as: 186 Ariz. 354, 922 P.2d 319)
of Appeals of Arizona,
1, Department B.
the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION
1 CA-JV 96-0022.
Aug. 20, 1996.
veto over transfer to tribal court of custody proceeding involving
Indian child not residing or domiciled within reservation is absolute,
and juvenile court has no discretion to transfer jurisdiction over
parental objection. Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
published by Bureau of Indian Affairs (BIA) for state courts
in Indian child custody proceedings lack binding legislative effect but
are useful source of information for questions regarding implementation of
Indian Child Welfare Act (ICWA). Indian Child Welfare Act of
1978, § 2
et seq., 25 U.S.C.A. § 1901
failure to object to Indian child's placement with paternal grandmother
on reservation did not constitute consent to transfer of jurisdiction
over custody proceeding to Children's Court of Tohono O'odham Nation
and could not be deemed a knowing and intentional waiver
of her jurisdictional rights under Indian Child Welfare Act (ICWA),
as issue of child's placement was distinct from, and entirely
unrelated to, issue of jurisdiction over proceeding, and juvenile court
therefore had to deny transfer upon her objection; mother was
never informed that failure to object to placement would result
in waiver of jurisdiction, and her move to Arkansas
adjudication of dependency but prior to placement of child on
reservation neither constituted abandonment of child in favor of tribal
authority nor reflected
her wishes with respect to jurisdiction. Indian Child Welfare Act
of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
objection to motion by Tohono O'odham Nation to transfer jurisdiction
of custody proceeding over Indian child not residing or domiciled
on reservation was valid, notwithstanding absence of objection by mother's
guardian ad litem, who believed that transfer was in mother's
best interest, and juvenile court was thus required by Indian
Child Welfare Act (ICWA) to retain jurisdiction over proceeding, where
mother was never judicially determined to be incompetent. Indian Child
Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b);
17B A.R.S. Juv.Ct.Rules of Proc., Rule 22.
finding of incompetency is required to appoint guardian ad litem
for parent in juvenile proceeding in order to protect interests
of parent who appears to be mentally incompetent, and, thus,
absent judicial determination of incompetency, role of guardian ad litem
is limited to investigating best interests of parent and communicating
those interests to court, and guardian ad litem's determinations of
parent's best interests cannot substitute for parent's express wishes. 17B
A.R.S. Juv.Ct.Rules of Proc., Rule 22.
of general guardian implicates due process and requires proof, by
clear and convincing evidence, of protected person's mental incapacity to
make decisions concerning her person. U.S.C.A. Const.Amend. 14; A.R.S. §§ 14-5303,
subd. B, 14-5304, subd. A.
David P. Frank, Attorney General of the Tohono O'odham Nation
by Mark E. Curry, Assistant Attorney General, Sells, for Tohono
Grant Woods, Attorney General of State of Arizona by Susan
Frank, Assistant Attorney General, Phoenix, for Arizona Department of Economic
Friedl, Richter & Buri by Charles E. Buri, Phoenix, for
Richard Scherb, Phoenix, Guardian Ad Litem for Mother.
Davis & Lowe, P.C. by Virginia S. Matte, Phoenix, for
The Tohono O'odham Nation (the "Nation"), a federally recognized Native
American population living within the state, appeals from the trial
court's denial of its motion to transfer the underlying dependency
proceeding from the superior court to the Nation's Children's Court
pursuant to the Indian Child Welfare Act (the "Act").
[FN1] For the following reasons, we affirm.
25 U.S.C. §§ 1901
AND PROCEDURAL BACKGROUND
[FN2] ("Mother") and A.J.B. ("Father") are the unmarried parents of
a child born on July 3, 1993. Mother is not
a Native American and Father is an enrolled member of
To protect the anonymity of the parties, we refer to
the child and his parents by their initials only. See
J.D.S. v. Franks,
182 Ariz. 81, 84 n. 1, 893 P.2d 732, 735
n. 1 (1995).
Child Protective Services took the child into temporary custody on
October 21, 1993. On October 26, 1993, the Arizona Department
of Economic Security ("DES") filed a dependency petition in the
superior court alleging that Mother was a drug abuser and
mentally unstable, and that the child was in danger while
in her custody. Father's identity was then unknown to DES.
When the petition was filed, Mother and the child were
living in Avondale with Mother's relatives, the Clarks. On October
27, 1993, the juvenile court issued temporary orders making the
child a ward of the court. Mother then moved out
of the Clark home, leaving the child with the Clarks,
to whom the court awarded physical custody.
At the initial hearing on November 16, 1993, Mother contested
the petition's allegations
and requested that counsel be appointed for her. On November
19, 1993, the court appointed both an attorney and a
guardian ad litem ("GAL") for Mother. Counsel was appointed for
the child on December 20, 1993.
