Indian Child Welfare Act (ICWA) only applies if a proceeding
is a child custody
proceeding and if the child involved is an Indian child.
Indian Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
Janet Napolitano, Arizona Attorney General, by Michelle R. Nimmo, Tucson,
Suzanne Laursen, Tucson, for Real Party in Interest Candle H.
Gilmore & Turner, P.L.L.C., by Leslie S. Turner, Tucson, for
Real Party in Interest Michael J.
BRAMMER, Presiding Judge.
In this special action, the Arizona Department of Economic Security
(ADES) challenges the respondent judge's application of the Indian Child
Welfare Act (ICWA), 25 U.S.C. §§ 1901
through 1963, at a preliminary protective hearing held pursuant to
A.R.S. § 8-824
and review of taking a child into temporary custody pursuant
to A.R.S. § 8-821.
Because the respondent judge applied ICWA, she required ADES to
establish by clear and convincing evidence [FN1]
rather than a preponderance that the continued removal of Noah
J. from the custody of his parents, real parties in
interest Candle H. and Michael J., was "clearly necessary to
protect the child from suffering abuse or neglect." § 8-821(A).
ADES had not sustained that burden, the respondent judge ordered
ADES to return two-week-old Noah, who had been placed in
foster care, to his mother within one week. After the
judge refused to extend the time for returning Noah to
Candle until such time as the ICWA issues set forth
in ADES's motion for reconsideration could be **513
fully briefed, we granted ADES's request for an interlocutory stay
of the respondent judge's order. The parties having had an
opportunity to brief the issues ADES has raised, we now
address the merits of its challenge to the respondent judge's
Rule 8, Ariz.R.P.Juv.Ct., 17B A.R.S., expressly incorporates the provisions of
ICWA, including its burdens of proof.
We accept jurisdiction of the special action because ADES has
no equally plain, speedy, or adequate remedy by appeal. Ariz.R.P.
Special Actions 1, 17B A.R.S. Cf.
Rita J. v. Arizona Dep't of Econ. Sec.,
196 Ariz. 512, 1 P.3d 155 (App.2000) (order entered after
permanency planning hearing not final or appealable and, even if
appealable, remedy not equally plain, speedy, or adequate; issue more
appropriately reviewed by special action). The respondent judge's order is
interlocutory in nature, providing for Noah's temporary placement awaiting the
outcome of the pending dependency proceeding. And, the order will
govern the course of the underlying proceedings because of the
determination that ICWA applies. Additionally, whether the respondent judge erred
by applying ICWA is a question of law. See
Michael J., Jr. v. Michael J., Sr.,
198 Ariz. 154, ¶ 7,
7 P.3d 960, ¶ 7
(App.2000) (appellate court reviews de novo "the interpretation and application
of [ICWA]"). That a special action raises pure questions of
law is an additional basis for accepting jurisdiction. See
Arizona Dep't of Econ. Sec. v. Leonardo,
200 Ariz. 74, 22 P.3d 513 (App.2001). Because we conclude
the respondent judge abused her discretion, having erred as a
matter of law, we grant special action relief. See
Ariz.R.P. Special Actions 3(c).
In August 2001, Noah's siblings, ages three and one, were
taken into temporary custody by Child Protective Services (CPS) after
Candle attempted to commit suicide by taking an overdose of
medication for depression and anxiety. She also tested positive for
cocaine. Police discovered the children were bruised, and Candle reported
that Michael had beaten them. One of the children previously
had been diagnosed as having failed to thrive. In October,
the children were adjudicated dependent after the parents admitted the
allegations in an amended dependency petition. They have remained out
of their parents' custody, though the family has been receiving
a variety of services pursuant to a case plan for
reunification. Michael was evaluated by James Stewart, Ph.D., who opined
that Michael suffers from an antisocial personality disorder with "significant
psychopathy," adding that his prognosis is
"not good" and that his psychopathy is likely to worsen
over time. Additionally, Dr. Stewart stated that Michael poses a
risk to himself and others and that he should not,
under any circumstances, be permitted to have unsupervised visits with
his children, his risk for future violence being high.
Noah was born in April 2002. A CPS caseworker visited
Candle in the hospital to determine whether, given the family's
history, Noah would be at risk if left in his
parents' custody. Candle told the caseworker that she was not
concerned about Michael's ability to care for children and that
she would leave her children alone with him if they
were to be returned to her custody. CPS removed Noah
from the parents' custody when he was released from the
At a preliminary protective hearing on April 16, 2002, the
respondent judge reviewed ADES's temporary custody of Noah, at Michael's
Ariz.R.P.Juv.Ct. 51, 17B A.R.S. The caseworker testified that returning Noah
to Candle would subject him to a risk of serious
emotional or physical harm. She stated she was troubled by
Candle's lack of concern about the risk Michael posed to
the children. Her report and that of Dr. Stewart were
admitted into evidence. During the hearing, both Michael and the
respondent judge raised the possibility that ICWA applied because Noah
could be an Indian child as that term is defined
by Arizona law and ICWA.
