as: 171 Ariz. 104, 828 P.2d 1245)
of Appeals of Arizona,
1, Department B.
the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION
1 CA-JV 90-011.
Amended Dec. 6, 1991.
Denied May 5, 1992.
In a parental rights termination proceeding, the Superior Court, Maricopa
County, Cause No. JS-8287, Barry G. Silverman, J., denied Pueblo's
petition to transfer action to tribal court and subsequently terminated
biological mother's parental rights. Pueblo and biological mother appealed. The
Court of Appeals, Ehrlich, J., held that: (1) trial court
was justified in denying transfer petition where petition was not
filed until proceedings were well advanced more than two years
after Pueblo was first notified of dependency proceedings, and (2)
record supported decision to terminate biological mother's parental rights in
light of her inability to discharge parental responsibilities due to
mental illness and chronic alcohol abuse.
Child Welfare Act does not deprive a state of its
traditional jurisdiction over an Indian child within its venue; it
establishes concurrent jurisdiction with a preference for tribal court jurisdiction
that can be overcome on a showing of good cause.
Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
Child Welfare Act's good cause exception authorizing transfer from state
court to tribal court allows state courts to apply modified
forum non conveniens
when deciding whether to retain or transfer jurisdiction in Indian
child custody proceedings. Indian Child Welfare Act of 1978, § 101(b),
U.S.C.A. § 1911(b).
court did not abuse its discretion in denying Pueblo's petition
to transfer parental rights termination proceedings to tribal court; Pueblo
had been notified of all proceedings concerning child's dependency but
waited for over two years to petition for transfer, during
which time child had bonded to her foster-adoptive family and
planning for child's adoption had begun, particularly as there was
no indication that Pueblo was unable to file transfer petition
earlier. Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
court may consider an Indian child's best interest when deciding
whether to transfer custody proceeding to tribal court. Indian Child
Welfare Act of 1978,
25 U.S.C.A. § 1902.
cause existed to deny petition to transfer Indian Child Welfare
Act case to tribal court on theory evidence necessary to
decide case could not be adequately presented without undue hardship
to parties or witnesses; child, biological mother and all witnesses
except tribal social worker resided in Phoenix, mother's social history
in Phoenix, and tribal court was in another state. Indian
Child Welfare Act of 1978, § 3,
25 U.S.C.A. § 1902.
by tribal social worker, who was specially educated to work
with and had experience working with Indian child's Pueblo, and
testimony by Department of Economic security caseworker who had training
and experience in Indian Child Welfare Act cases, was the
type of expert witness testimony which could satisfy requirement
that court consider qualified expert witness testimony in Indian Child
Welfare Act parental rights termination case. Indian Child Welfare Act
of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
sustained trial court's decision to terminate biological mother's parental rights
to Indian child based on finding beyond reasonable doubt that
mother was unable to discharge parental responsibilities due to mental
illness and chronic alcohol abuse, and reasonable grounds to believe
that her condition
continue for prolonged indeterminate period of time; child had been
in out-of-home placement for more than two years and had
been living with foster family who planned to adopt her.
A.R.S. § 8-533,
subd. B, pars. 3, 6, 6(b).
Rosenfelt, Barlow & Borg, P.A. by Scott E. Borg, Albuquerque,
for appellant Pueblo of Santo Domingo.
Friedl, Richter & Buri by Charles E. Buri, Phoenix, for
appellant Biological Mother.
Grant Woods, Atty. Gen. by C. Eileen Bond, Asst. Atty.
Gen., Phoenix, for
appellee Arizona Dept. of Economic Sec.
Hendrickson & Fuller by Richard T. Fuller, Mesa, for appellee
The Pueblo of Santo Domingo and K.J.R.,
[FN1] the biological mother of the child of concern in
this action and a Pueblo member, appeal from a trial
court order terminating K.J.R.'s parental rights. We affirm the order.
The initials of the biological mother have been used to
protect her privacy.
FACTS AND PROCEDURAL HISTORY
The child was born on January 28, 1987, in Phoenix.
