Gila River Indian Cmty. v. Dep't of Child Safety

240 Ariz. 385

379 P.3d 1016

GILA RIVER INDIAN COMMUNITY, Appellant,

v.DEPARTMENT OF CHILD SAFETY, Sarah H., Jeremy H., A.D., Appellees.

No. 1 CA–JV 16–0038

Court of Appeals of Arizona, Division 1.

FILED August 11, 2016

Office of General Counsel for the Gila River Indian Community, Sacaton, By Linus Everling, Thomas L. Murphy, Mandy Cisneros, Co–Counsel for Appellant Gila River Indian Community

Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, L.L.P., Tempe, By April E. Olson, Co–Counsel for Appellant Gila River Indian Community

Arizona Attorney General's Office, Tucson, By Dawn R. Williams, Counsel for Appellee Department of Child Safety

Scharf–Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, By James Manley, Aditya Dynar, Counsel for Appellees S.H. and J.H.

Office of the Legal Advocate, Phoenix, By Tiffany Mastin, Guardian ad Litem for Appellee A.D.

Office of the General Counsel for the Salt River Pima–Maricopa Indian Community, Scottsdale, By Cheryl J. Scott, Counsel for Amici Curiae Salt River Pima–Maricopa Indian Community, Cherokee Nation, and the Native American Bar Association of Arizona

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.

WINTHROP, Judge:

¶ 1 Following termination of the parental rights of the biological parents of A.D., an Indian child and eligible member of the Gila River Indian Community ("the Communi ty"),¹ the Community moved for an order transferring jurisdiction of the matter to its Children's Court. The Maricopa County Juvenile Court denied the motion, and the Community appealed. We hold that 25 U.S.C. § 1911(b) of the Indian Child Welfare Act ("ICWA"),² which the Community argues requires transfer, does not allow jurisdiction to be transferred after parental rights have been terminated. Accordingly, we affirm the denial of the motion to transfer jurisdiction.

FACTS AND PROCEDURAL HISTORY³

I. The Underlying Proceedings

¶ 2 At the time of A.D.'s birth in 2014, both she and her biological mother ("M.D.") tested positive for amphetamines and opiates.⁴ Approximately one week later, the Arizona Department of Child Safety ("DCS") removed her from the hospital and placed her with S.H. and J.H. ("the foster parents"), with whom she has since remained.⁵

¶ 3 On August 27, 2014, DCS filed a dependency petition on behalf of A.D. The Community was provided notice of the dependency proceedings, and on October 3, 2014, formally moved to intervene pursuant to 25 U.S.C. § 1911(c).⁶ The juvenile court granted the motion to intervene, and the Community continued to be involved throughout the case.

¶ 4 On February 20, 2015, the juvenile court found A.D. dependent.⁷ Pursuant to DCS's request, the court ordered a case plan of severance and adoption, and on March 4, 2015, DCS moved for termination of the parent-child relationship. The Community received notice of the motion for termination. See 25 U.S.C. § 1912.

¶ 5 On March 18, 2015, the juvenile court terminated the parental rights of A.D.'s biological parents. At that time, the court found the foster parents were an adoptive placement meeting all of A.D.'s needs. The court also found the foster parents had demonstrated a willingness to honor A.D.'s cultural heritage, including by making arrangements to ensure her continued exposure to the Community's culture. The Community had not provided an alternative ICWA-compliant placement and agreed that good cause existed to deviate from the ICWA placement preferences.⁸ See 25 U.S.C. § 1915(a) - (b). DCS, as the legal guardian of A.D., was granted authority by the juvenile court to consent to her adoption. No objection or notice of appeal was filed challenging termination of the biological parents' parental rights.

¶ 6 On June 2, 2015, the foster parents moved to intervene under Rule 24, Ariz. R. Civ. P., and expressed a desire to adopt A.D. At a June 5 Report and Review hearing, the Community requested additional time to respond in writing to the motion to intervene, but failed to file a response, and the juvenile court granted the foster parents' motion to intervene. Soon thereafter, the foster parents filed a petition to adopt A.D., and although adoption hearings were scheduled, the juvenile court granted the Community's motion to stay the adoption proceedings.

II. The Motion to Transfer Jurisdiction

¶ 7 On August 18, 2015, the Community moved to transfer jurisdiction of the remaining proceedings to the Community's Children's Court pursuant to 25 U.S.C. § 1911(b).⁹ In its motion, the Community noted that the State of Arizona, through DCS, supported the motion, but the foster parents and A.D.'s guardian ad litem ("GAL") objected to the motion.¹⁰ The GAL filed a written objection to the motion to transfer on September 11, 2015, and, pursuant to the juvenile court's minute entry order issued after the September 29 Report and Review hearing, the foster parents filed a response to the motion to transfer on October 13, 2015.

