as: 130 Ariz. 202, 635 P.2d 187)
of Appeals of Arizona, Division 2.
the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION
2 CA-CIV 4083.
Denied Oct. 14, 1981.
Indian minor was domiciled within reservation that was domicile of
her father for purpose of statute giving Indian tribe exclusive
jurisdiction over any child custody proceeding involving Indian child domiciled
within reservation of tribe. Indian Child Welfare Act of 1978,
25 U.S.C.A. § 1911(a).
child of unemancipated Indian minor took domicile of its mother
for purpose of statute giving Indian tribe exclusive jurisdiction over
any child custody proceeding involving Indian child domiciled within reservation
tribe, notwithstanding that child was living in Arizona with prospective
adoptive parents pursuant to temporary custody order. Indian Child Welfare
Act of 1978, § 101(a),
25 U.S.C.A. § 1911(a).
of infant born out of wedlock remains that of its
mother until a new one is lawfully acquired.
of Indian Child Welfare Act for state court to transfer
parental rights termination proceeding, with respect to Indian child not
domiciled within reservation of child's tribe, to jurisdiction of tribe
was intended to permit state court to apply a modified
doctrine of forum non conveniens. Indian Child Welfare Act of
1978, § 101(b),
25 U.S.C.A. § 1911(b).
Child Welfare Act provides a higher standard of protection to
rights of parents in termination proceedings. Indian Child Welfare Act
of 1978, § 103(c),
25 U.S.C.A. § 1913(c).
Indian child within purview of Indian Child Welfare Act is
involved, adoption agencies and prospective adoptive parents must be held
to assume risk that parent might change her mind regarding
relinquishment of parental rights before adoption is finalized. Indian Child
Welfare Act of 1978, § 102(d,
f), 25 U.S.C.A. § 1912(d,
Indian child was living in Arizona with prospective adoptive parents
pursuant to temporary custody order, Arizona court should have deferred
to tribal jurisdiction in parental rights termination proceeding where evidence
mother's fitness as a parent would be more readily accessible
in Montana, in which reservation of mother's tribe was located,
and qualified expert witnesses as to whether custody in mother
would likely result in serious emotional or physical damage to
child would also be more accessible there since expert witnesses
lacking knowledge of tribal culture and values might not be
"qualified" to give an opinion. Indian Child Welfare Act of
1978, §§ 101(a,
b), 103(c), 25 U.S.C.A. §§ 1911(a,
assuming that Arizona court had jurisdiction in proceeding for termination
of Indian mother's parental rights and properly declined to refer
court, where there was no evidence as to mother's fitness
as a parent or any attempt to preserve parent-child relationship,
Indian mother was entitled to return of her child when
she revoked her relinquishment of parental rights. Indian Child Welfare
Act of 1978, § 102(d,
f), 25 U.S.C.A. § 1912(d,
of access to state court under Indian Child Welfare Act
was based solely upon political status of parent and child
and quasi-sovereign nature of tribe, and thus was discriminatory classification
not prohibited by United States Constitution. Indian Child Welfare Act
of 1978, §§ 101(a,
b), 103(c), 25 U.S.C.A. §§ 1911(a,
b), 1913(c); U.S.C.A.Const.Amends. 5, 14.
Southern Arizona Legal Aid, Inc. by Joyce Edline Holsey, Tucson,
Ann M. Haralambie, Tucson, for appellee.
Appellant, natural mother of an Indian child, brings this appeal
from a juvenile court order severing her parental rights. This
case is governed by the federal Indian Child Welfare Act
of 1978 and is one of first impression in this
state. We agree with appellant that reversal is required.
Congressional investigation of child custody proceedings involving Indian children culminated
in passage of the Act. In the Act, Congress declared
a two-fold national policy: the protection of the best interests
of Indian children, and the promotion of stable and secure
Indian tribal entities. 25 U.S.C.A.
s 1902. To prevent the separation of Indian children from
family and tribal heritage, the Act established minimum federal standards
applicable to child custody proceedings.