On March 6, 1987, the Arizona Department of Economic Security
(DES) filed a dependency petition, primarily alleging that although K.J.R.
acknowledged a serious alcohol problem, she had not accepted her
inability to consume alcohol and had not consistently participated in
sufficient treatment. K.J.R. then disappeared with the child for over
three months. However, in June 1987, K.J.R. was jailed for
assault and on an outstanding warrant for marijuana possession. By
then, K.J.R. had left
the child for an undetermined period of time with a
friend, who unsuccessfully had tried to sell the child for
$25.00. On June 24, 1987, the child was placed in
foster care off the reservation where she continues to reside.
The Pueblo received notice of a dependency proceeding in July
1987. On July 28, 1987, the child was found to
be dependent and made a ward of the court in
an uncontested proceeding at which neither the Pueblo nor K.J.R.
On April 7, 1989, after repeated unsuccessful efforts to provide
K.J.R. with services to improve her parenting skills, DES petitioned
the trial court for termination of K.J.R.'s parental rights as
to three of her five children, including the child in
this action. The petition also requested the termination of the
parental rights of two named alleged fathers of the child
and any other man claiming paternity. DES alleged in the
petition that despite its diligent efforts, K.J.R. was unable to
be a parent to the child due to mental illness
and/or chronic alcohol or substance abuse. The petition also alleged
that any man claiming paternity had abandoned the child.
On June 16, 1989, the Pueblo was notified of the
hearing on the termination petition scheduled for June 26, 1989,
and it later was notified of its right to intervene
and/or petition the trial court for transfer of the matter
to tribal court. Attached to the second notice was DES'
termination social study which stated that the Foster Care Review
Board's plan for the child had changed from returning
the child to her mother to severance and adoption. The
termination hearing was continued because the Pueblo had indicated that
it was considering intervening or petitioning for transfer of the
matter to tribal court.
At the time set for the termination hearing on July
17, 1989, the trial court granted the Pueblo's motion to
intervene and a DES motion to amend its termination petition.
A DES caseworker informed the court that the Pueblo still
was considering petitioning for transfer to tribal court and the
hearing again was continued. At the time of a **1247
pretrial conference on September 20, 1989, the Pueblo still had
not filed a transfer petition and the court again continued
the hearing, allowing the Pueblo until November 15, 1989, to
file a petition. On October 30, 1989, the trial court
held an uncontested severance hearing as to the child's alleged
fathers. The court found beyond a reasonable doubt that the
two men named had abandoned the child and terminated their
On November 14, 1989, the Pueblo filed a petition to
transfer termination proceedings for three of K.J.R.'s children, including the
child in this matter, claiming that "[t]here is no justifiable
reason to deny Santo Domingo's assumption of jurisdiction over this
proceeding." DES objected to a transfer regarding the child in
this matter, stating that "the child is fully bonded with
the foster family and the foster family has indicated a
serious intent in adopting the child." The children also objected
to the transfer petition.
Later, K.J.R. joined the Pueblo's petition. The trial court granted
the petition as to K.J.R.'s two other children, but found
good cause to deny the transfer petition for the child
in this action.
Court finds that proceedings concerning [the child] have been pending
in this Court since as early as March 6, 1987,
of which the Pueblo of Santo Domingo had notice. [The
child] has been in foster care under the auspices of
this Court for nearly three years, yet the Pueblo of
Santo Domingo appears not to have taken any action in
the case until November 15, 1989. In the meantime, [the
child] has bonded with the foster family. Transfer of the
case at this late date would result in the sudden
interruption of this care. This is contrary to [the child's]
On March 7, 1990, the trial court held a termination
hearing as to K.J.R.. During the hearing, the Pueblo moved
for reconsideration of the denial of its transfer petition as
did K.J.R. She conceded, however, that the Pueblo's transfer request
"should have been done at the time of [the child's]
birth or the summer of 1987 ... [w]hen she was
first taken into custody by" DES. After taking both matters
under advisement, the court affirmed its earlier denial of the
Pueblo's transfer petition and terminated K.J.R.'s parental rights. The Pueblo
and K.J.R. appealed from the termination order, raising the issues
of whether the trial court erred in denying the Pueblo's
petition to transfer the case to tribal court and whether
the trial court's termination of K.J.R.'s parental
rights is supported by the evidence and law.