¶ 8 On December 9, 2015, and January 5, 2016, the juvenile court heard testimony on whether good cause existed to deny the Community's motion to transfer jurisdiction.¹¹ See generally 25 U.S.C. § 1911(b). Both sides offered evidence regarding several factors, including whether the Community's Children's Court was a convenient forum, the degree to which A.D. had bonded with her foster family, and the possible effects of a potential change in placement for A.D., after which the juvenile court took the matter under advisement.

III. The Under Advisement Ruling

¶ 9 In a ruling filed January 29, 2016, the juvenile court denied the Community's motion to transfer jurisdiction after concluding the GAL and foster parents had established good cause to deny the motion by clear and convincing evidence. The court based its ruling in part on the possible harmful effects of a potential change in placement for A.D.

¶ 10 The Community filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 8–235(A) (2014) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.

ANALYSIS

¶ 11 Noting that the 2015 BIA Guidelines provide that a potential change in placement is not a ground for good cause to deny a motion to transfer,¹² the Community argues the juvenile court erred in finding good cause to deny its motion to transfer jurisdiction to the Community's Children's Court. We need not directly address this issue, however, or the numerous additional arguments raised by the parties¹³ and amici because we find one threshold issue dispositive:¹⁴ Does 25 U.S.C. § 1911(b) of ICWA allow transfer to tribal court of state preadoptive and adoptive placement proceedings occurring after parental rights have terminated? We answer that question in the negative.

I. Standard of Review

¶ 12 We review de novo the application and interpretation of the law, including statutes. Valerie M. v. Ariz. Dep't of Econ. Sec. , 219 Ariz. 331, 334, ¶ 10, 198 P.3d 1203, 1206 (2009) ; Michael J., Jr. v. Michael J., Sr. , 198 Ariz. 154, 156, ¶ 7, 7 P.3d 960, 962 (App. 2000). As a general rule, we look to the plain language of a statute because it is the best evidence of legislative intent. Zamora v. Reinstein , 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) ; In re Estate of Jung , 210 Ariz. 202, 204, ¶ 12, 109 P.3d 97, 99 (App. 2005) ; In re Adam P. , 201 Ariz. 289, 291, ¶ 12, 34 P.3d 398, 400 (App. 2001). Only if the plain meaning of the language is not clear do we consider other factors, such as the context of the statute, its historical background, its effects and consequences, and the spirit and purpose of the law. State v. Garza Rodriguez , 164 Ariz. 107, 112, 791 P.2d 633, 638 (1990) ; Estate of Jung , 210 Ariz. at 204, ¶ 12, 109 P.3d at 99. Also, when possible, we interpret statutory language in a way that gives meaning to each word and clause, and avoids making any part of a statute superfluous, contradictory, void, or insignificant. See Devenir Assocs. v. City of Phoenix , 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991) ; Garza Rodriguez , 164 Ariz. at 112, 791 P.2d at 638 ; State v. Johnson , 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App. 1992).

II. Discussion

¶ 13 For purposes of our discussion, we bear in mind that the progression of A.D.'s case has involved separate and distinct juvenile court proceedings, each with its own statutory requirements. DCS obtained temporary physical custody of A.D. in August 2014, see A.R.S. § 8–821 (Supp. 2015), placed A.D. in a licensed foster home for care, see A.R.S. § 8–514 (Supp. 2015), and filed a dependency petition, see A.R.S. § 8–841 (2014). After the court found A.D. dependent, DCS moved for termination of parental rights pursuant to A.R.S. § 8–533(B)(1), (3), and (8)(b) (Supp. 2015). The court then terminated the rights of the biological parents, placed A.D. in the legal care, custody, and control of DCS, affirmed the current placement (the foster parents) as an adoptive placement, and ordered DCS to carry out a plan for permanent placement. The foster parents later filed a petition to adopt A.D. See A.R.S. § 8–109 (2014).¹⁵ Only then did the Community seek to transfer jurisdiction from the juvenile court to the Community's Children's Court pursuant to 25 U.S.C. § 1911(b).

¶ 14 Subsection (b) of 25 U.S.C. § 1911 provides as follows:

(b) Transfer of proceedings; declination by tribal court

In 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.

¶ 15 As the plain...