On January 7, 1994, DES filed an amended dependency petition
identifying Father and noting that the child is an Indian
child as defined by the Act. The Nation then filed
a motion to intervene in the dependency proceeding, which was
25 U.S.C. § 1911(c).
On March 3, 1994, following a contested dependency hearing, the
court adjudicated the child dependent as to Mother. Subsequently, the
court also found the child dependent as to Father.
Sometime between November 1994 and February 1995, Mother left Arizona
moved to Arkansas. Physical custody of the child remained with
the Clarks until August 14, 1995, when the court transferred
custody to the child's paternal grandmother who resides within the
Nation. Mother neither consented nor objected to this change of
custody, and the child remains with his paternal grandmother to
On August 22, 1995, pursuant to the Act, the Nation
filed a motion to transfer jurisdiction to the Nation's Children's
Court. A hearing was held on August 28, 1995, after
which the court found the absence of good cause, the
presence of which would have prevented the transfer of jurisdiction.
Noting that no parental objection (which could also prevent the
transfer of jurisdiction) had been
filed, the court granted Mother until September 5, 1995, to
file an objection through her counsel or GAL. Mother filed
a timely objection through counsel.
The court held another hearing on September 28, 1995, at
which Mother's counsel stated that he had talked by telephone
with Mother, who was still in Arkansas, and that she
had objected to the transfer. Mother's GAL, however, stated that
he did not object because he felt that the transfer
was in Mother's best interest. In addition, Father's counsel, the
child's counsel, and DES spoke in favor of the transfer.
The trial court, however, denied the Nation's motion to transfer
jurisdiction, relying solely upon Mother's objection:
COURT FINDS that the mother's objection to the Motion for
Transfer is valid, and therefore, the Motion for Transfer of
Jurisdiction is denied. Jurisdiction of this matter shall remain in
the Superior Court.
COURT SPECIFICALLY FINDS that the mother has not been determined
to be incompetent even though a guardian ad litem was
appointed to represent her, and the fact that she is
diagnosed as schizophrenic does not make her incompetent to object
to the transfer of jurisdiction.
The Nation has timely appealed the denial of its motion.
Although Mother argues in her response brief that the denial
motion to transfer was an unappealable order, by order dated
February 29, 1996, this court ruled that the order was
final and appealable.
Pursuant to § 1911(b)
of the Act, tribal courts have concurrent jurisdiction with state
courts over custody proceedings involving Indian children not residing or
domiciled within the reservation. 25 U.S.C. § 1911(b).
When a party petitions for the transfer of jurisdiction to
the tribal court, § 1911(b)
[state] court, in the absence of good cause to the
contrary, shall transfer such proceeding to the jurisdiction of the
objection by either parent.
(Emphasis added.) Thus, upon the filing of a petition to
transfer, the state court is required to transfer jurisdiction unless
one of two things occur: 1) the court finds good
cause not to transfer, or 2) either parent objects to
the instant case, the trial court specifically found that there was not
good cause preventing the transfer of jurisdiction, and this finding remains
unchallenged. We therefore consider only whether the trial
court correctly denied the motion to transfer because of Mother's objection.
Effect of Parental Objection
The GAL first argues that § 1911(b)
allows the trial court to grant the motion to transfer
jurisdiction regardless of a parent's objection. The GAL contends that
the statute requires
a transfer when a parent does not
object, but does not bind the court when an objection
filed. The GAL argues that, under such circumstances, the trial
court retains the discretion to transfer jurisdiction. We, however, disagree.
Consistent with uniform authority,
this court has held that, under § 1911(b), a parent's "objection
mandate[s] the retention of jurisdiction by the Arizona court." In
re Maricopa Juvenile Action No. JS-7359,
159 Ariz. 232, 235, 766 P.2d 105, 108 (App.1989); see
also In re Adoption of Baby Boy L.,
Kan. 199, 643 P.2d 168, 178 (1982); In
re S.Z., 325 N.W.2d
53, 56 (S.D.1982). Such an objection has also been referred
to as a "parental veto," In
re S.Z., 325 N.W.2d
at 56, and an "absolute veto," Guidelines
for State Courts: Indian Child Custody Proceedings
("Guideline [s]"), 44 Fed.Reg. 67,584, 67,591 (Nov. 26, 1979).