The Indian Child Welfare Act of 1978 (hereinafter "the Act"),
25 U.S.C. 1901 et
(1983), resulted from concern over the increasing number of Indian
children placed in non-Indian foster or adoptive homes. It declared:
is the policy of this Nation to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
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, ...
25 U.S.C. 1902; see
H.R.Rep. No. 1386, 95th Cong., 2d Sess. 8, 9, reprinted
in (1978) U.S.Code
Cong. & Admin.News
7530, 7531 (hereinafter "H.R.Rep. 1386"). The Act specifically applies to
child custody proceedings [FN2]
involving Indian children.
Matter of Appeal in Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 531, 667 P.2d 228, 231 (App.1983).
A " 'child custody proceeding' shall mean and include--... 'termination
of parental rights' which shall mean any action resulting in
the termination of the parent-child relationship." 25 U.S.C. 1903(1)(ii).
"Indian child" is defined 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).
At the "heart" of the
Act are "its provisions concerning jurisdiction over Indian *107
child custody proceedings." Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 1601, 104 L.Ed.2d 29 (1989). Once
a trial court determines that the Act applies to a particular Indian child
custody proceeding, the court then must decide the appropriate forum.
The Act provides for exclusive tribal jurisdiction in an Indian
child custody matter if the Indian child "resides or is domiciled
within the reservation" or is a ward of tribal court. 25 U.S.C.
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child's
tribe, the court, in
the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction
of the tribe, absent objection by either parent, upon the
petition of either parent or the Indian custodian or the
Indian child's tribe: Provided,
That such transfer shall be subject to declination by the
tribal court of such tribe.
25 U.S.C. 1911(b) (first emphasis added). This essentially is concurrent
jurisdiction with a preference for tribal court jurisdiction that can
be overcome on a showing of good cause. In
re Robert T.,
200 Cal.App.3d 657, 246 Cal.Rptr. 168, 171-72 (1988). The Act
does not deprive a state of its traditional jurisdiction over
an Indian child within its venue; it establishes "minimum federal
standards and procedural safeguards designed to protect the rights of
the child as an Indian and the integrity of the
Indian family." Manuel P. Guerrero, "Indian Child Welfare Act of
1978: A Response to the Threat to Indian Culture Caused
by Foster and Adoptive Placements of Indian Children," 7 Am.Indian
51, 75 (1979).
Because the Act does not define "good cause to the
contrary," a state court has discretion whether to transfer a
matter to tribal court or retain jurisdiction. Russel Barsh, "The
Indian Child Welfare Act of 1978: A Critical Analysis," 31
1287, 1317-18 (1980); [FN4]
Matter of T.S.,
245 Mont. 242, 801 P.2d 77, 80 (1990) (courts deciding
Indian child custody matters primarily responsible for interpreting the Act)
(citing 44 Fed.Reg. at 67,584 (1979)), cert.
500 U.S. 917, 111 S.Ct.
2013, 114 L.Ed.2d 100 (1991); Chester
County Dep't of Social Services v. Coleman,
296 S.C. 355, 372 S.E.2d 912, 914 (App.1988) (state courts
have flexibility to determine disposition of Indian child placement proceeding,
citing H.R.Rep. 1386); Matter
of Wayne R.N.,
107 N.M. 341, 757 P.2d 1333, 1335 (App.1988) (good cause
determination made on case-by-case basis after careful consideration of all
circumstances). On appeal, we will not upset a trial court's
ruling absent an abuse of its discretion. State
132 Ariz. 394, 396, 646 P.2d 279, 281 (1982). Only
a finding of fact not based on any evidence is
arbitrary and an abuse of discretion. United
Imports and Exports, Inc. v. Superior Court,
134 Ariz. 43, 46, 653 P.2d 691, 694 (1982).
In his law review article, Barsh maintains that if the
Act intended to remove decisions regarding the placement of Indian
children from state court judges who ostensibly often failed to
appreciate the Indian culture, it nonetheless "places the remedy, transfer
to tribal courts, in the virtually unlimited discretion of state
judges." Barsh, "The Indian Child Welfare Act of 1978: A
Critical Analysis," 31 Hastings
1287, 1318 (1980).