Hearings conducted in 1974 before the Senate Committee on Indian
Affairs revealed a pattern of discrimination against American Indians in
child welfare and child custody. Testimony indicated that for decades
officials had removed a disproportionately large number of Indian children
from their homes and reservations, and had placed them in
non-Indian homes and that many of the removals were unwarranted
because officials showed too little deference to Indian cultural norms
and denied due process in child custody proceedings. These practices
deprived many children of their tribal and cultural heritage.
To reverse this erosion of Indian family life, Congress enacted
the Act. See H.R.Rep.No. 1386, 95th Cong., 2d Sess. 8,
reprinted in (1978) U.S.Code Cong. & Ad.News 7530.
The concept that Indian tribes are independent communities possessing their
own natural rights permeates the Act. In its allocation of
jurisdiction in custody proceedings the Act defers to the inherent
sovereignty of the tribe over matters affecting this internal welfare.
25 U.S.C.A. s 1911(a). More significantly, it provides mechanisms whereby
the tribe can exert its jurisdiction or influence beyond reservation
boundaries in child custody actions involving off-reservation tribal members. 25
U.S.C.A. s 1911(b). This
latter section modifies the general rule that Indians off the
reservation are subject to state jurisdiction by requiring state courts
to transfer to the tribe most child custody proceedings upon
petition by the Indian child's parent, Indian custodian, or tribe.
Only if a parent objects, or the tribal court declines,
or there is **189
"good cause" not to transfer the proceeding, may this referral
jurisdiction be prevented. In addition, 25 U.S.C.A. s 1911(c) allows
representation of tribal interests, even when the state court retains
jurisdiction, by affording the parent, Indian custodian or child's tribe
the right to intervene in the state court proceeding.
The Act is based on the fundamental assumption that it
is in the Indian child's best interest that its relationship
to the tribe be protected.[FN1]
By its enactment, Congress legislatively created a new jurisdictional framework
in Indian child welfare, replacing the outmoded geographical concepts of
presence or domicile with a jurisdictional standard based on the
ethnic origin of the child. This standard avoids the problems
of forum shopping and gives real authority to tribal courts
to adjudicate child custody issues. The Act reflects Congressional recognition
of the importance of child rearing to the tribe.
Indian Child Welfare Act of 1978: Provisions and Policy, 25
S.D.L.Rev. 98 et seq. (1980) per author's telephone interviews in
1979 with Bertram
Hirsch, Association on American Indian Affairs, who helped draft the
The Act defines certain procedures to be followed in state
court proceedings involving Indian children. These procedures protect the Indian
parent or custodian from a moving party's abuse of either
voluntary or involuntary placement procedures. Even 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 25 U.S.C.A. s
1911(c), and the parent-child relationship can be terminated only by
a showing of parental unfitness beyond a reasonable doubt. 25
U.S.C.A. s 1912(f). Additionally, the party seeking to effect termination
of parental rights is required to 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. 25 U.S.C.A.
s 1912(d). The effectiveness of the changed jurisdictional structure is
insured by inclusion in the Act of a full faith
and credit provision. 25 U.S.C.A. s 1911(d). We shall discuss
these and other provisions of the Act in addressing the
merits of this case.
The facts disclosed by the record are as follows. Appellant
is a member of the Assiniboine Tribe in Montana and
was fifteen years old when her child was born
on February 27, 1980, in Henderson, Nevada. On March 18,
1980, she executed a voluntary relinquishment of her parental rights
which was subsequently accepted by the Nevada District Court. The
document recited that the minor child was relinquished to the
Nevada Catholic Welfare Bureau, Inc. for the purpose of adoption
and the bureau was authorized to consent to the child's
adoption. One paragraph of the document recited:
Affiant has been advised and understands that this relinquishment may
be withdrawn anytime prior to the entry of a final
decree of adoption. This may be done by executing, under
oath, a document stating her intention to revoke this relinquishment
in the same court that the relinquishment was signed."