The applicability of ICWA had been raised in the proceedings
relating to Noah's
siblings, but no determination had been made that it applied.
At the preliminary protective hearing in August 2001 regarding those
children, for example, another judge had asked whether any party
had reason to believe that either child was subject to
ICWA; it had been suggested that they could be of
Chippewa, Cherokee, and/or Iroquois descent. The judge had ordered ADES
to obtain verification of the children's status **514
before the initial dependency hearing scheduled for October. ADES sent
affidavits of notice to the Turtle Mountain Band of Chippewa,
the Bureau of Indian Affairs (BIA), and the Cherokee Nation
of Oklahoma in accordance with 25 U.S.C. § 1912(a).
At the October hearing, however, ADES told the judge that
the Chippewa tribe had not responded, that the Cherokee tribe
had asked for more information, and that the Iroquois tribe
had not been served because it was not "federally recognized"
under 25 U.S.C. § 1903(8).
At Noah's preliminary protective hearing in April 2002, counsel for
ADES stated she had learned the previous day "that the
grandmother was a member of the Oneida tribe." She also
stated that Candle's mother was enrolled in the Chippewa tribe.
Michael argued that Noah was eligible for enrollment in an
Indian tribe and, therefore, that ICWA applied because Noah had
maternal and paternal relatives who were enrolled in two different
tribes. Michael argued that ICWA required ADES to establish by
clear and convincing evidence that Noah was likely to suffer
serious emotional or physical harm if he were returned tohis
(setting forth general provisions on preliminary protective hearings); Ariz.R.P.Juv.Ct. 50(C)(6)
(providing that, if ICWA applies, court must enter findings after
preliminary protective hearing "pursuant to the standards and burdens of
proof as required by the Act"); Ariz.R.P.Juv.Ct. 51(B), (D) (if
applicable, burden of proof under ICWA for temporary custody review
is clear and convincing evidence); see
25 U.S.C. § 1912(e)
(foster care placement of Indian child must be supported by
clear and convincing evidence "that the continued custody of the
child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child").
Finding that there was "reason to believe that ... Noah
is subject to" ICWA and that ADES had not sustained
its burden of proving that Noah's continued removal from the
custody of his parents was warranted under ICWA, the respondent
judge ordered Noah returned to them. The judge added, "I
probably would have gone the other way" if state law
applied, but ADES simply "didn't have what it needed" under
ICWA. This special action followed.
ADES contends there was insufficient evidence to support the respondent
judge's finding that ICWA is applicable. Candle essentially does not
dispute that the evidence was insufficient to establish that ICWA
applies here; rather, she challenges the sufficiency of the evidence
to support Noah's continued removal from his parents even under
the lesser burden of a preponderance
of the evidence. Michael, on the other hand, insists that
the respondent judge correctly found ICWA applicable and that ADES
did not sustain the higher burden of proof.
¶ 10 Rule 50(B)(1) provides
that, at a preliminary protective hearing, the juvenile court must "[i]nquire
if any party has reason to believe that the child at issue is subject
to [ICWA]." Rule 50(C)(3) states that, if the court has reason
to believe the child is an Indian child, it must "[o]rder the petitioner
to obtain verification of the child's Indian status from the child's Indian
tribe or from the United States Department of Interior, Bureau of Indian
Affairs." The rule is consistent with 25 U.S.C. § 1912(a),
which provides that, in any involuntary child custody proceeding in which
court knows or has reason to know that an Indian
child is involved, the party seeking the foster care placement
of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian
child's tribe ... of the pending proceedings and of their
right of intervention.
ADES concedes that the notice provision of § 1912(a)
had been invoked. And ADES does not challenge the respondent
judge's inquiry into the application of ICWA. But ADES insists
that the mere fact that a court has reason to
believe ICWA could apply, requiring further inquiry into the question
with the notice requirements of the rule and § 1912(a),
does not mean ICWA applies in the interim. We agree.
¶ 11 "The 'reason
to know' standard of § 1912(a) applies only to notice."