legislative history of § 1911(b) provides that the Act's good-cause
exception allows state courts to apply a modified version of forum
non conveniens when
deciding whether to retain or transfer jurisdiction in Indian child custody
of Appeal in Pima County Juvenile Action No. S-903,
130 Ariz. 202, 206, 635 P.2d 187, 191 (App.1981), cert.
denied, 455 U.S. 1007,
102 S.Ct. 1644, 71 L.Ed.2d 875 (1982); H.R.Rep. 1386 at 21. The
traditional doctrine of forum
non conveniens gives
a court discretion to forego jurisdiction. E.g.,
Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); Koster
v. Lumbermens Mut. Cas. Co.,
330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947). See
Note, "Indian Child Welfare: A Jurisdictional Approach"
(hereinafter "Indian Child Welfare"), 21 Ariz.L.Rev.
1123, 1142 (1979). **1249
In such cases, the court considers "relative ease of access to sources
of proof; availability of compulsory process," and "all
other practical problems that make trial of a case easy, expeditious and
Oil Corp., 330 U.S.
at 508, 67 S.Ct. at 843. The traditional doctrine is modified
in the sense that it allows state courts to retain rather than transfer
jurisdiction if the tribal court is an inconvenient forum. "Indian
Child Welfare," 21 Ariz.L.Rev.
at 1142. Necessarily, the rights of the Indian child and the
tribe are considered, but a court's accessibility to proof of a parent's
unfitness is a principal factor on which a state court may decide to retain
at 1142-43. It was so analyzed
by the New Mexico Court of Appeals which affirmed a trial court's finding
of good cause and refusal to transfer an Indian child custody proceeding.
Matter of Wayne
R.N., 757 P.2d at 1336.
For assistance in interpreting the Act, including whether to transfer
a child custody matter, the court may rely on the
Act's interpretive guidelines, drafted by the Bureau of Indian Affairs
(BIA). "Guidelines for State Courts; Indian Child Custody Proceedings," 44
Fed.Reg. 67,584 (1979). Although the guidelines were not published as
regulations because they were not intended to have binding legislative
they have been relied on by Arizona courts. See
Juvenile Action No. A-25525,
136 Ariz. at 532 n. 4, 667 P.2d at 232
n. 4; Juvenile
Action No. S-903,
130 Ariz. at 206, 635 P.2d at 191. The guidelines
for determining whether good cause exists to deny a petition
to transfer a custody matter to tribal court provide in
Determination of Good Cause to the Contrary.
* * * * * *
Good cause not to transfer the proceeding may exist if
any of the following circumstances exists:
The proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file
the petition promptly after receiving notice of the hearing.
* * * * * *
The evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship to
the parties or the witnesses.
* * * * * *
Socio-economic conditions and the perceived adequacy of tribal or Bureau
of Indian Affairs social services or judicial systems may not
44 Fed.Reg. at 67,591.
If the court or any party asserts that good cause
exists, the guidelines further provide that the reasons must be
in writing and made available to the petitioner and that
the petitioner as well as each other party shall have
an opportunity to express views on good cause. Id.
at 67,590-91; cf.
Matter of G.L.O.C.,
205 Mont. 352, 668 P.2d 235, 236 (Mont.1983) (trial court
must conduct jurisdictional hearing before ruling on transfer petition). The
party opposing the petition has the burden of establishing good
cause to deny transfer of the matter to tribal court.
44 Fed.Reg. at 67,591.
On appeal, K.J.R. and the Pueblo argue that the trial
court erred when it denied the Pueblo's motion to transfer
the matter to tribal court because DES, the party opposing
the transfer, did not meet its burden of establishing good
cause to the contrary. They maintain that the Pueblo timely
filed the transfer petition because it did so within the
time granted by the state court.