[FN4] As explained by the Commentary to Guideline C.2, "[s]ince
the Act gives the parents and the tribal court of the Indian child's tribe
an absolute veto over transfers, there is no need for any adversary proceedings
if the parents or the tribal court opposes transfer." Id.;
see also Jesse
C. Trentadue & Myra A. DeMontigny, The
Indian Child Welfare Act of 1978: A Practitioner's Perspective,
62 N.D. L.Rev. 487, 518-19 (1986). A trial court therefore
errs when it transfers jurisdiction
over a parental veto. In
re S.Z., 325 N.W.2d
Although the Guidelines, developed and published by the Bureau of
Indian Affairs of the Department of the Interior, do not
have binding legislative effect, see
at 67,585, they "are a useful source of information for
questions which might arise regarding the implementation of the Act."
re Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 532 n. 4, 667 P.2d 228, 232
n. 4 (App.1983).
We have found only one reported decision that has affirmed
a trial court's transfer over a purported parental objection. In
re the Welfare of R.I.,
402 N.W.2d 173 (Minn.App.1987), relied upon by the GAL, the
Court of Appeals of Minnesota held that, although the parent
verbally objected, she had by her conduct impliedly consented to
at 177. But even assuming arguendo
the correctness of In
re the Welfare of R.I.,
we find it to be distinguishable from the instant case.
re the Welfare of R.I.,
the mother's two children were made wards of the Warm
Springs Tribal Court (located within Oregon) pursuant to emergency custody
orders issued in 1983, after the mother had left to
live in Minnesota. In 1984, the mother returned to the
Warm Springs Reservation and brought the children back to live
with her in Minnesota. Later that year, a dependency petition
concerning the three children was filed in Minnesota and the
children were placed in temporary foster care by the state.
The Tribal Court and the state court agreed that the
state court "would continue to exercise 'courtesy supervision' of the
Subsequently, without the permission of either the state court or
the children's legal custodians, the mother took the children back
onto the Warm Springs Reservation. She was then arrested for
possession of narcotics and pled guilty. The tribal court gave
her $300 to take the children back to Minnesota and
told her that, if she did not, further custody proceedings
would be instigated. The mother took the $300 and moved
off the reservation, but left the children behind. The Tribal
Court then issued another emergency custody order, found that the
mother had abandoned the children by leaving them on the
reservation, and placed the children in the custody of their
In the state court custody proceedings, the state filed a
motion to dismiss and the tribe filed a motion to
transfer jurisdiction to the tribal court. Although the mother objected,
the trial court dismissed the action and transferred jurisdiction because
it found that the mother had consented to transfer by
leaving her children on the reservation. Id.
The appellate court affirmed, as follows:
State argues that under the [Act], the court must transfer
the action absent
good cause to the contrary or parental objection, but upon
parental objection, the trial court may exercise its discretion in
determining whether to transfer the proceedings. We
have found no authority for the State's assertion that upon
receiving a parental objection, the decision to transfer is discretionary.
Other jurisdictions have held that parental objection mandates retention of
the action in state court. See,
re Adoption of Baby Boy L; In re S.Z.]
Tribal Court and the State argue and the trial court
found that although appellant verbally objected to the transfer of
the proceedings, she impliedly consented to the transfer by voluntarily
bringing the children to the Warm Springs Reservation. *358
Appellant argues that the Tribal Court had no right to
issue an emergency custody order, claiming that she placed the
children with her extended family in accordance with accepted Indian
custom. The Tribal Court, however, found that she had abandoned
the children. We will not disturb that finding. We
hold that the trial court properly concluded that appellant consented
to the transfer of jurisdiction by leaving her children on
at 177 (emphasis added). The Minnesota appellate court thus concluded
that the trial court did not
have the discretion to transfer jurisdiction over a parent's objection,
but also concluded that the mother's abandonment of her children
constituted consent which negated her verbal objection.
re the Welfare of R.I.,
however, is distinguishable in several important respects. First, the tribe
in that case had already issued custody orders making the
children wards of the Tribal Court. In the instant case,
there have been no prior proceedings in the Tribal Court
and the child is not a ward of that court.
Also, in In
re the Welfare of R.I.,
the Tribal Court declared that the children had been abandoned
and therefore entered a placement order, which was within its
jurisdiction. The state court was required to extend full faith
and credit to that order. No such order exists here.
Furthermore, Mother's actions
in the instant case are distinguishable from those of the mother in In
re the Welfare of R.I.,
and cannot be considered abandonment or consent to the transfer of jurisdiction.
The mother in In
re the Welfare of R.I.
unilaterally brought her children onto the reservation and then abandoned
them there, despite warnings from the Tribal Court that such action would
result in further custody proceedings. By contrast, in the
instant case, the trial court declared the child dependent over Mother's
objection and, without her consent, placed the child with the paternal
grandmother on the reservation.