On September 29, 1980, appellant requested the return of her
child and the appropriate document was filed on October 2
in the Nevada court. By letter dated October 8, 1980,
the Nevada Catholic Welfare Bureau was advised by the Nevada
court clerk of the revocation of relinquishment and that arrangements
should be made promptly for the return of the child
to appellant. In the interim, however, the Nevada agency had
made arrangements with appellee, Catholic Social Service of Tucson, to
place the child with an adoptive family and in fact
the baby was picked up in Nevada on May 24
and taken to Tucson. The Nevada agency was unable to
return the child to appellant as the Arizona agency informed
Nevada "that the parents were unwilling to give up the
they wanted to take it to Court."
On October 27, 1980, a petition for termination of parental
rights was filed in Arizona *205
alleging that the natural mother had abandoned the child. The
same day a temporary custody order was entered directing that
temporary custody of the child remain with his prospective adoptive
parents under the supervision of the petitioner, Catholic Social Service
of Tucson. Appellant was served on October 31 in Montana
and the tribal council was served on November 3. A
letter from the attorney for the Nevada Catholic Welfare Bureau,
with an enclosed certified copy of appellant's revocation of voluntary
relinquishment, was filed on November 18, 1980.
By letter dated November 7, 1980, appellant and her mother
requested the tribal chairman in Montana to intervene in this
Arizona custody proceeding. The record reflects that on January 20,
1981, a letter was written to the presiding judge of
Pima County Superior Court by the vice-chairman of the Assiniboine
and Gros Ventre tribes of the Fort Belknap Indian Community
Tribal Government of the Fort Belknap Indian Reservation, Montana. The
writer advised the court that the tribal government wished to
intervene in this custody matter and have jurisdiction transferred to
the tribal court in Montana. The letter concluded by stating:
"Please advise me if there are any additional documents which
needs to be filed prior to the date of hearing
on this matter."
On March 11, 1981, appellant filed a petition to transfer
this case to the tribal
court in Montana. The petition alleged that the tribal court
had exclusive jurisdiction under the Indian Child Welfare Act, that
appellant did not object to transfer, and that the tribal
court was willing to accept jurisdiction. Appellee's opposition, filed April
7, asserted that "good cause" existed for retention of state
court jurisdiction in that (1) Montana, the proposed tribal forum,
would have no evidence concerning the best interests of the
child as he had never lived in Montana and (2)
separation from his adoptive parents would cause a substantial risk
of serious emotional harm to him.
By April 10 minute entry, a hearing on the severance
petition and the petition to transfer was ordered to be
held on May 8, 1981. On May 6, appellant filed
a reply to the opposition to her petition for transfer.
Appended were copies of various documents supporting her position that
state court jurisdiction was improper.
At the commencement of the May 8 hearing, the court
took under advisement the petition to transfer and proceeded to
hear evidence on the severance petition. At the conclusion of
the hearing, the petition to transfer was denied and severance
of appellant's parental rights was ordered. The court made the
following findings of fact: That appellant and her tribe had
been notified of the hearing, that the minor child was
domiciled in Arizona inasmuch as his mother had relinquished her
parental rights on March 18, 1980, and the child has
resided continuously in Arizona since May 24, 1980; that the
mother had had no
contact with the child for more than six months and
had abandoned the child, that the mother had filed a
revocation of her relinquishment in Nevada on October 2, 1980,
and that the tribe had filed notice of intervention but
had not otherwise participated in this matter; that the child
was eligible for membership into the Assiniboine tribe; and that
the best interests of the child were that he remain
with his prospective adoptive parents. The court concluded that it
had jurisdiction because Catholic Social Service and the child resided
in and were domiciled in Pima County, that good cause
existed not to transfer the matter to tribal court for
hearing, that the mother had abandoned the child within the
meaning of A.R.S. s 8-533(1), that removal of the child
from his preadoptive home and his return to the mother
would result in serious emotional or physical damage to him,
and that the petitioner for severance had met its burden
of proof beyond a reasonable doubt.