The Pueblo contends that the delay was not unreasonable because
the state court granted the Pueblo's petition as to two
of the three children and that characterizing the petition as
untimely undercuts the strong federal policy favoring tribal court jurisdiction
over dismantling an Indian family in state court. It also
asserts that it did not petition for transfer earlier because
the original plan provided for the mother's rehabilitation and eventual
reunion with the child.
DES responds that the trial court properly denied transfer to
the tribal court because good cause exists due to both
the tribal delay in requesting the transfer and the fact
that the evidence necessary to **1250
decide the case could not be presented in tribal court
without undue hardship.
It is undisputed that the matter at issue is an
Indian child custody proceeding and that K.J.R. is an enrolled
member of the Pueblo, bringing this case within the purview
of the Act. See
Juvenile Action No. A-25525,
136 Ariz. at 532, 667 P.2d at 232. The Pueblo
petitioned the trial court for transfer of the severance proceeding
and neither did the tribal court decline jurisdiction nor did
K.J.R. object to the transfer. 25 U.S.C. 1911(b). However, after
allowing the parties an opportunity to express their opinions regarding
transfer of the termination proceeding to tribal court, the trial
court found good cause to deny the transfer petition. It
observed that while the child was in foster care under
the auspices of the court for years, the Pueblo
did not take any action despite notice to it. The
court concluded that given the passage of time and the
child's attachment to her foster family, it was in the
child's best interest not to separate her from this family.
"Furthermore, the legitimate interests of the Pueblo can be protected
by its participation in the Maricopa County proceedings, the Court
having granted the Motion to Intervene." After providing K.J.R. with
an additional opportunity to argue why good cause did not
exist, the court reconsidered its transfer decision and affirmed the
The Act permits the denial of a transfer petition for
good cause. 25 U.S.C. 1911(b). Subsection b(i) of the BIA
guidelines provides that good cause to deny transfer exists if
the child custody proceeding is at an advanced stage when
the transfer petition is filed and the petition was not
promptly filed after notice of the child custody proceeding. 44
Fed.Reg. at 67,591; see
Matter of Wayne R.N.,
757 P.2d at 1336 (transfer petition filed six months after
notice of termination proceeding weighed against transfer).
The record shows that the state first became involved with
the child on March 6, 1987, when DES filed a
dependency petition. The Pueblo admits that it was notified of
the dependency proceeding and did not take action. The child
was made a ward of the state court without an
appearance or objection by the Pueblo. DES subsequently petitioned for
termination of K.J.R.'s parental rights, of which the Pueblo was
timely notified. The Pueblo did not move to intervene
until July 13, 1989, two years after the child had
been placed in off-reservation foster care, and it did not
petition for transfer of the matter until November 14, 1989.
DES objected to the transfer petition, stating that good cause
existed to deny the petition because while the Pueblo was
considering intervention and transfer, the child was strengthening the bond
with the foster parents who now wanted to adopt her.
The California Court of Appeals was faced with a similar
situation in In
re Robert T.
in which the Santo Domingo Pueblo petitioned the state trial
court for transfer of termination proceedings to its tribal court.
246 Cal.Rptr. 168. The Pueblo had been notified of dependency
proceedings involving the Indian child in July 1983 and of
subsequent termination proceedings in November 1984, but it did not
move to intervene until February 1985 and did not file
a transfer petition until April 1985. Id.
The trial court determined that the Pueblo's five-month delay between
receiving notice of the termination hearing and filing the transfer
petition constituted good cause to deny the petition. Id.
The appellate court affirmed the trial court, but found the
Pueblo's lack of cause more pronounced than had the trial
court because the Pueblo had been notified of all hearings
relating to the child's dependency since July 1983 and had
not expressed an intent to be involved until February 1985.