Mother's failure to object to the child's placement cannot constitute
her consent to the transfer of jurisdiction because the issue
of the placement of a child is distinct from, and
entirely unrelated to, the issue of jurisdiction over
the proceeding. Moreover, mother never was informed that her failure
to object to the child's placement would result in her
waiver of the court's jurisdiction. Therefore, her failure to object
cannot be taken as a knowing and intentional waiver of
her jurisdictional rights. Arizona
Title Guarantee & Trust Co. v. Modern Homes, Inc.,
84 Ariz. 399, 402, 330 P.2d 113, 114 (1958) (before
waiver of a right may be inferred, there "must be
an opportunity of choice between the relinquishment and the enforcement
of the right in question.").
For the same reasons, the fact that Mother moved to
Arkansas after the adjudication of dependency but before the placement
of the child on the reservation neither constitutes abandonment of
the child in favor of the tribal authorities nor does
it reflect upon her wishes with respect to jurisdiction. Assuming
Mother's competency to object, therefore, the trial court correctly concluded
that it was required to deny the motion to transfer.
Authority of the GAL
The Nation argues that the trial court erred by honoring
Mother's objection because she was incompetent and, therefore, only the
GAL could exercise her right to object. We disagree.
nothing in the record reflects a finding that Mother was incompetent.
No request for such a finding was made and no hearing on the
subject was held. Rather, the record contains only the trial
court's order appointing
a GAL. We therefore agree with the trial court's conclusion
that Mother never was found to be incompetent.
no finding of incompetency was necessary since the trial court presumably
appointed the GAL pursuant to Rule 22 of the Rules of Procedure for the
Juvenile Court ("Juvenile Rule[s]"), which provides, in part:
any proceeding where a parent appears
to be mentally incompetent or under 21 years of age,
the court may
appoint a guardian ad litem to protect the interests of
(Emphasis added.) Under this rule, a finding of incompetency is
not required. Rather, it permits the appointment of a GAL
when the parent merely "appears
to be mentally incompetent." Id.
Furthermore, the Rule states that
the trial court "may
" appoint a GAL, which further implies that no finding of incompetency
is required since, if the parent were actually found to be incompetent,
the trial court would be required
by Rule 17(g) of the Rules of Civil Procedure ("Civil Rule[s]")
to appoint a GAL, or make a similar arrangement, to protect her interests.
Civil Rule 17(g) provides, in part:
appoint a guardian ad litem for an infant or incompetent
person not otherwise represented in an action or shall make
such other order as it deems proper for the protection
of the infant or incompetent person.
(Emphasis added.) Under this rule, the appointment of a GAL
is mandatory because it is presumed that the protected person
already has been found incompetent.
[FN5] But, unlike Civil Rule 17(g), the appointment of a
GAL under Juvenile Rule 22 does not require a finding
While no statute or rule sets forth the requirements for
a finding of incompetence for the purpose of appointing a
GAL, the appointment of a general guardian implicates due process
and requires proof, by clear and convincing evidence, of the
protected person's mental incapacity to make decisions concerning her person.
Ariz.Rev.Stat. Ann. ("A.R.S.") § 14-5304(A);
re Guardianship of Reyes,
152 Ariz. 235, 236, 731 P.2d 130, 131 (App.1986). Furthermore,
there are strict procedural requirements before a guardian can be
appointed for an allegedly incapacitated person, including a mandatory hearing.
A.R.S. § 14-
5303(B). We assume, without deciding, that similar procedures would be
necessary before appointing a GAL with broad authority to make
decisions on behalf of an incompetent adult.
Under Juvenile Rule 22, the GAL's role is to "protect
the interests of [the] parent." When no finding of incompetency
has been made, this role must be limited to investigating
the best interests of the parent and communicating those
interests to the court. Absent a judicial determination of incompetency,
the GAL's determinations of the parent's best interests cannot substitute
for the express wishes of that parent.
[FN6] Accordingly, we conclude that Mother's objection to the transfer
was valid, thus requiring the trial court to retain jurisdiction.
Because Mother has not been found incompetent, we do not
reach the issue of a GAL's authority to make decisions
for an incompetent protected person.
Both the Nation and the attorney for the child request
that, as an alternative to affirming, we remand for a
hearing to determine whether Mother is competent to object to
transfer. We, however, decline to do so because no party
requested such a hearing below.
Notwithstanding, a dependency is an on-going matter, and any party
can request a competency hearing pursuant to Civil Rule 17(g)
at any stage of the proceeding.
Because Mother has not been determined incompetent, her objection to
motion to transfer jurisdiction is valid, requiring the Juvenile Court
to retain jurisdiction over the dependency. We therefore affirm.
LANKFORD and VOSS, JJ., concur.
186 Ariz. 354, 922 P.2d 319