In re Adoption
of a Child of Indian Heritage,
N.J. 155, 543 A.2d 925, 942 (1988). ICWA only applies if a
proceeding is a child custody proceeding and if the child involved is
an Indian child. In
re Maricopa County Juvenile Action No. JS-8287,
171 Ariz. 104, 828 P.2d 1245 (App.1991). See
also 25 U.S.C. § 1903(1)
and (4) (defining child custody proceeding and Indian child). For
purposes of this special action, we assume that a preliminary protective
hearing and temporary custody review is a "child custody proceeding"
within the meaning of ICWA. 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). The same definition is set forth
in Rule 37(C)(2), Ariz.R.P.Juv.Ct. The evidence before the respondent
judge did not establish that Noah is an Indian child under that definition.
At the time of the preliminary protective hearing involving Noah,
there had been no determination that his full siblings were
Indian children in the proceedings involving them, which had been
pending for about eight months. Noah is not a registered
member of a tribe, and no evidence was presented thateither
parent is a member of a tribe; consequently, based on
the evidence presented at the preliminary protective hearing, Noah is
not the biological child of a member of a tribe.
That the paternal great-grandmother and the maternal grandmother might be
enrolled in Indian tribes might have been sufficient to trigger
the notice provision of § 1912,
placing the burden on ADES to inquire farther into the
matter. ADES complied with the notice provision, and no information
affirmatively establishing that Noah is an Indian child resulted from
the notice. Under these circumstances, the burden shifted to the
parents to show that ICWA applied. See
In re J.T.,
166 Vt. 173, 693 A.2d 283, 288 (1997) (father's statement
to psychologist that his father was "full-blooded Mohican" sufficient to
trigger obligation of trial court to inquire about child's Indian
status by giving notice to tribe but lack of response
or negative response shifted burden to father to establish ICWA's
also In re J.L.M.,
234 Neb. 381, 451 N.W.2d 377 (1990) (party to proceeding
who seeks to invoke ICWA has burden to show it
The BIA Guidelines for State Courts; Indian Child Custody Proceedings
(BIA Guidelines) are instructive in this regard. The BIA Guidelines
provide that a tribe's determination "that a child is or
is not a member ..., is or is not eligible
for membership ..., or that the biological parent is or
is not a member of that tribe is conclusive." BIA
Guidelines B.1(b)(i). But, absent such
verification by the tribe itself, other factors "shall trigger an
inquiry by the court [and ADES] to determine whether a
child is an Indian for purposes of [ICWA]." Commentary to
BIA Guidelines B.1. Those factors include a party's notification that
the child is an Indian child, information presented by a
state agency suggesting the possibility that a child is an
Indian child, a suggestion by the child to the court
that "gives [it] reason to believe he or she is
an Indian child," the residence of the child or the
child's parents, or information provided by "[a]n officer of the
court involved in the proceeding." BIA Guidelines B.1(c)(i) through (c)(v).
Without more, such factors do not generally, nor did they
here, establish that a child is a member of a
tribe or eligible for membership and a biological child of
a member. 25 U.S.C. § 1903(4);
As ADES stated in its petition for special action, because
of his relatives' membership, "Noah conceivably
(now or at some future time) eligible for membership in
or a member of one or more tribes and ...
such evidence may someday come before the juvenile court." But
more specific information was required than that which was before
the respondent judge when she implicitly found that Noah is
an Indian child by applying the elevated burden of proof
pursuant to ICWA. See
(written confirmation by tribe of father's enrollment as a member
and child's eligibility for enrollment sufficient evidence to support finding
that child was Indian child for purposes of
Although a determination on whether the circumstances of a given
case require that a child remain in temporary custody is**516
generally a fact-based decision for a juvenile court judge to
make in the exercise of his or her discretion, we
need not remand this matter to the respondent judge to
decide the issue under the correct burden of proof, a
preponderance of the evidence. Based on the respondent judge's comments
on how she "probably" would have ruled had that been
ADES's burden and given the evidence presented below, which is
before us, we conclude as a matter of law that
ADES established by a preponderance of the evidence that Noah's
continued removal from his parents' custody pending the initial dependency
hearing was "clearly necessary" to protect him because he was
either at that time "[s]uffering or [would] imminently suffer abuse
or neglect ... [or] serious physical or emotional damage." § 8-821.
Consequently, we grant special action relief, vacate the respondent judge's
order of April 16, 2002, returning Noah to his mother,
and remand this matter to the respondent judge, who is
directed to enter orders consistent with this decision. It is
further ordered vacating the stay issued by this court on
April 24, 2002.
Judge FLOREZ and Judge PELANDER concurring.
202 Ariz. 562, 48 P.3d 512, 383 Ariz. Adv. Rep.