at 172, 173. The appellate court further observed that between
the time when the Pueblo first was notified of
proceedings and when it requested transfer, the child had "bonded
to his foster-adoptive family" and the state had begun permanency
at 173. The court said:
tribe cannot reasonably delay its request for transfer until after
the child's adoptive family has been found. We **1251
therefore hold that the 16-month delay between the permanency planning
hearing ... and the tribe's first expression of intent to
intervene ... was sufficient to establish "good cause" under the
Act and the guidelines for the court to deny the
Likewise, in this case, the Pueblo
had been notified of all proceedings concerning the child's dependency,
yet it waited for over two years to petition for transfer, during which
time the child had bonded to her foster-adoptive family and planning for
the child's adoption had begun. The record does not indicate
that the Pueblo was unable to file a transfer petition earlier. On
the contrary, the record reveals that the Pueblo was aware of the dependency,
severance and adoption plan and had been considering filing a petition
for some time. The evidence sufficiently supports the court's
conclusion that the proceedings were at an advanced stage when the Pueblo
petitioned for transfer and that the petition, although filed just before
the court's deadline, [FN5]
nonetheless was not filed promptly after receiving notice of the proceedings.
The court did not abuse its discretion when it denied the
petition and we will not reverse its decision.
The trial court noted in a minute entry of December
5, 1989, that the parties had agreed upon a deadline
of November 15, 1989 for the filing of a transfer
petition. However, the court also said that "[t]his was not
a stipulation that the Petition should be granted, but only
that the Pueblo would not even seek transfer after November
While we realize that the court granted the Pueblo's transfer
petition as to two of the three children, this appeal
is limited to one child with circumstances quite different from
her two siblings.
Despite the fact that the trial
court's finding of delay was sufficient to justify its denial of the transfer
petition, the court also denied the Pueblo's petition because transfer
to tribal court was not in the child's best interest. A trial
court properly may consider an Indian child's best interest when deciding
whether to transfer a custody proceeding to tribal court. See
25 U.S.C. 1902; Matter
of N.L., 754 P.2d 863,
869 (Okla.1988) (citing Matter
of M.E.M., 195 Mont.
329, 635 P.2d 1313, 1317 (1981)). The record supports the
court's denial on this basis because the child had resided with her
foster-adoptive parents since she was five months old and she had formed
a bond with the only parental figures she had known. The record
further reveals that this was the most stable environment the child had
experienced and that transfer to an out-of-state tribal court would be
disruptive to her and not in her best interest.
Although not addressed by the
trial court, subsection b(iii) of the BIA guidelines additionally provides
that good cause exists when the evidence necessary to decide the case
could not be adequately presented in tribal court without undue hardship
to the parties or witnesses. This criterion reflects the Act's
legislative history that trial courts are permitted to apply a modified
doctrine of forum non
conveniens when deciding
where a child custody matter should be heard. See
In re Robert T., 246
Cal.Rptr. at 174. The record reveals that the tribal court
in this case is an inconvenient forum because the child, K.J.R. and all
of the witnesses who testified at the severance hearing, except for the
tribal social worker, reside in Phoenix. K.J.R.'s social history is found
in Phoenix also. Therefore, if the termination proceeding
were held in an out-of-state tribal court, the evidence concerning K.J.R.'s
fitness as a parent could not be adequately presented without creating
an undue hardship on the parties and all but one of the witnesses. Cf.
Juvenile Action No. S-903,
130 Ariz. at 207, 635 P.2d at 192 (transfer to tribal court because evidence
concerning parental fitness more accessible
in Montana than Arizona). Therefore, we find that the court
also could have denied the Pueblo's transfer petition for this reason.
of Regents v. Public Safety Retirement Fund Manager,
160 Ariz. 150, 154, 771 P.2d 880, 884 (App.1989) (trial court's decision
upheld on review if correct **1252
for any reason); University
Mechanical Contractors of Arizona, Inc. v. Puritan Insurance Co.,
150 Ariz. 299, 301, 723 P.2d 648, 650 (1986) (same).
Finally, the trial court found that despite its denial of
the transfer petition, the Pueblo's interests would be protected in
a state court termination proceeding because the court previously had
granted its motion to intervene. This court has held that
if the state court retains jurisdiction, the tribe is protected
against the possibility of state court bias against tribal culture
as it may intervene at any point in the custody
proceeding ... and the parent-child relationship can be terminated only
by a showing of parental unfitness beyond a reasonable doubt.