A formal motion to intervene by the Fort Belknap Indian
community and to transfer the proceedings to tribal court was
filed on May 11, 1981, indicating that inasmuch as appellant
had withdrawn her consent to adoption, it was appropriate that,
pursuant to the spirit and letter of the Indian Child*206
Welfare Act, the proceedings be transferred to the tribal court
in Montana for investigation and determination of placement of the
We agree with appellant that the severance order must be
vacated and custody of the child returned to her for
three reasons. First, the Arizona court lacked
jurisdiction of this proceeding; second, assuming arguendo the state court
had concurrent jurisdiction, it should have declined to exercise it;
and third, assuming arguendo retention of jurisdiction was appropriate, the
requisite burden of proving grounds for termination of parental rights
was not met. We shall discuss each of these reasons.
25 U.S.C.A. s 1911(a) provides
in pertinent part:
Indian tribe shall have jurisdiction exclusive as to any State
over any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State
by existing Federal law."
It is not disputed that this was a child custody
proceeding and that appellant's child is an Indian child within
the purview of the Act. Appellant, an unemancipated minor, was
domiciled within the Fort Belknap reservation in Montana as that
was the domicile of her father. Garay Uppen v. Superior
Court of Pima County, 116 Ariz. 81, 567 P.2d 1210
(App.1977). Her illegitimate child, however, took the domicile of its
mother. In Re Estate of Moore, 68 Wash.2d 792, 415
P.2d 653 (1966); In re Guardianship of Sharp, 41 Cal.App.2d
79, 106 P.2d 244 (1940); 25 Am.Jur.2d Domicil s 69.
The domicile of an infant born out of wedlock remains
that of its mother until a new one is lawfully
acquired. Application of Morse, 7 Utah 2d 312, 324 P.2d
In re Guardianship of Sharp, supra. Although the child was
living in Arizona with the prospective adoptive parents pursuant to
a temporary custody order, its domicile had not yet been
legally changed and therefore it was a domiciliary of the
reservation in Montana. The only change in the status of
appellant's child was his removal to this state by reason
of appellant's relinquishment of him for the purpose of adoption.
25 U.S.C.A. s 1911(b) provides:
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 of the Indian
child's tribe: Provided, That such transfer shall be subject to
declination by the tribal court of such tribe." (Emphasis in
This provision was intended to permit a state court to
apply a modified doctrine of forum non conveniens. H.R.Rep.No. 1386,
supra, at 21. The juvenile court found good cause for
exercise of jurisdiction in this state. The term "good cause
to the contrary" is not defined in the statute but
a definition is found in 44 Fed.Reg. 24000, 24001, RG(i)
(1979) as including but
not limited to the facts that (1) the child's biological
parents are unavailable; (2) no Indian custodian has been appointed;
(3) the child has had little contact with the tribe
for a significant period of time; (4) the child has
not resided on the reservation for a significant period of
time; and (5) the child, over 12 years of age,
has indicated opposition to the transfer. One law review article
suggests that "good cause to the contrary" could include the
absence of a tribal mechanism for handling child custody proceedings.
See The Indian Child Welfare Act Tribal Self-Determination Through Participation
in Child Custody Proceedings, Wis.L.Rev.1979: 1202, 1213, f. n. 69.
Another law review article points out that accessibility to proof
would seem to be the principal factor on which state
courts could rely to retain jurisdiction. Indian Child *207
Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1143 (1979). The
author points out: (1) If the tribe desires that the
case be heard by the tribal court, distance from the
reservation in and of itself would not be sufficient "good
cause" for the state court to refuse to transfer the
proceedings despite the expense, and (2) in most instances an
Indian parent will call witnesses residing on the reservation to
rebut evidence as to parental unfitness and the state court
must make a determination as to which party is most
able to bear the expense of producing witnesses in distant
courts. The only justification for retention of jurisdiction in Arizona
is the presence of the child and the prospective adoptive
parents. However, the issue in these termination proceedings is not
the fitness of the adoptive parents but rather the unfitness
of the parent whose relationship is sought to be severed.