Action No. S-903,
130 Ariz. at 204, 635 P.2d at 189; see
also Matter of Wayne R.N.,
757 P.2d at 1336 (tribal representatives at state-court termination hearing
protected tribes' rights). At the termination hearing, the Pueblo took
no position on the merits of the case. We are
confident on this record that the Pueblo's values were recognized
during the parental
termination proceedings but that good cause supported the trial court's
retention of jurisdiction.
of Parental Rights
K.J.R. argues that contrary to the Act's requirements, the trial
court erroneously terminated her parental rights without hearing testimony from
a qualified expert witness that her continued custody of the
child was likely to result in serious emotional or physical
damage to the child. She also asserts that the grounds
for terminating the parent-child relationship were not proven beyond a
Upon review, we "accept the juvenile court's findings of fact
in support of severing the parent-child relationship unless they are
clearly erroneous. Furthermore, the juvenile court will be deemed to
have made every finding necessary to support the judgment." Matter
of Appeal in Pima County Severance Action No. S-1607,
147 Ariz. 237, 238, 709 P.2d 871, 872 (1985) (citations
Appeal in Yavapai County Juvenile Action No. J-9956,
818 P.2d 163 (App.1991) (citation omitted).
Before involuntarily terminating the rights of a parent of an
Indian child, the Act requires a court to consider the
testimony of a qualified expert witness as to whether the
parent's continued custody threatens the child's physical or emotional well-being.
25 U.S.C. 1912(f). Although the qualifications of such an expert
are not defined by the Act, the BIA's guidelines
are instructive, suggesting that "[a] professional person having substantial education
and experience in the area of his or her specialty"
likely will qualify as an expert witness. 44 Fed.Reg. at
67,593. The guidelines explain that the party offering the expert
witness must demonstrate that the witness is qualified by reason
of educational background and prior experience to make substantially more
reliable judgments than those of a non-expert. Id.
However, "[s]pecial knowledge of Indian life is not necessary where
a professional person has substantial education and experience and testifies
on matters not implicating cultural bias." Matter
754 P.2d at 867.
At the severance hearing, the tribal social worker testified that
she is specially educated to work with the Pueblo and
that she had worked with the Pueblo for three years.
She stated that during those years, she had worked with
a number of families whose children were placed in foster
care. She further testified that K.J.R. and the Pueblo had
entered an agreement by which K.J.R. would make self-referrals to
specific organizations for alcohol counseling and parenting skills, engage in
family and psychological counseling and attempt to locate housing, but
that K.J.R. had failed to follow the agreement. She added
that K.J.R. later had called her to check on the
children but had not requested assistance with regaining them. The
social worker concluded that returning the child to K.J.R. would
put the child at risk of
serious physical or emotional harm.
In addition, a DES caseworker with more than five years'
experience at Child Protective Services, a master's degree in special
education and rehabilitation and prior experience with cases involving the
Indian Child Welfare Act, testified that services first were offered
to K.J.R. in February 1988 and that in April 1988,
K.J.R. had entered a six-month case-plan agreement with DES. The
agreement provided that K.J.R. would attend alcohol awareness and parenting
classes, attend weekly Alcoholics Anonymous meetings, attempt to seek stable
employment and maintain a stable residence. DES alternatively agreed to
provide K.J.R. with psychological and casework services, to meet with
her regularly and review her progress and to facilitate visits
with her children. The caseworker testified that he arranged the
appropriate and necessary services through the Phoenix Indian Center and
made efforts to get K.J.R. to the center so that
she could participate but that she gradually stopped participating within
two to three months. The caseworker also testified that he
reiterated to K.J.R. the continuing availability of services at the
Phoenix Indian Center in September 1989 and on March 7,
1990, the date of the severance hearing. He concluded that
K.J.R. was not capable of providing minimally adequate care or
concern for the child.
The record therefore demonstrates
that the trial court received testimony from two expert witnesses that
K.J.R.'s continued custody of the child
was likely to result in damage to the child's emotional or physical well-being.
It supports the decision that the witnesses' educational backgrounds
and experience qualified them as experts as required by the Act. See
25 U.S.C. 1912(f).
In involuntary proceedings, the Act also requires that the termination
be supported by evidence beyond a reasonable doubt that the
parent's continued custody of the child is likely to result
in serious emotional or physical damage to the child. 25
[FN7] This is in addition to meeting the Arizona requirement
that parental rights may only be terminated for a number
of stated reasons. See
In re Dependency of Roberts,
46 Wash.App. 748, 732 P.2d 528, 531 (1987) (proof beyond
reasonable doubt that parent's custody likely to result in Indian
child's emotional or physical damage in addition to state parental
termination requirements). Included among the Arizona statutory grounds for termination
This is a higher standard of proof than that required
in parental termination proceedings not covered by the Act. See
A.R.S. § 8-537(B).
That the parent is unable to discharge the parental responsibilities
because of mental illness, mental deficiency or a history of
abuse of dangerous drugs, controlled substances or alcohol and there
are reasonable grounds to believe that the condition will continue
for a prolonged indeterminate period.
* * * * * *
That the child is being cared for in an out-of-home
placement under the supervision of the juvenile court, the division
or a licensed child welfare agency, that the agency responsible
for the care of the child has made a diligent
effort to provide appropriate remedial services and that:
* * * * * *
The child has been in an out-of-home placement for a
cumulative total period of two years or longer pursuant to
court order, the parent has been unable to remedy the
circumstances which cause the child to be in an out-of-home
placement and there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental
care and control in the near future.
A.R.S. § 8-533(B)(3),
In addition to the requirement of subsection B(3) that K.J.R.'s
parental rights could be terminated upon proof by clear and
convincing evidence that she is unable to discharge her parental
obligation because of her mental illness and history of alcohol
abuse, the record has to demonstrate that her condition "deprives
[her] of the ability to effectively care for the child."
Maricopa County Juvenile Action No. JS-6831,
155 Ariz. 556, 558, 748 P.2d 785, **1254
787 (App.1988) (quoted in Juvenile
Action No. J-9956,
818 P.2d at 164). Furthermore, under subsection B(6), the court
must ascertain that the child is adoptable. Appeal
in Maricopa County Juvenile Action No. JS-6520,
157 Ariz. 238, 244, 756 P.2d 335, 341 (App.1988) (cited
Action No. J-9956,
818 P.2d at 164).
trial court heard evidence from expert witnesses and found beyond a reasonable
doubt that K.J.R. was unable to discharge her parental responsibilities
due to her mental illness and chronic alcohol abuse and that there were
reasonable grounds to believe that the condition will continue for a prolonged
indeterminate period of time. See
A.R.S. § 8-533(B)(3). It also made the requisite
findings that the child had been in out-of-home placement for more than
two years, that K.J.R. had been unwilling to remedy the circumstances
causing the child's foster-care placement, that there were grounds to
believe that K.J.R. would be unable to provide adequate and effective
parental care in the foreseeable future and that the child's foster family
plans to adopt her if K.J.R.'s parental rights are severed. See
A.R.S. § 8-533(B)(6)(b). Therefore, the court satisfied
Arizona's parental termination requirements.
Section 1912(d) of the Act requires that:
party seeking ... termination of parental rights to an Indian
State law shall satisfy the court that active efforts have
been made to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.
This also must be proven beyond a reasonable doubt. People
in Interest of P.B.,
371 N.W.2d 366, 372 (S.D.1985).
In compliance with the federal and state statutes, the trial
court determined beyond a reasonable doubt that DES had made
diligent efforts to prevent the need for the child's continued
out-of-home placement and termination of K.J.R.'s parental rights. Remedial services
and rehabilitative programs repeatedly were offered to K.J.R. yet, in
the opinion of the Pueblo's own social worker and a
DES caseworker, K.J.R. did not take advantage of the programs
and it would be detrimental to return the child to
The record supports the conclusion that K.J.R. is unfit as
a parent of this child. The termination of K.J.R.'s parental
rights is affirmed.
JACOBSON, P.J., and EUBANK, J., concur.
171 Ariz. 104, 828 P.2d 1245