The very posture of this case from start to finish
militates against retention of jurisdiction here. 25 U.S.C.A. s 1913(c)
any voluntary proceeding for termination of parental rights to, or
adoptive placement of, an Indian child, the consent of the
parent may be withdrawn for any reason at any time
prior to the entry of a final decree of termination
or adoption, as the case may be, and the child
shall be returned to the parent." (Emphasis added)
As noted above, appellant withdrew her relinquishment on October 2,
1980. Her revocation was timely and properly filed in the
Nevada court. This information was conveyed to the prospective adoptive
parents. An adoption worker who testified at the severance hearing
expressed her concurrence with the adoptive parents in trying to
keep the child:
feel that the child's security in the home would be
in jeopardy if the child were moved.
felt also frankly that the law is unfair, it does
not specifically acknowledge the best interests of the child. And
I had serious reservations as to what was now prompting
this young woman to change her decision.
the fact that there was no followup as to see
what her needs were at the moment,
and whether her need was for the child, or she
had another need that she was calling out for help
On cross-examination, she indicated her awareness that Congress felt that
the Act was in the best interest of the sovereignty
of the tribes but, in her opinion, the Act does
not address the child's needs.
is apparent from the very wording of 25 U.S.C.A. s 1913(c) that Congress
was not concerned with the reason a parent might have for withdrawal of
consent. The Act unquestionably provides a higher standard of protection
to the rights of parents in termination proceedings. E. A. v. State,
623 P.2d 1210 (Alas.1981). When an Indian child within the purview
of the Act is involved, adoption agencies and prospective adoptive parents
must be held to assume the risk that a parent such as appellant might
change her mind before the adoption is finalized.
believe the lower court should have deferred to tribal jurisdiction. Evidence
concerning the mother's fitness as a parent would be more readily accessible
in Montana. Qualified expert witnesses as to whether custody in
the mother would likely result in serious emotional or physical damage
to the child would also be more accessible as expert witnesses lacking
knowledge of the tribal culture and values may not be "qualified"
to give an opinion.
Finally, even assuming that the Arizona court had jurisdiction and
properly declined to refer the proceeding to tribal court, the
only ground for termination of parental rights was not proven.
25 U.S.C.A. s 1912(f) provides:
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, *208
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."
Section 1912(d) provides:
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under 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."
Since appellant had revoked her voluntary relinquishment, these provisions controlled.
is no evidence as to appellant's fitness as a parent or any attempt to
preserve the parent-child relationship. In fact, the contrary appears.
Appellant was entitled to the return of her child, then only seven
months old, when she revoked her relinquishment. Any potential emotional
to the child if the contemplated adoption is aborted was engendered by
the conduct of the adoptive parents not adhering to the mandates of the
Act. The evil which Congress sought to remedy by the Act was exacerbated
by the conduct here under the guise of "the best interests of the
argument that Indian children are being denied equal protection of the
law because of denial of access to state court has no validity. The
denial of access to state court is based solely upon the political status
of the parent and child and the quasi-sovereign nature of the tribe. This
is a discriminatory classification which is not prohibited by the United
States Constitution. Fisher v. District Court, 424 U.S. 382, 96
S.Ct. 943, 47 L.Ed.2d 106 (1976); Matter of Guardianship of D. L. L. &
C. L. L., 291 N.W.2d 278 (S.D.1980).
The order severing appellant's parental rights is set aside. The
cause is remanded with directions to enter an appropriate order
granting the petition to transfer and directing appellee to forthwith
return appellant's child to her.
HATHAWAY, C. J., and BIRDSALL, J., concur.
130 Ariz. 202, 635 P.2d 187